DENIED: December 11, 1997 GSBCA 14064 TWIGG CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John E. Belt, Falls Church, VA, counsel for Appellant. Kathleen McCartney, Office of Regional Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. DANIELS, Board Judge. The General Services Administration (GSA) entered into a $9,339,257 contract with Twigg Corporation (Twigg) for the renovation of a portion of the Columbia Plaza office complex in Washington, D.C. As part of the renovation, Twigg had to provide and install thirty-nine air handling units (AHUs). GSA required Twigg to provide and install six-inch-high steel rails under the AHUs. The cost associated with the rails was $26,916. The parties disagree as to which of them is responsible for this expense. Twigg advances two theories in support of its position that GSA is obligated to pay for the rails. First, the contractor maintains that the agency is bound to accept responsibility for the cost because when its construction engineer at the site agreed to make payment, he was authorized to do so. Second, Twigg contends that the contract does not require installation of the rails, and that the direction to provide them therefore constituted a change for which it is entitled to an adjustment in the contract price. We reject both theories and deny the appeal. The Construction Engineer's Authority Description of authority The contract provides: All work shall be performed under the general direction of the Contracting Officer, who alone shall have the power to bind the Government and to exercise the rights, responsibilities, authorities and functions vested in him by the contract documents, except that he shall have the right to designate authorized representatives to act for him. . . . The Contracting Officer may, at any time during the performance of this contract, vest in any such authorized representatives [including a Construction Engineer] additional power and authority to act for him or designate additional representatives, specifying the extent of their authority to act for him. Appeal File, Exhibit 1 at 5 of Construction Contract Clauses. By letter to Twigg dated August 11, 1994, contracting officer Peter J. Dixon designated Terry DeBiase "the authorized representative of the Contracting Officer." The letter said that "Mr. DeBiase has full authority to act as the Contracting Officer's Representative with the exception that he cannot issue final decisions under the disputes clause or terminate this contract." Appeal File, Exhibit 14. The record contains no evidence that Mr. Dixon vested any other GSA employee with similar authority. During the first few months of 1995, another GSA employee, construction engineer Steven K. Anderson, wrote several letters to Twigg stating the "Government's opinion" that various items of work were changes to contract requirements and "formally directing" the contractor to proceed with them. The latest of these letters which is a part of our record was dated April 7, 1995. Appellant's Exhibits 1-7A. Mr. Anderson says that he wrote the letters "[t]o keep the project moving." Transcript at 194. When Mr. Anderson's superiors realized what he had done, they counseled him that he had exceeded his authority. Transcript at 180, 183. Twigg also thought that the construction engineer's actions were unusual. At a partnering meeting on April 19, the contractor "requested clarification that the Construction Engineer was authorized to direct and approve [certain] changes in the work." Appellant's Exhibit 8; Transcript at 36-37. On June 13, Twigg complained to the contracting officer: As of this date, we have not received your clarification or direction concerning this matter, yet we have received additional RFP's [requests for proposals] directing us to proceed. We are proceeding with the RFP issued before our meeting of April 19, 1995[;] however, we cannot proceed with subsequent RFP's until this issue is clarified by you. Appellant's Exhibit 8. Twigg raised the issue again on July 12, noting that during a June 22 meeting, Mr. Dixon had "advised that Mr. Anderson did not have the authority to direct Twigg Corporation to proceed with changed work under Request[s] for Proposals, but that work previously directed in similar circumstances would be ratified." Appellant's Exhibit 9. Twigg asked the contracting officer to confirm this statement in writing. The contractor said that it considered the matter "to be important, as earlier in the contract Twigg performed a considerable amount of changed work on the contract on the basis of Mr. Anderson's apparent authority to direct the same." Id. The next mention of this subject in our record is contained in the minutes of the partnering meeting of July 19. The minutes include this paragraph, which we reprint faithfully in the fractured syntax and unique spelling of its author: Mr. Pete Dixion state