_________________________________ DENIED: October 30, 1996 _________________________________ GSBCA 13111 FOX BROTHERS SYSTEMS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jeffrey A. Johnson, CFO/Project Management, Fox Brothers Systems, Inc., Colorado Springs, CO, appearing for Appellant. Gerald L. Schrader, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, HYATT, and WILLIAMS. DEVINE, Board Judge. Appellant, Fox Brothers Systems, Inc. (FoxBro), contracted with the General Services Administration (GSA), an agency of the United States Government, to replace a fire alarm system in a large Government building in Washington, D.C. FoxBro fell more than six months behind schedule, causing GSA to terminate its contract for default because of its tardiness and its failure to show due diligence in completing the remainder of its work. In this appeal appellant seeks to overturn the default termination on the ground that its failure to finish on time was caused by Government engendered delays. Findings of Fact and Conclusions of Law On October 25, l991, appellant entered into a contract with GSA to replace the fire alarm system in the Department of Commerce building in Washington, D.C. for the sum of $589,000. Appeal File, Exhibit 2. The work was to be completed within 448 calendar days after receipt by FoxBro of the Government's notice to proceed with the work, which occurred on November 18, 1991, thus establishing a completion date of February 8, 1993. Appeal File, Exhibits 3, 4. Failure to complete the project on time would cost appellant a liquidated damages charge of $360 per calendar day. Appeal File, Exhibit 2. During the course of the work GSA extended the completion date by fourteen days in connection with change order work caused by the discovery of asbestos in the cafeteria area (PCO 5). Appellant's Supplemental Appeal File, Vol. 2, Item II, Exhibit 52. The contract time was extended by another fourteen days (AS06) because of unforeseen difficulty in drilling certain access holes. ASAF, Item IV, Exhibit 3. A final time extension of one year was granted in Change Order No. 8, extending the completion date to March 8, 1994. Appeal File, Exhibit 71. This extension was granted in connection with the relocation of the new conduit return riser from its location as shown on the plans to a different site. ASAF, Item VIII, Exhibit 4. This time extension covered the additional time involved in all pending change orders up to and including July 19, l993. Id., Exhibit 21. By March 28, 1994, the Government was losing patience with Foxbro's lack of progress. On that day, it issued a ten-day cure notice. Appeal File, Exhibit 29. FoxBro responded with promises that were not kept. Id., Exhibit 30. On August 11, 1994, the Government issued a second cure notice. Id. , Exhibit 46. FoxBro again responded with promises that were not kept. On October 14, 1994, the Government issued a third cure notice giving FoxBro ten days to have the fire alarm system ready for testing. Id., Exhibit 65. FoxBro did not perform. On November 7, 1994, the contracting officer terminated the contract for default for failure to make progress. Id. On that date, appellant was 243 days late. Id., Exhibit 21. Appellant got off to a late start. Over 100 days of the performance period had passed before appellant performed any work at all. ASAF, Item VIII, Exhibit 36 at 4. Appellant could have begun work any time after its receipt of the Government's notice to proceed on November 18, 1991. Appellant did not man the site until early May l992 approximately 163 days after notice to proceed. ASAF, Item I, Exhibit 6. For a while it proceeded expeditiously and efficiently and had completed sixty percent of its contract work by August 3, 1992. ASAF, Item XI at 30. Thereafter things began to change. Almost two years and three months later the job would still not be finished, and the contract would be terminated for default. The Government has met its burden to show that performance under the contract was unduly delayed by appellant. FoxBro lists ten reasons why its failure to finish on time was not its fault but the Government's, plus an eleventh category labeled "miscellaneous." We consider them in order. Item I. Lack of Site Access. The contract required appellant to perform its work during the evening and early morning hours between 7:30 p.m. and 5:30 a.m. The Department of Commerce owned the building in which appellant was working. Commerce required that all persons who were not Government employees be escorted by building guards during non-business hours. Appellant complained that, at times, the guards were not available to escort its people, did not have proper keys, or showed up late, or, in one instance, not at all. Appellant's records show approximately 26 occasions when its work was affected by lack of access. ASAF, Item I. Of these, 10 occurred during two months at the outset of construction between mid-May and