Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________ DENIED: November 30, 1999 _________________________ GSBCA 14136 ROWE INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Stanley V. Campbell, Jr., President of Rowe Inc., Fairfax Station, VA, appearing for Appellant. Michael J. Noble, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, BORWICK, and DeGRAFF. DeGRAFF, Board Judge. This appeal arises out of the General Services Administration s decision to terminate the contract performance of Rowe Inc. Because the contractor did not deliver within the time required by the contract, and did not establish either that the termination action was flawed or that the agency was responsible for delaying the contractor s performance, we deny the appeal. Findings of Fact In early 1996, the General Services Administration (GSA) issued a solicitation to purchase vehicles. The contract was to be a definite quantity, firm fixed price contract, and would require the contractor to deliver two items. Item 001 was an Immigration and Naturalization Service (INS) detention and deportation van, and Item 002 was an INS border patrol van. Ex. 3 at 1, 15, 17.[foot #] 1 The contractor would be required to ship the vans within 180 days after it received orders for them. Ex. 5 at 2. The solicitation described itself as one for the procurement of commercial items, and contained the clauses applicable to a commercial item contract. Ex. 3. For example, the contract contained a clause, standard in commercial item contracts, stating that GSA could terminate the contract "for cause" in the event of a default. Ex. 3 at 12. Nonperformance constituted a default, unless the nonperformance was caused by something beyond the contractor's control. The contractor was required to notify the contracting officer in writing of any excusable delays as soon as possible after the delays occurred. Ex. 3 at 11. The solicitation required the use of a Standard Item 34 vehicle chassis. Ex. 3 at 18, 23. Standard Item 34 is a cargo van. Ex. 4 at 14. Before a contract was awarded, GSA amended this requirement to permit the use of either a Standard Item 34 or Standard Item 24 vehicle chassis. Ex. 5. Standard Item 24 is a passenger van. Ex. 4 at 10. If a contractor supplied a Standard Item 24 chassis, it was required to furnish vans with the original equipment manufacturer's maximum available chassis Gross Vehicle Weight Rating (GVWR), including the "one up" spring rating option, if that option was available. Ex. 5 at 2. The GVWR is the value specified by the manufacturer as the loaded weight of a vehicle. Ex. 607 at 6. A window sticker on a van will show that van s GVWR, but it will not show what the maximum available GVWR is for that type of van. T. 241, 1508. The solicitation stated that GSA wanted seventy-three vans, and gave GSA the option to increase this quantity. Ex. 3 at 17, 43. The solicitation explained that if GSA exercised its option, the contractor would be obligated to deliver the additional vans within the same number of days after receiving the notice of increase as it had to deliver the initial contract quantities. Ex. 3 at 43. The vans had to meet all Federal Motor Vehicle Safety (FMVS) standards. Ex. 4 at 60. The contractor had to install foam insulation in the rear compartment ceiling and walls, and the insulation had to be fire resistant per FMVS Standard 302. Ex. 3 at 20, 25. The contractor had to supply operator, service, and parts manuals. Ex. 3 at 18, 23; Ex. 4 at 74. Seat belts were required for all seating positions and had to be mounted to meet FMVS Standards 208, 209, and 210. Ex. 3 at 18, 23. Rustproofing was required for areas affected by the contractor's work. Ex. 3 at 21, 26. The contract required two tamper resistant power exhaust type roof ventilators. Ex. 3 at 19, 24. The vans were ----------- FOOTNOTE BEGINS --------- [foot #] 1 "Ex. __" refers to an exhibit contained in the record of this appeal. "T. __" refers to a page from the hearing transcript. ----------- FOOTNOTE ENDS ----------- supposed to be free from workmanship defects, such as rough or sharp edges; incomplete or improper welding, riveting, or bolting; and interference of chassis components, body parts, and doors. Ex. 4 at 75. The vans were to contain two front seats with arm rests, and fiberglass bench seats in the rear for thirteen passengers. Ex. 3 at 18-19, 23-24. The solicitation did not specify any color for the fiberglass seats. Ex. 3. If the contractor was going to retrofit the original equipment manufacturer's seat frames with fiberglass seats, the solicitation required that the seat attachment be "in a manner equal to a seat furnished as a complete assembly by a seat manufacturer." Ex. 5 at 2. The seats had to be attached to the floor and the floor attachments had to include "tamper resistant mechanisms to prevent loosening and removal of seats by occupants." Ex. 5 at 2. The solicitation permitted the spare tire assembly to be placed under the vehicle with a locking device. The jack was required to be stored and secured to the floor behind the driver's seat, and had to be capable of raising the van, when fully loaded to its maximum GVWR, to a height that would allow someone to change a flat tire. Ex. 3 at 21, 26. The rear doors and side windows of the vans were to be inoperable and covered with mesh attached with vandal resistant fasteners. Ex. 3 at 20, 25. Each van had to have a sliding side door, and the contractor had to install some type of limiting device to prevent the sliding door from opening beyond one-half of its normal opening distance. The solicitation did not specify exactly how large the opening had to be. Ex. 3 at 20, 25. The rear compartment was to be lined with aluminum that was installed so that the occupants could not pull down or damage the ceiling or the walls. Ex. 3 at 20, 25. The contract required a tamper resistant interior dome light in the rear compartment of at least twenty-one candle power. Ex. 3 at 20, 24. The solicitation's air conditioning requirements were as follows: Air conditioning is required per specification and shall be the chassis manufacturer s dual evaporator system, with the rear evaporator located behind the partition, with multiple outlet ducts. The auxiliary rear floor heater[foot #] 2 and air conditioner including outlets in the rear passenger compartment shall be made tamper resistant by means of security screens/guards, or other tamper resistant means. Ex. 3 at 19, 24. The specification referred to in this requirement is Federal Standard 307, which is a document issued by GSA for use by any federal agency that orders vehicles. It establishes classifications for various types of vehicles generally acquired by the Government, and sets out the characteristics, components, equipment, and options available for each classification. Ex. 4; T. 267-69. The solicitation required the driver's compartment to be separated from the rear compartment by a full-width, full-height partition. The partition was to be permanently secured to the side, roof, and floor of the body of the van. It was to be fabricated of "No. 9 woven mesh, (1 to 1/4) inches on centers, and pinned to a one (1) inch channel frame." Ex. 3 at 20, 25. The contractor was to attach a transparent shield of clear Lexan from ceiling to floor and from side to side on the forward side of the partition. The Lexan panel had to be cut to conform to the sides of the van, and where the panel met the sides of the van, the gap could not exceed 0.75 inches. A ten-inch square window was to be cut in the Lexan, but not in the mesh, so that the driver could see the passengers in the rearview mirror. Ex. 3 at 21, 25. The contract did not require that the partition between the passengers and the drivers be placed at any specific spot. The placement of the partition was to be the contractor s choice. Ex. 3; T. 298. There are many ways of constructing the partition to meet the requirements of the contract, and it would be up to the contractor to decide which method to use. T. 1440-45, 1449. The solicitation stated that a stripe "shall be furnished and applied" to the side of each Item 002, the INS border patrol van, and contained a drawing to show where the stripe should be placed. Ex. 3 at 26, 27. The solicitation required the contractor to install an adjustable flood light above the sliding side door of each Item 001, the INS detention and deportation ----------- FOOTNOTE BEGINS --------- [foot #] 2 The requirement for the border patrol vans actually reads "auxiliary rear door heater," and not "auxiliary ____ rear floor heater." Ex. 3 at 24. Neither party contends that this discrepancy has any bearing upon the outcome of this appeal. ----------- FOOTNOTE ENDS ----------- van. The lamp was to be housed in an "ABS type plastic housing, measuring approximately 4 in. x 6 in." Ex. 3 at 21. A flood light disperses light in a pattern different from a fog light. T. 1419. ABS (acrylonitrile-butadiene-styrene) is a plastic resin, and ABS type plastic is a durable plastic that has good resistance to weather, stains, and chemicals. Ex. 66; T. 313. The solicitation required the contractor to produce a "first production vehicle" that GSA would inspect in order to determine whether it conformed to the contract's requirements. The contractor was required to give GSA fifteen days' written notice prior to the day that the first production vehicle would be ready for inspection. After GSA approved the first production vehicle, the contractor was supposed to keep that van for the duration of the contract as an approved sample. If the first production vehicle did not meet the requirements of the specifications, this did not relieve the contractor from meeting all of the contract's requirements, and GSA could refuse to accept all