______________________________________ DENIED: July 31, 1996 ______________________________________ GSBCA 13268 OMNI CONTRACTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jack Rephan of Hofheimer, Nusbaum, McPhaul and Samuels, Norfolk, VA, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and DeGRAFF. DEVINE, Board Judge. Omni Contractors, Inc. (Omni) contracted with the General Services Administration (GSA), an agency of the United States Government, to build a training center to be used by the State Department. A part of the work involved the installation of a heating and cooling (HVAC) system. A dispute arose as to the extent of Omni's duty to protect the HVAC ducting from contamination by dust and dirt during construction. The dispute also involved Omni's contention that the Government and its agents were over-inspecting the HVAC installations. The Government directed that open duct ends be covered with plastic to exclude dirt, a requirement which Omni considered beyond the terms of its contract and the usual practices of the trade. Omni alleges that it complied in part, and now seeks additional compensation for the cost of the alleged extra work, and for its costs allegedly expended in responding to deficiency reports which resulted from the Government's alleged over-inspection. The total claim is $380,535, under a subcontract that totalled $925,000. Findings of Fact The parties entered into a contract dated May 24, 1991, whereby Omni was to construct a group of five interconnected buildings to be occupied by the State Department, and known as the National Foreign Affairs Training Center, in Arlington, Virginia. Appeal File, Exhibit 6. The contract price was $28,511,000. Id. Work began in June 1991 and was to be complete by July 31, 1993. Id., Exhibit 8. Gilbane Building Company (Gilbane) oversaw the project for GSA, and its duties included quality control. Id., Exhibit 21. The subcontract for the mechanical work was held by John J. Kirlin, Inc. (Kirlin), and the actual HVAC fabrication and installation work was subcontracted by Kirlin to Capital Mechanical Contractors, Inc. (Capital). Appellant's Supplemental Appeal File, Exhibit 10. Kirlin was to supply certain HVAC equipment, including the variable air volume (VAV) boxes used in the system. Id.; Transcript at 278. The contract called for the construction of a ductwork mock- up to demonstrate the methods Capital would use in installing the HVAC system. Appeal File, Exhibit 1. The original mock-up was inspected and rejected on October 16, 1991. Id., Exhibit 9. It was re-inspected and accepted on October 30, 1991, with some six conditions, one of which read: "Protection - Material was observed to be exposed to dust, traffic, weather etc. Contractor agrees to cover (protect) stockpiled materials form [sic] this date forward and will clean currently unprotected materials that show evidence of dirt." Id. The contractor responsible for cleaning the duct was not Capital because Capital had specifically excluded any responsibility for cleaning ducts in its subcontract with Kirlin. Appellant's Exhibit 1. On the following day, October 31, l991, Gilbane issued a document entitled "Notice Of Construction Non-Compliance No. 8" which read: "Ductwork remains uncovered throughout the building. This must be corrected immediately." Appeal File, Exhibit 10. The building referred to was the Foreign Service Institute. Id. Capital's project manager testified that the Foreign Service Institute was the only building involved in the dirty duct dispute. Transcript at 292-94. Most of the duct contained a fiberglass sound liner in the vicinity of air handling units. Capital did not challenge the Government's contract right to require it to cover its duct until February l992. There are two kinds of duct-covering involved in this dispute. The first involves covering the open ends of already-installed duct; the second involves covering the open ends of uninstalled duct. Gilbane, on behalf of the Government, complained about Capital's failure to cover both installed and un-installed duct. The following contract provisions were cited by the parties as bearing on this issue: The Contractor shall provide dust control as directed by the Contracting Officer's Representative. Appeal File, Exhibit 1 at 00810-1 1.2.I. (This paragraph is a part of the contract's Supplementary Special Conditions. The larger section also directs Gilbane to "provide inspection, Testing for the benefit of the Government, Supervision, Schedule Control, Cost Control, and Administration of the Project on a day to day basis as the on-site representative of the Contracting Officer." Id. at 1.1A.) Install work during conditions of temperature, humidity, exposure, forecasted weather, and status of project completion which will ensure best possible results for each unit of work, in coordination with entire work. Isolate each unit of work from noncompatible work, as required to prevent deterioration. Appeal File, Exhibit 1 at 01040-5 3.1E. PRODUCT DELIVERY-STORAGE HANDLING A. General: Deliver, handle and store products in accordance with manufacturer's recommendations and by methods and means which will prevent damage, deterioration, and loss including theft and protect against damage from climatic conditions. Appeal File, Exhibit 1 at 01632-2 1.4A. In addition to the foregoing sections, most of the sections dealing with the equipment and appliances which were to be attached to HVAC ductwork (air conditioning and air handling units, air terminal units, fans of various kinds, etc.) contained one of the following two statements: "Store . . . components in a clean dry place. Protect from weather, dirt, water, construction debris and physical damage," or "Store [equipment] in clean dry place and protect from weather and construction traffic." Appeal File, Exhibit 1. In addition to its claim with respect to the ductwork, Omni also asserted a claim for the time and money expended in handling what Omni alleged to be "unnecessary, informational, irrelevant, or premature" inspection deficiencies recorded with respect to the ductwork by the Government's quality control inspector, Gilbane Building Company. Gilbane produced several detailed reports on the deficiencies its inspector found with respect to the installation of the duct work in the building known as the Foreign Service Institute. Omni refers in its brief to a single report as an exemplar. Appeal File, Exhibit 14 (Tab A). It is dated April 14, l992, and lists some 46 deficiencies. Id. The report was originally sent by Gilbane to Kirlin, the first-tier subcontractor for the mechanical work on the project. Kirlin simply passed it on to Capital for action and reply. Of the forty-six items, Capital alleged thirty-six to be "unnecessary, informational, irrelevant or premature." Respondent's Reply to Interrogatories, Exhibit D (hereafter: Interrogatories). The remaining ten were all marked "corrected" or "completed" in Omni's reply to the report. Of the criticized 36, Omni promised to complete an additional 15; 9 items involved sound liners which Gilbane says were too short, an opinion that Capital challenges; 7 items involved missing dampers which Omni says required a response by others (i.e., Kirlin, which was to supply the dampers); 2 items involved approved changes, according to Capital, which solved coordination problems; and 5 items involved missing transition boxes, as to which there was a dispute with GSA which Omni eventually lost. Interrogatories, Exhibit E; Omni Contractors, Inc. v. General Services Administration, GSBCA 13270 (June 20, 1996). Capital asserts that its project manager worked 325 hours (or forty work days) checking out what Capital describes as unnecessary items in the above report (and several others), while its foreman spent 195 hours (or twenty-four work days) and its sketcher 185 hours (or twenty-three work days) in similar work. Id. Discussion The Dirty Duct Dispute. It is clear from the quoted contract language that the Government had a right to require Omni to keep its ductwork clean during the progress of construction. Whether we regard the Government's actions as efforts at dust control, or as an attempt to prevent deterioration of the ducts through dirt contamination, or as an attempt to isolate the ductwork from noncompatible work, such as brick sawing with its resulting dust generation, in order to prevent its deterioration there is a contract clause authorizing the Government's actions. Even the provisions requiring that all the appliances to be connected to the HVAC ductwork be kept free of dirt and dust reflected a contractual scheme to keep the system clean during construction. The fact that the ductwork installer, Capital, was not responsible for dust removal under its subcontract with the mechanical first-tier subcontractor, Kirlin, may have exacerbated the problem. It produced a situation where the one who failed to protect the ductwork did not have to remedy the consequences of its failure. That contractual situation, however, cannot be blamed on the Government. Omni knew from the time the ductwork mock-up was built, before installation began, that the Government would insist on its contractual right to require that all ductwork, installed or un-installed, be covered to keep it clear of construction dust and dirt. We hold that the Government had a contract right to act as it did with respect to the cleanliness of the on-site ductwork. Omni's Inspection Report Complaints. Omni singled out the somewhat detailed report of April 14, l992, as typical of the several reports filed by Gilbane's mechanical inspector on the ductwork of the Foreign Service Institute building. These reports were initially given to Omni by Gilbane. Omni simply passed them on unmodified to Kirlin, and Kirlin, also without modification, passed them on to Capital. It is Capital's view that some of the items on the April report were the responsibility of others, including Omni and Kirlin, but the list of deficiencies reached Capital, as though all of the items were the responsibility of Capital. To the extent that Capital is correct in its assertion that some of these deficiencies were the responsibility of others, its complaint is with Omni or Kirlin and not with the Government. Thus Capital blames the seven items dealing with missing dampers on Kirlin, but there is no claim that they were not in fact missing and thus legitimately on Gilbane's report. Indeed they are among the fifteen items that Capital has agreed to fix. The five items dealing with transition boxes were, in fact, Capital's responsibility, as we have held in another docket, and are thus also correctly on Gilbane's report and are also among the items Capital has agreed to fix, as are three additional miscellaneous items. Of the remaining eleven items of the thirty-six challenged, nine of these items dealt with a dispute over the length of duct sound liners which arose because the parties used differing measurement techniques, and two are miscellaneous defects. At face, however, all represent contract work not yet accomplished or improperly done. Capital's letter concerning this report calls thirty-six of the forty-six items "either unnecessary, informational, irrelevant or premature," but provides no evidence as to which is what, and no evidence that any of the listed items falls into any of the four categories. We have examined the contract terms dealing with the HVAC system, the inspector's reports, and Capital s response to the reports. We find every item in the reports to be "informational," but attach no stigma to the label. We do not find any of them to be facially unnecessary, irrelevant, or premature. We further find no evidence to support any of the latter categorizations. The Government had the undoubted (and unchallenged) right to make such inspections as were necessary to show whether or not the contract terms were complied with. It did so and appellant has no ground to complain of the result. Decision For the reasons stated,the appeal is DENIED. _________________ DONALD W. DEVINE Board Judge We concur: __________________ __________________ STEPHEN M. DANIELS MARTHA H. DeGRAFF Board Judge Board Judge