_____________________ DENIED: July 27, 1993 _____________________ GSBCA 10528 TARLTON CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jeffrey L. Michelman, Kay R. Sherman, and William C.E. Goldstein of Blumenfeld, Kaplan, Sandweiss, Marx, Ponfil & Kaskowitz, St. Louis, MO, counsel for Appellant. Gerald L. Schrader, Real Property Division, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and VERGILIO. VERGILIO, Board Judge. On March 2, 1990, the Board received from Tarlton Construction Company an appeal under a contract it had with the respondent, the General Services Administration. The contractor maintains that the agency prohibited work from proceeding in accordance with the terms of the contract; the contractor seeks to recover additional costs incurred because of the alleged change. The question of entitlement is before the Board, the parties having reserved consideration of quantum. The contractor asserts that the contract permitted electrical metallic tubing (EMT) to be installed with clips attached to suspended ceiling support wires, a method of installation allegedly accepted in the industry and contract-referenced codes. The agency contends that the EMT had to be attached to the building structure, which the suspended ceiling structure is not, and that the clips utilized were not acceptable support devices under the contract. The Board concludes that the contract required the EMT to be attached to the building structure and that the suspended ceiling structure is not part of the building structure. The contractor's appeal is premised on an erroneous interpretation of the contract. Accordingly, the Board denies the appeal. Findings of Fact The contract 1. On September 26, 1989, the agency awarded Tarlton a tenant fit-out (selective demolition and construction) contract to furnish labor, equipment, and materials for the modernization of a federal building in St. Louis, Missouri. Appeal File, Exhibits 1-8, 11. The work to be performed included the installation of EMT. Id., Exhibit 3, Vol. IV at 16110. 2. The general requirements of the contract's specifications contain a section captioned "electrical basic requirements," a subsection of which addresses the support of electrical items: A. Unless otherwise indicated, all electrical items and their supporting hardware, including but not limited to conduits, [and] raceways . . . shall be securely fastened to the building structure in accordance with Section 16190 - Supporting Devices. B. The load applied to any fastener shall not exceed one-fifth of the proof test load. Fasteners attached to concrete ceilings shall be vibration and shock resistant. Appeal File, Exhibit 3, Vol. IV at 16010-7 ( 3.02).[foot #] 1 Raceways include EMT. Id. at 16110-1 ( 1.01.B), 16110-2 ( 2.01.D). In particular, the contract directs that all fire alarm, security television, and sound system wiring is to be installed in EMT, as is all underfloor 120-volt power distribution. Id. ( 3.01.E, F). 3. The "general description of work" found in the contract section dealing with supporting devices, referenced in Finding 2, provides: "Types of supports, anchors, sleeves and seals specified in this section include the following." There follow ten enumerated items (e.g., one-hole conduit straps, round steel rods, lead expansion anchors). Appeal File, Exhibit 3, Vol. IV at 16190-1 ( 1.01.B). A "products" part of this same section identifies particular attributes of various types of supports, anchors, sleeves and seals, conduit cable supports, and u-channel strut systems. Id. at 16190-2 through 16190-3 ( 2.01). ----------- FOOTNOTE BEGINS --------- [foot #] 1 These general requirements supersede "industry standards" to the extent that they are more explicit or more stringent than industry standards. Appeal File, Exhibit 2 at 01090-4 ( 1.07). ----------- FOOTNOTE ENDS ----------- Finally, the same section contains a part dealing with the installation of supporting devices: A. Install hangers, anchors, sleeves and seals as indicated, in accordance with manufacturer's written instructions and with recognized industry practices to insure supporting devices comply with requirements. Comply with requirements of NECA [National Electrical Contractors Association], NEC [National Electrical Code] and ANSI/NEMA [American National Standards Institute/National Electrical Manufacturers Association] for installation of supporting devices. . . . . C. Install hangers, supports, clamps and attachments to support piping properly from building structure. Arrange for grouping of parallel runs of horizontal conduits to be supported together on trapeze type hangers where possible. Install supports with maximum spacings indicated. Id. at 16190-4 ( 3.01). "Piping" in paragraph C is a generic term encompassing various types of conduit and raceways. Appeal File, Exhibit 30 at 54-55. 4. The contract contains direction on the installation of electrical raceways: Install electrical raceways where indicated in accordance with manufacturer's written instructions, applicable requirements of NEC and NECA "Standard of Installation", and complying with recognized industry practices. Appeal File, Exhibit 1, Volume IV at 16110-3 ( 3.01.A).