vehicles until the contractor took corrective action. Ex. 3 at 32. The contractor was also required to weigh the first production vehicle and to calculate the imposed loading on the front and rear axles, and then to use those calculated imposed load figures to determine whether the suspension, axles, and tires were adequate to meet the requirements of the contract. Ex. 4 at 80. The solicitation provided that all vans supplied by the contractor would be inspected at their source. Ex. 3 at 29, 31. The contractor was to perform all inspections and tests needed to substantiate the fact that the vans conformed to the contract requirements. GSA was allowed to perform verification inspections in order to determine the adequacy and reliability of the contractor's inspection. GSA's acceptance of vans was normally to be made based upon the contractor's inspection records, provided that they showed full compliance with contract requirements and provided that GSA s inspections showed that the contractor s inspections were adequate and reliable. Ex. 3 at 31. GSA was also allowed to inspect any vans that the contractor tendered to GSA for acceptance. GSA could require the contractor to repair or to replace any vans that did not conform to the requirements of the contract. Ex. 3 at 10. GSA was required to inspect vehicles within seven working days after being requested to do so by the contractor. Ex. 3 at 29. Rowe Inc. had produced vehicles for GSA under other contracts, and the relationship between Rowe and GSA had worked well. One year, Rowe was selected as GSA s small business contractor of the year. T. 350. The president of Rowe is Stanley Campbell, who testified that he is a physicist and a former Navy test pilot. T. 832. Mr. Campbell's office was located in Springfield, Virginia. T. 2235. On March 27, 1996, Thomas Mould conducted a survey of Rowe s facility in Powhatan, Virginia, which is where Rowe planned to produce the vans. Ex. 7; T. 19. Mr. Mould, a quality assurance specialist, had been employed by GSA since approximately 1986, and had inspected vehicles that Rowe produced under other contracts. T. 8-10, 15. During his survey, Mr. Mould reviewed with Rowe all of the specification requirements contained in the solicitation, and Rowe said that it had no problems with understanding or completing any of those requirements. T. 159- 62, 1839-40. In his report of the March 27 survey, Mr. Mould said that Rowe's past performance had been adequate and that Rowe was producing similar items in a satisfactory manner. Ex. 7. Mr. Mould also said in his report that Rowe had a quality control system in place that he found to be adequate to comply with the inspection clause set out in the solicitation. Ex. 7. When Mr. Mould performed this pre-award survey, he evaluated Rowe s capability of supplying a total of seventy-three vehicles. Ex. 7; T. 1833. Based upon Rowe s records, Mr. Mould believed that Rowe could convert seventy-three vans within sixty days after it received the chassis. Ex. 7; T. 136-37. A review of Rowe s previous production records indicated to Mr. Mould that Rowe could perform approximately forty vehicle conversions per month. Ex. 7; T. 131. The plans that Rowe provided to Mr. Mould, however, showed that Rowe could produce well in excess of forty vans per month, and Rowe anticipated delivering the vans within 120 days, instead of the 180 days allowed by the contract. Ex. 7; T. 131, 155. In the report of his March 27 pre-award survey, Mr. Mould stated that Rowe had made arrangements to obtain Ford vans from Richmond Motor Company. He also stated that Rowe had a commitment letter from Richmond Motor which stated that Ford Motor Company would need to have the order for the vans by April 10, 1996, and that Rowe could anticipate delivery within sixty days. Ex. 7. Because of the Richmond Motor deadline for ordering vans, a GSA employee spoke with officials at Ford Motor Company in order to ensure that Rowe would receive the vans it needed for the contract. T. 2184-85. On April 16, Rowe agreed to extend its proposal, including price, through April 23. Ex. 8. The Small Business Administration granted Rowe a certificate of competency on April 19, 1996, nine days after the April 10 deadline established by Richmond Motor for ordering vans from Ford Motor Company. Ex. 9. Also on April 19, 1996, GSA awarded Rowe the INS van contract, contract number GS-30F-96150, and exercised its option to increase the quantity of vans to a total of 219, which was the maximum quantity allowed by the contract. Ex. 8, 10. That same day, Rowe ordered 219 model year 1996 Ford Club Wagon vans from Powhatan Ford, and not from Richmond Motor. Ex. 505. A few days later, on April 25, 1996, GSA ordered all 219 vans. The delivery orders showed that the vans were due to be delivered on October 19, 1996, which was 183 days after April 19, and 177 days after April 25. Ex. 12.[foot #] 3 We do not know when Rowe received either the notice that GSA had increased the quantity of vans or the delivery orders. Neither GSA nor Rowe has argued that the October 19 delivery date set out in the delivery orders is incorrect. The procuring contracting officer who awarded Rowe's contract, K.D. Pickeral, worked in GSA's automotive center in Crystal City, Virginia. Ex. 8-11. On May 1, 1996, Mr. Pickeral delegated administration of the contract to GSA s regional office in Atlanta, Georgia. A contract specialist, Deborah McIntosh, signed the delegation memorandum "for" Mr. Pickeral, but it was Mr. Pickeral's decision to delegate administration of the contract. Mr. Pickeral's delegation memorandum provided that the Atlanta office did not have the authority to terminate the contract without the concurrence of the procuring contracting officer. The memorandum also provided that the Atlanta office had the authority to issue cure notices and show cause notices in accordance with Federal Acquisition Regulation (FAR) 49.402- 3(b).[foot #] 4 On May 24, 1996, Rowe wrote to GSA in Crystal City and asked whether Rowe could provide one power exhaust type ventilator that would move more air through the van than the two ventilators specified in the contract. Rowe provided GSA with specifications concerning a vent made by Fan-Tastic. Ex. 15. Rowe's letter was received by Ms. McIntosh. On May 28, she forwarded Rowe's information to the INS and to Steve Dellinger, a transportation operation specialist in GSA's automotive center in Crystal City. Ex. 17; T. 660-61. Also on May 28, Ms. McIntosh contacted Mr. Campbell and he agreed to send GSA in Atlanta the information concerning the Fan-Tastic vent. Ex. 17. In late May, Rowe asked GSA if it could use gray fiberglass seats. Ex. 17. On June 5, 1996, before Rowe heard from GSA, Rowe wrote to GSA in Crystal City and recommended using gray fiberglass seats. Rowe said that if it heard nothing from GSA by June 10, it would proceed to choose a color for the seats. GSA in Crystal City forwarded this letter to GSA in Atlanta. Ex. 16. Gray was the color that Rowe had used for seats on prior contracts. T. 213. Mr. Mould would have accepted fiberglass seats in any color, because there was no contract requirement for any particular seat color. Also, as far as Mr. Mould knew, the Government did not have a preference as to seat color. T. 210- 11. On June 6, the INS told GSA that gray seats were acceptable. ----------- FOOTNOTE BEGINS --------- [foot #] 3 On May 1, 1996, GSA ordered one more van. Ex. 12. GSA's error in ordering one more van than was permitted by the contract did not affect the events at issue in this appeal. [foot #] 4 The cited regulation in effect at the time the delegation letter was sent is found at 48 CFR 49.402-3(b) (1997). ----------- FOOTNOTE ENDS ----------- Ex. 17. Rowe had ordered the seats on April 23, 1996. Ex. 188 at 5. On June 6, GSA in Crystal City learned that GSA in Atlanta had never received any information from Rowe concerning the roof ventilators, so GSA in Crystal City sent the information to Atlanta. On that date, Mr. Dellinger was waiting for additional information from Rowe concerning the ventilators before he could make a decision concerning Rowe's proposal. Ex. 17. Also on June 6, GSA in Crystal City sent Rowe a handwritten note stating that GSA in Atlanta had been delegated responsibility for Rowe's contract, and that any changes to the contract would be made by Atlanta. Although GSA's handwritten note refers to an administrative contracting officer named Margaret Graham, the record does not show that Ms. Graham ever took any action as the administrative contracting officer for Rowe's contract. Ex. 544. On June 14, 1996, Carol Huddleston wrote to Rowe and explained that the contract had been assigned to her office for administration and that she was the administrative contracting officer. She explained to Rowe that correspondence or inquiries other than to schedule inspections should be directed to her. Finally, she explained that Mr. Mould would be the quality assurance specialist for the contract. Ex. 14. Ms. Huddleston s job title is contract administrator. T. 1641-42. This is how GSA refers to contracting officers in the Atlanta office, which is a contract administration office. T. 1731. Ms. Huddleston holds an unlimited warrant. T. 1641-42, 1732. On June 19, 1996, GSA modified the contract to state that gray was an acceptable color for the fiberglass seats, and to permit the use of one power exhaust type roof ventilator. Ex. 20. Rowe ordered Fan-Tastic vents on June 27, 1996. Ex. 188 at 5. Mr. Mould explained that a contractor could have a first production vehicle ready for inspection one or two weeks after it obtained a chassis if, at the time of award, the contractor ordered the components that it was going to need. T. 135-36, 143, 148. Mr. Mould anticipated