that all RFP proposal issued before April 27, 1995 will Twigg to proceed will be honored. From that date forward Terry DeBiase and Pete Dixion are the only authorized officer's. Appellant's Exhibit 10 at 5 (unnumbered). GSA's project officer for the Columbia Plaza renovation, David Porch, called this paragraph a fair description of what transpired at the meeting. Transcript at 183. Actions regarding the steel rails No later than the beginning of April, Mr. Anderson and Twigg vice president Thomas J. Twigg had discussed the desirability of Twigg's installing steel rails under the AHUs, and Mr. Anderson had said that he considered this work to be additional to contract requirements. Transcript at 30. By letter dated April 4, Twigg gave GSA, through Mr. Anderson, a proposal for "fabricating and installing steel support frames under the air handling units" at a price of $26,916. Appeal File, Exhibit 84; Transcript at 31. Mr. Twigg explained that he directed the proposal to Mr. Anderson "[b]ecause all of the change order proposals were being submitted to the construction engineer at that time." Transcript at 72. According to Mr. Twigg and Twigg engineer Donald A. Kelley, Mr. Anderson had asked Twigg to submit a proposal for performing the work. Transcript at 79-80, 144, 147. Mr. Anderson says that he did not do this, id. at 194, but on a log he prepared, on the line for this work, the entry for the date on which he issued a request for proposal to the contractor is shown as "4/5/95." Respondent's Exhibit 1; Transcript at 197, 202. Mr. Twigg testified that his company's proposal was "settled full price with Steve Anderson at the time of submission." Transcript at 31-32. Later, he said that this negotiation occurred "in the latter part of April." Id. at 80. Mr. Anderson insists that he did not negotiate this proposal until November. Id. at 199. In any event, Mr. Anderson did not at any time in April give Twigg anything in writing regarding this matter. Id. at 81. On October 13, GSA sent Twigg a proposed contract modification for fabricating structural steel support frames and installing them under the thirty-nine AHUs, at a cost to the Government of $26,916. Appeal File, Exhibit 86. In early November, Messrs. Twigg and Anderson discussed the matter. Transcript at 31-32, 199. Mr. Anderson wrote on Twigg's April 4 proposal, "Settled . . . for $26,916.00." Below this statement, he signed his name with a date of November 6, and Mr. Twigg signed his with a date of November 2. Appeal File, Exhibit 84; Transcript at 203-04. On November 9, Mr. Twigg signed the October 13 proposed contract modification. Appeal File, Exhibit 86. Messrs. DeBiase and Porch then reviewed the proposed modification and told Mr. Anderson that in their view, the work covered by it was required by the contract, so a change order should not be issued. Transcript at 172, 188-89. They persuaded Mr. Anderson that they were correct. Id. at 199-200. The proposed modification was never signed by the contracting officer. Respondent's Exhibit 1. Although Twigg bought, fabricated, and installed the steel rails during the spring of 1995, it has never been paid any sum in addition to the contract price for this work. Transcript at 42, 80. Twigg sent the contracting officer a claim for the money in August 1996. Appeal File, Exhibit 88. It appealed to this Board from a deemed denial of the claim. Id., Exhibit 89. The contracting officer issued a formal denial in January 1997, stating that Twigg was not entitled to payment for the rails because the contract called for them. Id., Exhibit 90. Analysis From the facts that the April 1995 discussions between Messrs. Twigg and Anderson were never followed by written direction from the GSA construction engineer to the contractor, and negotiations on the same matter were reduced to writing in November, we conclude that the matter was not resolved in April. Mr. Anderson was never authorized to bind the Government through modifications to this contract. Twigg understood and was concerned about this at least as early as April, so it can hardly contend that it reasonably relied on any of his determinations at that time. In any event, contracting officer Dixon's ratification of prior directions by the construction engineer, the scope of which is not entirely clear, surely does not extend to any actions taken after April 26. The only agreement Mr. Anderson ever reached with Twigg as to payment for supply and installation of the rails occurred in November, more than six months after this date. At that time, only Mr. Dixon and his representative, Mr. DeBiase, had any authority to agree to contract modifications on behalf of the Government. Both of them rejected Twigg's proposal, as they were empowered to do. Twigg makes a related argument in urging that the Board consider GSA to be bound to pay for the rails. The proposed contract