________________________________ DENIED: March 28, 1997 ________________________________ GSBCA 12295 SAE/AMERICON-MID-ATLANTIC, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Mark A. Vittese of Gravino, Vittese & Jones, Woodbury, NJ, counsel for Appellant. Robert C. Smith, Martin A. Hom, Kevin S. Anderson, Nora A. Huey, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, HYATT, and VERGILIO. HYATT, Board Judge. This appeal challenges a contracting officer's denial of a claim asserted by appellant, SAE/Americon-Mid-Atlantic, Inc (SAE), on behalf of its subcontractor, ABJ Sprinkler Company, Inc. The claim arises under a contract to construct an annex to the Trenton Federal Courthouse Building. The contract, awarded by the General Services Administration (GSA) to SAE, required the installation of a fire suppression system throughout the new annex. ABJ, through SAE, claims an equitable adjustment to the contract price on the ground that it was directed to perform a change to the contract specifications resulting in additional costs of $51,356. For the reasons stated herein, the appeal is denied. Findings of Fact Background 1. SAE was awarded contract number GS-03P-91-CDC-0006, for the construction of a new annex to the existing Trenton Federal Courthouse in Trenton, New Jersey, on April 26, 1991. The annex was designed as a seven-story building with a two and one-half level underground parking garage. Appeal File, GSBCA 12253, Exhibit 1. 2. The architect that designed the annex was the Vitetta Group. Under its contract with GSA, Vitetta was responsible for reviewing submittals of shop drawings to ensure compliance with contract requirements. Appeal File, GSBCA 12253, Exhibit 3 at  01010,  1.02 and  01300. GSA's construction quality manager for the project was O'Brien-Kreitzberg & Associates (OKA). Appeal File, GSBCA 12253, Exhibit 2 at  01010,  1.02. Contract Specifications 3. One of the requirements under the contract was the installation of a fire protection system throughout the annex. Appeal File, GSBCA 12253, Exhibit 2. Contract specifications called for the installation of wet pipe sprinkler systems in most of the building. Supplemental Appeal File, Exhibit 1,  15330-3. A wet pipe sprinkler system is one in which the pipes are charged with water. When the head breaks, water is released immediately. This specification applied to a large portion of the building. Transcript at 1973. The contractor was also required to install dry fire protection systems, mainly in areas subject to freezing, and pre-active systems in especially sensitive areas. In these systems, the pipes are not filled with water, and the breaking of the head either triggers a delayed release of water or, in particularly sensitive areas, sets off an alarm. Transcript at 1972-73; Supplemental Appeal File, Exhibit 1. 4. Installation of the fire protection system was to be in accordance with National Fire Protection Association (NFPA) standard 13. Supplemental Appeal File, Exhibit 1. This standard contains guidelines for the design and installation of automatic sprinkler systems for commercial buildings. Transcript (Nov. 8) at 96. 5. Prior to fabrication of the piping, the contractor was required to submit detailed working (shop) drawings in accordance with NFPA 13 for approval by the contracting officer. The contractor was instructed to prepare hydraulic calculations in accordance with NFPA 13, as well. Finally, the contract called for the preparation and submission of as-built drawings, to include all information required by NFPA 13. Supplemental Appeal File, Exhibit 1. 6. During the bidding process, questions were submitted by prospective bidders and responded to by GSA. These questions and answers were incorporated into the contract. The second amendment to the solicitation answered a question concerning the sprinkler systems' control valves: 2-24 Questions requesting area of floor to be controlled by each floor control valve for sprinklers. Each control valve on each floor will control approximately 1/5 or 20% of the total area on that floor. Respondent's Hearing Exhibit 119. 7. The third amendment to the solicitation contained two questions pertinent to the fire sprinkler system requirements: 3-55 Please confirm that there are 5 Sprinkler Zones per floor. Yes. 3-56 Are Sprinkler Zones inter-connected on each floor? Contractor's choice. Supplemental Appeal File, Exhibit 4. The fire alarm electrical drawings showed five alarm zones per floor. Appeal File, GSBCA 12295, Exhibits 16, 18. Each zone was to be serviced by a control valve. On one of the plumbing details, drawing P-23, a note states that a check valve should be "provide[d] when sprinkler zones are cross connected." Supplemental Appeal File, Exhibit 5. 8. The issue raised by the question on interconnection was whether the five control zones on each floor were required to be separate and independent, with individual water mains, or whether it would be permissible to interconnect the zones. An interconnected, or cross connected, fire suppression system is less expensive to construct in terms of materials and labor. The cost of materials to construct the system is reduced because smaller diameter pipe may be used. In addition, less pipe is needed to complete the installation of the five zones in an interconnected system, which further reduces the cost of materials. Transcript (Nov. 8) at 72. 