that while Rowe was waiting for delivery of the vans, it would order all of the components that it was initially going to need in order to manufacture the vans. T. 148-49. In the opinion of Mel Globerman, a GSA employee in Crystal City, Rowe should have had a first production vehicle ready for inspection two weeks after it received delivery of the vans. He would have expected Rowe to use the time between contract award and delivery of the vans to design all of the interior items and have all of the necessary materials on hand. Mr. Globerman has a degree in electronics engineering and has worked as an engineer in the field of automotive engineering for nearly twenty-five years. He is the chief of engineering in one of GSA s automotive division branches. T. 1375, 1501-02. Mr. Mould visited Rowe's facility on July 10, 1996, and saw that Rowe had received forty-nine vans. This was the first time that Mr. Mould saw vans for the INS contract at Rowe's facility. Ex. 21; T. 130-31. Inspection records indicated that these vans arrived in early June. T. 134, 153. Rowe was using a Standard Item 24 chassis, and not a Standard Item 34 chassis. T. 72, 88. Rowe said that it would have the first production vehicle ready in two or three weeks. Ex. 21. Because Rowe received its first vans in early June, Mr. Mould thought that Rowe should have completed its first production vehicle by approximately June 22, 1996. T. 151-54. During his July 10, 1996 visit, Mr. Mould saw that the vans did not have arm rests on the drivers' seats. In addition, Rowe stated that the rear compartment would contain only one air conditioning outlet duct, and not multiple ducts. Mr. Mould advised Rowe that it should write to Ms. Huddleston about these items so that any necessary action could be taken before Rowe submitted its first production vehicle for inspection. In his report to Ms. Huddleston regarding this visit, Mr. Mould stated that due to the increase in the number of vehicles required by the contract, he did not see how Rowe could deliver the vans within the time required. Mr. Mould recommended that Ms. Huddleston consider establishing new delivery dates. Ex. 21; T. 139-40. Mr. Mould also told Ms. Huddleston that delivery orders for five vans required power locks and windows, which was not a contract requirement. He recommended deleting this requirement from these delivery orders. Ex. 12, 21. Mr. Mould testified that he also reported to the contracting officer that Rowe had not yet purchased all of the parts that it would need and that there was going to be a delay in performance. T. 143. Rowe's responses to GSA's discovery requests show that Rowe ordered some lights on June 27 and some paint on June 15, 1996. Rowe ordered head liners, wall panels, Lexan and metal for the partitions, metal for the window screens, paint, striping, some lights, wall reinforcement material, inner vent covers, rear light covers, and the air conditioning covers in early to mid- July 1996. Ex. 188 at 4-5; Ex. 200. Mr. Mould's record of his July 10 visit says that an apparent typographical error was noted regarding the mesh hole size, and that the requirement should have been 1 to 1-1/4 inches on center. He advised Rowe that it should write to Ms. Huddleston about this so that any necessary action could be taken before Rowe submitted its first production vehicle. Ex. 21. Mr. Mould testified that he recognized that the mesh size set out in the specification, "1 to 1/4 inches," was a typographical error, and that he discussed this with Rowe during his visit. Mr. Campbell told Mr. Mould that prior INS van contracts had specified 1 to 1-1/4 inch mesh and that Rowe had already ordered its mesh. T. 278-79, 1895. Rowe ordered 1-1/4 inch wire mesh in mid-July 1996. Ex. 188 at 5; Ex. 200. Mr. Mould said that "1 to 1/4 inches" looked like a typographical error because numbers are usually stated as going from a smaller number to a larger number. T. 1895. Mr. Mould testified that Rowe recognized that the reference to 1 to 1/4 inches was a typographical error. T. 290. Mr. Dellinger testified that a reference to "1 to 1/4 inches" is an "obvious" typographical error. T. 716-17. Mr. Globerman explained that he realized that the reference was a typographical error because when dimensions are specified, they go from the smaller to the larger dimension, and not vice versa. In addition, 1-1/4 inches is typically the standard dimension of No. 9 wire mesh, which is what was specified in the contract. T. 1436-39. Mr. Campbell testified that Rowe thought that the mesh size was supposed to be 1-1/4 inches, but that Mr. Mould thought that the size was supposed to be 1/4 inch. T. 923. Mr. Mould testified that mesh size was never an issue between Rowe and GSA. T. 289. Mr. Campbell testified that, during the July 10 visit, Mr. Mould ordered Rowe to change the placement of the partition in a van. T. 1178-79. Mr. Mould's contemporaneous report of the visit does not mention that any van contained a partition, and other documentation in the record says that Rowe did not provide a van with a partition installed for GSA to inspect until September. Ex. 21, 50, 54, 77. There are no documents to show that Rowe had a van with a partition in place in July. Mr. Campbell testified that, around July 12, Ms. Huddleston suggested that Rowe be given a 120-day extension of time to perform the contract, and later said that she would modify the contract to give Rowe a ninety-day extension. Mr. Campbell said that Ms. Huddleston made this statement during a telephone conversation with him and Mr. Mould. T. 1224-25, 1228. Mr. Mould testified that, as far as he knew, there was never any conversation in which Ms. Huddleston recommended that Rowe be given an additional ninety days to perform. T. 141. Ms. Huddleston testified that she never suggested that she was willing to authorize a ninety-day extension to Rowe s contract, and that she was not aware of anyone discussing such an extension. T. 1650-51, 1704-05. On July 12, 1996, Rowe wrote to Ms. Huddleston. In its letter, Rowe said that the power lock option set out in a few of the delivery orders should be deleted by contract modification. Rowe also said that it would like to meet with Mr. Mould, representatives from GSA's automotive center, and the INS about "final vehicle configuration." Rowe recommended adding ninety days to the delivery schedule. Rowe stated that "the Government" had suggested extending the contract's performance period by ninety days due to the increased quantity and "the clarification of configuration." Rowe pointed out that the mesh specification was incorrect and should read "1 to 1 1/4 [inches]" instead of "1 to 1/4 [inches]." Rowe suggested that GSA modify the contract to reflect the correct specification. Rowe suggested that GSA modify the contract to "standardize the insulation material" so that it was the same as that used in other contracts. Finally, Rowe said that it thought that GSA was going to supply the stripes for the vans, and that the contract should be modified if GSA wanted Rowe to supply the stripes. Ex. 22. Mr. Campbell testified that he thought that GSA would furnish the stripes and that Rowe would apply them to the vans. T. 882. On July 22, 1996, Rowe informed Ms. Huddleston that it would be prepared for inspection of its first production vehicle ten days "from finalization of vehicle configuration." Ex. 25. Mr. Mould visited Rowe's facility on July 22, in order to evaluate the progress that Rowe was making on its first production vehicle. Although Rowe anticipated that the vehicle would be ready for inspection during the week of July 29, Mr. Mould felt that this was "questionable," because the vans were still in the planning and fabrication stages. Mr. Mould noted that Rowe was still waiting for delivery of the mesh and striping. Ex. 24. Part of Mr. Mould s function was to read the contract specifications and to audit Rowe s compliance with any federal motor vehicle safety standards included in the specifications. Mr. Mould would do this by first asking Rowe what kind of documentation it had to substantiate its compliance with the standards, and then evaluating that documentation. T. 115-16. During Mr. Mould's July 22 visit, he noticed that the label on the Celotex insulation material that Rowe planned to use stated that it would ignite and cause harmful vapors. Mr. Mould noted this in his inspection report, and stated that Rowe did not have any evidence that the insulation complied with FMVS Standard 302. Mr. Mould stated that the insulation material was unsatisfactory and he advised Rowe to provide corrective action as necessary. Ex. 24; T. 185-86. Mr. Campbell testified that Rowe had used Celotex on prior contracts, including a prior contract that required Rowe to meet all applicable Federal safety standards. Ex. 531; T. 867, 1169. Mr. Mould did not recall Rowe using Celotex insulation on prior GSA contracts. T. 182-83. Mr. Globerman did not remember Rowe using Celotex on prior contracts. T. 2180. The record contains a copy of some of the requirements for the prior contract referred to by Mr. Campbell. That contract specified the use of a type of insulation that is different from Celotex insulation. Ex. 531; T. 2211-14. During Mr. Mould's July 22 visit, Rowe advised him that it anticipated problems regarding mounting the jack behind the driver's seat, because the installed partition would not leave sufficient space for mounting the jack there. Mr. Mould advised Rowe to inform Ms. Huddleston of this problem. Ex. 24. The opening width of a sliding side door on a 1996 Ford Club Wagon is 39.6 inches. Ex. 197, 609; T. 1006. During his July 22 visit, Mr. Mould saw that Rowe had a door stop in place so that the sliding side door was opening one-half of its normal distance and a person could fit through the opening and so, Mr. Mould testified, he was not concerned about this contract requirement. T. 236-37. Mr. Mould's inspection report for his July 22 visit does not mention any problem with the width of the sliding door opening. Ex. 24. As far as Mr. Mould was concerned, Rowe fulfilled the requirement. T. 233. Mr. Campbell testified that Mr. Mould rejected the placement of the door stop because the opening was too narrow. T. 845. According to Mr. Campbell s testimony, GSA subsequently ordered three changes to the size of the door opening, and this affected Rowe s fabrication and installation of roof panels. T. 1003-04, 1010. On July 25, 1996, Rowe wrote to GSA in Crystal City concerning the Celotex insulation and the arm rests. Rowe stated that this insulation had been approved for use in other GSA contracts, and met the standards set out in ASTM E84.[foot #] 5 Rowe asked that GSA approve the use of Celotex on the INS van contract. Regarding the arm rests, Rowe stated, "Discussions with the Contracting Officer prior to award indicated that armrest . . . would not be available on these units. The inspector has requested a modification to the contract prior to inspection of the units." Rowe also said that it was unable to proceed without clarification of these matters. Ex. 28. Mr. Campbell testified that it would be obvious to an engineer who reviewed the standards set out in ASTM E84 and those set out in FMVS Standard 302, that a product that met the ASTM standard would also meet the FMVS standard. T. 921-22. Mr. Globerman, who is an engineer with many years of experience in the field of automotive engineering, explained that a material that meets one standard would not automatically meet the other standard. T. 1398. Mr. Campbell testified that the contracting officer told him, pre-award, that Rowe would get its vans from Ford's final production run, and that Rowe would get whatever was in the pipeline. If Ford could put arm rests on the vans, it would. If Ford could not put arm rests on the vans, then the vans would not have arm rests. T. 1136-37. Mr. Campbell also testified that Rowe provided Mr. Mould with information, pre-award, to show that the vans would not have arm rests. T. 1137-38. There is no such information in the record of this case. On July 29, 1996, Mr. Mould contacted Rowe to ask about the status of Rowe's first production vehicle, and learned that Rowe was not going to be ready for inspection during the week of July 29. Rowe advised Mr. Mould that it was having difficulty verifying that the insulation it planned to use met the fire resistant requirement contained in the contract. Rowe stated that it had asked for a deviation from the contract requirement ----------- FOOTNOTE BEGINS --------- [foot #] 5 ASTM is an acronym for the American Society for Testing and Materials. ----------- FOOTNOTE ENDS ----------- on July 25, and that it would send Mr. Mould a copy of some test certifications from the insulation supplier. Mr. Mould advised Rowe to continue with performance and to inform him when it was ready for inspection of the first production vehicle. As of July 29, no vehicles were ready for inspection, and final installation of insulation, panels, and other items was still in progress. Ex. 29. Mr. Campbell testified that Rowe presented a first production vehicle to Mr. Mould for inspection in early to mid- July, but that Mr. Mould never documented the inspection. T. 1032, 1034. Mr. Mould testified that Rowe "absolutely" did not have a first production vehicle ready for inspection in July. T. 1854. The record does not contain any notice from Rowe that it had a first production vehicle ready for inspection in July, and none of Mr. Mould's reports state that Rowe was in any position to present a vehicle for inspection. On July 30, Mr. Mould, Mr. Globerman, and Mr. Dellinger contacted the manufacturer of Celotex insulation to find out if it had ever tested Celotex in accordance with FMVS test procedures. The manufacturer's representative said that she did not know whether Celotex would pass FMVS standards for flammability. Ex. 31; T. 172-74, 189, 1399. The representative was not familiar with the requirements of FMVS Standard 302, and asked GSA to send her a copy of the standard, which GSA did. Mr. Campbell believed that Celotex would meet the requirements of FMVS Standard 302, and GSA advised him to obtain certification of compliance from the manufacturer or to arrange for the insulation to be tested in order to see whether it complied. Ex. 31. Mr. Globerman explained that GSA was willing to accept the use of Celotex, so long as GSA had data to show that the performance of the Celotex would be at least equivalent to the performance of a material that met the requirements of FMVS Standard 302. T. 1399-1400. On July 30, Rowe said that the Celotex issue was the only problem that needed to be resolved, and Mr. Mould advised Rowe to proceed with the contract while GSA evaluated the Celotex issue further. Ex. 31; T. 189-92. Mr. Campbell testified that Ms. Huddleston was basically working out of her house because the Olympics were held in Atlanta during the summer of 1996. He said that Rowe did not have an e-mail address, a home telephone number, or a mailing address for her, and that this caused a large part of the delay to Rowe s progress. T. 837. Ms. Huddleston said that she worked at home for a few days and was on vacation for one week in July. She also said that her telephone calls at work were being forwarded directly to her house when she was working at home. T. 1703. On August 5, Rowe wrote to GSA's automotive center concerning the Celotex issue. Rowe stated that the "notice" from Mr. Mould that the Celotex insulation was "unacceptable" had caused Rowe to stop work until this matter was "clarified." Rowe suggested that it be allowed to use Reflectex insulation. Ex. 32. On August 7, 1996, Mr. Globerman sent a letter to Ms. Huddleston about the Celotex insulation. He stated that the use of Celotex was acceptable in lieu of insulation that complied with FMVS Standard 302, and that where body parts intruded, a Mylar bubble type insulation should be used. Ex. 33. Mr. Globerman explained that his letter amounted to a recommendation to Ms. Huddleston that she allow Rowe to deviate from the terms of the contract by supplying an insulation material that did not meet the requirements of FMVS Standard 302. T. 1401-02. His letter also said that the INS would not agree to an extension of ninety days to the contract term, but that GSA would agree to a ten day extension, due to the time required to respond to Rowe's request for additional time. Mr. Globerman also stated that Mr. Campbell had informed the GSA automotive center of the typographical error concerning the size of the mesh. Concerning striping, Mr. Globerman said that it was Rowe's responsibility to furnish and to apply the striping. Ex. 33. On August 8, Mr. Dellinger sent a letter to Ms. Huddleston concerning Rowe's July 25 and August 5 letters, and stated that either Reflectex or Celotex, with Reflectex used in areas where flexible insulation was required, would be acceptable. He also stated that if arm rests were required under the contract and were not furnished, GSA should receive some monetary consideration. Ex. 34. Until mid-August, Rowe's plant manager was George Fleming, who had been at Rowe during its performance of prior GSA contracts. When Mr. Fleming left Rowe in mid-August, Rowe replaced him with Tom Muncie and Lynwood Jackson. T. 1837-38. On August 13, 1996, Mr. Mould advised Mr. Dellinger that Rowe's first production vehicle would be ready for inspection on August 20. He asked Mr. Dellinger whether he and INS personnel wanted to be present for the inspection. Ex. 35. On August 14, 1996, Ms. Huddleston told Mr. Globerman and Mr. Dellinger that she had not received copies of Rowe's July 25 and August 5, 1996 letters, and she asked for copies. She also asked what the difference in cost was between a seat with an arm rest and a seat without an arm rest, so that she would have some idea of the consideration that GSA should receive if it accepted seats without arm rests. Mr. Dellinger informed her that the difference was approximately $50 per van. Ex. 36. Also on August 14, Ms. Huddleston asked Mr. Pickeral and Ms. McIntosh to let her know what agreement had been reached with Rowe about the arm rest requirement. Ex. 37. On August 19, 1996, Ms. Huddleston wrote a letter to Rowe concerning its July 12 letter to her and its July 25 and August 5 letters to the GSA Crystal City automotive center. She stated that GSA would incorporate several items into the contract by modification. Specifically, she agreed that power locks and windows would not be required. She agreed that the mesh size should be changed to read "(1 to 1-1/4) inches on the centers." She agreed that either Celotex or Reflectex insulation was acceptable; she also said that Mylar bubble type insulation should be used in areas where, due to the intrusion of body parts, foam insulation could not be used. She denied Rowe's request for a ninety-day extension to the performance period and stated that GSA would be willing to extend the period by ten days. She also stated that GSA would consider a greater time extension only if Rowe provided some form of consideration. She said that Rowe and GSA in Crystal City had concluded that Rowe would furnish the striping. She agreed to accept the vans without arm rests on the front seats in exchange for a $50 per van credit from Rowe. She asked Rowe to let her know if additional performance time would be needed and, if so, to submit an offer of consideration. She also asked Rowe to let her know what its intentions were concerning the arm rests. Ex. 38. Mr. Mould was at