modification issued on October 13 was stamped as being "prevalidated." Appeal File, Exhibit 86. According to Mr. Twigg, "prevalidated" "means it's been reviewed and approved for signature by the contractor and the contracting officer" and that the agency has determined that it has funds available for the modification. Transcript at 42. Mr. DeBiase, on the other hand, testified that the term means only that funds are available; it is not a judgment as to the merits of a proposal. Id. at 179. We credit the testimony of the contracting officer's representative, who should be more knowledgeable about internal agency procedures. There is no persuasive evidence that the contracting officer ever agreed to pay for the rails as work additional to what was required by the contract. Contract Interpretation Contract provisions The contract contains a drawing and specifications which are relevant to this dispute. The drawing, 9M18, shows a schematic representation of a "Typical AHU Section." A set of three short parallel lines, one above another, is shown under each end of the unit, and a note addressing one of the sets states, "3" vibration isolation pad with 16 ga. [gauge] galvanized sheet metal top plate (typical)."1 Below the sets of short lines representing vibration isolation pads is a solid horizontal line. The drawing does not explain the meaning of this line or note or show specifically any rail or other object below the pads. In another place, the drawing includes a line vertically exiting the bottom of the coil section of the unit and then turning horizontal. A note addressing this line states, "Provide trap at unit, and run condensate piping full size of unit connection to connect to condensate riser." Appeal File, Exhibit 81. ____________________ 1 Although the drawing calls for vibration isolation pads which are three inches thick, the specifications call in one place for such pads one inch thick (Appeal File, Exhibit 1 at 15241-6) and in another place for such pads two inches thick (Id. ___ at 15854-10). This confusion is not important to our case. Twigg used three-inch pads under all thirty-nine AHUs it installed. Transcript at 157. It has not claimed entitlement to an adjustment in the contract price relating to the pads, and GSA has not objected to the installation. Two specifications are important to this case. The first one, regarding AHU cabinets, states, "Provide units with rigid structural steel base to allow support or suspension from four points." Appeal File, Exhibit 1 at 15854-4. The second specification, regarding AHU connections, says, "Connect condensate drain pans using 1-1/4-inch, Type M copper tubing. Extend to the nearest equipment or floor drain. Construct deep trap at connection to drain pan and install cleanouts at changes in direction." Id. at 15854-10. Introduction of rails into the project Twigg made a submittal to GSA regarding air handling units in the course of contract performance. This submittal did not discuss how the units would be supported. Appeal File, Exhibit 82 at 2 (unnumbered). The agency's architectural and engineering consultant on this project, Girard Engineering, PC, returned the submittal with the comment, "Submittal [is] unclear as to how unit will be supported by four points as per specification. Design was intended to have base rails to support unit and raise unit off floor to allow for condensate drain piping and trap." Id. at 1; see also Transcript at 151-52. A resubmittal had the same flaw and received a similar comment. Appeal File, Exhibit 87. On the job, Mr. Anderson pointed out to Mr. Twigg that the AHUs would have to be raised higher than three inches off the floor so as to permit proper installation of condensate piping and traps. Mr. Anderson suggested using spring isolators for this purpose. Transcript at 26, 29-30. Mr. Twigg passed the suggestion along to Henry J. MacLaughlin, the sales engineer representing the manufacturer of the AHUs Twigg was supplying, The Trane Company. Mr. MacLaughlin responded that spring isolators were inappropriate for two reasons: they were not tall enough and they would make the units unstable. Mr. MacLaughlin noted that a possible solution to the problem was to put base rails under the units. Appeal File, Exhibit 83 at 1 (unnumbered). The need for raising the AHUs off the floor As explained in a Trane publication and conceded by Mr. Twigg at hearing, the proper height of condensate traps for AHUs is determined through an industry-standard formula in which the static pressure of the equipment is a key variable. Appeal File, Exhibit 83 at 2 (unnumbered); Transcript at 27-28. The manufacturer of an AHU, such as Trane, could not tell from the contract drawing how high the unit would need to be raised off the floor to permit proper piping and trapping, since the drawing does not show how or where the trap would be located. Transcript