9. The architect's project manager testified that a properly designed interconnected system could comply with NFPA 13 and the contract specifications. Transcript (Nov. 8) at 115. 10. Prior to award of the contract to build the courthouse annex, SAE requested that ABJ prepare a bid for the installation of the fire suppression system. ABJ submitted its bid to SAE in March 1991. That bid was based on numerous documents, including the specifications, drawings, and questions and answers described above. In particular, ABJ relied on the response to question 3-56, stating that interconnection of sprinkler zones would be the "contractor's choice." ABJ's bid was priced using an interconnected system. Supplemental Appeal File, Exhibit 4. The Submittal Process 11. After receiving contract award, SAE subcontracted with ABJ to perform the fire sprinkler work for $344,500. Transcript at 1971; Appellant's Exhibit 624. The subcontract, which was awarded to ABJ on November 18, 1991, provided that submittal of sprinkler shop drawings and product data was required within thirty days after receipt of the subcontract. Appellant's Exhibit 624. 12. ABJ prepared an initial set of plans which interconnected the sprinkler plumbing system. ABJ proposed this design because 1) it was the best layout for the project using the less expensive interconnected sprinkler system; 2) an interconnected system was permitted by the contract specifications and NFPA 13 safety regulations; and 3) GSA confirmed prior to the submission of the bid that it was the "contractor's choice" to interconnect the zones. Transcript (Nov. 8) at 69-73. First Submittal 13. SAE submitted ABJ's first set of sprinkler shop drawings for review on February 10, 1992. Appeal File, GSBCA 12295, Exhibit 1. The shop drawings were returned by Vitetta on March 1, 1992, with the review action of "rejected - resubmit as specified." The reasons for rejection of this submittal included the fact that the sprinkler shop drawings depicted only one control zone per floor when the specifications called for five control zones and valves per floor. Vitetta did not comment one way or the other on the fact that the sprinkler system was interconnected. Appeal File, GSBCA 12295, Exhibit 8. 14. ABJ agreed that the first set of drawings did not meet the contract requirements for five control zones and valves per floor. ABJ's founder and president, who also served as the project superintendent for this contract, explained that he knew the design did not comply with the specifications but offered it as a preferable approach. ABJ had no quarrel with Vitetta's rejection of this aspect of the submittal. Transcript (Nov. 8) at 73, 88. The Request for Information 15. After rejection of the first submittal, ABJ had questions for the architect. On March 13, 1992, ABJ submitted formal Request For Information number 188 (RFI 188), which sought clarification with respect to the following issues: 1. Drawing E-26 indicates 6 zones for each stair 1 through 4. Does this mean that the 1st floor is one zone? From P-20 the riser starts on 2nd floor therefore no zones on first floor. Please verify. 2. Garage appears to be only one zone. Please confirm. 3. On E-26, what is meant by zone no. 160 - Water Flow - basem't? 4. On E-26, zones 154 through 158 Water Flow - identify room no. for library and file. 5. Please confirm that a wet system is to be installed in the loading dock area. 6. Review the following sketches, advise if this zoning layout is acceptable. In three sketches attached to the RFI, ABJ proposed sprinkler zones for the second floor, third floor, and fourth through seventh floors. These sketches depicted five zones per floor. Appeal File, GSBCA 12295, Exhibit 4. 16. Vitetta received RFI 188 on March 19, 1992 and responded to it on March 31, 1992. Vitetta's response discussed corrections to the zones and, in response to item 6 of the RFI, marked the drawings to outline the five zones so that each zone covered approximately 20 percent of the floor area. Vitetta revised the zoning layouts principally out of concern for the need to properly monitor the various sprinkler zones with the fire alarms and to avoid multiple alarms. The response to the RFI did not explicitly state that the sprinkler zones could not be interconnected. Supplemental Appeal File, Exhibits 12, 13; Transcript (Nov. 8) at 99-100. 17. ABJ's president, who has considerable experience in the fire protection industry, testified that the layout revisions caused him to conclude that Vitetta required separate sprinkler zones, thereby prohibiting interconnection. Transcript at 78-79. 18. Vitetta's senior project manager for the project, testified that Vitetta's concern was to enunciate the zones properly. He could not recall if Vitetta specifically stated one way or the other if the zones could or could not be separated. Transcript (Nov. 8) at 99. Second Submittal 19. After receiving Vitetta's response to RFI 188, ABJ submitted a second set of plans which contained five separate sprinkler zones and did not include an interconnection of zones. ABJ prepared these plans to be in compliance with the information provided in the RFI. Transcript at 79. The second set of plans was submitted by SAE to the architect on May 26, 1992. The second submittal was returned on June 8, 1992, with the comment that zoning did not reflect RFI 188. Appeal File, GSBCA 12295, Exhibit 14. In a letter dated July 7, 1992, the architect's project manager recognized that the second submittal in fact showed the zoning as stated in RFI 188 and should not have been rejected for that reason. He requested that the sprinkler plans and associated data be resubmitted for correction of this error. Appeal File, GSBCA 12295, Exhibit 17. Thereafter, the second set of plans was approved. Transcript (Nov. 8) at 80. 20. Although ABJ's second submittal reflected a non- interconnected design, ABJ had, prior to issuance of the response to RFI 188, prepared a second set of plans with an interconnected layout in order to meet the specification requirement for five zones per floor. ABJ's president testified that he elected not to submit this set of plans because SAE informed him that GSA would not accept an interconnected plan and because SAE forewarned its subcontractors that there would be additional charges for additional submissions. Transcript at 74. Assertion of Change Claim 21. In a letter dated April 28, 1992, ABJ notified SAE that additional costs would be incurred due to changes in the zones as depicted on RFI 188 which would require additional time in redesign and coordination and costs of material. ABJ did not expressly state, however, that the basis for the increased cost was from an interconnected system to a separate zoned system. Supplemental Appeal File, Exhibit 14. 22. By letter dated May 5, 1992, SAE transmitted ABJ's April 28 letter to OKA and advised OKA that due to RFI 188 there would be additional costs associated with the fire protection system because of the architect's revision of the five zones per floor. SAE similarly did not at this point specify that the need to install a non-interconnected zoned system was the basis for the additional cost. Appeal File, GSBCA 12295, Exhibit 12. Vitetta responded to SAE's position in a letter to OKA, dated May 7, 1992, that the issue of increased cost is between SAE and ABJ and there was no clear indication as to why this claim from ABJ through SAE should be considered. Appeal File, GSBCA 12295, Exhibit 13. 23. On June 15, 1992, SAE submitted change order request 104 in the amount of $37,216, based on increased costs associated with Vitetta's response to RFI 188. This request did not specifically point out that increased costs were based on the fact that ABJ considered the revised zoning layout to prohibit interconnection of zones. The change order request states that: Although the electrical drawings indicate multiple zones, there is nothing shown on the fire protection drawings to indicate the division of zones. ABJ did propose five (5) zones in their submittal, but the zoning was rejected by [Vitetta], with revised requirements. Our position in this regard is that the documents should have indicated the preferred zoning. ABJ has NFPA 13 criteria responsibility and the zones they submitted complied with that criteria. There is any number of possible configurations and [Vitetta] has the responsibility to coordinate the requirements between the electrical and sprinkler drawings. Appeal File, GSBCA 12295, Exhibit 16. 24. When ABJ mobilized to the field in August 1992, the issue of whether to submit the set of drawings showing interconnection of five zones was again raised by ABJ, which continued to be concerned about being compensated for the cost of installing the more expensive design. Transcript (Nov. 8) at 84. On August 12, 1992, SAE wrote to the contracting officer's technical representative concerning the interconnection of the five sprinkler zones. SAE stated in this letter: This letter is intended to follow up several discussions we have had recently in regards to the question of piping inter-connection of the five sprinkler zones. As currently shown on the shop drawings the sprinkler piping is not inter-connected by zones. The sprinkler contractor has pointed out that Item 3.56 in Amendment No. 3 . . . permits inter-connection of zones at "Contractors Choice" and has taken the position that they are entitled to be compensated for the additional cost to run separate mains as opposed to inter-connection. ABJ represents that they bid the work assuming interconnection. Item 3.56 is very specific and supports the subcontractor's position. My understanding is that there is no question on the part of GSA regarding the need to run separate mains (i.e. no inter-connections). Accordingly, we have directed ABJ not to revise the drawings, i.e., do not interconnect zones, and to submit a Request for Equitable Compensation. Appeal File, GSBCA 12295, Exhibit 19. 