Rowe's plant on August 19. Although he was not there for an inspection of the INS vans, he saw an INS van with the striping applied for the first time during this visit. Ex. 40; T. 227. Mr. Mould was not happy with the appearance of the stripe, but Rowe had applied the stripe in accordance with the contract s requirements and so Mr. Mould did not reject it. T. 224, 1891-92. Mr. Mould told Ms. Huddleston that the contract needed to be changed to lower the placement of the stripe, so that the words on the stripe would be readable and so the stripe would look nicer. Ex. 40; T. 228-29, 1894. Mr. Mould observed during this visit that Rowe would not be ready for an inspection of an INS van on August 20. Ex. 40. On August 19, Mr. Mould told Ms. Huddleston, Ms. McIntosh, and Mr. Dellinger that he planned to visit Rowe during the week of August 26 to inspect Rowe's first production vehicle, and he asked them whether they wanted to attend. Ex. 40. On August 21, Mr. Mould advised Mr. Dellinger, Mr. Globerman, and Ms. Huddleston that he planned to be at Rowe's facility on August 28 at approximately 9:30 in the morning. Ex. 41. On August 28, Ms. McIntosh informed Ms. Huddleston that the contracting officer had never approved the acquisition of front seats without arm rests. The INS said that it would accept vans without arm rests only if arm rests were not actually available. Ex. 43, 44. Ms. McIntosh testified that she asked Mr. Pickeral whether he had ever waived the arm rest requirement for Rowe, and that Mr. Pickeral told her that he had never said that Rowe could provide a van without arm rests. T. 1323. Mr. Mould's scheduled visit to Powhatan on August 28 did not occur. In an August 28 letter to GSA's automotive center in Crystal City, Rowe said that this was the third time that a meeting had been scheduled and then canceled. Rowe said that it needed clarifications concerning outstanding issues and needed a contract modification concerning issues that had been resolved so that Rowe could proceed. Rowe said that it had all of the vans and "much of the parts" on site. Ex. 42. Mr. Campbell testified that Rowe repeatedly asked for meetings with GSA officials, but GSA refused to meet with Rowe s representatives. T. 847. On August 30, Ms. Huddleston responded to Rowe's August 28 letter. Ms. Huddleston said that the August 28 visit was canceled because Rowe did not have a first production vehicle ready for inspection. Ms. Huddleston stated that she and Mr. Mould called Rowe's facility at 8:00 and that Mr. Mould called again at 8:45, when he spoke with Mr. Muncie. Mr. Muncie said that the van was not completed, and that Mr. Campbell would call Mr. Mould to tell him whether there were any open items. Mr. Mould waited until 10:00 for Mr. Campbell to call and, when Mr. Mould did not receive a call, he scheduled another appointment. Mr. Mould's travel time to visit Rowe's facility was two hours, and Ms. Huddleston explained that if a van was not ready for inspection, there was no need to make the trip. Ms. Huddleston reminded Rowe that Mr. Mould had visited Rowe on July 11 (sic); on July 22, Rowe said that its first production vehicle would be ready within ten days; on July 29, Rowe said that its vehicle was not ready for inspection, and on August 19, Mr. Mould saw that the van was not even close to being completed. Ms. Huddleston reminded Rowe that it had never notified GSA that it was ready for inspection of its first production vehicle, as required by the contract. She also referred Rowe to her August 19 letter, which said that the mesh size and Celotex changes would be incorporated into the contract by modification, and which asked Rowe what it wanted to do concerning arm rests and a time extension. She reminded Rowe that it had never responded to this letter. She said that the only pending issue concerned the placement of the stripes, and that this had been raised by Mr. Mould and not by Rowe. Ms. Huddleston asked Rowe to respond by September 4 and let her know of any issues that had not been addressed by GSA. Ex. 46. On September 3, 1996, Mr. Mould went to Rowe's plant and saw an Item 001 van. Ex. 50; T. 310. Rowe was not completely ready to submit the vehicle for inspection at that time, and documentation to substantiate compliance with all contract requirements was not available. Also, there were some open issues that Rowe had not brought to Ms. Huddleston's attention. Mr. Mould advised Rowe to respond to Ms. Huddleston's August 19 and 30 letters, to let her know about all open items, and to give her a date when Rowe expected to have a first production vehicle ready for inspection. Rowe asked Mr. Mould to perform a preliminary inspection of the van, which he did. Mr. Mould discussed several items with Rowe. He noted that the front seats did not have arm rests. The rear air conditioning evaporator did not have multiple outlet ducts, and the one duct that was provided did not have screening that was adequate to prevent tampering. The sliding door opened approximately three-fourths of its normal opening distance, which was wider than allowed by the contract. The light that was mounted on the roof was 5-1/2 x 3-1/8 inches and the light was not adjustable. Ex. 50. Mr. Mould testified that the light was not mounted tightly, and the housing appeared to be cheap plastic. T. 311-12. Mr. Campbell testified that Mr. Mould twisted the light off the van. T. 860, 1146. Mr. Mould said that the light did not come off the van. T. 311-12, 1927. Mr. Mould asked Rowe for documentation to show that the housing was ABS type plastic, because no documentation had been made available to him. Ex. 50; T. 312. The partition mesh was spot welded to L-frame, not pinned to channel frame as required by the contract. Rowe was to address these items in its response to Ms. Huddleston. Ex. 50. During this visit, Rowe agreed that several other items would be resolved. All rough edges would be filed smooth. Protective coverings would be mounted with a sufficient number of rivets so that people could not insert their fingers between adjoining pieces. Documentation would be provided to show that the vans had the maximum available GVWR, the alternator required by the contract, and a twenty-one candle power lamp. Installed switches would be labeled. Ex. 50. Mr. Campbell testified that on September 3, Rowe had one van ready to be inspected and another that could have been made ready in two hours. T. 1235. On September 4, Mr. Mould and GSA in Crystal City discussed the concerns that he raised during his September 3 visit to Rowe's plant. Rowe had already submitted a request for deviation concerning the arm rests. Mr. Mould and GSA employees in Crystal City decided that the specifications required the rear compartment to have multiple air conditioning ducts, that the sliding door stop should be placed to achieve an opening of between twenty and twenty-four inches, that the flood light required by the contract should be installed, and that mesh welded to L-frame would be acceptable if it proved to be durable during inspection of the first production vehicle. Ex. 50. Also on September 4, Mr. Mould, Rowe, INS, and GSA in Crystal City discussed several items. GSA was not happy with the roof vent cover that Rowe proposed to use. Mr. Globerman explained that most roof vents have a collar around them to keep water on the roof of the van from flowing down into the vent, and they have a fixed cover screwed over the vent. The roof vent cover that Rowe installed was designed to swing up, and it could be tampered with from outside the van. T. 1412-13. Also, it had a detachable knob and it had to be opened and closed manually from inside the passenger compartment. Ex. 50. Another topic of discussion on September 4 was the fact that Rowe was securing the partition to the floor with rivets, which was determined to be unacceptable. GSA told Rowe to mount the partition with nuts and bolts in areas where that could be achieved, and with screws in other areas. Also, the contract specified the installation of seat belts. Rowe's van had shoulder harnesses, which could be hazardous considering the intended use of the vans. GSA in Crystal City agreed to discuss this with the INS and let Rowe know whether the INS wanted the shoulder harnesses removed. Ex. 50. On September 5, Ms. Huddleston called Mr. Mould and Mr. Campbell to talk about existing problems. Mr. Campbell said that he would send a response to her earlier letters. Ex. 51. On September 6, Rowe responded to Ms. Huddleston's August 30 letter. Rowe said that the specifications were defective. Rowe also said that a stop work order had been issued, that constructive changes had been made, and that GSA had made it impossible for Rowe to proceed because GSA would not issue a contract modification. Rowe said that it would be ready for inspection on the date that GSA issued a contract modification to address open items. Regarding the arm rest issue, Rowe said that GSA prevailed upon Ford Motor Company to provide vans for the contract from Ford's last production run, and GSA knew that these vans would not have arm rests because it received a copy of a Ford order sheet. Rowe said that it would not give a $50 credit for the arm rest and would treat the disapproval of the extension of time as an acceleration. Ex. 52. The record does not contain a copy of a Ford order sheet. On September 6, Ms. Huddleston asked Mr. Mould and employees at GSA's automotive center in Crystal City to comment on Rowe's September 6 letter. Ms. Huddleston was concerned because Rowe was still contacting GSA in Crystal City about the contract, and she asked that no more discussions be held with Rowe unless she or Mr. Mould was involved. Ex 53. Mr. Mould responded to Ms. Huddleston's September 6 request that same day. He reviewed the requirements of the specifications and did not agree that they were defective. He said that no stop work order had been issued. Rowe had said several times that it would be ready for inspection, but it had never had a completed van that was actually ready for inspection. On August 19, none of the major components had been installed. On September 3, Rowe said that the van was not completely ready for inspection, but Mr. Mould did a preliminary inspection and noted a number of problems. Mr. Mould said that he did not know that the vans would not come equipped with arm rests, and that he noted this discrepancy during his initial visit after vans had been delivered. He noted that the absence of arm rests should not have prevented Rowe from performing other work required by the contract. In Mr. Mould's view, Rowe had not hired enough additional personnel and would not be able to complete the contract requirements in a timely manner. Mr. Mould agreed that some discussions and clarifications were needed in order to ensure that a satisfactory product was delivered to the INS, but the specifications did not delay submission of a first production vehicle. Ex. 54. Rowe responded to Ms. Huddleston's August 19 letter on September 6. Rowe said that the contract and delivery orders should be modified to state that power windows and locks were not required. Rowe took no exception to what the August 19 letter said about the mesh size. Rowe said that it took exception to what the letter said about insulation, and that requiring a Mylar bubble type insulation constituted an engineering change. Rowe also said that it was delayed because GSA would not accept the Celotex insulation even though the insulation met the requirements of FMVS Standard 302, and that Rowe had ordered a laboratory test to establish that the Celotex insulation complied with the standard.[foot #] 6 Rowe said that GSA's refusal to extend the contract's performance period constituted a direction to accelerate. Rowe said that it would start using a second shift of workers to meet the delivery schedule. Rowe also said that it still did not believe that the contract required it to furnish striping. Rowe said that it read the contract to say that multiple air conditioning ducts were required in the vans, and that Rowe met this requirement by having one duct in the passenger compartment in addition to ducts in the drivers' compartment. Ex. 55. As for the vent cover, Rowe said that its ventilator met the requirements of the contract. Rowe said that it expected a contract modification concerning the width of the sliding door opening. Concerning the partition, Rowe said that the method that it wanted to use to attach the partition had been approved for use in other contracts, and so GSA would need to modify the contract if it wanted to use some other method. Rowe said that pinning 1-1/4 inch mesh to a channel frame would not work, and that was why it elected to weld the mesh to angle iron. Rowe said that GSA would have to issue a modification telling it what to do regarding fabrication of the partition. Finally, regarding the striping, Rowe said that GSA needed to tell it where to place the stripes. Ex. 55. Mr. Campbell explained that the stripes could be applied at any time, while other work was ongoing. T. 1121. Mr. Campbell testified that Rowe read the contract to require only one duct in the rear compartment because the solicitation originally referred to a Standard Item 34, a cargo truck, which had only one outlet in the rear. T. 872-73, 892. The Standard Item 24 vans used by Rowe, however, were manufactured by Ford with multiple outlets in the rear compartment. The ducts were part of the molded plastic piece that comprised the ceiling panel in the rear compartment. Ex. 88; T. 267, 1392-95. As part of Rowe's work on the vans, it had to remove the headliner, which removed all ducts and outlets in the rear compartment. Ex. 77, 88; T. 267, 942. On September 10, Mr. Pickeral, Ms. McIntosh, Mr. Globerman, Mr. Dellinger, and Mr. Mould met to discuss Rowe's September 6 letter. They decided that the contract was clear and that its requirements should be met. They noted that Rowe had submitted three requests for deviation to the contract's requirements. One, dated May 24, was granted on June 19. The July 12 and 25 ----------- FOOTNOTE BEGINS --------- [foot #] 6 On September 4, the manufacturer of Celotex told Rowe that its insulation met the requirements of FMVS Standard 302. Ex. 511. ----------- FOOTNOTE ENDS ----------- requests were evaluated and, as explained in Ms. Huddleston's August 19 letter to Rowe, some of the requests were granted and others were not. The only open item at that point concerned arm rests, and Rowe waited until September 6 to address that issue. The Government personnel noted that Rowe did not take exception to that requirement before award. They decided that they would consider an alternative means of fabricating the partition if Rowe made a request for deviation from the contract requirements. They also recommended that the administrative contracting officer modify the contract to say that power windows and locks were not needed and to state the correct mesh size. Ex. 57. On September 16, Mr. Mould told Mr. Dellinger that he planned to visit Rowe's plant on September 19. He noted that there were problems concerning the roof ventilator, air conditioning, partition, flood light, and striping, and he hoped that if Mr. Dellinger visited the plant with him, it would expedite decisions concerning these items. He also stated that it appeared that Rowe would have difficulty meeting the delivery schedule. Ex. 58. Also on September 16, Rowe wrote to Ms. Huddleston. Rowe stated that it had expected her to convene a conference call to try to resolve outstanding issues, but that no call had occurred. Rowe said that the stop work order in place plus GSA's "failure to achieve a final resolve" had forced Rowe to lay off some workers. Rowe also gave "final notice" that the first production vehicle was ready for inspection. Ex. 59. The next day, Ms. Huddleston spoke with Rowe about its letter. She explained that, in lieu of a conference call, she was preparing a written response to Rowe concerning outstanding issues. They agreed that a September 19 inspection would be conducted. Ms. Huddleston's record of this telephone conversation states that Rowe offered to supply the vent cover that GSA wanted in exchange for GSA accepting seats without arm rests. Ex. 60. Rowe wrote a letter to Ms. Huddleston on September 17 following their discussion, and stated that it would accept a $50 per van deduction to the contract price for the lack of arm rests, and a $50 per van increase to the contract price for supplying a different roof vent cover. Rowe also sent a suggestion for where to apply the striping. Ex. 61. Mr. Campbell explained that Rowe had gone to the company that made the stripes and asked it to superimpose the striping pattern onto a Ford van. T. 999. On September 18, Mr. Campbell, Ms. Huddleston, and Mr. Dellinger spoke regarding Rowe's September 17 letter. Mr. Dellinger said that he would ask the INS if Rowe's planned vent cover and striping placement were acceptable. Ex. 63. Also on September 18, Rowe wrote to Ms. Huddleston and asked for a clarification regarding the requirement for "ABS type plastic housing" for the flood lights. Rowe stated that it had agreed to change the light to one that was more acceptable to Mr. Mould, and set out the specific model that it proposed to use, a Signal Stat model 512WD. Ex. 64. On September 19, Ms. Huddleston responded to Rowe's September 6 letters. She mentioned that on Mr. Mould's August 19 and September 3 visits to Rowe's facility, no vans were ready for inspection. She stated that the allegations concerning canceled meetings were unfounded, as no meetings had been scheduled with anyone other than Mr. Mould. Ms. Huddleston pointed out that Rowe had provided an Item 001 van for preliminary inspection, that no components or options had been installed on an Item 002 van, and that documentation was not available to substantiate compliance with all contract requirements. She reminded Rowe that her August 19 letter stated that a modification would be issued concerning four items, and that she had waited for a response from Rowe regarding other issues. Ex. 67. In her September 19 letter, Ms. Huddleston addressed all of the open items identified by Rowe. She stated that the specifications were not defective and she summarized GSA's responses to Rowe's requests for deviation. She pointed out that as of August 19, the only open item concerned arm rests, and that Rowe did not provide a response about this until September 6. She said that because Rowe took exception to her August 19 letter regarding insulation, Rowe's request for deviation concerning insulation was denied and that the insulation would have to be in accordance with the contract's requirements. Ms. Huddleston said that GSA would agree to extend the delivery schedule by thirty- eight days, the time between Rowe's July 12 request and GSA's August 19 reply. Ms. Huddleston repeated the contract's requirement that the sliding door open not more than one-half of its normal opening distance. She told Rowe that GSA would consider an alternate to the partition fabrication required by the contract if Rowe asked for a deviation. She said that striping placement would be evaluated during the first production vehicle inspection. Ex. 67. GSA modified the contract on September 19, 1996, to delete the requirement for power windows and locks for five vans, and to say that the mesh should be 1 to 1 and 1/4 inches on center. The modification also extended the shipping date for all of the vans required by the contract