at 70-71, 109-10. Ensuring that piping and traps are situated correctly is a responsibility of the contractor who installs the AHUs. Id. at 65, 136-37. From examining the mechanical rooms where the AHUs were to be placed, a contractor could determine the location of the floor drains relative to the units, and thus the necessary distance above the floor for positioning the equipment. Id. at 98-99. Mr. Twigg walked through the construction site before submitting his firm's bid on this job. He knew the building well because the firm had performed demolition work there. Nothing would have prevented him from being familiar with the location of the drains. Id. at 100-01. Twigg recognizes that if it had installed the AHUs with support provided by only three-inch-thick vibration isolation pads, it could not also have installed the condensate piping and traps properly. Transcript at 96-97. The six-inch-high steel rails which were installed, when combined with the three-inch- high vibration isolation pads, bring the units to a height adequate to allow for the piping and traps. Id. at 157. Twigg considered two means other than steel rails for raising the AHUs a sufficient distance off the floor. One was using spring isolators. As described above, these devices were not appropriate for the particular AHUs being supplied. The other alternative was pouring concrete housekeeping pads to serve as a base for the units. These pads could not be used, either, because the building could not support their weight. Id. at 71, 160; see also id. at 94-95. Analysis Twigg believes that the contract does not require the installation of steel rails under the AHUs because drawing 9M18 does not show a rail and the specification which states, "Provide units with rigid structural steel base to allow support or suspension from four points" does not mandate them. This position would be valid if this aspect of the drawing and this specification were the only relevant provisions of the contract. We agree with Twigg that the requirement for a "rigid structural steel base" may be met by an integral part of the AHU itself, as well as by an appurtenance to the unit. Each Trane AHU supplied by Twigg has a continuous rail, constructed of structural steel, around its perimeter. Appellant's Exhibit 11 at 2-3; Appeal File, Exhibit 82 at 2 (unnumbered); Transcript at 22-23. Mr. MacLaughlin, relying on advice from Trane engineers, assured the Board that this frame is strong enough that a unit will operate properly if it is supported from only four points. Transcript at 120-23.2 GSA's argument that the specification can only be construed to mean that the contractor must install rails under the AHUs is not well taken. Twigg's error is considering in a vacuum the portion of the drawing dealing with vibration isolation pads and the specification addressing AHU cabinets. A contract is to be read as a whole, giving reasonable meaning to and harmonizing all of its provisions. Community Heating & Plumbing Co. v. Kelso, 987 ____________________ 2 Douglas Menchhofer, Girard Engineering's project manager for this job, doubted this conclusion, but was unable to enunciate a basis for his position. Transcript at 161-62. F.2d 1575, 1578 (Fed. Cir. 1993); Granite Construction Co. v. United States, 962 F.2d 998, 1003 (Fed. Cir. 1992); United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed. Cir. 1983); Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 1965); Incore, Inc. v. General Services Administration, GSBCA 12711, 96-1 BCA 27,932, at 139,497. The portion of the drawing, and a different specification, dealing with condensate piping and traps, make clear that the AHUs must be raised high enough off the floor that the piping and traps may be installed properly. These provisions must be considered together with the parts of the contract Twigg relies on, for the units must function properly, not merely sit on the floor. Reading the contract as a whole, we conclude that it requires that the units must be supported with something much higher than just three- inch-thick vibration isolation pads. Had Twigg been able to show that it could have fulfilled this requirement through the use of some means less expensive than steel rails, it would have been entitled to the difference in cost between the rails and that cheaper means. Neither of the alternatives the contractor suggested was appropriate for use with these units in this building, however. Thus, as far as our record shows, Twigg used the least expensive method for meeting the contract requirement for raising the AHUs high enough off the floor to allow for proper installation of condensate piping and traps. A contractor is not entitled to any addition to the contract price for meeting a contract requirement as inexpensively as it finds possible. Decision The appeal is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge