GRANTED IN PART: December 19, 2019

GRANTED IN PART: December 19, 2019

CBCA 2953, 2954, 2955, 3596, 4175, 4377, 5006

SUFFOLK CONSTRUCTION COMPANY, INC.,

Appellant,

v.

GENERAL SERVICES ADMINISTRATION,

Respondent.

James R. Newland, Jr., and Anthony J. LaPlaca of Seyfarth Shaw, LLP, Washington,

DC, counsel for Appellant.

James F.H. Scott and Justin S. Hawkins, Office of General Counsel, General Services

Administration, Washington, DC; and Nancy E. O’Connell and Meaghan Q. LeClerc, Office

of Regional Counsel, General Services Administration, Boston, MA, counsel for

Respondent.

Before Board Judges SOMERS (Chair), DRUMMOND, and ZISCHKAU.

ZISCHKAU, Board Judge.

These consolidated appeals involve claims by appellant, Suffolk Construction

Company, Inc. (Suffolk), amounting to $22,766,290 plus interest and claims by respondent,

General Services Administration (GSA), of $3,196,437, arising from the renovation of the

John W. McCormack Building located in Boston, Massachusetts. After protracted discovery

and a lengthy hearing and briefing by the parties, these consolidated appeals are ready for

decision. We conclude that Suffolk is entitled to recover a net amount of $12,583,546 plus

interest pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012).

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Background

On September 25, 2006, Suffolk and GSA entered into contract no.

GS01P05BZC3010 (the contract) for the renovation of the McCormack Building, a twentytwo story “historic art deco structure” located in Boston, Massachusetts. This firm-fixedprice contract was awarded for $136,153,445, and notice to proceed was issued on October 6,

2006, with a completion date of April 16, 2009.

Under the contract, Suffolk was to renovate the building with an emphasis on

“environmental sustainability and historic preservation.” Suffolk and its subcontractors were

to perform the renovation work according to plans and specifications prepared by GSA and

its design team headed by the designer of record, Goody Clancy & Associates, Inc. (Goody),

with Cosentini Associates serving as the mechanical, electrical, and plumbing design

engineer, and Weidlinger Associates, Inc., retained as the structural design engineer. Goody

hired Tishman Construction Corporation of Massachusetts to serve as GSA’s construction

manager. Suffolk renovated the building’s existing entrances, lobbies, stairways, fixtures,

libraries, and courtrooms. Suffolk also abated hazardous materials, modernized elevator

systems, refurbished finishes, accommodated new tenant spaces, removed existing

mechanical and electrical systems, and installed new mechanical and electrical systems.

Suffolk was engaged to restore the post-office areas to their original condition and to

renovate the office space for new building tenants, including the Environmental Protection

Agency (EPA), the Department of Education, the U.S. Bankruptcy Courts, the U.S. Trustees,

and divisions of GSA, using Goody’s design documents. Given the building was constructed

in 1933, a large proportion of the interstitial spaces (those spaces above ceilings, between

walls, and in the building shafts and chases) were concealed, and thus portions of these

spaces were not fully and accurately detailed in the plans and specifications. Although GSA

argues now that the design was substantially complete, the record as a whole shows that

GSA, due to serious time constraints for obligating the funds for this project, had to obtain

bids on a design package that frequently did not adequately define the work within the

concealed spaces.

Progress of Construction

Suffolk began construction work in October 2006. From the start, there were many

unknown and concealed conditions, not addressed in the contract documents, that required

numerous design clarifications and changes. During 2007, GSA and Suffolk executed

contract modifications PS-02 ($387,702), PS-03 ($16,737), PS-04 ($1272), PS-05

($463,769), PS-06 ($64,276), PS-07 ($44,368), PS-08 ($38,000), PS-09 ($380,056), PS-10

($114,200), PS-13 ($671,664), and PS-15 ($728,440) for change order work amounting to

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almost $3 million. From February through November 2008, GSA and Suffolk executed

contract modifications PS-16 through PS-21, PS-24, PS-25, PS-27, PS-31, PS-34, PS-38,

and PS-40 for change order work amounting to over $4.5 million. There were other changes

to the contract during 2007 and 2008 for which GSA issued unilateral modifications (PC-12,

PC-14, PC-22, PC 26, PC-36, and PC-41) with not-to-exceed (NTE) amounts totaling almost

$2 million.

The most substantial of these changes, however, arose from the need to redesign the

system for supporting the mechanical systems pipes (multiple sizes up to sixteen inches in

diameter) that were running vertically in this twenty-two-story building whose shaft walls

were constructed mainly of terra cotta and brick. In early June 2007, Suffolk submitted a

pipe stress analysis regarding seismic, expansion, and vibration control for all pipe being

installed in the riser shafts 1-2-3, 4-5-6, CH-1, B, and C. Suffolk submitted a request for

information (RFI) 503 along with the analysis, requesting direction from the design team

regarding what actions should be taken given that the design depicted in the contract

drawings for the pipe guides, anchors, and joints were inadequate for the pipe stress loads

that would be exerted on the structure. The design team recognized that it needed to prepare

a new structural design for supporting the pipes in the shafts. This was a difficult and

complex effort and took many months to complete. On October 29, 2007, the design team

issued a partial response to RFI 503-01, attaching an initial seven new structural sketches

that reflected a significantly changed riser shaft support design. The design team’s response

stated that structural supports would be issued in a future supplement and that the structural

designer was designing support framing for riser supports at each of the shafts and that

support structures for the shafts would be designed and forwarded when available. More

design drawings and sketches were issued between November 2007 and February 2008.

In March 2008, Mr. Michael Santos, GSA’s contracting officer, advised the design

team that it was responsible for this pipe support redesign due to the design team’s failure

to evaluate (in its original design) the forces generated by these very large mechanical pipes

on the existing structure in the shafts. He noted that Suffolk was contending that the project

would be delayed 217 days and that the cost of this additional pipe riser support work would

include mitigating recognized time delays through overtime and second shift work with

additional contractor supervision.

GSA later described the problem as follows:

Early June 2007 it was discovered that sanitary riser bracing/seismic supports

were inadequate in riser chases. The project team reviewed, documented and

scheduled team meetings to resolve the issue. The A-E [architect-engineer]

prepared requested design documents changes from October 30, 2007 through

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February 15, 2008. RFP’s [requests for proposals] were provided the GC

[general contractor] for pricing. It took seven months from the date of

discovery until design was complete and an acceptable negotiated price could

be reached with the contractor and the work started. This unforeseen

condition in itself affected the critical path of the project schedule, as a result

subsequent work had to be rescheduled and worked around while the

corrections were made.

As a result of these riser shaft changes, Suffolk and NB Kenney, the mechanical

subcontractor, had to furnish and install additional structural steel in the shafts, additional

pipe guides and anchors, and flexible braided hose connections at increments of sixty feet

from each pipe anchor. These changes fundamentally altered NB Kenney’s planned work.

The design changes altered the layout of mechanical, electrical, and plumbing (MEP) access

openings up and down each shaft and required additional demolition and reconstruction,

disrupting branch piping operations. Other trades were also impacted, including the

electrical subcontractor, City Lights. The record also shows that piping originally planned

for the C1 shaft had to be moved into the already congested C2 shaft and that additional

staging had to be used in light of the re-design.

Suffolk submitted proposed change orders (PCOs) relating to the costs incurred for

the shaft redesign starting in early 2008. In March 2018, Suffolk submitted PCO 212B, PCO

212C, and PCO 212D, proposing costs of $498,323 for the pipe riser support system in shafts

1-3 and 4-6, $54,054 for steel supports in the C shaft, and $114,289 for added supervisory

costs by Suffolk in the shafts. Also submitted was PCO 155 for the B1 and C2 shaft seismic

braces, amounting to $77,868. The design team urged GSA to wait on negotiating these

change orders until all of the shaft-related proposals were received. In April 2018, Suffolk

submitted PCO 212E and PCO 212G, proposing costs of $236,632 for the B shaft work

including premium time and $570,641 for the C shaft work. GSA asked NB Kenney/Suffolk

to reduce their prices, and negotiations ensued among the parties. So as not to delay the

project while negotiations continued, work on the shafts began on a time and materials basis

and GSA represented that contract modifications would be issued to address the costs for the

shaft-related work. Some unilateral modifications were issued between March 2008 and

March 2009 to partially cover added shaft work in proposed PCOs (e.g., PC-22 ($117,121),

PC-26 ($54,504 for 212C), PC-36 ($163,137), and PC-46 ($294,289)), but many of the PCO

212 series were never addressed by GSA in modifications and were left to be resolved at the

end of the project.

NB Kenney was incurring significant costs from this shaft riser support work,

including overtime and premium time. In August 2008, Suffolk advised GSA that it and its

subcontractors had performed $2.7 million in additional work in the shafts, including

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premium time, which had not been paid, causing an adverse financial impact to the contractor

team. By early October 2008, the additional work exceeded $3 million.

In mid-October 2008, GSA presented Suffolk with a revised completion date of

May 29, 2009, that it needed the contractor team to achieve so that GSA’s tenants could be

moved into the building in the fall of 2009. This revised completion date was subsequently

incorporated into the revised schedule ACL8 and modification PS-37. The May 29, 2009,

revised completion date, only forty-three days beyond the original completion date of

April 12, 2009, meant that the contractor team would have to accelerate performance to

recover all of the critical path delays caused by the redesign of the shaft riser support system.

Suffolk had submitted a time impact analysis to GSA in May 2008 and GSA recognized that

NB Kenney had been incurring and would continue to incur overtime and premium time

costs in order to mitigate the critical path delays caused by the major design changes to the

shafts. GSA also recognized that these changes would require other members of the

contractor team, including follow-on trades, to incur overtime and premium time costs to

accelerate their performance in order to meet the May 29, 2009, revised completion date.

We find that, based on the record before us, GSA was responsible for a critical path

delay to the project from October 2007 through September 2008. Although the shaft

redesign was the primary and overriding delaying cause, there were numerous other changes,

including the redesigns to the ceiling spaces due to the deficient design coordination, together

with the additional demolition and abatement, that impacted the work of the contractor team,

particularly the mechanical and electrical trades. We do not agree with GSA that the

contractor team was responsible for critical path delays from deficient demolition work and

inadequacies in construction coordination and vertical transportation. We find that while the

Suffolk team had its share of demolition, coordination, and vertical transportation problems,

these never became critical delaying events to the overall project because the changes for

which GSA is responsible were the primary and overriding causes of delay. We find no

persuasive support in the record for GSA’s argument that the contractor team caused

concurrent critical path delay related to the shaft riser support redesign.

GSA and Suffolk continued their negotiations of the shaft PCOs into the fall of 2008

and Suffolk submitted various proposals with different completion dates and costs to meet

those dates. Based on agreements with its tenants, GSA wanted a bilateral modification that

would incorporate the revised completion date of May 29, 2009, and resolve all time and

time impact issues arising from the shaft redesign. Modification PS-37 became the

modification to resolve the schedule and time impacts to achieve the revised completion date,

while other modifications, such as PS-35, captured direct costs associated with some of the

most significant outstanding PCOs and definitized prior unilateral modifications.

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Although modification PS-37 was signed by the parties in April 2009, the parties

agreed on an effective date of December 23, 2008, for the modification, which is important

because time impacts and time impact costs prior to that date were agreed to be fully resolved

by PS-37, whereas any changes causing time impacts after December 23, 2008, were not

covered by PS-37. Line 0101 of the modification states: “Extend the project completion

date from April 16, 2009 to May 29, 2009, and resolve, settle, and close-out all time impacts,

and time impacts costs, associated with all work described in this contract modification pages

1 through 6.” The unit price was a lump sum of $1,840,461. Attachment A of the PS-37

identifies that the costs were comprised of (1) trade overtime, premium time, general

conditions, and overhead, profit, and commissions for fourteen named subcontractors,

totaling $1,129,546, (2) Suffolk general conditions of $671,914, and (3) insurance and bond

of $39,001. Attachment A-1 identifies for each subcontractor the overtime and premium

costs in one column and the general conditions costs in a second column. Attachment A-1

identifies for City Lights (electrical) trade overtime and premium costs of $177,314 and

general conditions costs of $76,000. The attachment identifies for NB Kenney trade

overtime and premium costs of $23,604 and general conditions costs of $91,500.

Paragraph A of the modification narrative states that the modification was issued to

provide full and final settlement and agreement between GSA and Suffolk to extend the

completion date by forty-three calendar days. Paragraph B states that the modification

resolves

all time impacts, and time impacts costs associated with the entire shafts and

mechanical risers issues . . . , demolition and steel support for piping in Shaft

C2, the steam station support issues, the stile and rail doors issues in the A and

B1 stairways, and all other time impacts issues, inefficiencies, re-sequencing,

and consequential effects caused by acceleration, recovery, RFIs, Bulletins,

Contract Modifications, RFPs, PCOs, Notices, AVOs [Avoid Verbal Orders],

Shop Drawings and Submittal Reviews from the beginning of the Contract

through the Effective Date of this Contract Modification which is December

23, 2008.

Paragraph E states that the modification finalizes and closes-out unilateral

modification PC-22 line item 0062 as to all costs, unilateral modification PC-26 line item

0069 (for PCOs 212C and 407) as to all costs, unilateral modification PC-36 for premium

time for shaft C2 labor, unilateral modification PC-12 for ceiling paint encapsulation,

unilateral modification PC-41 for courtroom ceilings 1 through 5 as related to time impacts

and time impact costs, and bilateral modification PS-35 for mechanical pipe riser supports

as related to time impacts and time impact costs. Paragraph F states that the contractor

“bears certain responsibilities with regard to the scope of revisions and delays associated with

the mechanical risers design and said work being an element” of Suffolk’s original scope of

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work. Paragraph I indicates that the building tenants and tenants’ contractors would be

moving into the building during the thirty-day punchlist period after May 29, 2009.

Paragraph M states that the contractor and its subcontractors release GSA

from any and all manner of claims for the Work described in this Contract

Modification (including claims for increases in the Contract Price and/or

Contract Time, acceleration, re-sequencing of work, inefficiencies, ripple

effects, impacts, cumulative impacts, lost productivity, disruption, interruption,

interference, escalation and extended field and home office overheads),

counterclaims, cross-claims, disputes . . . and liability of every kind . . .

against the Government for the work described in this Contract Modification

. . . from the beginning of the Contract up to and including the Effective Date

of this Contract Modification arising out of, resulting from or in any way

related, directly or indirectly, to delays to the Project as a result of delays from

the Work of the mechanical risers in all shafts . . . except to the limited extent

that future delays are caused directly and exclusively by a change to the Work

that may be requested by the Government after the Effective Date.

Paragraph M further states:

Notwithstanding the preceding and Contract Modifications PS-35, PC-36 and

PC-46, the Contractor has requested and the GSA has accepted that the

Contractor’s subcontractor, NB Kenney Co., may attempt to claim time

impacts due to the mechanical risers issues beyond those for which

compensation is provided for in Paragraph D and for which time extension to

the Project schedule is provided for in Paragraph A, all of which have been

provided for in this Contract Modification. Such claim, as any other claims,

must be certified . . . and shall be expressly conditioned upon receipt of a

substantiated Contract Compliant Time Impact Analysis (TIA) as required by

Contract Specification Section 01321. . . . Contractor agrees and acknowledges

that this is intended to be a GENERAL, TOTAL and COMPLETE RELEASE

OF THE Released Delay Claims as described herewith in this Contract

Modification, except as limited to and specifically noted above for NB Kenney

Co.

Paragraph N states that this modification’s references to settlement and release of the

contractor’s claims shall apply to all claims of the subcontractors of any tier “arising from,

or related to, any and all causes, events or circumstances as related to time impacts and time

impacts costs for the work described in this Contract Modification.” During the negotiation

phase of PS-37, Suffolk had requested GSA to indemnify Suffolk from lost productivity

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claims from NB Kenney and City Lights. GSA declined to provide a reservation of rights

for both subcontractors and instead agreed it would provide a reservation for only one of

them. NB Kenney was chosen.

We will address the effect of PS-37 and other modifications in our discussion of the

specific claims, but in general terms, PS-37 provided a revised completion date of May 29,

2009, and paid Suffolk and the subcontractors listed in Attachment A-1 for overtime and

premium time (to achieve the accelerated revised completion date), and general conditions

costs, with associated markups, for completing the project work by May 29, 2009, and

released GSA from liability for all delay and impact claims arising from GSA-caused

changes (most notably the riser piping support redesign) from the beginning of the contract

through December 23, 2008. Outstanding direct cost change orders not listed in the

modification as being resolved (see those listed in Paragraph E) and costs arising from

changes to the work after December 23, 2008, were not resolved by PS-37.

The contractor team as of December 2008 had mitigated substantial amounts of the

prior critical path delays through re-sequencing activities to run in parallel and through

overtime and second shift work by the trades. Thus, a completion date of May 29, 2009, was

certainly feasible given the contractor’s progress. Unfortunately, substantial GSA tenant

improvement changes were issued after December 23, 2008, that had direct and indirect

impacts on the remaining base contract work. Other changes to the base contract work

resulting from redesigns and unforeseen conditions continued to arise as well. Thus, while

the contractor team was continuing its accelerated performance of the base contract work as

changed through December 23, 2008, these significant new changes and the added extra

work also had to be performed in an accelerated fashion, at least until GSA realized that the

scope of the new changes would necessitate further extensions to the project completion date.

Meanwhile, GSA and Suffolk were continuing to finalize modifications of outstanding

PCOs, and where changes were disputed, the parties deferred resolution of these “issues in

controversy.”

Effective February 2, 2009, GSA and Suffolk entered into modification PS-43 in the

amount of $447,271 for work on behalf of the U.S. Bankruptcy Courts and the U.S. Marshals

Service under PCO 546B for IT/AV electrical infrastructure work. Effective February 6,

2009, GSA and Suffolk entered into modification PS-44 in the amount of $660,339 for

numerous specified PCOs, including EPA PCOs.

Effective February 9, 2009, GSA and Suffolk entered into modification PS-35 in the

amount of $726,295, for HB Kenney’s proposal for HVAC work for the riser shafts, but

excluding $348,724 for disputed reimbursement for work regarding the guides, platforms and

shoring, and premium time for shaft C2, as well as costs for demolition and restoration work

for access openings at shafts 1-3, 4-6, B, CH-1, and C2, and pipe support design fees, all of

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which were labeled as “issues in controversy” to be resolved later. PS-37 was signed after

PS-35 and refers to PS-35 as noted above in paragraphs E and M of PS-37.

Effective March 5, 2009, GSA and Suffolk entered into modification PS-45 in the

amount of $541,410 for numerous specified PCOs, including EPA PCOs. Effective

March 19, 2009, GSA and Suffolk entered into modification PS-48 in the amount of

$630,382 for numerous specified PCOs, including EPA PCOs. Effective May 22, 2009,

GSA and Suffolk entered into modification PS-49 in the amount of $441,697 for numerous

specified PCOs, including EPA and Department of Education PCOs.

Throughout the period of January through May 2009, additional changes were being

made to the project which had the effect of further delaying later scheduled work activities,

including finish trade work, testing, commissioning, and punchlist items, which ultimately

required the parties to agree on a new completion date. By May 29, 2009, the contractor

team had completed approximately 97% of the base contract work, including settled changes.

Effective May 29, 2009, GSA and Suffolk entered into modification PS-50, which extended

the contract completion date from May 29 to June 18, 2009. However, while processing this

modification, GSA knew that further significant changes to the contract work were

forthcoming.

Effective June 19, 2009, GSA and Suffolk entered into modification PS-52, which

extended the contract completion date from June 18 to August 21, 2009, and increased the

contract price by $1,389,786. The primary work (described in PCO 852A, RFP 166, and

bulletin 116) involved installing an uninterruptible power supply system for the EPA along

with an automatic transfer switch, heat pump, cable trays, and associated demolition and

restoration work, with the work to be completed by August 21, 2009. The modification

includes a release barring Suffolk from claiming additional time or costs related to the work

specified in the modification line item.

Effective June 23, 2009, GSA and Suffolk entered into modification PS-54 which

extended the contract completion date from August 21 to November 19, 2009. The

modification added $2,357,513 to the contract price. The work related to various EPA tenant

improvements as described in PCO 778 and associated demolition, restoration, and

reconstruction work. The modification states that it covers Suffolk’s and its subcontractors’

general conditions and provides a release “from any and all manner of claims for the Work

described in this Contract Modification (including claims for . . . acceleration, re-sequencing

of work, inefficiencies, . . .) . . . arising out of, resulting from or in any way related, directly

or indirectly, to delays to the Project as a result of the Work incorporated under this Contract

Modification.” NB Kenney’s reservation in PS-37 is preserved in PS-54’s release language.

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On July 1, 2009, GSA issued a temporary certificate of occupancy covering the entire

building effective July 6, 2009. In a letter of July 2, 2009, GSA stated that effective July 6,

2009, GSA considered the building’s base contract work to be substantially complete and

was granting the temporary certificate of occupancy for the building in order to facilitate

turn-over of spaces to building tenants and other federal agencies. GSA took control of

access and security of the building and authorized use of the building by GSA, the GSA

tenants such as EPA and the Bankruptcy Courts, and contractors, including the tenants’ own

contractors who would perform tenant improvement work in their tenant spaces in addition

to the work by the Suffolk team. In the letter, GSA indicates that the building management

system, building pressurization system, perimeter security system, elevator numbers 12 and

13, and portions of start-up, testing, and commissioning remain to be completed.

Effective July 8, 2009, GSA and Suffolk entered into modification PS-51 totaling

$294,901 for approximately thirty-five PCOs, including EPA PCOs. The modification

includes a release barring Suffolk from claiming additional time or costs related to the PCOs

specified in the modification line items. Effective September 25, 2009, GSA and Suffolk

entered into modification PS-53, increasing the contract price by $454,934 and involving a

number of PCOs relating to stair A, demolition RFIs, a first floor corridor, exterior signage,

windows, door operators, elevators, and shaftwalls. The modification includes a release

barring Suffolk from claiming additional time or costs related to the PCOs specified in the

modification line items.

Effective November 2, 2009, GSA and Suffolk entered into modification PS-57,

increasing the contract price by $789,105 and involving a large number of PCOs, including

PCOs for EPA, Department of Education, and the Courts. The modification includes a

release barring Suffolk from claiming additional time or costs related to the PCOs specified

in the modification line items. Effective November 19, 2009, GSA and Suffolk entered into

modification PS-60, which extended the contract completion date to January 31, 2010.

Effective November 20, 2009, GSA and Suffolk entered into modification PS-59, increasing

the contract price by $230,800 and resolving additional PCOs, including PCOs for GSA

tenants. The modification includes a release barring Suffolk from claiming additional time

or costs related to the PCOs specified in the modification line items. Effective January 1,

2010, GSA and Suffolk entered into modification PS-61, increasing the contract price by a

net amount of $67,453 (additions of $622,100 and reductions of $554,647) and resolving

additional PCOs. The modification includes a release barring Suffolk from claiming

additional time or costs related to the PCOs specified in the modification line items.

Effective March 11, 2010, GSA and Suffolk entered into modification PS-65, which

added a net amount of $859,295 to the contract price and extended the contract completion

date to March 31, 2010. The modification resolved a number of PCOs and includes a release

barring Suffolk from claiming additional time or costs related to the PCOs specified in the

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modification line items. Effective May 7, 2010, GSA and Suffolk entered into modification

PS-67, increasing the contract price by a net amount of $513,956 and resolving additional

PCOs, including tenant PCOs. The modification includes a release barring Suffolk from

claiming additional time or costs related to the PCOs specified in the modification line items.

Effective June 25, 2010, GSA and Suffolk entered into modification PS-68, increasing the

contract price by a net amount of $423,101 and resolving additional PCOs, including tenant

PCOs. The modification includes a release barring Suffolk from claiming additional time

or costs related to the PCOs specified in the modification line items.

Suffolk’s Appeals to the Board

Following the completion of the contract, Suffolk submitted a number of claims to

GSA’s contracting officer and appealed six of the final decisions to the Board.

On January 25, 2012, Suffolk submitted its first claim to the contracting officer. The

claim sought to recover $3,167,997 for general conditions from May 29, 2009, through

March 31, 2010. The contracting officer issued a final decision rejecting Suffolk’s claim in

full. Suffolk appealed the final decision to the Board, and the appeal was docketed as CBCA

2954 (general conditions claim). Suffolk currently seeks $2,265,986 for the general

conditions claim.

Suffolk submitted a second claim on April 23, 2012. This claim requested $1,050,957

for additional costs incurred by Suffolk on account of GSA’s directive to perform postcompletion remedial and reconstruction work on the building to repair damage caused by a

leak in the cistern system for the green roof. The contracting officer’s final decision denied

Suffolk’s claim, and Suffolk’s appeal to the Board was docketed as CBCA 2955 (cistern leak

claim). Suffolk currently seeks $994,614 for the cistern leak claim.

On May 31, 2012, Suffolk submitted a claim to the contracting officer requesting

$5,724,126 in additional compensation for Suffolk’s mechanical subcontractor, NB Kenney.

This claim was denied in full by the contracting officer. Suffolk appealed the final decision,

and the appeal was docketed as CBCA 2953. Suffolk subsequently submitted a revised

claim, reducing the amount it was seeking to $5,128,960. The contracting officer issued a

final decision rejecting the revised claim in full, and Suffolk’s appeal of the final decision

was docketed as CBCA 5006 (revised NB Kenney claim). Suffolk currently seeks

$3,757,151 for the revised NB Kenny claim.

On April 30, 2013, Suffolk submitted a claim for additional compensation of

$8,214,471 on behalf of its electrical subcontractor, City Lights Electric Company, Inc. The

contracting officer issued a final decision denying this claim, and Suffolk’s appeal of the

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final decision was docketed as CBCA 3596 (City Lights claim). Suffolk currently seeks

$7,260,058 for the City Lights claim.

Suffolk submitted claims on February 13, 2013 (first PCO claim), and May 7, 2014

(second PCO claim), seeking to recover $6,084,554 for disputed PCOs. The contracting

officer’s final decisions for the most part rejected Suffolk’s claims. Suffolk appealed the

final decisions, and ultimately they were docketed at the Board as CBCA 4175 and 4377 (the

first PCO claim was filed at the Court of Federal Claims and later transferred to us).

Discussion

PCO Claims

We address here both the first and second PCO claims. GSA revives in its posthearing brief various arguments it made in a 2016 motion to dismiss the first PCO claim

(CBCA 4377) on the basis that the Court of Federal Claims did not have the power to

transfer the claim to the Board pursuant to 41 U.S.C. § 7107(d). For the reasons discussed

in our decision of August 26, 2016, denying GSA’s motion, we see no basis to disturb our

prior conclusion that we properly exercise jurisdiction over the first PCO claim. See Suffolk

Construction Co. v. General Services Administration, CBCA 4377, 16-1 BCA ¶ 36,476. The

PCO claims are discussed below generally in numerical order.

PCO 13

Suffolk seeks an equitable adjustment of $64,158 for improvements to an electrical

vault (handling the building’s power distribution) installed for GSA’s utility company tenant,

which at the time operated under the name of Nstar Electric Company. Suffolk had proposed

the re-location of the NStar vault primarily for safety reasons as it allowed the contractor to

avoid working around live equipment during the transition from temporary power to

permanent power. The old vault would become the temporary power system for use during

construction and the new vault would become the permanent power location when

construction was completed. A new design was prepared for the new NStar vault and those

requirements were issued in bulletin 23. We find that the record shows that the parties

agreed that the costs for Suffolk to relocate the NStar vault would be borne by Suffolk and

if there were changes to the NStar vault that were required by NStar or GSA regardless of

the vault relocation, those costs would be borne by GSA. Suffolk claims that the following

changes were imposed regardless of the vault relocation and constituted additional work for

Suffolk beyond the original contract requirements: (1) engineering costs paid by Suffolk to

an independent engineering firm because GSA’s design team refused to review and approve

the new drawings for the NStar vault; (2) material and labor costs of trench drains added by

NStar; (3) material and labor costs for additional doors, frames, and hardware omitted from

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the original contract documents; (4) costs of encasing service conduits that were not part of

the original design; and (5) credits for masonry and fire protection for items deleted by NStar

in the bulletin 23 drawings.

GSA agrees that some additional items were required by NStar, but GSA does not

believe that all the items listed by Suffolk were NStar requirements. For example, GSA

states that the asphalt removal for work related to the bus duct support was not extra work

because the presence of asphalt was similar at both the old and new location. GSA also

claims that Suffolk saved significant construction costs by using the old vault for temporary

power. The record does show additions required by NStar to the original design, some of

which were motivated for safety reasons after the death of an NStar employee. We agree

with GSA that the Delphi Associates costs are not recoverable and some of the asphalt

related costs should be borne by Suffolk. Suffolk is entitled to $42,000 for improvements

to the electrical vault.

PCO 50A – Bulletin 20A: Revised Connection Details

Suffolk seeks $61,513 for additional wall demolition and reconstruction work

performed on floors 16 through 21 as a result of GSA’s change directives in bulletin 20A.

GSA’s design team issued bulletin 20 on February 27, 2007, which included new structural

sketches specifying structural connection details and openings for ductwork. A week later,

the design team issued bulletin 20A, which replaced sketch SSK-26 in order to provide clear

openings for related ductwork. Wall removal was not indicated in the original contract

drawings. GSA argues that this PCO duplicates costs and has the same scope as PCO 54 for

which GSA already provided compensation in bilateral modification PS-25. Suffolk replies

that PCO 54 related to a different area of the building and involved work depicted in sketches

SKA-061 and SKA-062 (bulletin 20B) and SKA 078088 (bulletin 22B), whereas bulletin

20A contains the relevant sketch SSK-26 relating to PCO 50A. Based on our review of the

sketches, we find that the PCOs involve the same areas (I/J and 3.3/4). Suffolk has not

adequately demonstrated that the work claimed here was in a different area. Therefore, we

deny the claim.

PCOs 52A and 52B

Suffolk seeks $207,681 for lead paint abatement performed at existing structural steel

encased within concrete throughout the building. GSA argues that in response to a bidder’s

question, bidders were told to assume that all surface coatings contain lead and to treat them

accordingly. But in response to another bidder’s question, asking GSA to clarify all locations

where lead paint exists which is currently concealed from view, GSA responded only that

“GSA, GCA [Goody Clancy] need to discuss this.” We conclude that no contractor could

have estimated how much paint might exist under the encased concrete so as to adequately

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bid the work, and that the abatement work was extra work for which GSA is liable. The

record adequately supports Suffolk’s claim in the adjusted amount of $208,575, reflecting

adjustments made by GSA’s consultants.1

PCO 59A – Bulletin 21 Northstar Costs

Suffolk seeks $22,987 for modifying and relocating sprinkler piping through a newly

added stair A partition to connect the sprinkler piping in the B and C wings. GSA’s design

team issued bulletin 21 on March 5, 2007, revising the structural detail for the west wall of

stair A, adding a partition to the west wall, adding gypsum ceiling to the floor landing on

levels 2 through 19, and adding a soffit and ceiling at the floor 20 landing. GSA issued RFP

24 on March 6, 2007, for the added work in bulletin 21. We find that the record shows that

the parties agreed to relocate the sprinkler piping behind the new partition so that it would

be concealed rather than have the piping cross straight over the stairwell. The claim is

granted in the adjusted amount of $23,301.

PCO 99A – Bulletin 38: Keyspan Bill

Suffolk seeks an equitable adjustment of $107,690 for increased costs of temporary

heating arising from directed changes in bulletin 38. Prior to the temporary heating changes

stated in the bulletin, Suffolk had increased a four-inch gas line to a six-inch line and had

paid the utility contractor, Keyspan, $89,000 for this work. GSA recognized the need to

increase the gas line size to six inches in the bulletin but did so after the work was already

completed by Keyspan. The need to change the gas line size was the result of an admitted

design deficiency by GSA’s design team. There is no reasonable dispute as to the amount.

We find that Suffolk did not waive its claim for this change and conclude that GSA is liable

for the adjusted amount of $109,163.

PCO 118A – Frame/GWB/Plaster

Suffolk claims $18,779 for framing and drywall work performed at stairs B and C on

floors 1 through 3. On February 1, 2007, GSA’s design team issued bulletin 14, directing

Suffolk to build a fire-rated partition around the ductwork in the area of stairs B and C.

Suffolk performed the work and was partially compensated in modification PS-27, but GSA

refused to pay these new shaftwall costs on the basis that the work was within the original

1

In the PCO claims, Suffolk’s claimed amount does not include certain Suffolk

markups for insurance and bond. GSA’s consultants calculated these markups on an

individual PCO basis and included those amounts in adjustments to the PCOs. Other

adjustments were made by Suffolk’s consultants, which were also incorporated into the GSA

consultant’s final adjusted amounts.

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contract scope of work. We have reviewed the record and agree with Suffolk that this work

was added work beyond the original scope. The claim is granted in the adjusted amount of

$19,036.

PCO 167A – Hydro-blasting in Subbasement

Suffolk seeks $3185 for Fleet Industrial Services’ demonstration using hydro-blasting

techniques for paint removal in the subbasement. Suffolk states that this demonstration was

directed by GSA, GCA, and Tishman. GSA states that it was proposed by Suffolk. PCO

167A appears to be identical with PCO 167, which was settled in PS-10. Accordingly, we

deny this claim.

PCO 177B – Brick and Mortar Reconciliation

Suffolk seeks $39,359 for unpaid costs of removing fractured or unsupported brick

and mortar discovered at exterior window heads and jambs in new window locations. The

existence of this brick and mortar was a concealed condition discovered by Suffolk upon

removal of existing plaster finishes at the head of the existing windows in August 2007 and

detailed in RFI 585. The design team issued bulletin 74 and included sketches detailing the

masonry removal to be performed by Suffolk. The parties agreed in PS-20 to an adjustment

of $47,286 for such work under PCO 177 through December 7, 2007. In response to PCO

177A for additional window locations addressed between December 7, 2007, and May 23,

2008, GSA stated that removal of the brick and mortar from window heads was

compensable, but removal of mortar from jambs and sills was considered base contract work.

PCO 177B collects the costs from the unpaid PCO 177A and all remaining removal work.

GSA’s current position is that the PCO has merit in the amount of $3433 for removal at the

window heads only. The basis for recovery in PS-20 applies here as well because the

unsound or unsupported brick and mortar were concealed conditions both at the window

heads and the window jams and sills, and thus this is compensable additional work. The

amount claimed is supported by the record and we grant the claim in the adjusted amount of

$39,676.

PCO 212 Series

Suffolk seeks an equitable adjustment under fourteen of the PCO 212 series arising

from the major redesign in the mechanical shafts of the building based on the notices given

in RFI 503 and its revisions and in RFP 84. The record demonstrates that GSA’s design team

agreed with Suffolk and NB Kenney that the existing shaft structures could not handle the

loads of the piping systems to be installed and that the costs for the contractor to build

according to GSA’s redesign was beyond the scope of the original contract. GSA has already

paid substantial sums to Suffolk through modifications on account of the changes caused by

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the re-design of the shafts. The PCO 212 series at issue here covers the Suffolk team’s

additional demolition, drywall, and hauling effort necessary to create new access openings

for connecting the vertical riser piping to the branch piping on each floor. We address

various general arguments raised by GSA challenging entitlement to all of the PCO 212

series.

First, GSA argues that Suffolk “misused” the RFI process and seemingly passed

through RFIs from subcontractors such as NB Kenney. This allegation is not supported in

the record, and testimony from GSA’s contracting personnel contradicts the allegation. Next,

GSA argues that Suffolk was responsible for the design of the support systems in the shafts.

This position is also unsupported by the record. GSA and its designer of record properly

accepted from the beginning that the shaft pipe support redesign was GSA’s responsibility,

not Suffolk’s. GSA made these findings in connection with modification PC-22:

Following receipt of the pipe support submittal, the Structural engineer

recognized that the dead and dynamic loads imparted on the existing structure

by the mechanical piping in the riser shafts exceeded the structural capacity of

the existing structure. The solution was a redesign of the pipe support system

as well as the addition of structural steel at several elevations in each of the 5

riser shafts (123, 456, C & CH-1 shafts). Since work was ongoing[,]

completed[,] or partially completed, the impact to installed work as well as

work in progress is significant and requires additional evaluation to determine

the final scope as well as the best methodology of installing the sizeable

structural beams required to support the imparted loads.

GSA paid for the costs of numerous changes associated with the redesign, found in

modifications such as PS-35 and PS-37 (time impact costs). The work and amounts in the

PCOs below are not covered by the work and amounts negotiated and settled in PS-35,

PS-37, or any other modification. GSA’s other general arguments have been considered but

have no merit. The changes discussed below remain in dispute.

(i) PCO 212P – Dumpsters

Suffolk claims $17,037 in unpaid costs of fifteen-yard dumpster rentals used to haul

debris from the additional demolition work necessitated by the shaft redesign changes. GSA

argues that this work was base contract work. The record shows that this was extra work and

the amount is reasonably supported in the record. The claim is granted in the adjusted

amount of $17,270.

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(ii) PCO 212X – Slab Separations in Shafts

Suffolk claims $2357 in unpaid costs for installation of slab deck in the 1-2-3 and 4-56 shafts on floor 10 to provide a safety barrier for workers in the confined space of the

vertical shafts. GSA argues that this work was base contract work. The record shows that

this was extra work and the amount is supported by the record. The claim is granted in the

adjusted amount of $2389.

(iii) PCO 212ZB – Demo in Shafts 1-6 Floors 9-20

Suffolk claims $51,967 in unpaid costs for time and materials demolition work in

shafts 1-2-3 and 4-5-6 on floors 9 through 20. The work was tracked on extra work tickets

created daily by the demolition subcontractor, and the tickets were separated by shaft at the

request of GSA and Tishman. The record shows that this was extra work and the amount is

supported by the record. The claim is granted in the adjusted amount of $52,678.

(iv) PCO 212ZC – Demo in Shafts 1-6 Below Floor 9

Suffolk claims $46,187 in unpaid costs for time and materials demolition work in

shafts 1-2-3 and 4-5-6 on floors 8 and below and floor 21. The work was tracked on extra

work tickets created daily by the demolition subcontractor, and the tickets were separated by

shaft at the request of GSA and Tishman. The record shows that this was extra work and the

amount is supported by the record. The claim is granted in the adjusted amount of $46,819.

(v) PCO 212ZD – Demo in B Shaft

Suffolk claims $14,639 in unpaid costs for time and materials demolition work in the

B shaft. The work was tracked on extra work tickets created on a daily basis by the

demolition subcontractor. The record shows that this was extra work and the amount is

supported by the record. The claim is granted in the adjusted amount of $14,839.

(vi) PCO 212ZE – Demo in C Shaft

Suffolk claims $95,798 in unpaid costs for time and materials demolition work in the

C shaft. The work was tracked on extra work tickets created on a daily basis by the

demolition subcontractor. The record shows that this was extra work and the amount is

supported by the record. The claim is granted in the adjusted amount of $97,108.

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(vii) PCO 212ZF – Demo in CH-1 Shaft

Suffolk claims $16,712 in unpaid costs for time and materials demolition work in the

CH-1 shaft on floors 2, 12, and 13. The work was tracked on extra work tickets created on

a daily basis by the demolition subcontractor. The record shows that this was extra work and

the amount is supported by the record. The claim is granted in the adjusted amount of

$16,941.

(viii) PCO 212ZG – Work in Shafts 1-6

Suffolk claims $465,128 in unpaid costs for time and materials work in the 1-2-3 and

4-5-6 shafts for lead paint abatement, masonry reconstruction, plaster patching, temporary

access, safety and protection, and routing and relocating select in-place MEP systems. The

largest components are for invoices from the subcontractors, Phoenix ($141,674) and Cape

Cod ($222,511). The work was tracked on extra work tickets created on a daily basis by the

superintendents’ foremen. The record shows that this was extra work and the amounts

claimed are supported by the record. The claim is granted in the adjusted amount of

$468,463.

(ix) PCO 212ZG.1 – Work in Shafts 1-6

Suffolk claims $15,330 in unpaid costs for time and materials shaft wall work behind

shafts 1-2-3 and 4-5-6, involving the addition of a shaft wall on 3 Mezzanine behind

elevators 1 through 6 by Component Assembly Systems. The work was tracked on extra

work tickets created on a daily basis by the superintendents’ foremen. The record shows that

this was extra work and the amount is supported by the record. The claim is granted in the

adjusted amount of $15,540.

(x) PCO 212ZH – Work in B Shaft

Suffolk claims $57,076 in unpaid costs for time and materials work in the B shaft for

lead paint abatement, masonry reconstruction, plaster patching, temporary access, safety and

protection, and routing and relocating select in-place MEP systems. The largest components

are for invoices from the subcontractors, Phoenix ($31,428) and Cape Cod ($12,344). The

work was tracked on extra work tickets created on a daily basis by the superintendents’

foremen. The record shows that this was extra work and the amounts claimed are supported

by the record. The claim is granted in the adjusted amount of $57,449.

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(xi) PCO 212ZH.1 – Work in B Shaft

Suffolk claims $2653 in unpaid costs for time and materials work for additional spray

fireproofing in the B shaft in support of reconstruction activities. The labor and material

amounts are detailed in invoices from Component Spray Fireproofing. The record shows that

this was extra work and the amounts claimed are supported by the record. The claim is

granted in the adjusted amount of $2689.

(xii) PCO 212ZI – Work in C Shaft

Suffolk claims $105,485 in unpaid costs for time and materials work in the C shaft

for lead paint abatement, masonry reconstruction, plaster patching, temporary access, safety

and protection, and routing and relocating select in-place MEP systems. The largest

components are for invoices from the subcontractors, Phoenix ($29,998), Cape Cod

($38,793), and Liberty ($22,802). The work was tracked on extra work tickets created on a

daily basis by the superintendents’ foremen. The record shows that this was extra work and

the amounts claimed are supported by the record. The claim is granted in the adjusted

amount of $104,487.

(xiii) PCO 212ZI.1 – Work in C Shaft

Suffolk claims $7962 in unpaid costs for time and materials work for additional spray

fireproofing in the C shaft in support of reconstruction activities. The labor and material

amounts are detailed in invoices from Component Spray Fireproofing. The record shows that

this was extra work and the amounts claimed are supported by the record. The claim is

granted in the adjusted amount of $8071.

(xiv) PCO 212ZJ – Work in CH-1 Shaft

Suffolk claims $35,176 in unpaid costs for time and materials work in the CH-1 shaft

for lead paint abatement, masonry reconstruction, plaster patching, temporary access, safety

and protection, and routing and relocating select in-place MEP systems. The largest

components are for invoices from the subcontractors, Component ($21,731) and Cape Cod

($5107). The work was tracked on extra work tickets created on a daily basis by the

superintendents’ foremen. The record shows that this was extra work and the amounts

claimed are supported by the record. The claim is granted in the adjusted amount of $35,657.

(xv) PCO 220L – Bulletin 63 Fire Protection

Suffolk claims $23,730 in unpaid costs for additional fire protection (sprinkler heads)

work at the EPA tenant spaces on floors 5 through 7, 15, and 16 pursuant to bulletin 63.

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Northstar Fire Protection was paid $21,573 for adding forty-two new sprinkler heads,

relocating twenty-four other sprinkler heads, and added coordination work. We find this

PCO supported by the record and grant it in the adjusted amount of $24,055.

The Coordination PCOs

The contract required Suffolk to demolish and replace the existing MEP systems

located in overhead ceiling spaces of the building according to the drawings and design

specifications provided by GSA. The GSA design team prepared the MEP drawings using

original building blueprints from the 1930s, photographs, and some as-build drawings

generated during renovations in the 1960s and 1990s. Because the building was occupied

during the design phase, the design team did not conduct any demolition to view and measure

the dimensions of the concealed areas above the ceilings, though some measurements were

taken on the mezzanine floors. The record shows that there were many dimensional

discrepancies in the drawings such that MEP systems could not fit in the actual ceiling/wall

spaces once a ceiling had been opened through demolition. Suffolk brought space and

coordination conflicts to the attention of GSA and its design team. There is significant

evidence that the design team frequently did not respond in a timely manner to Suffolk’s

RFIs and notices of conflicts. In the early phases of construction, GSA negotiated equitable

adjustments for coordination problems arising from defects in the design documents.

GSA argues that Suffolk and its subcontractors contributed to the problems by failing

to properly perform their own MEP coordination tasks. While Suffolk and its subcontractors

had missteps in their construction coordination efforts, we cannot find from the record any

instance where Suffolk coordination issues aggravated from a discernable cost standpoint the

coordination re-work necessitated by the major design coordination deficiencies in the

original design created by GSA’s design team. We have not found any situations of

Suffolk/subcontractor coordination deficiencies meriting the denial of the specific

subcontractor costs sought in the PCOs discussed below. In addition, except as noted in

specific PCOs where we have found a PCO was already included within a bilateral

modification, the PCOs below that we grant are not covered by any prior bilateral contract

modification.

(i) PCO 236 and PCO 236A – Floor 11 Coordination

Suffolk seeks $16,932 for extra coordination and installation of the MEP systems due

to design changes on floor 11 in PCO 236. The record adequately supports the basis for this

extra work and we see no coordination problems by Suffolk and its subcontractors relating

to this change. The claim is granted in the adjusted amount of $17,164. In PCO 236A,

Suffolk seeks $2025 for costs incurred by Component Assembly Systems for architectural

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changes required due to the floor 11 coordination. We find the record supports an equitable

adjustment and grant the claim in the adjusted amount of $2053.

(ii) PCO 237 and PCO 237A – Floor 10 Coordination

Suffolk seeks $26,021 in PCO 237 for additional coordination and installation of the

MEP systems due to design changes on floor 10. The record adequately supports the basis

for this extra work and we see no coordination problems by Suffolk and its subcontractors

relating to this change. The claim is granted in the adjusted amount of $26,198. In PCO

237A, Suffolk seeks $5656 for reconstruction costs incurred by Component Assembly

Systems, Cheviot, and Liberty for architectural changes required due to the floor 11

coordination. We find the record supports an equitable adjustment and grant the claim in the

adjusted amount of $5657.

(iii) PCO 240A – Robing Room HVAC

Suffolk seeks $3933 for costs to redesign the robing room HVAC pursuant to the

revised sketches from the design team. NB Kenney provided added duct and fittings to

accommodate the changed HVAC configuration. We find the record supports an equitable

adjustment and grant the claim in the adjusted amount of $3895.

(iv) PCO 366A – Floors 10 and 11 Soffit and MEP systems

Suffolk seeks $18,205 for costs associated with the additional demolition of existing

soffits and relocation of MEP systems due to design changes on floors 10 and 11. After

reviewing the record documentation, we find an equitable adjustment appropriate and grant

the claim in the adjusted amount of $18,281.

(v) PCO 386 and PCO 386A – Floor 9 Coordination

In PCO 386, Suffolk seeks $30,766 to cover additional costs and credits associated

with changes to the overhead mechanical systems, gypsum board soffit and acoustical

ceiling, and framing installation on floor 9 arising from the design team’s responses to RFI

609-02-S4 and RFI 609-02-S13, including sketches SKA-232, 233, and 234. Although, as

GSA notes, two documents in the PCO package have titles listing this work as relating to

floor 10, those are typographical errors, and the sketches and other documents in the package

show this work was for floor 9. We find the claim supported by the record and thus grant it

in the adjusted amount of $31,115. In PCO 386A, Suffolk seeks $2456 for reconstruction

costs incurred by Component Assembly Systems for architectural changes required due to

the floor 9 coordination. We find the record supports an equitable adjustment and grant the

claim in the adjusted amount of $2490.

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(vi) PCO 390 – Floor 8 Coordination

Suffolk seeks $1944 for additional coordination-related costs incurred by the MEP

trades and credit for deleted electrical work associated with changes to the overhead

mechanical systems, gypsum board soffits and acoustical ceilings, and framing installation

due to design changes on floor 8 arising out of RFI 609R1. We find that the revised ceiling

plan changes found in sketches SKA-247, 248, and 249 were the cause of the additional

work. We find the claim supported by the record and thus grant it in the adjusted amount of

$1916.

(vii) PCO 391 – Floor 7 Coordination

Suffolk identifies a credit of $18,985 for a deductive change arising from the ceiling

and wall revisions on floor 7 made by GSA’s design team in ceiling plan sketches SKA-241,

242, 243, 250, 251, and 252. The record supports GSA’s entitlement to a credit in the

adjusted amount of $19,317.

(viii) PCO 392 – Floor 6 Coordination

Suffolk identifies a credit of $7934 for a deductive change arising from the ceiling

revisions on floor 6 made by GSA’s design team in ceiling plan sketches SKA-241, 244, 245,

246, 271, and 272. The record supports GSA’s entitlement to a credit in the adjusted amount

of $8105.

(ix) PCO 396A – Floor Opening Reconciliation

Suffolk seeks $335,552 for additional labor costs incurred for changes to ductwork

layout and configuration in the RFI 416 series and a floor opening reconciliation. This extra

work has been referred to as the Worcester Air come-back costs because NB Kenney’s

ductwork subcontractor, Worcester Air Conditioning, had to make numerous return trips to

multiple locations on multiple floors to complete riser duct installations, as well as riser

connections to horizontal ducts previously installed, due to design deficiencies. The GSA

design team had to make changes in the size and location of floor penetrations to minimize

the structural compromising of the concrete ribbed floor members. The exercise was to

attempt to fit the ductwork between the concrete ribs, and if ribs were cut, then the design

team had to approve reinforcing detail for the floor sections. Although GSA attempts to cast

the problem as the Suffolk team’s failure to coordinate the trades and field verify conditions,

we do not agree. These were clearly design problems for which the design team was

responsible and the project and building integrity clearly benefitted from the extra effort

made to avoid wherever possible compromising the concrete floor structure and by

redesigning the duct floor penetration locations and duct sizes.

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Worcester Air documented additional hours it incurred in the come-back operations

for over 300 out-of sequence openings, captured in NB Kenney’s change orders 24

($199,284) and 44 ($103,046). The additional work incurred by Worcester Air is well

detailed in the record, including measuring the new openings, new ductwork drawings, hand

fabricating of the duct, remobilizing the duct installers, equipment and materials, and

installing the riser ductwork and connections to the previously installed horizontal ductwork.

We find the claim fully supported and grant it in the adjusted amount of $337,378.

(x) PCO 403

Suffolk seeks $3788 for PCO 403 relating to costs for building new partitions around

exposed supply ducts for two rooms on floor 14 arising from RFI 751. We find this request

supported by the record and accordingly grant it in the adjusted amount of $3795.

(xi) PCO 416 – Floor 4 Coordination

Suffolk seeks $27,082 for coordination of MEP trades due to design changes on floor

4 arising from RFI 609R1. Ceiling, soffit, and wall changes were made to accommodate the

overhead mechanical systems installation, as documented in sketches SKA-273, 273A, 274,

and 275, and SKM-079, 080, and 081. EM Duggan, Northstar Fire Protection, and City

Lights had to perform additional work to create new backgrounds, and to modify piping and

cabletray routing. The additional costs and credits are supported by the record and we

accordingly grant PCO 416 in the amount of $27,452.

(xii) PCO 416C – Floor 4 HVAC Coordination

Suffolk seeks $32,208 for additional work on floor 4 arising from RFI-609-02-S10

and RFI-702 relating to ceiling changes. The work involved added coordination effort for

the relocation of VAV-1 (variable air volume box) and reworking of related ductwork and

piping, relocation of seven ceiling diffusers, relocation of two sidewall diffusers, and

modifying ductwork and installing new sidewall supply grilles and associated ductwork.

This PCO covers the additional labor, equipment, and material for NB Kenney and Worcester

Air to perform additional coordination, install added piping and fittings, install added

ductwork, and provide additional insulation of piping and ductwork. The additional costs

are supported by the record and we accordingly grant PCO 416C in the adjusted amount of

$31,894.

(xiii) PCO 417A – Floor 3 Coordination

Suffolk seeks $10,294 for coordination costs for architectural changes due to design

changes on floor 3. The record shows $4388 in costs paid to Component Assembly, $4180

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paid to Cheviot, $790 paid to HW Ellis, and Suffolk’s markup on those costs. GSA neither

contests that there were design changes nor that these costs were incurred for coordination

revisions for those design changes. We find the added coordination costs for the

architectural changes on floor 3 supported and grant PCO 417A in the adjusted amount of

$10,435.

(xiv) PCO 418 and 418A – Floor 5 Coordination

For PCO 418, Suffolk seeks $15,095 for added coordination costs of the MEP trades

due to design changes on floor 5 arising from RFI 609R1 and RFI 722. Ceiling and wall

changes were made to accommodate the overhead mechanical systems installation, as

documented in sketches SKA-253 through 257. EM Duggan, Northstar Fire Protection, City

Lights, NB Kenney, and Worcester Air had to perform additional work to create new

backgrounds, and modify piping, ductwork, and cable tray routing. The additional labor and

material costs and credits are supported by the record and we accordingly grant PCO 418 in

the adjusted amount of $15,301. PCO 418A relates to costs of Worcester Air and NB

Kenney that are already included in PCO 418, so we deny PCO 418A.

(xv) PCO 476 and PCO 476A – Floor 2 Coordination

For PCO 476, Suffolk seeks $79,756 for additional coordination-related costs incurred

by City Lights and EM Duggan for electrical and plumbing labor and materials associated

with changes to the ceiling height on floor 2. City Lights has costs of $72,506 for added

cable tray, credits for deleted cable tray, installation of pull boxes, and labor for offsets into

the new custom-made deep junction boxes shown on drawing A-1-56. EM Duggan has costs

totaling $2286 for additional coordination costs for the floor 2 recoordination arising from

the floor 2 design changes in RFI 609R1. We find that the revised ceiling plan changes were

the cause of the additional work. The claim and associated costs are supported by the record

and we grant PCO 476 in the adjusted amount of $80,847. Suffolk seeks $2465 for PCO

476A for NB Kenney and Worcester Air HVAC costs totaling $2242 that arise out of the

same design changes and are collected in NB Kenny change order 065. We find the $2465

claim (which includes Suffolk markups) supported by the record and grant it.

(xvi) PCO 477 – Floor 1 Coordination

Suffolk seeks $19,181 for additional coordination-related costs incurred by City

Lights and EM Duggan for electrical and plumbing labor and materials associated with

changes to the ceiling height on floor 1 to provide adequate clearance to the DC-1 light

fixture in corridor R01C050 according to sketch SKA-270. City Lights has costs for added

coordination, cable tray and conduit, and credits for deleted cable tray. EM Duggan incurred

costs for additional coordination required for the floor 1 re-coordination. We find that the

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revised ceiling plan changes were the cause of the additional work. The claim and associated

costs are supported by the record and we grant the claim in the adjusted amount of $19,443.

(xvii) PCO 493 – Floor 15 Coordination

Suffolk seeks $1471 for additional coordination-related costs incurred by City Lights

for electrical labor associated with changes to the ceiling height and light fixtures on floor

15 according to sketch SKA-286. City Lights has costs for disconnecting and relocating the

newly deleted DC-1 and WC-1 light fixtures. We find that the revised ceiling plan changes

were the cause of the additional work. The deleted light fixtures were delivered to the site

prior to the design team changes and the fixtures were provided to GSA for its inventory.

The claim and associated costs are supported by the record and we grant the claim in the

adjusted amount of $1491.

(xviii) PCO 589A – Floor 13 HVAC

Suffolk seeks $6867 in additional labor and material costs for NB Kenney rerouting

piping to address conflicts with the duct chase on floor 13 arising from RFI 564 as shown on

sketches SKM-62 and SKM-63. Re-work included demolition of existing installed pipe and

insulation and installation of new piping for a VAV unit in the new location, re-insulation,

and testing. The record supports the claim and associated costs and we grant the claim in the

adjusted amount of $7269.

(xix) PCO 1002 – Floor 21 Coordination

Suffolk seeks $3422 for additional planning and re-layout work on floor 21 by

Worcester Air arising from RFI 159 and relating to the reconfigured duct layout according

to sketches SKM-11, 12, and 13 to avoid conflict with crane rails. The additional costs are

supported by the record and we accordingly grant PCO 1002 in the amount of $3440.

Other PCOs

PCO 255

Suffolk seeks $60,317 for additional costs of floor leveling in courtrooms 1 through

6 and the library. This change resulted from a condition that was admittedly a concealed

condition, raised marble borders that were not revealed until the old carpeting was removed

during demolition. The design team agreed that Suffolk would provide a sloping transition

in floor elevation from the marble borders to the concrete floor. The work was primarily

performed by a subcontractor, Merrimac Tile ($53,481); Suffolk had direct costs of $1230,

and the remainder was Suffolk’s markup. GSA argues that the work should be covered by

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a flash patching allowance set forth in Suffolk’s bid “Qualifications and Clarifications,”

which provides for 82,000 square feet of flash patching. Suffolk witnesses stated that the

flash patching allowance related to correcting minor imperfections in a floor where a worker

would use a trowel to fill in holes in a concrete floor. In this case, a subcontractor engineered

a six-foot perimeter slope from the raised marble border toward the center of the floor. GSA

also argues that Suffolk violated notice provisions by waiting months to submit the PCO to

GSA. We do not agree with GSA’s arguments, finding that the sloped floor leveling work

here was different from the work contemplated by the flash patching allowance and that the

PCO was submitted within a reasonable time. We grant PCO 255 in the adjusted amount of

$60,810.

PCO 281 – CH-1 Riser Locations

Suffolk seeks $8698 for additional costs for demolition and structural steel work

arising out of design conflicts between floor joists and CH-1 riser piping on floor 13

addressed in RFI 605. The demolition subcontractor, NASDI, was paid $6076 for the

demolition work and Ryan Iron was paid $1324 for the structural steel work. It appears that

GSA agreed to accept this PCO at a cost of $9000. In any event, we grant the request for

$8818, which includes adjustments made by Suffolk’s and GSA’s experts.

PCO 304 – Kitchen Openings and Access Panels

Suffolk seeks $8856 for additional costs of installing openings and access panels for

a kitchen exhaust system, arising out of RFI 634, which advised GSA that the contract

documents omitted access to the kitchen exhaust duct cleanout so that technicians and

maintenance personnel could work on the exhaust ductwork. The design team directed

Suffolk to install various access doors for the kitchen exhaust duct cleanout according to

three new sketches, SKA-201, SKA-202, and SKM-073. These changes involved work on

floors 4, 5, and 16. GSA issued RFP 87, requesting that Suffolk provide an itemized

proposal for the kitchen exhaust access. Suffolk engaged Phoenix Bay State to price the

additional work and install lintels, masonry infills, and masonry openings in three locations

as indicated on the sketches provided by the design team. The record supports entitlement

and quantum. Accordingly, we grant PCO 304 in the adjusted amount of $8977.

PCO 315A – Basement Spalling Concrete

Suffolk seeks $47,553 for additional costs of shoring in connection with repairs to the

deteriorated concrete slab in the garage floor level. GSA has paid Suffolk for the direct costs

relating to repairs to the spalling concrete except for shoring specified by the GSA design

team. The costs consist of $39,300 for engineering and slab shoring paid to Isaac Blair &

Co., plus Suffolk’s markup. GSA now claims that Suffolk was responsible for the damaged

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concrete by overloading the slab with construction equipment. We find that the record

supports Suffolk’s entitlement and the costs are not disputed. PCO 315A is granted in the

adjusted amount of $48,203.

PCO 321 – Ground Floor Duct Riser Change

Suffolk seeks $4546 for additional demolition and masonry work required to re-build

a two-hour fire rated wall located at column line K/7 on the ground floor which conflicted

with the proposed location of the vertical ductwork. The design team’s actions regarding

RFI 690R1 and the record as a whole supports entitlement. The costs of NASDI ($1511) and

Phoenix Bay State ($2622), plus Suffolk’s markup, are supported by the record. We grant

PCO 321 in the adjusted amount of $4608.

PCO 345 and 345A – CMU Wall in Subbasement

Suffolk seeks $5378 for PCO 345 and $8370 for PCO 345A for costs to rebuild two

concrete masonry unit (CMU) walls in the subbasement that were badly deteriorated, not

structurally sound, and posed a safety hazard to the workers. Suffolk does not seek

demolition costs for the walls but rather the costs of its subcontractor, Phoenix Bay State, for

rebuilding the two walls. We have reviewed the record and conclude that Suffolk is entitled

to recover $12,337.

PCO 373

Suffolk seeks $22,488 for the additional costs of removing existing thresholds and

installing new marble and aluminum thresholds in stairwells B and C, performed by

subcontractors Merimac Tile and Northeast Interior Supply. Although GSA argues that the

contract clearly indicated demolition of the doors and thresholds, we find the contractor’s

interpretation reasonable in that the contract did not require demolition and replacement of

the doors and thresholds at stairwells B and C. Suffolk’s PCO is granted in the adjusted

amount of $22,422.

PCO 399

Suffolk seeks $60,219 for added construction and engineering work related to a new

support system for an electrical collector bus located below a deteriorated ground floor

concrete slab near the NStar vault. Suffolk specifies the following breakdown, which totals

$68,100: (1) $2476 for forming, placing, and finishing fifty feet of concrete curbing; (2)

$23,985 in engineering and testing costs incurred by City Lights as a result of the concrete

conditions; (3) $27,964 in additional demolition work by NASDI to clear asphalt for the thrubolting in the garage slab; and (4) $13,675 for waterproofing. The record shows that the

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deteriorated slab was a differing site condition and that the re-design of the collector bus

support system was a valid change to the contract. GSA’s argument that Suffolk should bear

the cost of this change as part of the “no-cost” relocation of the NStar vault is not sound.

There is no persuasive evidence that this extra work was unnecessary. We sustain the claim

but remove most of the costs claimed for the asphalt clearing, and grant an amount of

$48,100.

PCO 408

Suffolk seeks an equitable adjustment of $47,662 for additional framing and drywall

performed around exposed terra cotta at the direction of GSA in its response to RFI 772 on

floors 5 through 10 and 12 through 15. The design team approved Suffolk’s proposal in its

RFI response dated February 15, 2008, instructing Suffolk to proceed with framing and

drywall on all floors between 5 and 15, except floor 11. GSA’s refusal to pay for this

additional work is without merit. For the ten floors at issue, Cape Cod’s costs were $13,126

and Component Assembly Services had costs of $18,933. Adding Suffolk’s direct costs of

$1640 plus markups, we grant PCO 408 in the amount of $37,743.

PCO 422

Suffolk seeks $1834 for installing masonry wall infills to reconstruct interior walls in

the historic areas of floors 9 and 16, due to the discovery of embedded door frames. Phoenix

Bay State incurred costs of $1667. The doors were “false doors” which were not represented

on the contract documents and had been abandoned and embedded into the corridor walls.

On February 8, 2008, Suffolk submitted RFI 691R1, informing GSA that on floor 16 there

was a historic door frame embedded in the corridor wall and the opening had been filled with

plaster in a past renovation. Drawing A-122 shows the corridor wall to be a historic partition

to remain in place. SCCI recommended removing the existing frame and plaster infill, and

rebuilding the corridor wall with CMU to receive a new plaster finish to match the existing

wall. The design team instructed Suffolk to do the following: “Apply either salvaged

historic door casing (painted to match other frames) to wall at original location (joint

between similar materials will be covered) or mill paint grade wood to match original profile

and size. . . . Do not replace door opening infill; repair wall surface as required due to any

damage having occurred during construction.” Suffolk discovered a similar condition on

floor 9 and submitted RFI 691R2. The design team replied that “infill should be retained and

repaired as required, at no cost to owner.” Suffolk seems to indicate that it followed its own

recommendations (demolished the GWB and replaced it with masonry infill), which is not

what the design team stated. We deny PCO 422.

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PCO 427

Suffolk seeks $6306 for the added costs of installing manual override switch push

buttons, suitable for handicapped use, on the building’s garage doors. The original contract

included a requirement to install manually-operated doors at the two new overhead vehicle

doors located at the garage. GSA issued bulletin 104, directing Suffolk to delete the doors

and “provide manual override switch push button doors, suitable for handicapped use, and

accompanying circuitry which will raise each of the doors to open position when depressed.”

GSA issued RFP 101, requesting a proposal for the changes to the exterior garage doors.

Suffolk submitted RFI 820 requesting the “necessary information for all required power and

conduit runs to operate the aforementioned equipment,” and later submitted RFI 820R1for

additional layout information. The record supports entitlement and quantum. We grant PCO

427 in the adjusted amount of $6392.

PCO 452

Suffolk seeks $6819 for added masonry costs associated with infilling masonry wall

openings for wall types that were not designated in the contract documents. Suffolk

submitted RFI 794, notifying GSA that the standard wall type 33A was inadequate to address

wall openings in historic corridors and stairways having terra cotta or plaster walls. Suffolk

submitted PCO 452, which detailed the costs of performing infill services for five openings

on the floor 15 for which there was no designation of wall type on the relevant drawings. We

find the record supports entitlement to recover the added costs of this work paid to Phoenix

Bay State, less a credit amount of $1298 for what it would have cost to infill a standard type

33A wall. Accordingly, we grant PCO 452 in the adjusted amount of $6912.

PCO 453

Suffolk seeks $6168 for additional masonry performed to re-construct a CMU wall

on the ground floor. We find that the record supports that the existing CMU wall on the

ground floor conflicted with the specified demolition for new ductwork and that Suffolk and

its subcontractors are entitled to be reimbursed for the work to demolish and rebuild portions

of the wall. Accordingly, we grant PCO 453 in the adjusted amount of $6252.

PCO 475

Suffolk seeks $1146 for providing masonry wall infill at door 11-029, arising out of

RFI 809 where Suffolk advised GSA that on AD-116, door 11-029 is shown as “frame and

transom to remain.” However, the existing frame in place was a non-historic frame without

a transom. Suffolk asked whether this non-historic frame should be replaced with a historictype frame. The design team, referencing drawing A-784, replied: “This work is in contract;

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this door gets filled in, and the wall restored.” Suffolk engaged Phoenix to furnish and install

concrete masonry unit infill at door #11-029. Phoenix explained that “[drawing] A784 does

not have a wall type indicated. This infill was not designated as masonry, but type 33A per

detail 6 on A100.” We agree that this was extra work by Phoenix and grant PCO 475 in the

adjusted amount of $1162.

PCO 487B and 487B.1 – MEP Access and Reconstruction

Suffolk seeks $386,874 for additional cutting and patching services in the courtroom,

library, and corridor ceilings on floors 12, 13, and 15. PCO 487B replaces PCO 199.

Contract drawings A-786 through A-792 provided specific locations and quantities of access

openings through which Suffolk could install new overhead MEP systems in these historic

areas. During construction coordination, Suffolk discovered that the number and size of

MEP openings specified by GSA’s design team in the contract drawings were insufficient

to accommodate the ductwork, piping, and electrical conduit in the areas above ceilings.

Suffolk raised this issue during several coordination meetings, during which it requested

authorization to do additional cutting and patching necessary to accommodate the work. The

design team approved the additional cutting and patching submittals. GSA argues that the

specifications required Suffolk to cut and patch all necessary access openings beyond those

shown in the contract drawings. We agree with Suffolk that it was reasonable for a bidder

to bid the number of access openings based on the openings indicated in the drawings. The

record supports the additional costs of NASDI ($62,927), Phoenix Bay State ($44,529), Cape

Cod Plastering ($204,160), Suffolk’s direct costs ($29,719), and markup; and the direct costs

of PCO 487B.1 ($7433) and associated markup. Accordingly, we grant these PCOs in the

adjusted amount of $384,059.

PCO 487C.1 – Courtroom Resupport Reconciliation

Suffolk seeks $55,653 for added work associated with repairs of the existing plaster

support framing. The existing courtroom plaster ceilings were supported from the concrete

floor joists located about three feet above the elevation of the finished courtroom plaster

ceilings. The prior existing ceilings were primarily vertically connected to the concrete floor

joists above by using heavy gauge ceiling/tie wires that spanned the distance between the

ceilings and the supports above. The tie wires were looped around black iron secondary

horizontal framing support bars that were the skeleton framework for the continuous metal

lath substrate and three layers of plaster, including scratch coat, brown coat, and finish coat.

When the existing ceilings were removed, Suffolk discovered that the primary and secondary

plaster ceiling support framing had been modified, cut, and in some cases completely

removed, presumably during prior renovations of the building over the years. Suffolk

submitted RFI 815 highlighting the various problems in the areas above ceilings in

courtrooms 1 through 5 and the library. The design team ultimately issued bulletin 119,

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which provided for the repair of the plaster ceiling suspension system in courtrooms 1

through 5 as indicated in sketches SKA-311 through SKA-314. GSA acknowledged that the

re-support work to be performed at the ceilings was an addition to Suffolk’s base scope of

work. Suffolk tracked the actual costs of additional ceiling support work primarily incurred

by Cape Cod. GSA issued unilateral contract modification PC-41, providing Suffolk an

adjustment of $22,277 for resupport and clean-up services. From late December 2008

through late April 2009, Cape Cod performed the re-support work. We find the costs

claimed in PCO 487C.1 to be properly associated with the extra re-support work, not base

contract work, and grant the claim in the adjusted amount of $55,641.

PCO 487D.1 – Courtroom Glue Daub Reconciliation

Suffolk seeks $87,536 for additional plaster repairs caused by the need to remove glue

daub adhesive embedded on the plaster as though it were an asbestos-containing material

(ACM). In courtrooms 1 through 5, Suffolk discovered that the glue daubs were embedded

deeply into plaster ceiling tiles. ATC, GSA’s third-party industrial hygienist, directed Fleet

(Suffolk’s abatement subcontractor) to gouge and chip out the adhesive material embedded

within the layers of plaster, resulting in “craters” in the ceiling plaster which required

additional repair work by Cape Cod. Suffolk notified GSA that the extra work resulting from

a change to its planned means and methods warranted an equitable adjustment. The record

shows that GSA knew of the method required by ATC for Fleet to remediate the tiles and this

method was reasonable in light of this previously unknown condition. We find the costs

incurred by Cape Cod totaling $75,880 in filling in the scalloped areas of the plaster from

February through the end of April 2009 to be fully supported by the record, and grant PCO

487D.1 in the adjusted amount of $87,826.

PCO 520

Suffolk seeks $229,675 ($215,274 for the direct costs paid to NB Kenney, plus

Suffolk’s markup) to insulate indoor condenser water piping in the basement and

subbasement levels. In preparing its subcontract bid, NB Kenney interpreted the contract

specifications and drawings as not requiring it to insulate the indoor condenser water (CW)

piping in the basement and sub-basement levels. The insulation schedule for interior piping

is located at specification 15083-17, section 3.14. This section identifies twelve different

types of interior piping that require insulation, including: domestic hot and recirculated hot

water; domestic chilled drinking water and cold water; rainwater conductors (horizontal

only); roof drain bodies; condensate drain piping from cooling equipment; exposed sanitary

drains and domestic water supplies and stops for fixtures for the disabled; chilled-water

(CHW) supply and return; heating water supply and return; steam (16 psi and above); steam

(15 psi and below) and steam condensate; hot service vents; and diesel-or-natural-gas-fueled

engine exhaust. The indoor insulation schedule did not require insulation for indoor

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condenser water lines. The contract drawings depict the piping at issue as condenser water

piping lines. Condenser water piping is used to transport water that is “used as a medium to

transfer unwanted heat from a refrigerant or chemical cycle to a disposal point.” Chilled

water piping, however, is a piping “medium to cool between a remote refrigerant or chemical

cycle and the air conditioner.” As is common industry practice, condenser water was denoted

in the contract drawings with a “CW” notation, while chilled water was denoted with a

“CHW” notation. As shown in the cooling plant flow diagram, drawing MP 6 07, the

basement water lines were condenser water lines. GSA denied PCO 520 on the grounds that

these condenser water lines had the capability of operating in “free cooling” mode, and thus

were effectively a part of the chilled water system during the occasions when the piping was

operating in “free cooling” mode. We conclude that NB Kenney’s interpretation was a

reasonable interpretation of the contract documents. The design team could have removed

any ambiguity by clearly indicating in the contract documents that these condenser water

pipes were to be insulated but failed to do so. We grant PCO 520 in the adjusted amount of

$229,491.

PCO 522

Suffolk seeks $20,999 for the costs of furnishing and installing aluminum angles to

fill gaps between new window frames and the existing structure. This change arose due to

a discrepancy between existing wall finishes and the dimensions of windows in historic

areas. Suffolk submitted the additional fabrication, painting, field measuring, and installation

costs in PCO 522. On April 18, 2008, Suffolk submitted RFI 879, memorializing a conflict

between four windows on the ground floor and existing marble side post jambs and sills

where these windows were installed. The design team advised Suffolk to submit plans to

install an aluminum L-shaped profile to fill the gaps at each of the locations in question.

Suffolk ordered, measured, and installed the window profiles. We reject GSA’s arguments

that it had no notice of the change and that this was base contract work. The contract does

not indicate trim and closures for the four windows at issue here, but rather that the existing

wall finishes were to remain in place. We grant PCO 522 in the adjusted amount of $21,131.

PCO 528

Suffolk seeks $17,214 for the costs of demolition of existing crossbeam pipe supports

in shafts 4, 5, and 6 from the basement to floor 15 that conflicted with mechanical systems

to be installed in the shafts. We conclude that this work was included in the base contract

work and therefore deny PCO 528.

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PCO 609 – GSA FPE Field Report 08-14-2008

Suffolk seeks $42,987 for installing additional fire alarm devices on various floors.

On January 8, 2009, the design team issued bulletin 153, detailing several additional fire

alarm devices (strobes and speakers) to be installed on floors 9, 11, 12, 15, 16, 17, and 20.

At the time bulletin 153 was issued, City Lights was working in other areas of the building.

City Lights proposed to install the added fire alarm strobes and visual devices at a price of

$39,079.04, which included work performed using overtime rates so that it could complete

all of its contract work by the then-current completion date of April 16, 2009. GSA only

objects to the portion of the costs for overtime rates. We find that the record supports City

Lights’ use of overtime to achieve timely completion. Accordingly, we grant PCO 609 in

the adjusted amount of $43,575.

PCO 617 – Stairwell Pressurization

Suffolk seeks $11,737 for additional demolition and masonry wall reconstruction that

was necessary to provide stairwell pressurization. Suffolk submitted RFI 200 and revisions

for clarification of locations and quantities of mechanical openings in stairwells A and B on

various floors due to conflicts that were encountered in the stairwells. Stairwell

pressurization is necessary because stairs are the primary means of escaping a building during

a fire; stairwells are therefore required to be designed with higher pressure than the rest of

the building in order to create a barrier which helps to control smoke movement in the case

of an emergency. In response to the RFI 200 series, the design team issued sketches which

revised the location and sizes of the openings and grills which tied into the plenum and stair

pressurization duct. Suffolk’s demolition subcontractor, NASDI, performed demolition to

create wall openings and Phoenix Bay State reconstructed the masonry walls to allow

installation of new HVAC registers and grills. We have reviewed the record and find the

work beyond the original contract scope, and also find that the costs are supported by the

record. Accordingly, we grant PCO 617 in the adjusted amount of $11,809.

PCO 651 – Slab Infills in Garage

Suffolk seeks $298 for the added costs of elevator operators used to perform concrete

infill in the concrete floor slabs at the ground level. Suffolk submitted an RFI advising GSA

that, upon demolition of existing walls in surveillance rooms on the ground floor, Suffolk

discovered three locations where there were floor slab depressions of approximately four to

five inches. The design team directed Suffolk to infill “these depressed areas . . . so that they

are level with the adjacent floor slab.” The design team designated its response as an

“addition to contract.” The contracting officer rejected PCO 651 on the grounds that the

work fell within the scope of Suffolk’s allowance for “floor patching.” We agree with

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Suffolk that the depressed floor slabs were a concealed condition and not covered by the

floor patching allowance. Accordingly, we grant PCO 651 in the adjusted amount of $236.

PCO 663 – Bulletin 141 Security Desk Changes

Suffolk seeks $66,177 for the costs of installing a security screen wall in the security

desk area, and other security upgrades, done in response to bulletin 141 and RFP 151. The

design team issued bulletin 141 which, among other things, included new sketches relocating

an x-ray machine, magnometer, turnstiles, floor boxes, and other equipment at the security

desk. Bulletin 141 also modified the requirements for bullet-resistant steel windows in

specification section 08515. In PCO 663, Suffolk identifies subcontractor/supplier costs for

Tower Glass, City Lights, Taunion Forms, DePaoli Mosaic, Component Assembly Systems,

and Liberty. We have reviewed the record and find the claim fully supported. Accordingly,

we grant PCO 663 in the adjusted amount of $66,415.

PCO 684 – Demo Doors SG1-002A & C

Suffolk seeks $2853 for added costs of demolishing two exterior doors on the ground

floor which were not originally designated to be demolished in the demolition drawings.

GSA instructed Suffolk to demolish and remove two entry doors at the Congress Street

entrance. We have reviewed the drawings and agree that it was a reasonable interpretation

by the contractor that these two doors were not to be demolished. Accordingly, we grant

PCO 684 in the adjusted amount of $2869.

PCO 693 – Door Frame Issues

Suffolk seeks $70,249 for added demolition and framing costs arising from changes

that GSA made to the location, layout, frames, hardware, and materials used to construct the

interior doors on a number of floors. Suffolk issued RFI 593 and a series of revisions

(593R1 through 593R11) noting certain discrepancies between the drawings and the existing

doors on floors 10 through 16. The design team responded with changes including installing

new door frames, replacing marble thresholds, installing new door hardware, demolishing

transoms, resizing doors, and reversing door swing direction. We have reviewed the record

and find the costs for the subcontractors, including Liberty (demolition), to be supported and

reasonable in amount. We grant PCO 693 in the adjusted amount of $67,280.

PCO 702 – Ground Floor HVAC Conflict

Suffolk seeks $7214 for the costs of revising and re-routing ductwork on the ground

floor that conflicted with a fire door motor. PCO 702 arises from RFI 1048, which informed

GSA that the ground floor fire door motor and associated housing at the base of stair C

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conflicted with the HVAC corridor riser and 10x10 supply duct specified in the same area.

GSA issued RFP 153, requesting an itemized proposal from Suffolk for revising and

reworking some of the duct. NB Kenney performed the additional duct work. We grant PCO

702 in the adjusted amount of $7244.

PCO 717 – Premium Time for Scaffolding Removal

Suffolk seeks $7084 for the premium time differential cost for removing overhead

protection scaffolding during a weekend pursuant to a city directive that removal of exterior

scaffolding take place on weekends for safety reasons. Although GSA argues that Suffolk

was required to comply with local regulations and ordinances, there is no evidence in the

record that any such written regulation or ordinance required this work to be performed on

weekends. The record suggests that the weekend work resulted from a city directive given

during project performance which could not have been anticipated by bidders. Based on our

review of the record, we grant the claim in the amount of $6304.

PCO 725A – Floor 3 Stair C Vestibule

Suffolk seeks $1698 for City Lights’ wiring and installing an owner-provided light

fixture in vestibule S03-017 on floor 3 in January 2009 which was not required by the

contract. We find an amount of $672 for PCO 725A to be reasonable based on the record.

PCO 730 and 730A – Bulletin 151 Transfer Ducts

Suffolk seeks $191,645, consisting of $71,896 for PCO 730 and $119,749 for PCO

730A, for added demolition, masonry, drywall, and mechanical costs necessitated by changes

regarding transfer ducts, grilles, and smoke dampers required by the applicable code. On

November 26, 2008, the design team issued bulletin 151, increasing the requirements for

transfer ducts, grilles, and dampers throughout the building based on a series of attached

sketches. GSA’s project manager recognized that these sketches were introducing significant

changes to the contract documents. On December 11, 2008, GSA issued RFP 156, seeking

itemized pricing for bulletin 151. On December 18, 2008, the design team issued bulletin

151-S1, which provided supplemental information regarding the size and location of

openings. Notwithstanding GSA’s argument that Suffolk failed to coordinate its

subcontractors’ work, we find that GSA made changes to the work. After reviewing the

record, we grant PCO 730 in the amount of $64,000 and PCO 730A in the amount of

$84,000.

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PCO 742 – Stairs A, B, and C Deteriorated Plaster

Suffolk seeks $23,277 for additional plaster patching and masonry wall demolition

and reconstruction work in stairwells A, B, and C. The extra work was required after Suffolk

discovered that plaster in stairwells A, B, and C on various floors was significantly

deteriorated and unsupported. Suffolk engaged Cape Cod Plastering to perform the

necessary repair work, based on a proposal of December 15, 2008, in the amount of $15,707.

The record is not clear whether Tishman had notice of the need for the repair work prior to

its being performed by Suffolk and Cape Cod, presumably between December 15, 2008, and

January 9, 2009. On January 9, 2009, Suffolk submitted PCO 742, seeking an equitable

adjustment for the costs incurred. GSA denied PCO 742, claiming that Suffolk failed to

provide it with adequate notice of the deteriorated conditions, that GSA needed more

information on the cause of the deteriorated plaster, and that GSA needed confirmation that

the claimed plaster repairs did not overlap with base contract plaster patching also required

in the stairwells. We reject GSA’s allegations and find that based on the record part of Cape

Cod’s direct costs are recoverable, and with Suffolk’s markup, we grant PCO 742 in the

amount of $12,000.

PCO 754A – Light/Soffit Conflicts

Suffolk seeks $12,080 in electrical labor and materials arising out of changes to light

fixtures on floors 5 through 9 as identified in RFI 1114 and RFI 1078R3. We have reviewed

the record and conclude that these were primarily design changes, not contractor coordination

problems, except we reduce the amount of the adjustment to $9500 as some of the re-work

may have been avoided if Suffolk had sought earlier direction from the design team for the

design conflicts. We grant PCO 754A in the amount of $9500.

PCO 759 – Floor 3 Kitchen Duct Insulation

Suffolk seeks $1909 for installing fire-wrap insulation on duct above the ceiling on

floor 3 after it had been enclosed with drywall. Although Suffolk argues that the design team

initially told Suffolk that a two-hour fire wrap insulation of the ductwork was not needed in

response to RFI 561, actually the design team simply advised Suffolk that a two-hour rated

“enclosure” was not needed and the specification cited by Suffolk in the RFI was for an

enclosure, not for fire wrap insulation, which is governed by another specification section

that required the two-hour fire wrap insulation. We deny this PCO.

PCO 773 – Bulletin 147: Half Walls in Courtrooms

Suffolk seeks $17,367 for the costs of additional steel framing performed in

Bankruptcy courtrooms 1, 2, and 3. On January 20, 2009, the design team issued bulletin

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147, including structural sketch SSK-145, which governed the structural steel for the

half-walls in courtrooms 1, 2, and 3. Based on our review of the record, we agree with

Suffolk that bulletin 147 and the structural sketch required this added steel framing work.

We grant PCO 773 in the adjusted amount of $17,516.

PCO 777 – Hardware Power-EP Drawing

Suffolk seeks $4406 for the additional costs of providing card reader conduit and

rough-ins which were omitted from the contract documents. On January 21, 2009, Suffolk

submitted RFI 1103R1, noting that there were six doors on floors 1 through 3 for which the

drawings did not show a requirement for card readers. We have reviewed the drawing and

specification and find that this was extra work. We grant PCO 777 in the adjusted amount

of $4466.

PCO 781 – FCC/Smoke Control Panel

Suffolk seeks $41,792 to procure and install new sail switches and additional smoke

control panels. On January 22, 2009, Suffolk submitted RFI 1126, which sought clarification

of several issues related to the new fire command center and smoke control panels designed

by Goody. The response to the RFI added the switches and required Suffolk to provide

additional smoke control panels. We have reviewed GSA’s objections to premium time on

JM#493, entitlement on JM#492, and elevator costs. We find all of the work was beyond the

base scope, but we reduce some of the premium time. We grant PCO 781 in the amount of

$38,000.

PCO 783 – PCR Three-way Valve

Suffolk seeks $4426 for furnishing and installing temperature sensors and associated

power and controls to modulate the three-way valves for the domestic water heater discharge,

which were not required by the contract. On January 26, 2009, Suffolk submitted RFI 1131,

advising the design team that the drawings omitted pertinent information for a three-way

valve located within the domestic hot water system. On February 3, 2009, the design team

issued a response identifying various requirements and a new sketch SKM-118. City

Lights’s costs totaled $3815 and NB Kenney’s costs totaled $16,215. All of these costs are

supported by the record. Only City Lights’ costs and Suffolk’s markup are included in the

amount requested by Suffolk under PCO 783. We grant PCO 783 in the adjusted amount of

$4466.

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PCO 784 – HP-3 in SG1-030

Suffolk seeks $2215 for upgrading the size of the heat pump located in room

SG1-030. PCO 784 arises out of a design omission. On January 22, 2009, Suffolk submitted

RFI 1127, informing GSA that there was a design conflict, namely that the mechanical and

electrical drawings showed the heat pump in this area as a type HP-1, whereas the duct

drawings referred to a type HP-3. Suffolk explained that the contract documents did not

include the proper piping, equipment, or electrical services to support an HP-3 type pump.

On February 3, 2009, the design team agreed. Suffolk performed the work and requested its

costs of $2215, but GSA refused to pay for electrical premium time. We grant PCO 784 in

the adjusted amount of $2245.

PCO 787 – Floor Infill in R01-027

Suffolk seeks $351 for the added costs of concrete flooring infill in room R01-027.

PCO 787 is attributable to a concealed condition whereby, upon demolition, the existing floor

slab in this room was found to require added concrete infill. The design team directed

Suffolk to infill the floors as indicated in sketches provided by Goody. GSA rejected PCO

787 as being within the scope of the allowance for “floor patching.” Based on the record,

we agree that this was not floor patching and grant the PCO in the amount of $351.

PCO 794 – Shaft at 4/B on Floors 2-3

Suffolk seeks $6568 for additional framing and drywall labor arising out of GSA’s

change directive in RFI 1099. On December 12, 2008, Suffolk submitted RFI 1099, which

documented design conflicts in the electrical shaft on floors 2 and 3. To alleviate these

conflicts, Suffolk proposed to relocate certain doors in the area. The design team later

approved the proposal. Suffolk submitted PCO 794 for added cost associated with reworking

walls to accommodate the existing electrical shaft. Component Assembly Systems had costs

totaling $5700. We find entitlement and quantum supported by the record and grant PCO

794 in the adjusted amount of $6591.

PCO 797 – Lights at Toilet Room (FL 4-11)

Suffolk seeks $47,674 for installing alternate light fixtures in bathrooms on floors 4

through 11. On March 30, 2007, in response to Suffolk’s inquiries regarding the location and

length of fixtures in the toilet rooms, the design team issued bulletin 022b, with attached

sketches SKA 078-088 and SKA-081, regarding the addition, location, and sizes of various

fixtures. Suffolk noted additional conflicts with the newly specified light fixtures which

resulted in further discussions. Ultimately the design team issued bulletin 173 on June 5,

2009, to resolve the conflicts. Based on our review of the correspondence, bulletins, and

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sketches, we find this change supported by the record and grant PCO 797 in the adjusted

amount of $48,189.

PCO 805 – Bulletin 160: Courtroom 4 Judge’s Bench Infill

Suffolk seeks $10,481 for furnishing and installing walnut wood paneling and a stone

base at the judge’s bench in historic courtroom 4. On December 12, 2006, Suffolk submitted

RFI 110, advising GSA that the contract documents did not provide elevations for

courtroom 4. On December 26, 2006, Suffolk submitted RFI 110R2 requesting direction on

what to do with the judge’s bench. The design team directed Suffolk to relocate the

courtroom 4 judge’s bench to courtroom 2. On June 4, 2007, Suffolk submitted another RFI

requesting further direction on the removal of the judge’s bench. On February 24, 2009, the

design team issued bulletin 160 further directing Suffolk as follows: “At the west wall of

courtroom four, provide a new wood in-fill base below the existing Judge’s wall millwork

to cover the void left by the contractor’s demolition of courtroom four’s Judge’s bench.” On

March 16, 2009, Suffolk notified GSA that the additional millwork and marble work was the

result of a concealed condition. Suffolk performed the work on April 6, 2009, and submitted

PCO 805 for the costs associated with the added wood plinth block, the fabrication of wood

paneling, and the fabrication and installation of the marble base in the location where the

judge’s bench was removed. Based on our review of the record, we grant PCO 805 in the

adjusted amount of $10,398.

PCO 807A – Bulletin 152 Ratings at S02C001

Suffolk seeks $7763 for the cost of glazing doors on floor 2, to achieve a

ninety-minute fire rating that was inadequately designed by Goody in the design phase. On

February 9, 2009, Goody issued bulletin 152 to modify door frames, door hardware, and wall

construction at the door frames required to meet the fire resistive rating for certain door

locations. On March 3, 2009, GSA issued RFP 160 which, among other things, requested

itemized pricing for bulletin 152. Due to the changes issued in bulletin 152, Suffolk’s

glazing subcontractor, Tower Glass, was required to provide additional glazing services for

four historic doors and ten rated doors in the building. Suffolk submitted these costs to GSA

in PCO 807A, which also included credits for full glass doors that were deleted from the

contract. We find the amounts incurred by Tower Glass supported by the record and thus we

grant PCO 807A in the adjusted amount of $7869.

PCO 849 – Fin Tube/Outlet Conflicts

Suffolk seeks $30,461 for modifying electrical outlets to avoid conflicts with the fin

tube radiation covers. On April 8, 2009, Suffolk notified GSA that there was a conflict

between the locations for the fin tube radiation heaters and the electrical outlets on floors 1

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through 3. The design team agreed that baseboard heaters should be lowered, but GSA

refused to acknowledge the design conflict. Suffolk advised GSA that it would be

“submitting a proposal for all of the related costs to lower the cover, including the costs

associated with revising the fin-tube piping, via 45 degree offsets, so as to align with the

lowered cover.” On April 14, 2009, Suffolk reiterated that the drawings displayed the

baseboard fin tube covers in conflict with the height of the electrical receptacles. GSA

refused to provide the requested direction for resolving the conflict, claiming that it was a

contractor coordination problem. On April 27, 2009, City Lights moved the previously

installed electrical receptacles and telephone/data boxes in fifty-seven locations by roughly

6 1/2” to resolve this design conflict. On July 27, 2009, Suffolk submitted PCO 849 for the

costs associated with relocating the electrical outlets and telecom/data boxes, and repairing

and painting locations where the outlets and boxes were originally installed. The record

shows that this work arose from a design conflict, not a contractor coordination conflict. We

grant PCO 849 in the adjusted amount of $30,879.

PCO 852C – Bulletin 116: UPS - EPA Tenant Improvements

Suffolk seeks $2943 for the unpaid costs of floor power distribution cabling necessary

to accommodate the installation of the EPA’s UPS system. On April 9, 2009, GSA issued

RFP 166, requesting itemized pricing for the equipment and labor costs associated with

installing the new UPS system for EPA. RFP 166 sought pricing based on the design team’s

plans and drawings for the UPS change, as set forth in bulletin 116. On April 24, 2009,

Suffolk submitted its original proposal to procure the UPS equipment only (excluding labor),

at a price of $198,237. Modification PS-49 provided Suffolk with an equitable adjustment

of $198,237 for the UPS equipment. On May 28, 2009, City Lights discovered that its

proposal omitted $2675 for power distribution cabling necessary to run the new UPS system.

We have reviewed the record and agree that it is reasonable for the contractor to receive

compensation for the costs of power cabling inadvertently omitted from its proposal. We

grant PCO 852C in the amount of $2675.

PCO 854 – Elevator Fuse Requirements

Suffolk seeks $5706 for furnishing and installing modified fuses for the building’s

elevators, including $2870 for fuse materials and electrical labor of $1393. When installing

the electrical requirements for the elevators, Suffolk discovered that the contractually

specified fuses and electrical power were insufficient to properly run the elevators. Drawing

E-5-02 included an equipment legend for the elevators. In 2009, the elevator subcontractor,

Kone, advised that due to the size of the elevator cars, motors, and equipment specified on

the drawings, the electrical requirements associated with the elevators would need to be

upgraded. Kone provided Suffolk with a report with its suggested approach for the power

requirements. City Lights procured and installed twenty-seven 600V 90A fuses, three 600V

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60A fuses, six 600V 80A fuses, twenty-seven 100-200A fuse reducers, and three 60-200A

fuse reducers. We have reviewed the record and conclude that the material and work at issue

here was performed due to a design omission, not a contractor coordination issue. We grant

PCO 854 in the adjusted amount of $5784.

PCO 858 – Ellison Door and Trim Changes

Suffolk seeks $9703 for upgrades made by the design team to the finish and trim of

the Ellison doors located at the entrances of the building. In April 2009, the design team

provided comments on the contractor’s shop drawings for Ellison doors and associated trim,

which changed and upgraded the original door hardware to a fully concealed assembly and

included larger door pull handles than specified by the contract. The design team also

directed Suffolk to upgrade the contractually specified door finish to the “finest grain

available to reduce collection of contaminants.” Suffolk’s door and trim subcontractor,

Tower Glass, prepared a proposal in the amount $8821 for these upgrades which were

incorporated with markups in PCO 858 submitted on April 17, 2009. Based on our review

of the record, Suffolk is entitled to an adjusted amount of $9836.

PCO 864 – GSA Temporary Office

Suffolk seeks $7517 for the costs of installing temporary telecommunications and data

in GSA’s third-floor office space, which was relocated from another floor per GSA’s request.

GSA provided Suffolk with a floor plan layout and directed Suffolk to install

telecommunications and data in the new office as indicated. Suffolk engaged City Lights and

its subcontractor, Intelligent Systems & Controls Contractors (iSYS), to perform such work

as running cable from the basement, wiring, testing telecom/data locations, and relocating

and reinstalling network and telephone equipment from GSA’s other office. On May 28,

2009, Suffolk submitted PCO 864 for the added costs of performing the work, containing

City Lights’ costs of $6834 which includes iSYS costs of $5617. We agree with Suffolk that

specification section 01500 did not provide GSA a right under the contract to have Suffolk

move GSA offices cost-free. Accordingly, we grant PCO 864 in the adjusted amount of

$7620.

PCO 873E – Cleaning/Repairs for GSA

Suffolk seeks $56,403 for repairs, hauling, and clean-up services that were necessary

to address damages caused by GSA’s tenant contractors who moved into the building on

July 1, 2009. At the direction of GSA, Suffolk performed a significant amount of cleaning

of debris and repair of some damage to Suffolk’s work caused by third-party contractors

hired by GSA’s building tenants. Suffolk tracked the additional cleaning and repair work in

signed time-and-materials tickets submitted with the PCO 873 series. GSA agreed to pay

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Suffolk for any additional clean-up or repair work performed by Suffolk attributable to tenant

vendors. GSA paid Suffolk for the added costs in modification PS-68, described in a price

negotiation memorandum as follows: “PCO 873-Cleaning & Damage by GSA Tenant: This

change is at the request of Agency/Tenant EPA. This change compensates [Suffolk] for

work performed as a result of other work performed under a concurrent contract within the

building, in an effort to achieve Certificate of Occupancy, and which had adversely affected

[Suffolk’s] previously installed work in several locations. Because of this other work,

[Suffolk] had to perform additional cleaning and repair some damage.” Suffolk submitted

PCOs 873A through 873D between September 24, 2009, and January 5, 2010. On May 27,

2010, Suffolk submitted PCO 873E, which reconciled the remaining unpaid costs. In his

final decision, the contracting officer rejected PCO 873E on the grounds that: “GSA believes

that the majority of this work was performed to repair or final clean elements of the work for

which SCCI and its subcontractors are responsible.” The contracting officer acknowledged

that Suffolk was due at least $28,920, which GSA would only pay in exchange for “full and

final settlement of this PCO.” GSA offers no persuasive evidence that Suffolk’s contract

required it to perform these additional clean-up and repair activities. We find that the

time-and-material tickets submitted with PCO 873E support Suffolk’s entitlement to the

adjusted amount of $56,967.

PCO 874 and 874A – Move GSA Office to Floor 3

Suffolk seeks $19,093 for PCOs 874 and 874A arising out of GSA’s May 2009

directive to relocate GSA’s office space from floor 1 to floor 3. Suffolk hired a moving

company (Spry Movers) and employed an elevator operator (Kone Elevator) to relocate

GSA’s office, including furniture, files, and equipment. Suffolk also claims $10,137 for

customizing the relocated office space, which included constructing temporary walls in the

space and demolishing and cleaning the office space on the first floor. GSA directed Suffolk

to build out GSA’s temporary office on the third floor, which included framing walls,

installing insulation and drywall, and relocating doors from the first floor. Suffolk had to

demolish the office on the first floor to accomplish this work. Suffolk engaged Liberty and

Component to perform the demolition and construction work, respectively. All of the

subcontractors tracked their costs. On May 29, 2009, Suffolk submitted PCO 874, which

included the costs for Spry Movers, Kone Elevator, Liberty, and Component. GSA directed

Suffolk to remove Liberty and Component’s costs from PCO 874. On June 14, 2010, Suffolk

resubmitted PCO 874 with only Spry and Kone’s costs and then submitted PCO 874A as a

separate PCO with Liberty and Component’s costs. GSA denied both PCOs. As stated

earlier for PCO 864, this move was extra work. We grant these PCOs in the adjusted amount

of $19,080.

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PCO 877 – Elliptical Food Guard

Suffolk seeks $18,135 for the costs of adding an elliptical food guard in the third-floor

cafeteria. The food service specifications (section 11400-74) states that the food guard “is

not included in the scope of work for section 11400” and “is shown on the drawing for

informational purposes only and generally represents the size/capacity of unit to be specified

by other design team members and provided by others.” There is a reference to division 8,

for glass and glazing, which also does not specify the food shield for the contract. We

conclude that Suffolk reasonably interpreted the language of the specification as indicating

that the food guard would be provided by others and that the drawings were for informational

purposes only. We grant PCO 877 in the adjusted amount of $18,383.

PCO 887 – Replate Bathroom Hardware

Suffolk is no longer pursuing this claim for $3862.

PCO 896 – Ground Floor Plaster

Suffolk seeks $97,087 for plaster wall repairs performed in certain tenant areas on the

ground floor in rooms RG1-001 through RG1-012. Drawings A-813 and A-100 depicted

existing walls, floors, ceilings, doors, and structural columns located on the street level of

the building, segregated by tenant area and shell area. The specifications included schedules

for the finishes applicable to all floors, walls, trim, and ceilings in these areas. Although

Suffolk argues that the contract documents did not specify a finish schedule for these rooms,

we agree with GSA that solicitation amendment 3 provided that all existing plaster walls

noted to remain and those walls that were exposed to view in the finish construction should

be patched to match surrounding construction with similar materials. We deny PCO 896.

PCO 898 – Mounting Details for BF-1

Suffolk seeks $5500 for changes to the mounting details and requirements for the

BF-1 light fixtures located at the ground floor lobby. On May 11, 2009, the design team

issued architectural field report 117, and later issued a new mounting sketch detail for the

BF-1 light fixtures at the ground floor lobby, showing an aluminum bar arm for mounting

on top of the light fixture and 2” x 4” continuous aluminum rectangular tubing at the base.

GSA responded that it considered the mounting detail part of the base contract scope of

work. We agree with GSA that the contract provided for “custom mounting arms,” but we

also agree with Suffolk that the design team’s new mounting detail entitles Suffolk to an

adjustment for its added costs of the aluminum tubing at the base and the fabricating and

finishing of the wood base for the BF-1 light fixtures at the ground floor. We grant PCO 898

in the adjusted amount of $5177.

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PCO 900 – Unforeseen Elevator Patching

Suffolk seeks $17,546 for added costs of placing masonry infill in areas within

concealed elevator hoistways. Suffolk states that it noticed the wall penetrations during

elevator inspections. Elevator shafts by code are required to achieve a two-hour fire rating

in order to pass inspection. The costs claimed consist of five Phoenix Bay State Construction

invoices for infilling the wall penetrations and one invoice from Kone for elevator operations

in connection with the work, totaling $15,951, and Suffolk’s markup of $1595 on the

subcontractor work. GSA’s contracting officer granted the claim in part, offering $9396 for

the Phoenix invoices and Suffolk’s markup, but not for the Kone invoice. Based on our

review of the record, we find that Suffolk is entitled to an adjusted amount of $17,786.

PCO 908 – Wire Flow and Tamper

Suffolk claims $14,014 for the added costs to City Lights and its subcontractor for

installing monitor and signal modules and associated programming/testing, and wiring for

the tamper switches for three sprinkler system valves, at the B-2 level at column lines E/11.5

and N/11.5, and at the B-1 level at column line J/4. In response to the RFI, the design team

stated that the valves were shown on F-102 (B-1 level), but the three valves noted are not at

column line J/4 and do not reference the B-2 level valves. Later, GSA referenced drawing

F-501 in support of its contention that the contract required this work. However, based on

our review of the record, we could not find any indication of the valves identified in RFI

1176. We conclude that this electrical work was not reasonably depicted in the contract

documents and thus grant the claim in the adjusted amount of $14,206.

PCO 911 – Signs at Elevator Pit Doors

Suffolk seeks $334 for purchasing and installing signage at the elevator pit access and

machine room doors. GSA cites specification 14210. We have reviewed the specification

provisions and conclude that the signage was included in the contract. We deny PCO 911.

PCO 915 – Domestic Hot Water Pump Wiring

Suffolk seeks $1970 for additional costs of wiring and start-up work related to

domestic hot water circulating pumps that were not disclosed in the contract drawings.

Suffolk states that a review of electrical drawing EP-103 indicates four hot water circulating

pumps were documented on the drawing, but in fact there were eight pumps in the building.

These pumps are necessary for a functioning hot water system. K&H Electrical performed

the wiring and start-up work for the additional four pumps not shown in the contract

documents. We find the record supports this claim and we grant PCO 915 in the adjusted

amount of $1997.

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PCO 927 – Additional Scope at Courtroom 3 Mural

Suffolk seeks $3228 for work required as part of the restoration of a historic mural

in courtroom 3 that was covered by wood paneling. On May 22, 2009, Suffolk notified GSA

that it was prepared to “remove the non-historic paneling covering the mural on the east wall

in Courtroom 3” pursuant to GSA’s requirement that GSA be present to witness the removal.

On May 27, 2009, Suffolk removed the paneling with GSA personnel present. Upon

removing the paneling, Suffolk discovered that there was plastic and tape covering the mural,

held on by strapping which was nailed and glued to the perimeter of the mural. Suffolk

advised that in order to complete its plaster/painting work on the walls surrounding the

mural, the plastic covering, wood strips, and nails would need to be removed, which GSA

directed on June 3, 2009. Suffolk performed the removal work. On June 12, 2009, GSA

directed Suffolk to remove glue residue and fill nail holes that had held the strapping, and

to prime and paint up to nine inches from the top and sides of the historic frame and five

inches from the bottom. We have reviewed the record and conclude that Suffolk is entitled

to recover the adjusted amount of $3179 for its additional work.

PCO 930 – Dry Compressors on Levels M1 and M3

Suffolk seeks $8218 for the added costs of installing power to the air compressors for

the fire sprinkler system on level M3 of the building. On June 1, 2009, Suffolk submitted

RFI 1179, advising GSA that dry pipe sprinkler air compressors on levels M1 and M3 did

not include circuits and requesting information on how the compressors should be powered.

On June 4, 2009, the design team directed Suffolk to connect the M3 dry pipe sprinkler air

compressors to certain circuits. City Lights priced the work and installed conduit, wire, and

manual switch disconnects for the dry compressors. We conclude that this was extra work

and accordingly grant PCO 930 in the adjusted amount of $8330.

PCO 933 – Concrete Beam Repair in Garage

Suffolk seeks $6246 for repairing loose and spalling concrete encased beams in the

building’s garage, raised in RFI 1184, in 2009. GSA claims that Suffolk damaged overhead

concrete beams in the garage level during its construction operations and directed Suffolk

to remove loose and spalling concrete and then protect all exposed structural steel and

reinforcement with new fire proofing material. Suffolk proceeded with the extra fire

proofing work, tracked its costs, and submitted PCO 933. Suffolk argues that the loose and

spalling concrete was a systemic issue throughout the building, and was likely due to the

building’s age and lack of consistent maintenance. We agree with Suffolk’s assessment for

the cause of the loose and spalling concrete conditions. Suffolk’s costs are supported.

Accordingly, we grant PCO 933 in the adjustment of $6331.

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PCO 936 – Elevator Relief Dampers

Suffolk seeks $2841 for modifying the elevator relief dampers to open upon activation

of the elevator machine room smoke detector. On June 10, 2009, GSA directed Suffolk to

modify the control of the elevator relief dampers to open only upon the activation of the

smoke detector in the elevator machine room. Upon receiving this direction, Suffolk notified

NB Kenney and City Lights to proceed with this work on a time-and-materials basis so as to

not delay the testing being completed in these areas. Suffolk’s subcontractors complied with

GSA’s request under protest, but notified Suffolk that there would be added costs for

programming, controls, and rewiring to achieve GSA’s desired result. Specification

15930.1.4 provides that the dampers are to open “upon smoke being detected in an elevator

machine room.” Thus, this work was required under the contract. We deny PCO 936.

PCO 937 – Power Requirements for Courtroom

Suffolk seeks $16,102 for the costs of additional electrical power requirements to the

Bankruptcy courtroom spaces on floors 10 through 12. This work was described by GSA’s

tenant, the Bankruptcy Court, in a memorandum dated May 26, 2009, and directed verbally

as urgent and critical work through the tenant and GSA’s construction manager (Tishman).

We find that, through its actions, GSA ratified this verbal change to the contract by accepting

the benefit of this work and cannot now refuse to pay for it. We grant PCO 937 in the

amount of $16,165.

PCO 939 – Level 3 Mezzanine Hot Water Circulating Pump

Suffolk seeks $11,696 for installing electrical power to a hot water circulating pump

on the level 3 mezzanine. On May 9, 2009, Suffolk submitted RFI 1175 requesting electrical

requirements and controls for this pump on drawing P-108. The corresponding electrical

drawing, EP-108, does not reflect the electrical layout or controls for this pump. The design

team replied to RFI 1175, directing Suffolk to extend a circuit from a local receptacle and

wire it through a manual starter to the pump. We have reviewed the contract documents,

including the specifications, and conclude that most of this was extra work for which Suffolk

and K&H Electrical should be compensated. K&H’s work included installing conduit,

fittings, wiring, and other associated materials. We grant PCO 939 in the amount of $10,200.

PCO 943 – Terrazzo Infill at Milk Street

Suffolk seeks $3099 for removing terrazzo infill at the vestibule located on the first

floor. The demolition drawings required Suffolk to remove an existing vestibule at the top

of stair G on the first floor. Upon removing the vestibule, there was a large void in the

existing terrazzo floor. Suffolk examined the void and discovered that the terrazzo was

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poured-in-place around the vestibule instead of the vestibule sitting on top of the terrazzo.

The design team directed Suffolk to provide a sample and infill the area. A mockup was

completed and approved, and Suffolk submitted PCO 943 for the “selective demolition,

associated clean-up, installation of missing divider strip, and infilling area with matching

terrazzo.” Suffolk’s subcontractor, DePaoli, patched and matched existing terrazzo in

vestibule S01C001 where the wall was removed, and installed sand, cement, brass, and strips.

We find this work to be caused by a concealed condition that only became apparent upon

removal of the vestibule. We grant PCO 943 in the adjusted amount of $3113.

PCO 945 – Life Safety Emergency Generator Testing

Suffolk seeks $5445 for the costs of diagnosing and modifying an undersized breaker

that was specified by GSA for a panel servicing one of the generators. On June 17, 2009,

GSA, Suffolk, and GSA’s consultants conducted a life safety generator test to ensure that the

generators would power the building in the event of an emergency. During the test, a breaker

serving the automatic transfer switch controlling the generator tripped, causing a loss of

power to the elevators. GSA directed Suffolk to review and diagnose the system problem,

and on June 18, 2009, GSA directed Suffolk to replace the undersized 400A breaker with an

800A breaker in the panel. City Lights performed the work, which included hiring United

Power Group to provide power quality meter recordings and document the test results. We

grant PCO 945 in the adjusted amount of $5519.

PCO 946 – Historic Door Reconciliation

Suffolk seeks $40,210 to reconcile the added costs of GSA’s directive to move

historic doors and add doors in certain areas. Suffolk captured the additional costs of

fabricating and installing new doors in PCO 946. During several surveys of the existing

doors in 2009, there were locations where there was a replacement door where drawings

showed a historic door. Due to this conflict with the drawings and actual conditions, there

was a shortage of salvaged historic doors needed to complete the project as designed,

requiring new doors to be fabricated. Furthermore, some of the existing historic doors

required major repair work to bring them to an acceptable appearance. Notwithstanding

GSA’s claimed lack of notice of the changed conditions, we find that the record supports the

existence of the door problems and that GSA was on constructive notice of the need for

Suffolk to fabricate and repair the doors at issue here. We grant PCO 946 in the adjusted

amount of $40,633.

PCO 953 – AVO 1046 Repairs due to Steam Infiltration

Suffolk seeks $4312 for repairing various finishes at the ground floor that were

damaged by an existing steam pipe leak. On June 18, 2009, via AVO 1046, Suffolk advised

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GSA that steam was infiltrating the building from a steam pipe located under Devonshire

Street, causing damage to surrounding finishes. There were several spots in the plaster and

drywall that were staining and/or bleeding. Suffolk requested that GSA provide guidance

as to what GSA wanted Suffolk to do about this damage. On August 5, 2009, Suffolk again

informed GSA that there was a considerable amount of steam infiltrating the ground floor

through the access door to the steam tunnel in room RG1-010. Suffolk proceeded to cover

the access door with insulation to stop steam from infiltrating the building. During this time,

Suffolk learned that GSA had contacted Trigen Boston Energy, the owner and operator of

Boston’s steam heating network, to install “two manholes with venting covers which will

allow heat to be vented off and reduce the temperature in the pipe tunnel under the sidewalk

on Devonshire Street,” thereby reducing the steam that was entering into the building. The

steam that infiltrated the building from the existing steam pipe caused damage to the interior,

which Suffolk had to repair. Component Assembly Systems performed the repair work and

Suffolk submitted PCO 953 on January 27, 2010. We grant PCO 953 in the amount of

$4312, the cost of the repair work.

PCO 961 – Automatic Door Operators

Suffolk seeks $24,089 for changing the hardware sets and adding automatic door

operators and actuators for seven doors not shown on the contract documents. On

January 14, 2009, Suffolk submitted RFI 1118, noting that the electrical power drawings for

certain door operators did not correspond to the hardware sets at these locations. Suffolk

inquired whether it was authorized to add automatic door operators and power requirements

at these locations. On February 3, 2009, the design team directed Suffolk to proceed with

the automatic door operators as a modification to the contract. On April 3, 2009, GSA issued

RFP 163, requesting pricing for the added costs of automatic door operators. On July 15,

2009, Suffolk submitted PCO 961. The design team recognized that these items had been

mistakenly omitted. We grant PCO 961 in the adjusted amount of $24,419.

PCO 967 – Owner Security/Access Control

Suffolk seeks $6151 for the additional costs incurred by K&H Electrical to work with

GSA and its tenants to troubleshoot issues experienced at electrified/security hardware doors.

In December 2009, GSA directed Suffolk to inspect and troubleshoot various doors on

various floors in tenant spaces that had previously been installed, tested, and accepted.

Tenants had begun moving into the building following the issuance of the July 2009

temporary certificate of occupancy. GSA subsequently claimed that some of the doors were

not operating properly. Suffolk complied with GSA’s request to investigate and engaged

K&H Electrical to review the doors and take any necessary corrective action. Suffolk and

K&H discovered that GSA, its tenants, and/or GSA’s tenant contractors had tampered with

and modified the doors at issue. On floors 8 and 9, Suffolk discovered that someone had shut

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off power or disconnected previously installed power wiring to the doors. Likewise, on the

third floor, GSA tenant contractors disconnected power to the doors and modified the door

strikes, causing the doors not to operate properly. Suffolk proceeded with door repairs,

which were confirmed and approved by GSA during two separate inspections. We find the

record supports Suffolk’s contention that the damage and tampering with the doors was done

by persons other than the Suffolk team, likely the tenant contractors. Although the

contracting officer stated that he would consider approving a revised PCO excluding

Suffolk’s own direct costs, we see no basis for that exclusion. We grant PCO 967 in the

adjusted amount of $6236.

PCO 972 – Kitchen Fan Coil Unit

Suffolk seeks $3024 for furnishing and installing an electrical disconnect and

associated power wiring necessary for the kitchen fan coil unit. On May 9, 2009, Suffolk

submitted RFI 1174 requesting additional information necessary to provide power to the fan

coil unit in the third floor kitchen. On May 18, 2009, the design team replied to RFI 1174

with specific direction on providing a new branch circuit from a designated panel and

installing an electrical disconnect for the unit. Suffolk engaged K&H Electrical to perform

this added work. Based on our review of the record, we find most of this to be extra work

and grant PCO 972 in the adjusted amount of $2750.

PCO 975 – Bulletin 189 Sprinklers

Suffolk seeks $42,550 for costs incurred installing an extended sprinkler protection

system in the area of high-density storage units in the EPA space. The record is clear that

PCO 975 arose because the design team neglected to properly specify sprinkler piping in

areas where EPA was storing large quantities of paper files. On September 8, 2009, GSA

requested that Suffolk provide an expedited proposal from its plumbing subcontractor to

perform the modifications to sprinkler systems at these high-density storage areas. On

September 11, 2009, the design team issued bulletin 189, which modified the contract and

detailed the various new layouts for sprinkler locations on floors 2, 4, 5, 6, 7, 8, 11, and 16.

On the same day, GSA directed Suffolk to proceed with the work under bulletin 189. The

design team issued two further modifications to the sprinkler layout in late September 2009.

The design team acknowledged that the changes to the sprinkler drawings were a tenant

change for which SCCI should be compensated. GSA’s project manager said it was a design

omission. Based on the record, we grant PCO 975 in the adjusted amount of $43,009.

PCO 977 and 977A – Security Office Window

Suffolk seeks $11,136 for demolition of the wall opening for a new security office

window, labor to move electrical rough-in work, cleanup, providing a temporary window,

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and then furnishing and installing the permanent window. We have reviewed drawings AD104, A-154, and A-630 and find that the SG1-033 work was not reasonably defined in the

contract documents to allow a contractor to price it in its bid. We grant PCO 977 and 977A

in the adjusted amount of $11,147.

PCO 979 – Wiring for Kitchen Heat Pump

Suffolk seeks $2104 for additional costs incurred to wire a heat pump, including

adding a combination magnetic starter disconnect unit, in the building’s kitchen. The

electrical drawings did not show wiring or the starter disconnect unit for the heat pump

located in the kitchen area. GSA argues that when considering the specifications with the

drawings, Suffolk is responsible for furnishing electrical connections for equipment even if

not depicted in the electrical drawings. We have reviewed the division 15 and 16

specifications and conclude that there is a partial design omission here with Suffolk

responsible for providing customary power for this type of equipment, but GSA responsible

for omitting electrical design elements on the drawings. We grant PCO 979 in the amount

of $1800 for the additional work to meet the added design elements.

PCO 983 – Floors 12 and 20 Accoustic Ceiling Revisions

Suffolk seeks $3793 for acoustical ceiling modifications on floors 12 and 20. On

June 26, 2007, GSA issued RFP 64, directing Suffolk to install primer sealer to all unpainted

ceilings above acoustical ceiling areas, which Suffolk states required it to (1) remove all of

the acoustical ceiling tiles in the mock-up room and reinstall them at a later date, and (2)

infill the framed soffits with acoustical ceiling tile. Suffolk engaged Cheviot to perform the

additional ceiling tile work. We find that Suffolk is entitled to recover for the infill work and

the labor to remove and install the ceiling tiles required by the extra painting work. We grant

PCO 983 in the reduced amount of $2800.

PCO 987 and 987A – Overhead Garage Doors

Suffolk seeks $6569 for installing high/low sensors and associated wiring on the

overhead garage doors. While the contractor was working on an overhead door, a Tishman

representative stated that high/low sensors were required. Suffolk states that the overhead

garage door is a sectional overhead door covered by specification section 08360 (sectional

overhead doors) and not a coiling door covered by section 08330 (coiling doors and grilles).

In the final decision, the contracting officer cites section 08360. The email exchanges

suggest that the overhead door met all of the requirements of the motor operation functions

of section 08360 without the high/low sensors. We have reviewed section 08360 and the

pertinent drawings and see no reference to high/low sensors. Tishman directed Suffolk to

install the high/low sensors, and K&H Electrical installed them and the associated wiring.

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Based on the record presented to us, we grant PCO 987 in the adjusted amount of $6659.

Although the contracting officer states that Suffolk owes GSA a credit for failing to install

the electric eye sensing devices for the coiling doors, the record indicates that Baron

Industries did install such devices.

PCO 993 – GCA Field Report 132

Suffolk seeks $3365 for: (a) installing additional carpet that was not shown on the

contract documents, and (b) installing brush seals at a fire shutter door. On September 22,

2009, the design team issued architect’s field report 132, noting in item 3 that Suffolk had

failed to install carpet at a landing on floor 13, and in item 9 that Suffolk needed to conceal

exposed metal studs from view with trim at the opening of the fire-shutter on the ground

floor. Suffolk states that the contract does not require carpet at the landing and GSA does

not dispute that. Regarding the trim (brush seal), we agree with GSA that this was part of

a complete installation. We grant PCO 993 in the amount of $1332 for the carpet

installation.

PCO 994 – Move Field Office from Conference Center

Suffolk seeks $4464 for relocating its field office from the shared conference room

to the ground floor. On September 23, 2009, GSA ordered Suffolk to vacate the shared

conference room (R01-027), which Suffolk was using as its field office, by October 21, 2009.

Suffolk urged GSA to reconsider its request to vacate the conference center, to avoid added

costs to Suffolk. On November 9, 2009, GSA denied Suffolk’s request to remain in the

conference room but did extend the date by another month and directed Suffolk to move to

another room. Suffolk relocated its field office and seeks the costs of the move. GSA’s

direction for Suffolk to relocate its office to the ground floor was for the purpose of allowing

EPA system furniture to be brought into the conference center. Because a project-related

rationale for this direction is supported by the record, we deny PCO 994.

PCO 1005 – Ansul with Common Duct

Suffolk appears to have withdrawn its claim for $4721 for work by two of its

subcontractors, TriMark and K&H Electrical, regarding the ansul system and the required

mechanical and electrical activations for common duct to kitchen exhaust hoods. Even

assuming that this claim has not been withdrawn, we agree with GSA that this was work

within the scope of the contract, and thus deny the claim.

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PCO 1006 – Enclosure for Elevator Relief Vent

Suffolk seeks $4699 for installing two-hour rated pipe insulation for the elevator relief

vent on floor 21 as opposed to the contractually specified two-hour rated drywall enclosure.

On or about February 23, 2009, Suffolk discovered that there was inadequate space between

the hot water service return piping/valves and the elevator relief vent on floor 21 to construct

the specified two-hour drywall enclosure around the relief vent. Suffolk proposed that in lieu

of installing the drywall enclosure, NB Kenney could install two-hour insulation around the

vent. NB Kenney performed the work and tracked its additional costs, which are included

in PCO 1006. PCO 1006 includes a credit for the drywall enclosure work that was replaced

by the insulation work. The contracting officer denied PCO 1006, claiming that Suffolk

failed to coordinate its work and this was the result of a contractor “means and methods”

issue. Based on the record, we find that PCO 1006 was the result of a needed design change

due to the elevator relief vent being too close to the hot water service return piping. We find

the costs and credit supported by the record and grant PCO 1006 in the adjusted amount of

$4697.

PCO 1007AR – Cleaning Due to EPA Movers

Suffolk seeks $7532 for cleaning trash and debris from EPA tenant spaces on the first

floor, which was left behind by EPA’s subcontractors. Suffolk used its internal change

management number 947 to track miscellaneous added costs incurred in cleanup of the first

floor EPA space. The costs consist of contemporaneous time slips for Liberty Construction

workers ($4448 for laborers and $1148 for a foreman), invoices from SOS Corporation

(totaling $1251), and Suffolk markup. The contracting officer offered to reimburse only the

SOS invoices plus Suffolk markups. We have reviewed each slip and invoice and find the

record adequately supports the costs claimed. We grant PCO 1007AR in the adjusted amount

of $7036.

PCO 1007K – Floor 1 Fire Alarm Trunk Lines

Suffolk seeks $3841 for relocating previously installed fire alarm trunk lines that had

to be moved due to the addition of new wall partitions in the first floor EPA tenant space.

On January 30, 2009, GSA deleted certain EPA tenant improvement work on the first floor,

and advised Suffolk that installed soffits, overhead rough-in MEP, and any in-wall electrical,

HVAC, and plumbing work shall remain as installed, and that no installed work shall be

demolished or removed. On April 15, 2009, the design team stated in bulletin 157-S2 that

base tenant improvement work “installed to date, which is no longer required, will need to

be demolished” and that lighting, power demolition, and fire alarm demolition was shown

in revised drawings. On May 22, 2009, GSA issued RFP 162 for an itemized proposal for

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the add/deduct items in bulletins 157, 157-S1, 123-S3, 123-S4, and 157-S2. On August 13,

2009, Suffolk submitted RFI 1192, which stated:

After demolition of the existing partitions on the 1st floor (RFP #162) it was

discovered that City Lights Electrical’s fire alarm trunk lines were located

inside the framed walls per the original contract documents and were not

visible until the drywall was removed. As the partition layout on the 1st floor

has now changed, this unforeseen condition will now require that the piping

and wiring by re-routed.

On August 28, 2009, Suffolk advised GSA that the relocation of mechanical and electrical

installations are “part of the overall cost to RFP #162.” The effective date of modification

PS-54 is June 23, 2009, and covers PCO 778 (all revisions) based on RFP 162. Based on the

sequence of actions discussed above, we conclude that the relocation of the fire alarm lines

requested here was covered by PS-54. We deny PCO 1007K.

PCO 1013A – Bulletin 192 Stair A Retesting

Suffolk seeks $1883 for rebalancing and retesting the stair pressurization systems due

to GSA-directed changes in the stairwells that occurred after Suffolk had already conducted

and passed the stair pressurization tests. GSA does not contest this PCO. We grant PCO

1013A in the adjusted amount of $1741.

PCO 1014 – Reverse Mirrors on Floor 15

Suffolk seeks $1040 for rotating and reinstalling one-way mirrors in the B and C

wings on the fifteenth floor. The B and C wings contained certain one-way mirrors that

would allow tenants to see into the corridors from their space. Suffolk states that it installed

the mirrors correctly. GSA claimed that the one-way mirrors needed to be reversed. On

October 7, 2009, the GSA program manager directed Suffolk to remove, rotate, and reinstall

the one way mirrors. Suffolk performed the work and took before and after pictures to

support its position. Based on the record presented by the parties, we grant the PCO in the

amount of $750.

PCO 1025 – Added Belt Pulley at Fan SF 3A

Suffolk seeks $1041 for NB Kenney’s having to install an additional belt pulley on

stair fan SF-3A. On December 26, 2006, Suffolk transmitted NB Kenney’s product data

submittal for the centrifugal fans located in the stairways. The submittal enclosed product

data for Cook Centrifugal Filtered Supply Roof Mounted fans that included a single pulley

belt. On January 10, 2007, GSA approved the submitted fans with only one comment:

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“SF-2, 3, 3a, 5, & 7 shall be equipped with inverter duty motors for VFD compatible

operation.” The design team did not take issue with the single pulley belt. Towards the end

of the project, however, GSA’s consultant (RJA) issued a non-compliance report stating:

“Stair Fan SF-3a is only provided with 1 belt. A minimum of 2 is required.” NB Kenney

added the dual belts as directed. Although GSA incorrectly argues that specification 15837

requires two belts, the record contains a copy of IBC code section 909.10.5 which provides

that “belt-driven fans shall have 1.5 times the number of belts required for design duty, with

the minimum number of belts being two.” NB Kenney does not persuasively argue why this

code provision does not apply. Accordingly, we deny PCO 1025.

PCO 1026 – Restore Historic Clock

Suffolk seeks $3108 for restoring the historic clock in the main elevator lobby. On

October 26, 2009, the contracting officer emailed Suffolk: “[Suffolk] is to proceed with the

restoration work on the Clock in the Main Elevator Lobby on the Ground floor. This work

is to be completed on off hours so as not to interfere with Tenant and Public access. Quoted

Price during normal hours is $5,200. Federal Acquisition Regulation (FAR) Clause

52.243-4.” Suffolk directed its subcontractor, SOS Corp., to perform the restoration work,

which it did. While SOS was onsite, GSA also directed the restoration of the bronze fixtures

on the first floor of the main lobby, which SOS also performed. Suffolk submitted SOS’s

costs of $2825 on January 13, 2010, and its own markup, bringing the total to $3175. The

contracting officer denied PCO 1026 on the basis that SOS only performed “cleaning” of the

clock, which he considered base contract work. Although GSA now says that there is partial

merit and believes the value of the work is $1500, we see no basis in the record to support

that valuation. We grant PCO 1026 in the adjusted amount of $3151.

PCO 1034 – Added Shaftwall

Suffolk seeks $29,114 for enclosing sprinkler standpipes within rated enclosures that

were relocated from stairways. On December 27, 2006, Suffolk submitted RFI 146,

informing GSA that the City of Boston’s Fire Department had concerns with the locations

of the sprinkler standpipes and proposed relocating them from an enclosure outside of the

stairway in a general office area to a locataion within the stairway enclosure. However, when

performing the work, Suffolk’s fire protection subcontractor encountered structural issues

with existing steel, which prohibited it from installing the sprinkler standpipe in the locations

agreed upon. The sprinkler standpipe ultimately had to be relocated outside of the stairways

and back to the original contract location. Although Suffolk suggests that the fire hose valve

configurations necessitated enclosures and shaftwalls that were larger than those specified

in the contract, the supporting documentation from Component Assembly Systems appears

to be priced for installing the shaftwalls as if it were all additional work. There is no

allocation between what the original shaftwall work required by the contract would have cost

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and any change to the shaftwall sizing due to the fire hose valves. Accordingly, we deny

PCO 1034.

PCO 1035 – NB Kenney Escalation

Suffolk seeks $637,406 for NB Kenney labor and material escalation costs during the

pre-award period of April 1, 2006, through the award date of August 31, 2006. As part of

the negotiated agreement whereby Suffolk repeatedly extended its bid of July 19, 2005,

Suffolk and GSA acknowledged that the price of labor and materials was likely to fluctuate

substantially due to then current market conditions, and agreed that the contractor would be

entitled to the actual increase in such costs to the extent that the contractor could demonstrate

that the price of labor and materials had escalated after the original proposal date of July 19,

2005, and that the contractor’s reasonable expectation for profits had been affected by the

delay in award. NB Kenney’s original subcontract with Suffolk was priced at $21,606,941.

Each category of increased labor and material costs is discussed below.

NB Kenney seeks $15,600 for escalation of labor rates paid by NB Kenney due to

mandatory wage increases under applicable union bargaining agreements.

NB Kenney seeks a total of $205,150 for escalation of pipe and fittings consisting of:

copper tubing ($145,700), copper fittings ($5545), steel pipe ($28,625), malleable iron

fittings ($101), carbon steel butt welded fittings ($885), Victaulic grooved fittings ($9350),

Victaulic grooved butterfly valves ($400), Milwaukee valves ($10,570), and Carpenter and

Paterson pipe hangers ($3974), as well as $114,000 in escalation for a stainless steel cooling

tower ($92,000), heat pumps ($13,000), and exhaust fans ($9000).

NB Kenney seeks a total of $224,532 for its subcontractors’ labor and material

escalation as follows: sheetmetal labor ($13,018), raw galvanized sheetmetal coil stock

($101,843), insulation labor ($36,307), insulation material ($7389), and automatic

temperature controls ($65,975).

GSA argues that the claim should have been filed in 2006 or 2007, not as part of NB

Kenney’s project end claim. GSA also argues that to recover under the escalation clause

added in the qualifications addendum in Suffolk’s prime contract, Suffolk would have to

show that these labor and material escalation costs affected Suffolk’s (not NB Kenney’s)

expectation of profit. We find that Suffolk gave reasonable notice of the escalation claim

and GSA has not shown it suffered prejudice. We also conclude that Suffolk and NB

Kenney have shown that each of their reasonable expectations of profit have been affected

by the delay in the award from April to August 2006. We find adequate support for the

escalation costs of $15,600, $205,150, $13,018, $101,843, and $7389, totaling $343,000. We

find inadequate support for the NB Kenney subcontractor escalation costs for the cooling

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tower, heat pumps, exhaust fans, insulation labor, and automatic temperature controls.

Accordingly, we grant $343,000 for labor and material escalation costs.

PCO 1045 – Traffic Signage

Suffolk seeks $1448 for furnishing and installing new traffic signage along

Devonshire Street. Towards the end of the project, Suffolk requested that the Boston

Transportation Department close out and terminate the street and sidewalk permits for

Devonshire Street. The transportation department informed Suffolk that in order to close out

the permits, Suffolk would need to install three “Tow Zone- No Stopping at Any Time” street

signs along Devonshire Street. GSA does not dispute that the contract, and specifically site

plan A-101, did not identify or show this signage. Suffolk informed GSA of these extra

requirements and engaged Northeast Traffic Control Services, Inc., to fabricate and supply,

and the Welch Corp. to install, the street signs. The signs were installed. Suffolk tracked its

costs and submitted PCO 1045. GSA denied an equitable adjustment but offers no reason

for the denial. We see none, and grant PCO 1045 in the adjusted amount of $1468.

PCO 1047 – Heaters

Suffolk seeks $2951 for providing power to several heaters and a heat pump that were

not depicted on the electrical drawings. We have reviewed the record and agree that this

work was not adequately shown in the contract documents and the costs sought are

reasonably supported. PCO 1047 is granted in the adjusted amount of $2991.

PCO 1048 – Sixth Floor Valve Leak Claim

Suffolk seeks $314,302 in compensation for work performed to repair water damage

caused by a leaking valve on the sixth floor of the building. The parties agree that the leak

occurred because a Milwaukee BA-150H ball valve at a high-point vent in a chilled water

line was left slightly open. The valve and water line supported the building’s HVAC system

and were located in the ceiling of the sixth floor in the EPA tenant area. Third-party

contractors working for the GSA tenant were installing IT equipment in the vicinity of the

valve in the days before the leak was discovered. We agree with GSA’s senior project

manager who believed it was probable that the valve was bumped open in the course of the

IT installation. Building management personnel located and closed the partially open valve

on December 30, 2009, though only after water had caused significant damage to carpeting,

ceilings, walls, and tenant furniture on the sixth through first floors. GSA issued RFP 188

on January 5, 2010, to remedy damages caused by the leak. Suffolk estimated that repairs

would cost $333,012, and its proposal in PCO 1048, was submitted to GSA along with its

plan of work. After negotiations with Suffolk, GSA issued modification PC-63 on

February 11, 2010, directing Suffolk to complete the work described in PCO 1048 at a price

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of $314,302. However, after concluding that the BA-150H valve installed by Suffolk did not

comply with the specifications, GSA informed Suffolk that it would hold it responsible for

all costs associated with the water leak.

Suffolk had subcontracted with NB Kenney to install piping for the building’s HVAC

system according to division 15 of the specifications. The GSA design team had approved

NB Kenney’s two submittals for valves, one relating to the Nexus series of ball valves and

another relating to the Milwaukee BA-150 series ball valves. The latter submittal indicated

that the valves were for use on hot/chilled/condenser water piping. NB Kenney subsequently

installed BA-150H valves at manual high-point vents and low-point drains along chilled

water lines throughout the building. The BA-150H was a ball valve with a lever handle rated

for 600 psi, but it differed from other models in that it had a threaded hose connection and

plastic cap rather than a soldered end (which could not function as a vent). The record shows

that the cap for the BA-150’s hose connection was designed to protect the threading of the

hose connection and was not intended to withstand water pressure if the valve were opened.

GSA contends that the installed BA-150H valve failed to comply with the project’s

specifications, namely that a manual high-point vent valve should have the vent “operated

with screwdriver or thumbscrew” rather than a lever, which would have prevented someone

from inadvertently turning the lever of the valve with one’s hand. GSA also argues that the

plastic cap for the threaded hose connection was rated less than 300 psi. We do not agree

with GSA’s arguments.

The BA-150H valve had a rating of 600 psi and that rating was not affected by the

threaded cap because the cap was not part of the valve rating as confirmed by the

manufacturer. We agree that GSA knew and approved of the use of the BA-150H valves for

use on the chilled water lines for both high point vents and low point drains. The BA-150

valves, with their bright yellow handle levers, were visible during inspections by GSA’s

team. In fact, six months prior to the leak, GSA’s representative certified that “all

Mechanical, Electrical, Plumbing and general construction has been installed per plans and

specifications, [and] that all Tishman punch list items and [Suffolk] work list items have

been complete.”

Here, the valves had been accepted by GSA and the damage was caused by a third

party in an area under GSA’s control. If the damage did not result from a latent defect or a

breach of warranty, prior acceptance will bar the Government from recovering against the

contractor. See 48 CFR 52.246-12(i). Latent defects are those existing at the time of

acceptance that could not have been “discovered by observation or inspection made with

ordinary care.” Kaminer Construction Corp. v. United States, 488 F.2d 980, 984 (Ct. Cl.

1973). To show a breach of warranty of construction, the Government must prove three

elements. First, the Government must show that the contractor was responsible for the

defective materials or workmanship at issue. Second, the Government must show that it

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provided the required notice to the contractor within the time period prescribed by the

warranty clause. Third, the Government must show that it did not cause or contribute to the

alleged defects or damage. Geiler Co., VABCA 5137, 98-1 BCA ¶ 29,379, at 146,034

(1997); ABM/Ansley Business Materials v. General Services Administration, GSBCA 9367,

93-1 BCA ¶ 25,246, at 125,748-49 (1992); Joseph Penner, GSBCA 4647, 80–2 BCA

¶ 14,604, at 72,019. In this case, a GSA tenant or tenant contractor caused the damage at

issue by partially opening the valve while the area was in the possession of GSA and its

tenant. GSA has not

This text is long and has been trimmed here. Open the source document for the complete record.