to November 26, 1996. Ex. 69. On September 19, Mr. Mould arrived at Rowe's plant for the scheduled inspection, and Rowe said that it would not be submitting any vans for inspection. After a telephone conversation among Mr. Mould, Mr. Campbell, and Ms. Huddleston, Rowe agreed to the inspection. An Item 002 van was not available for inspection, because it needed to have all major components installed. Mr. Campbell said that an Item 002 van would be ready at the end of the next week. Ex. 70, 72. Mr. Mould recommended to Ms. Huddleston that GSA accept the striping for the Item 002 vans proposed by Rowe in its September 17 letter. Ex. 72. Mr. Campbell testified that Rowe did not want to make a van available for inspection because the van would have failed the inspection because GSA had not modified the contract to address changes imposed by GSA, such as the requirement for an arm rest. T. 1237-39. Rowe submitted an Item 001 van for first article inspection, and Mr. Mould rejected that van for several reasons. Ex. 72. First, the label on the van said that the vehicle's GVWR was 9300 pounds, but there was no documentation to substantiate either that this was the maximum available GVWR or whether the "one up" spring option was available. Second, Rowe had attempted to install after-market arm rests on the drivers' seats, but they were not attached in a satisfactory manner. Third, the rear air conditioner evaporator was located in the rear compartment, but all ducts and outlets had been removed. Fourth, the van had the spare tire assembly placed under the vehicle, but it did not appear to have a locking device as required by the contract. Ex. 72. Mr. Mould asked a Rowe employee where the locking device was, and the employee said that he was not aware of any locking device. T. 303-04. Fifth, there were some workmanship problems with the van. The floor covering was not properly secured. Rowe advised Mr. Mould that it would move the partition forward, which would eliminate the problem with the floor covering and which would also decrease the space between the rear and the front compartments near the assistant driver's seat. The Lexan shield had not been attached with tamper proof bolts, as had all other items. The jack handle was loosely attached to unfinished rough blocks of wood, and the rivets on the side panels were not uniform and even. Mr. Mould noted that Rowe had relocated the sliding door stop to correct the size of the door opening. Ex. 72. Mr. Mould also rejected the van due to its partition and its roof light. He considered these to be the two major open issues, and he advised Rowe to write to Ms. Huddleston about them. Instead of pinning the partition to a one-inch channel frame as required by the contract, Rowe had spot welded the partition to one-inch L-frame. The distance between the spot welds was not uniform, so there was no assurance of consistent durability and strength. Mr. Mould thought that Rowe's partition configuration was an acceptable alternative to the contract's requirement and recommended that Ms. Huddleston approve Rowe's configuration if Rowe asked for approval, provided that Rowe could show that the partitions would be fabricated consistently, and that the maximum distance between spot welds was four inches. Ex. 72. As for the roof light, the van that Mr. Mould inspected had a fog light, and not a flood light as required by the contract. Also, there was no evidence that the light had an ABS type plastic housing. Ex. 72; T. 308. In addition, the light was three inches by five inches. Ex. 77. The light was the same light that had been on the van on September 3. T. 1885. Mr. Dellinger spoke with Mr. Campbell and they identified a light that appeared to meet the requirements of the contract. The light was a Signal Stat model 629WD, which is described in the manufacturer's literature as being four inches by six inches. Ex. 71, 501. In Mr. Dellinger's view, a light that is three inches by five inches is not approximately four inches by six inches. He pointed out that the smaller light is more than one- fourth smaller than the larger light. T. 783-84. Mr. Mould thought that the model that Mr. Dellinger and Mr. Campbell identified appeared to comply with the contract's requirements, and Rowe said that it would look into obtaining that light. Because Rowe had a request pending to use a different Signal Stat light, Rowe was to let Ms. Huddleston know when it decided which light to offer. Ex. 71, 72, 77. Mr. Mould provided a copy of his inspection report to Rowe, and Rowe sent a letter to Mr. Mould on September 23 responding to the report. Rowe said that it did not realize that it had not provided Mr. Mould with information concerning the van's GVWR, and also said that it was attaching that information to its September 23 letter. The letter as it appears in the record does not have an attachment. Rowe said that it unsuccessfully attempted to install an after-market arm rest on the drivers' seats because it did not receive a modification deleting the requirement for arm rests before the September 19 inspection took place.[foot #] 7 Rowe stated that it did not read the contract to require multiple outlet ducts in the rear compartment, and it asked for a contracting officer's decision concerning this issue. Rowe said that pinning the mesh to the channel frame did not provide "the most secure unit available for the cost." Rowe said that it built both a partition as required by the contract and a partition with the mesh welded to L-frame, and found that the latter method of fabrication was superior. Rowe said that it needed to know which method GSA wanted to use. Concerning the locking device for the spare tire, Rowe said that Ford did not make a locking device, but Ford's design "incorporates the function of a lock." Rowe also said that it would provide a "separate device." Rowe said that the light it offered met the contract's requirement for an ABS type plastic housing. Concerning the workmanship problems noted by Mr. Mould, Rowe said that it would remove an extra piece of carpet that it had installed in the van; that it believed its mounting hardware was sufficient; that the wood blocks would be removed; and that it would attempt to place rivets uniformly. Finally, Rowe said that it remained in "limbo" due to open items that had not yet been addressed by a contract modification. Ex. 73. Mr. Mould stated in his inspection report that Rowe advised him that the partition would be moved up closer to the drivers' seats in order to eliminate a problem with the floor covering and to make it more difficult for passengers in the rear compartment to have access to the assistant driver's seat. Ex. 72. In its ----------- FOOTNOTE BEGINS --------- [foot #] 7 Despite this statement in Rowe's letter, Mr. Campbell testified that there is no such thing as an after-market arm rest, and that Rowe hired a company to fabricate the arm rest that Rowe attempted to install. T. 1131-33. ----------- FOOTNOTE ENDS ----------- September 23 response to Mr. Mould's inspection report, Rowe said that it initially installed the partition so that it would not interfere with movement of the seats, but suggested that "the unit" be moved forward by 1.5 inches. Rowe said that its "design" was rejected, and that it was ordered to move the partition toward the back of the van. Rowe then stated, "The new request is now to move the partition forward of the initial contractor selected position, which is forward of the current position by approximately 4.5 inches." Rowe said that Mr. Mould had also asked Rowe to add a section to the partition by the door track on the driver's side. Rowe said that it would modify the partition and ask for a modification concerning the placement of the partition. Ex. 73. When Mr. Mould received a copy of Rowe's September 23 response to the inspection report, he did not believe that all of the statements made in the response were complete and accurate, and so he called Mr. Campbell. Mr. Campbell said that only Mr. Mould had received the September 23 letter. Mr. Campbell asked that the letter be rescinded, and said that another letter would be sent to Ms. Huddleston on September 25. Mr. Mould advised Mr. Campbell to address open issues and to include any corrective actions that Rowe had taken. Ex. 74. Rowe sent a letter to Ms. Huddleston on September 25, in response to Mr. Mould's inspection report. The letter is different from Rowe's September 23 letter in several respects. Rowe said that it was being asked to move the partition forward by 3.5 inches, and not 4.5 inches. As for the spare tire locking device, Rowe said that it would provide a device attached to the left rear door which would restrict access to the Ford system, and that the operator would require the key to the van to use the mechanism that lowered the spare tire. Ex. 75. Although Rowe's September 23 letter did not specify a model number for the roof light that it wanted to use, Rowe's September 25 letter said that Rowe wanted to use a model 612WD, which is different from the model that Mr. Dellinger and Mr. Campbell had previously identified as meeting the contract's requirements, and which is described in the manufacturer's literature as being a three inch by five inch fog light. Ex. 75, 501. Rowe's letter enclosed some information concerning the GVWR of the vehicle. Ex. 75. On September 26, at the request of Ms. Huddleston, Mr. Mould provided comments on Rowe's September 25 letter. Mr. Mould explained that labels on the vans said that they had a GVWR of 9300 pounds. During Mr. Mould's September 3 visit to Rowe's plant, Rowe provided him with a 1995 Ford brochure said that the maximum available GVWR was 9400 pounds. Mr. Mould still had nothing to show what the maximum available GVWR was for the 