mid-July 1992. Id. Of the remainder, 11 occurred between August 23 and September 23, 1992. Id. The remaining 5 were scattered through October and December 1992, and January 1993. Id. Appellant's records catalogue a total of 6 hours and 20 minutes cumulative delay, or an average per incident of just under 15 minutes. Id. When the number of workers affected are considered this translates into a little over 18 man-hours, or a little less than three-quarters of a manhour per incident. Id. On several occasions appellant stated that it would seek additional compensation for these hours but never did so. Appellant blames the Government's security requirements for its troubles, but the contract says: "If the premises are occupied [which they were], the Contractor, his subcontractors, and their employees shall comply with the regulations governing access to, operation of, and conduct while in or on the premises . . . ." Appeal File, Exhibit 1 at 32. We have examined appellant's submissions on this point. We consider the minor delays encountered to be no greater than could be expected in entering a guarded public building after hours, circumstances clearly set out in the solicitation and contract and presumably reflected in the size of the bid. Almost half of these incidents occurred during the two-month period when FoxBro was most productive, completing sixty percent of its contract work. We do not see any evidence that these incidents of lack of access justify appellant's assertion that the long delay seen in this project was caused by the Government. Item II. Differing Site Conditions: Asbestos. Asbestos containing materials (ACM) were discovered in the kitchen/dining area in the basement of the building and in the ceilings of some electrical closets. Appeal File, Exhibit 8. The parties could not agree on the price for treating this problem, and the Government issued Change Order No. 4, on a price-to-be-determined-later (PDL) basis but not to exceed $37,240, with no increase in contract time, for a part of this work. Appeal File, Exhibit 8. Appellant did not seek a time extension. The PDL was issued as a contracting officer's final decision and was not appealed by appellant. Id. The remainder of the asbestos work in this area was covered by Change Order No. 5, which was issued unilaterally in the amount of $53,590 with no increase in time. Appeal File, Exhibit 9. Again, appellant sought no contract extension. This change order was also issued as a contracting officer's final decision and was not appealed by appellant. Id. Both change orders included an allowance for "all direct, indirect, impact and delay costs associated with" the contract modifications. Id. FoxBro filed no brief in this appeal and no complaint, and we are unable to determine from the documents which FoxBro filed in what manner and how long the additional asbestos work delayed the project, if at all. None of appellant's documents contain evidence on these points. We conclude from the absence of evidence in the record and the fact that FoxBro did not appeal either of these change orders, that the overall project was not delayed by this work. Item III. Contract Disruption. On three or four occasions, according to FoxBro, following completion of the work under Change Orders Nos. 4 and 5, additional asbestos was found in areas where FoxBro wanted to install wiring, causing the Government to request that FoxBro work in other areas until another contractor could cure the asbestos problem. ASAF, Item III. However, FoxBro has submitted no evidence as to why this delayed its overall work, how much work was involved, or how many workmen were delayed, and for how long. Nor has FoxBro sought a time extension on this account, although it has threatened to. ASAF, Item III at 6. We conclude that these were minor interruptions to the progress of the work, especially since there were, in almost every case, other areas in which appellant could work. Item IV. Differing Site Condition: Concrete Drilling. A part of FoxBro's work involved drilling holes for its conduit and wires in the concrete floors of the Commerce Building. These floors contained a number of existing embedded conduits and Commerce did not know their locations. ASAF, Item IV. FoxBro was required to drill a number of extra holes (211) because its drills kept hitting concealed embedded conduit and the hole had to be re-drilled at another location. The Government issued Change Order No. 6, covering five items of extra work, of which this drilling was one, for the sum of $13,806, and a fourteen-day contract time extension, all of which was agreed to by FoxBro. Appeal File, Exhibit 10. This change order included all "direct, indirect, impact and delay costs" associated with the work. Id. FoxBro complains at some length about the time GSA took to finalize this change order, but has given us neither theory nor evidence showing how it delayed the project. We therefore conclude that it did not. Item V. Differing Site Condition: Mahogany Row, the Great Hall, and the Mail Room. The work done on what appellant calls Mahogany Row, which is apparently a high-level executive area, consisted of upgrading the ceiling tiles and the lighting of a fifth floor corridor. This was additional work. A dispute arose as to the costs involved not only for doing this work but also for performing it on a weekend so as to minimize executive inconvenience. Both problems were resolved by the parties' agreement on Change Order No. 6 which also covered the drilling work and other disputes. Appeal File, Exhibit 10. FoxBro asserts that slow resolution of this change order delayed the work, but does not tell us in what way or how long nor produce any evidence on this point. FoxBro also agreed to the fourteen-day time extension associated with Change Order No. 6 which should of itself foreclose the point. We find no evidence that these events delayed the project beyond the agreed time. The work in the Great Hall of the Commerce Building consisted of relocating two terminal cabinets. This work was also included in Change Order No. 6, to which both parties agreed. Once again appellant fails to explain, or produce evidence showing, how this work delayed the project as a whole. The work involved in the relocation of the mail room fire alarm box began with a change order directing its removal from its location on the north wall of the mail room west of a double door to the south wall east of the double door. ASAF, Item V at 35. It could not be installed in this location because of an undrillable beam beneath the site. GSA's project engineer issued an oral directive to move it to the south wall west of the double door. Id. On reinspection he found it back in its original location on the north wall west of the double door. Id. Eventually the Government issued a change order on a price-to-be-determined-later basis directing the correct location. Appeal File, Exhibit 14. Once again appellant fails to explain how this small item of work delayed the project as a whole, nor does appellant produce evidence to support its contention. We conclude that this work did not delay the project. Item VI. Submittal Approval Delays: the Annunciator. The contract required FoxBro to furnish and install a custom-made, free standing, graphic annunciator constructed of yellow bronze with a No. 4 satin finish. Appeal File, Exhibit 1. FoxBro made its first submittal on the annunciator (a bronze sample) on January 15, 1993, more than fourteen months after contract inception. ASAF, Item VI at 3. Almost four months later appellant's diary under date of May 13, 1993, noted "Gave Bruce [GSA engineer] submittal data on [annunciator] pedestal. The Pull Station bronze has arrived." Id. at 4. The submittal was reviewed and returned on May 26, 1993, but was not received by FoxBro until about June 15, 1993. Id. at 7. Five months later the annunciator had not been released for fabrication, according to GSA. Id. at 9. According to appellant, fabrication had begun "several" months earlier. Id. at 10. This was apparently incorrect, since the Government changed its mind on the finish it required and on January 12, 1994, it sought a No. 6 bronze finish, with no complaint from appellant. Id. at 17, 18. The No. 6 finish was located with some difficulty and submitted but on January 27, 1994, the Government tentatively decided to return to the No. 4 finish. Id. at 19. On January 31, the Government vacillated but on February 9, 1994, confirmed its choice of the No. 4. Id. at 21, 22. Appellant advised the Government that fabrication of the annunciator had begun on February 28, 1994. Id. at 30. It did not mention its earlier statement made on October 26, 1993, that fabrication of the annunciator had started "several months ago." ASAF, Item VI at 10. On May 24, 1994, the fabricator, WSA Annunciators, advised that it was having difficulty with the annunciator and it would be delayed at least three more weeks. Id. at 32. There were further fabrication problems due to WSA mistakes and thus further delays. Id. at 35. The annunciator was not delivered until August 22, 1994. Appeal File, Exhibit 75. GSA estimated that it would take three or four days to install the annunciator and hook it up. Id. Two months after delivery it was not operational. Id. Appellant made no attempt to hook it up until the day the contract was terminated for default (November 7, 1994), and then it did not work. Id. Appellant was then a little over six months past its extended completion date of March 8, 1994. The record shows that the short delay in fabrication caused by the Government's indecision as to the type of bronze finish it desired was concurrent with and overshadowed by FoxBro's earlier failure to start the submittal process on time, the later failure of its fabricator to proceed with its work, and the still later failure of FoxBro, once the annunciator had finally arrived, to see to its installation and hook up. Item VII. Additional work: Color Coded Wire. The contract required that each of the five different types of wiring that appellant was to install were to be color coded to distinguish one from another. ASAF, Item VII. Two of the circuits were distinguished one from the other only by a white stripe over the basic color. Id. Appellant ran out of the striped wire for several of the circuits, but continued installing wire of the same basic color while painting on the stripe by hand. Unfortunately, the stripes tended to disappear during the process of installing ("pulling") the wire, and the Government required that most of it be removed and replaced by factory striped wire. Id. at 17. However, the Government allowed the handstriped wire to remain in certain of the main risers because of the great difficulties involved in replacing it. ASAF, Item VI at 23. Appellant cites this as a Government caused delay, but appellant's own submissions show that whatever delay was involved was caused by its own failure to follow the contract requirements. Indeed the Government mitigated whatever delay occurred when it did not require replacement of the main risers. We conclude that the effects arising out of the color coding dispute were all attributable solely to appellant. Item VIII. Defective Specifications and Additional Work: the New Return Riser Conduit System. The Government directed appellant to construct a new return riser system in a location different from the one shown on the contract plans. This was a major addition to the work. The parties eventually agreed on the terms of a change order to cover the work. Appeal File, Exhibit 12. Appellant received the sum of $114,000 together with a one-year time extension for the work. Id. Appellant states that it completed the work during the six-month period May through October 1993, but also states that the work delayed the completion of project as a whole by nine months. ASAF, Item VIII at Preamble. Appellant does not rationalize the discrepancy in these figures. However it matters little, since appellant agreed to the terms of the additional work and to the time extension of one year, which, according to appellant's own statements, was twice as much time as the job needed. We are unable to find any delay to the project as a whole which was not offset by the lengthy time extension granted by the Government. Item IX. Additional Work: System Testing. The contract provided that once the new fire alarm system was complete it would be tested preliminarily by FoxBro after notification to the Government. ASAF, Item IX at 16. If found to be in order, FoxBro was to give the Government ten days notice when it was ready for final testing, which was to be witnessed by the GSA Fire Alarm Shop and Fire Protection Engineering Branch. Id. FoxBro's work schedule dated October 14, 1993, showed preliminary testing to begin October 18 and run through November 4, l993. ASAF, Item V at 5. Based on statements by FoxBro's project superintendent, Mr. Larry Gorman, GSA scheduled its final tests for November 8, 1993. Id. On that date FoxBro did not have its work far enough along to conduct any sort of test, whether preliminary or final. Id. There ensued an exchange of correspondence between FoxBro and GSA as to the meaning of the test language in the contract, culminating in a meaningless final decision by the contracting officer as to its proper interpretation (with which FoxBro agreed), but the system was still not ready for testing until sometime after the installation of the annunciator in August 1994, some ten months later. For whatever reason, probably because the accrued liquidated damages equalled or exceeded the balance due on the contract, FoxBro would not or could not finish the system. There is no evidence at all that the parties' arguments over testing procedures delayed the testing work -- there was no system to test. Item X. Delay and Disruption: Lead Paint. On December 27, l993, FoxBro's project superintendent and a laborer were denied entry into the mail room in Baldridge Hall by the Commerce Department because a lead paint removal contractor was working in that area. Appeal File, Exhibit 15 at 3. The two employees worked that day in another area. Id. FoxBro's project superintendent was told that the mail room was clear of lead paint on February 1, 1994. Id. at 7. FoxBro did not attempt to work in the mail room until February 15, 1994. Id. at 9. Entry was denied on that day because, despite the removal of the lead contaminated paint, Commerce's tests of the air in the mail room were positive for lead. Id. FoxBro's two-man crew worked in the mail room the following day and the day after. Id. at 10. FoxBro says that this incident caused a delay in the project of "almost three months." ASAF, Item X at Preamble. The period in question contains fifty days. This is the only instance cited by FoxBro to support its claim that the project was delayed by the lead removal work. There is no evidence that this incident delayed the project as a whole. There were many other areas in which FoxBro could work during the days at issue and much work to be done. FoxBro does not even tell us how or why this incident delayed the project, much less produce evidence that it did so. Item XI. Delay and Disruption: Miscellaneous. The collection of complaints that FoxBro puts under this heading all occurred in the final months of contract performance between July and October 1994. Several of FoxBro's terminal cabinets were found to be damaged by parties unknown, probably other contractors who were also working on the site. ASAF, Item XI at 1, 2. One of FoxBro's wires was also cut by unknown persons. FoxBro blamed the Government and stated that a delay claim for the time it took to make repairs would be forthcoming, although none was ever filed. Id. The Government's response was to tell FoxBro not to fix either the cabinets or the wire since the damage was minor and did not affect the performance of the fire alarm system. Id. at 3. FoxBro then advised the Government that any work by others on its fire alarm system would void the warranty. Id. at 18. In late August and early September 1994 the Government sent FoxBro lists of Deficiencies and Omissions (D's & O's) which it had compiled during the course of an inspection of FoxBro's work. ASAF, Item XI at 19, 22. They totalled 328 items. Id. FoxBro asked for, and got, a direction from the contracting officer that FoxBro was required to correct the items shown on both lists, and then, after promising to do the work, advised the Government by letter that "numerous items" were "not within the scope of work for this contract" and would be the subject of a delay claim. Id. at 24. None was ever filed, and few of the D's & O's were ever corrected. The Government next asked FoxBro for a list of the items that it considered to be outside the scope of the contract. Id. at 25. FoxBro's reply asked for a change order to cover the cost involved in compiling the list. Id. at 27. On October 26, 1994, the Government picked up most of the Commerce building keys that it had supplied to FoxBro's people and changed the locks on the supply room used by FoxBro and the lock on the fire alarm panel control room. ASAF, Item XI at 13. In the first week of November 1994, FoxBro complained that the Government would let it test its alarm bells only between the hours of 12 M. and 6 a.m. FoxBro wanted to be able to test them any time after 7 p.m. FoxBro claimed that this restriction delayed its work but did not say why, how, or for how long. Id. at 32. Before this issue could be resolved, the contract was terminated for default (on November 7, 1994). This section of FoxBro's submission is simply a laundry list of its remaining complaints against the Government. At the time most of them occurred, FoxBro was approximately 200 days late in completing its contract. Most of these items reflect the growing disenchantment of the Government's people with FoxBro's performance. The changed locks were an obvious prelude to the default termination that would occur some 10 days later. None of these items were, at face, obstacles to FoxBro's completion of the contract work, or if they were, FoxBro has not shown us how this might have come about. We see no evidence to indicate that any of these items would have impeded its progress in any significant way. Indeed the Government's direction not to fix the minor damage to the terminal boxes should have minimally simplified the work. Decision FoxBro's submissions in this appeal were stated to be proof that the blame for FoxBro's late finish was entirely the Government's, and thus the termination for default was unjustified. As it has turned out, FoxBro's documents, mostly correspondence, show only that FoxBro had complaints about the Government's handling of its end of the contractual relationship between the parties. There is nothing in these documents to explain why FoxBro, which completed what one of the Government construction engineers estimated to be sixty percent of the contract work during a single three-month period in the summer of l992, could not complete the balance of the work in the ensuing twenty-seven months. There is also nothing in the submissions of either party which indicates that FoxBro's delays were caused by the Government. FoxBro began with a very late start, then a three-month burst of energy, then gradually decreasing activity, until by December 1993, FoxBro had only one or two people on site, who frequently could not be found, and no people at all working on site from sometime in February 1994 to June 28, 1994. We deny the appeal. _____________________ DONALD W. DEVINE Board Judge We Concur: ___________________ _________________________ CATHERINE B. HYATT MARY ELLEN COSTER WILLIAMS Board Judge Board Judge