25. On September 28, 1992, Vitetta's project manager wrote to GSA addressing the issue of interconnection of zones and the meaning of "contractors choice" as raised by SAE's letter of August 12. Vitetta advised that: The context of the documents and other stated and drawn requirements show each floor to be subdivided into 5 distinct zones for the purpose of [e]nnunciation and overall operation. Other related specification sections, such as the electrical/fire alarm, clearly show 5 zones per floor. SAE's direction to not interconnect the zones is correct, but any Request for Equitable Compensation should be rejected as lacking substantiation. Appeal File, Exhibit 21. Although copies of this letter were sent to OKA and other Vitetta employees, the letter does not appear to have been provided to SAE at the time it was written, nor is there any testimony in the record to show that SAE received a timely copy of this letter. 26. Vitetta's project manager was questioned at the hearing concerning his statements in the letter of September 28. He responded that the last sentence of the letter was written in light of the fact that a sprinkler system submittal had been approved that did not interconnect the zones and that no drawings showing a compliant interconnected system had been proffered. Transcript (Nov. 8) at 108-09. The Claim for an Equitable Adjustment 27. Based on its understanding that GSA would not permit the zones to be interconnected, ABJ submitted an estimate for equitable compensation on September 15, 1992 in the amount of $43,663. This estimate broke down the additional cost and finally explained that the new layout caused the cost to change mainly from size and quantity of cross mains from an interconnected to a separate zoned system. This estimate included a description of the materials and the cost per floor, and the additional number of field/shop/ engineering labor hours and the cost per hour. The estimate provided for a credit due to the original bid, and included overhead costs and a profit margin. Supplemental Appeal File, Exhibit 22. 28. On October 13, 1992, SAE requested a final decision from the contracting officer on its claim for an equitable adjustment. In support of its position, SAE stated that while the contract allowed for interconnection of zones it was ultimately required to install a separately zoned system, at an additional cost of $51,356. Appeal File, GSBCA 12295, Exhibit 22. 29. By letter dated December 7, 1992, the contracting officer denied the claim for equitable adjustment. Appeal File, Exhibit 24. Discussion SAE and ABJ assert entitlement to an equitable adjustment because, in their view, the Government changed the fire protection system specifications by requiring installation of a non- interconnected system. The principal support for this contention is that the architect's response to RFI 188 suggested that an interconnected system was not permitted. For its part, GSA maintains that this appeal should be denied because SAE never submitted a compliant set of drawings with interconnected zones and has not proven that it was in fact actually directed to provide a non-interconnected zoned fire sprinkler system. The gravamen of appellant's argument is that GSA through Vitettta prohibited an interconnected sprinkler system. It is undisputed that the contract as drafted permitted an interconnected system so long as it was otherwise in compliance with the specifications. Finding 7. SAE's contention that GSA and its technical representative, Vitetta, somehow directed the installation of a non-interconnected system is not convincingly supported by the evidence of record, however. Appellant maintains that the following facts support its view: 1) the first submittal was rejected; 2) ABJ submitted RFI 188 seeking clarification of the sprinkler system requirements; 3) in the response to RFI 188 Vitetta revised the zone layout, causing ABJ to conclude that interconnection was not permitted; 4) SAE told ABJ that a charge would be assessed for more than two submittals and that GSA would not permit interconnection; 5) when ABJ submitted its second set of drawings, which did not interconnect zones, the architect approved the submittal; and 6) in the letter of September 15, 1992, Vitetta stated to GSA that "SAE's direction to not interconnect the system was correct." On balance, the evidence of record does not satisfactorily demonstrate that an order was issued or action was taken that could properly be construed to have changed the contract work, constructively or otherwise. The rejection of the first set of plans was conceded by ABJ to have been appropriate since the plans admittedly were not compliant with the specifications. Finding 14. Nowhere in the notice transmitting that rejection did Vitetta or GSA suggest that interconnection was objectionable. The response to RFI 188 is similarly inconclusive. Certainly there is no explicit statement by the architect prohibiting interconnection of zones. Indeed, neither the RFI itself nor the response in any way directly raises the issue of interconnection. Although