[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 2 Curiously, despite the express reference in the contract, in response to the contractor's request for admission that the initial method of installation was in accordance with the NECA "Standard of Installation," the agency responded: "Can neither admit nor deny. Respondent does not have referenced copy of NECA." Admission ( 3). ----------- FOOTNOTE ENDS ----------- 5. The 1987 version of the NEC[foot #] 3 contains a section applicable to the installation (securing and supporting) of EMT, NEC 348: (a) Secured in Place. Raceways, cable assemblies, boxes, cabinets, and fittings shall be securely fastened in place. Support wires that do not provide rigid support shall not be permitted as the sole support. Appeal File, Exhibit 38 at 253 ( 300-11(a)).[foot #] 4 The NEC Handbook provides commentary: This section, revised for the 1987 edition, makes it clear that support wires, such as used to hang suspended ceilings, may be used for the support of raceways and cables, but cannot be used as the sole support if the wires do not provide rigid support. Id. Performance 6. The contractor, through a subcontractor, installed EMT as part of the building modernization. The initial method of installation utilized clips attached to suspended ceiling support wires which were attached to the concrete slab above. Appeal File, Exhibits 21, 30 at 89. The clips are not one of the types of supports or one of the products enumerated in the contract, Finding 3. While maintaining that the contract expressly requires conduit to be "securely fastened to the building ----------- FOOTNOTE BEGINS --------- [foot #] 3 The parties have stipulated that the 1987 version is applicable to this contract. Transcript at 83; Appeal File, Exhibit 2 at 01090-5 ( 1.07.B). [foot #] 4 The 1990 version of the NEC contains the following direction: (a) Secured in Place. Raceways . . . (a) Secured in Place shall be securely fastened in place. Support wires that do not provide secure support shall not be permitted as the sole support. Equipment that is located within, supported by, or located below a suspended ceiling shall be permitted to be supplied or controlled by branch-circuit wiring that is supported by the suspended ceiling support wires. Appeal File, Exhibit 10. ----------- FOOTNOTE ENDS ----------- structure," the agency admits "that the installation was in accordance with the edition of the NEC in effect at the time of the installation." Admission ( 2).[foot #] 5 7. On November 20, 1989, Day & Zimmermann, the construction quality control contractor (QCC) who represented the contracting officer, Appeal File, Exhibit 2 at 01010-2 ( 1.02.C), advised the contractor that installing EMT with clips attached to ceiling support wires was inconsistent with the contract because the conduit must be supported from the building structure. Stipulation at 4 ( 12); Appeal File, Exhibits 12, 14. In a letter dated November 20, to the contractor, the subcontractor installing the EMT took issue with that conclusion. It expressed a broader view of the phrase "building structure" ("We consider existing walls and ceilings to be structure"), and maintained that its method of installation was in accordance with the NEC and in compliance with standard industry practice. Appeal File, Exhibit 13. 8. Subsequent correspondence and communications involving the QCC, the contractor, and/or the subcontractor occurred into December. The QCC and the subcontractor each held to its view of the contract requirements and permissible EMT installation. The QCC requested that work be corrected to comply with its reading of the contract. Appeal File, Exhibits 14-17; Stipulation at 4 ( 13). 9. In response to the contractor's request for a decision, by letter dated December 27, 1989, the contracting officer issued a written decision on the dispute. The contracting officer concludes that the contract is clear--a provision requires EMT to be securely fastened to the building structure; the contractor must comply with applicable codes as well as that provision. Appeal File, Exhibit 19. Further, taking issue with the interpretation of the phrase "building structure" put forward by the contractor, the contracting officer states: It is our interpretation that the building structure consists of the elements comprising the load bearing system. If walls were built as part of the load bearing system (i.e., shear walls) then they are considered building structure. However, a suspended ceiling that was installed some time during the life of the building and is easily removed, is considered an architectural ----------- FOOTNOTE BEGINS --------- [foot #] 5 The agency asserts that the 1990 version was in effect at the time of installation, although it has stipulated that the prior version of the NEC (the 1987 version) was applicable to this contract. Finding 5. ----------- FOOTNOTE ENDS ----------- feature and not part of the building structure. Id. 10. The contractor filed an appeal, dated February 26, 1990, with this Board. Appeal File, Exhibit 23. Testimony and Other Evidence 11. Testimony in support of the contractor's position was not particularly enlightening. For example, regarding the contract language in Finding 2, a witness of the contractor testified: "I don't consider this a specification that's really applicable to this type of work. This looks to be a canned specification that's not really been customized or modified for this building." Transcript at 36-37. Witnesses did not demonstrate familiarity with any particular contracts which clearly utilized language similar to that in Finding 2 (i.e., "securely fastened to the building structure"). E.g., Transcript at 52-53. 12. Deposition testimony of a construction manager involved in the contract for the QCC reveals the view that wires hanging from structure are not part of structure. Appeal File, Exhibit 30 at 79. "The ceiling assembly is just that. It is a ceiling assembly. It has to do with the ceiling and only the ceiling and those things that are designed to be part of and made a part of the ceiling only. It is not structural." Appeal File, Exhibit 30 at 80. 13. The decision of the contracting officer, Finding 9, which differentiates between the building structure and ceiling structure, is consistent with the testimony of the QCC and is fully consistent with definitions in the Dictionary of Architecture & Construction (Cyril M. Harris ed. 1975): suspended acoustical ceiling An acoustical ceiling which is suspended from the building structure above; usually the acoustical material itself forms a suspended ceiling, but it also may be secured to a backing. suspended ceiling, dropped ceiling A non- structural ceiling suspended below the over- head structural slab or from the structural elements of a building and not bearing on the walls. Moreover, the wires to which the clips were attached become and remain rigid only when the ceiling structure is in place; that is, the wires themselves do not provide rigid support. Transcript at 90-91. 14. Lacking is a credible factual basis supporting the conclusion that under industry practice in the St. Louis area, the EMT was attached to the building structure. Discussion The contractor maintains that the contract permitted the installation of EMT with clips attached to the suspended ceiling support wires. The agency contends that the contract prohibited such installation. The contractor largely relies upon the assertion that its interpretation of the contract is reasonable, and must be adopted under the rubric of contra proferentem. Contractor's Brief at 28-41. The contractor's analysis fails to give meaning to the explicit requirement that the EMT and supporting hardware "shall be securely fastened to the building structure." Findings 2, 3. The contractor maintains that the initial method of installation fully complies with the contract--the support wires of the suspended ceiling are attached to the building structure, and the support clips and EMT were attached thereto. This argument fails. First, the support wires themselves did not provide a means of rigid support required by the contract language. Finding 13. Second, the contractor fails to distinguish between the building structure and the suspended ceiling system. The clips and EMT were attached to supporting wires which became rigid only with the suspended ceiling system in place. The record establishes that the suspended ceiling system, to which the EMT, through clips, was attached, is not part of the building structure. Findings 12-14. Hence, the initial method of EMT installation failed to comply with an explicit requirement of the solicitation. The contractor inappropriately reads the referenced codes and industry practice as superseding the specific requirement to fasten the EMT to the building structure. The contract requires the opposite order of precedence--the explicit requirement restricts otherwise acceptable methods of performance under the stated codes and industry practice. Hence, whether or not the NEC permitted EMT to be attached to suspended ceiling wires, the explicit general provisions of the contract must be given meaning. In short, the contractor's asserted interpretation is contrary to the terms of the contract and is not reasonable.[foot #] 6 No ambiguity exists; there ----------- FOOTNOTE BEGINS --------- [foot #] 6 The contractor maintains that its subcontractor relied upon the asserted interpretation in pricing the work in question. Assuming arguendo that the contract was priced with such an interpretation, the stated interpretation does not become more reasonable. More (continued...) ----------- FOOTNOTE ENDS ----------- exists no basis, therefore, to resort to the principle of contra proferentem. Decision The contractor has failed to establish that the agency's actions constituted a change in the terms of the contract. Accordingly, the Board DENIES the appeal. ______________________________ JOSEPH A. VERGILIO Board Judge We concur: ______________________________ ______________________________ VINCENT A. LaBELLA EDWIN B. NEILL Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 6 (...continued) importantly, the contractor has not asserted that the agency should have been aware of the interpretation underlying the contractor's price.