ABJ construed the revised layouts to prevent interconnection, the architect's testimony credibly established that the suggested revisions of the zones was for the purpose of ensuring that each zone covered roughly twenty percent of the floor. Findings 16, 18. Appellant also makes much of the testimony of ABJ's president that he was told by SAE that GSA would reject an interconnected system. This caused ABJ to abandon its already prepared set of plans depicting a five-zone interconnected sprinkler system and to prepare and submit a set of plans using a non-interconnected zoned system which was ultimately approved by Vitetta. There is no persuasive corroborative evidence, either in the form of contemporaneous documents or hearing testimony, to support the proposition that SAE was directed by GSA or its technical representatives to provide a non-interconnected system. Although SAE's principals testified extensively in the consolidated proceedings, there is no testimony from any witness other than ABJ's president to support the contention that this "change" was communicated to SAE by GSA or its representatives at the time that shop drawings were submitted. The SAE project manager testified in the consolidated hearing but was not asked about any conversations with GSA concerning this issue. Additionally, the SAE project manager's letter of August 12, Finding 24, and the letter from the architect to GSA, Finding 25, were authored after ABJ's second submittal, proposing independent zones, was approved. The architect's project manager testified plausibly that his assessment that the direction to not interconnect was correct was prompted by the facts that 1) drawings providing a compliant non-interconnected system had been submitted and approved and 2) no drawings showing a compliant interconnected system had been submitted for review. Finding 26. In any event, there is no evidence on the face of the architect's letter, or in the testimony in this case, that it was ever provided to SAE prior to the institution of this litigation. Finding 25. This evidence is insufficient to persuade us that a submittal of compliant drawings showing an interconnected system with five zones would have been rejected or that SAE was affirmatively told that an interconnected system would be rejected even if it otherwise complied with the contract specifications. Based on the preponderance of the evidence, we cannot conclude that GSA should be liable for "changed work." Although allegedly compliant interconnected plans had been prepared by ABJ, they were never provided to the architect for review. Thus, these plans were never squarely rejected. The issue of interconnection was not expressly raised in any request for clarification made by SAE or ABJ prior to approval of the second submittal. Even the initial claim requests, seeking compensation for changed work, did not allude squarely to any decision by GSA to deprive the contractor of its choice to interconnect or install separate zones. See Findings 21-23. From the record, it appears that GSA was not put expressly on notice as to the true basis for this claim until after the plans providing for a non-interconnected system had already been approved by Vitetta. To establish entitlement to compensation based on a constructive change to a contract "there must be words or conduct on the part of the Government that could reasonably have been interpreted and relied on by the contractor as an order or demand that increased costs." Advanced Control Technology, Inc., NASA BCA 24-0790, et al., 92-2 BCA  24,947, at 124,344. In particular: To be compensable under the changes clause, the change must be one that the Government ordered the contractor to make. The Government's representative, by his words or his deeds, must require the contractor to perform work which is not a necessary part of his contract. This is something which differs from advice, comments, suggestions, or opinions from Government engineering or technical personnel frequently offered to a contractors' employees. Quality Plus Equipment, Inc., ASBCA 46932, 96-2 BCA  28,595, at 142,759, quoting Industrial Research Associates, Inc., DCAB WB-5, 68-1 BCA  7069, at 32,686. The evidence of record in this case is inadequate to establish that ABJ was directed by the Government to install the more expensive non-interconnected sprinkler zone system. Evidence that GSA or its technical representative preferred a separately zoned system, or might have rejected an interconnected system, is not the equivalent of an actual rejection of drawings proposing a compliant interconnected sprinkler system. Appellant has not shown that the Government rejected a method of performance permitted by the contract thus entitling it to additional compensation. SAE and ABJ made the determination not to pursue an interconnected system; this determination was not required by actions or inactions of GSA or its architect. Decision This appeal is DENIED. ___________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ ____________________________ ROBERT W. PARKER JOSEPH A. VERGILIO Board Judge Board Judge