1996 model year vans that Rowe acquired for the INS contract. Mr. Mould said that on September 19, he told Rowe that he would not reject the vans for lacking arm rests because he knew that GSA was evaluating Rowe's request for a deviation from the contract requirement. Rowe then installed after-market arm rests, but did not do so in a satisfactory manner. Mr. Mould continued to read the contract to say that multiple outlet ducts were required for air conditioning in the rear compartment of the van. Ex. 77; T. 1873. He did not understand Rowe's explanation of the spare tire locking device at that time, but he testified that he later understood the explanation and the locking device was no longer an issue. Concerning the mounting of the jack handle, Mr. Mould said that the problem was that it was not mounted securely. As for rivet placement, Mr. Mould said that the problem was that some had been installed with their heads hanging over the edge of the aluminum panel, which reduced the strength of the attachment; Rowe said that it had taken steps to correct this problem. Ex. 77, T. 306-07. Mr. Mould's September 26 comments also addressed the fabrication of the partition. He stated that Rowe had not formally presented its alternative method of fabrication until it submitted its first production article for inspection. He said that Rowe had never presented him with a partition fabricated as required by the contract, and had not substantiated its conclusion that welding the mesh to L-frame was better than pinning it to channel frame. He also said that the partition that he was shown on September 19 had weak areas due to the fact that welds were not evenly spaced. Also, even though Rowe had a sketch that showed that the welds were to be placed every four inches, it proposed to place them every five inches. Mr. Mould acknowledged that the contract did not require Rowe to use any particular type of mounting hardware to secure the Lexan to the partition, but it did require the Lexan to be mounted forward of the partition. Ex. 77. Mr. Mould testified that he never rejected Rowe's partition design. T. 298-300. Also on September 26, Mr. Mould said that he had never rejected the partition location. He explained that a van with an installed partition was not even available for him to see until September 3, and that he could not verify the adequacy of the placement of the partition until September 19, when he conducted his inspection of the first production vehicle. He explained that Rowe decided to place the partition approximately four inches into the passenger compartment, and that this caused problems with the sliding door hardware and also left a gap which a passenger could reach through and possibly grab the assistant driver. This would, of course, defeat the purpose of the partition. Mr. Mould said that this problem could be eliminated by moving the partition forward. Ex. 77. Mr. Mould testified that the contract did not specify where the partition had to be installed, so there was no need to change the contract to permit a change to the partition location. T. 298. He also testified that he never rejected the partition because of its placement. T. 318. Mr. Muncie testified that Mr. Mould was concerned that the partition had to be placed so that the passengers could not reach the drivers. He said that Mr. Mould told Rowe that the partition would have to be moved in order to meet the requirements of the contract, but Mr. Mould did not tell Rowe where to locate the partition. T. 1544-46, 1628-29. Mr. Mould testified that he never ordered Rowe to move the partition and that he did not know of any other GSA employee ordering Rowe to move the partition. T. 1910. Mr. Campbell testified that Mr. Mould required Rowe to move the partition numerous times. T. 1178-82. On September 26, Mr. Campbell called Ms. Huddleston to discuss the seat belt/shoulder harness issue. Mr. Campbell said that one of his workers found a way for Rowe to attach both belts to the floor instead of to the roof, and that Rowe could do this at no cost because Rowe would have to detach and reattach the belts in any event. Ms. Huddleston asked Mr. Campbell why he had not raised this issue months earlier, and told him to submit his request in writing and to include any effect this change would have on Rowe's "liability with Ford." Ex. 78. At the hearing, Mr. Campbell testified that Rowe moved the seat belt attachments at GSA's direction. T. 909-10, 943-44. On September 27, Ms. Huddleston and Mr. Mould called Mr. Campbell to confirm that Mr. Mould would be at Rowe's plant on September 30 to inspect Item 002. Ex. 79, 86. They discussed the forthcoming modification that would address arm rests, vent covers, and striping. They also talked about the requirement that the flood light have an ABS type plastic housing. Rowe was going to submit a letter asking to allow it to fabricate the partition by spot welding the mesh to an L-frame, and this would be addressed in a modification. They also discussed the need for Rowe to maintain a standard vehicle for each item until the end of the contract. Ex. 79. Also on September 27, Rowe asked to be allowed to weld the mesh to an L-frame, with the welds four inches apart. Ex. 80. On September 30, 1996, GSA modified the contract to delete the requirement for an arm rest in exchange for Rowe providing a specified vent cover, to provide striping on the Item 002 vans in accordance with Rowe's September 17 letter, and to permit Rowe to spot weld the partition mesh to L-frame with a maximum of four inches between welds, instead of pinning the mesh to a channel frame. Ex. 82. Also on September 30, Ms. Huddleston wrote to Rowe concerning the roof lights. She said that an ABS type plastic would be strong, long-wearing, and resistant to stains and chemicals. She also reminded Rowe that a flood light, and not a fog light, was required. Ex. 81. Mr. Campbell explained that Rowe could not put a completed van together without the modification concerning the vent cover because the cover had to be installed before the interior head liner was installed, unless the vent cover was installed with cutting screws. Mr. Campbell did not think that Rowe's workers used cutting screws to install the vent cover. T. 1086, 1098-99. Mr. Globerman explained how the vent cover that Rowe supplied was supposed to be attached to the van. He concluded that if the vent itself was properly installed, there would be no reason for anyone to have to do anything inside the van in order to attach the vent cover. T. 1415-16. Mr. Muncie also explained how the vent cover was attached, and testified that the cover could be installed even if the interior of the van had been installed previously. T. 1581-82. Mr. Mould did not believe that Rowe had to go inside the vans in order to install the vent covers. T. 1879. On September 30, Mr. Mould arrived at Rowe's facility to conduct an inspection of an Item 002 van, but the van was not ready for inspection. The partition, seats, seat brackets, ventilator cover, and other items had not been installed, and it appeared to Mr. Mould that there was at least a full day's worth of work that needed to be done to the van. Mr. Mould saw that Rowe had installed rear air conditioner ducts and outlets, and it appeared to him that they were acceptable. Mr. Mould advised Rowe to tell Ms. Huddleston that it would comply with the contract requirement by providing these ducts and outlets. During this visit, Mr. Mould noticed that Rowe had several vans with several different configurations of installed components. He told Rowe to finalize two vans and use them as standards for all of the other vans that it would produce. Rowe said that it might relocate the seat belt/shoulder harness so that it would be mounted on the floor. Mr. Mould advised Rowe that if it moved the seat belt/shoulder harness mount, it needed to make sure that the mounting met FMVS standards. Ex. 86. On September 30, Ms. Huddleston responded to Rowe's September 25 letter concerning Mr. Mould's reasons for rejecting Rowe's first production vehicle. First, she said that the enclosure to Rowe's letter did not establish that the vans had the maximum GVWR available. She recounted that the 1996 model year vans had a GVWR of 9300 pounds, and that Rowe had provided Mr. Mould with information to show that a 1995 model year van had a maximum available GVWR of 9400 pounds. Second, she explained why Rowe's attempt to install an after-market arm rest had not been acceptable, but stated that the requirement for an arm rest had since been deleted by modification. Third, Ms. Huddleston said that she would issue a decision concerning the number of outlet ducts required in the rear compartment. Fourth, concerning fabrication of the partition, she stated that Rowe formally presented its proposal to Mr. Mould on September 19, and on September 27 asked GSA to approve welding the mesh to the L- frame. GSA approved this fabrication method on September 30. Ex. 83. Ms. Huddleston's September 30 letter to Rowe also addressed partition requirements. She said that GSA's records did not substantiate Rowe's claim that GSA either rejected Rowe's design or ordered Rowe to move the partition. She pointed out that a van with a partition installed was not even available to GSA until September 3, and formal verification of the placement of the partition did not occur until September 19. She recounted the problems that arose with the sliding door hardware and the gap in the partition, and stated that the contract's requirements were clear regarding the partition. She stated that Rowe's position concerning the locking device for the spare tire was unclear and contradictory. Regarding the roof light, she recalled that Rowe had installed a fog light instead of a flood light. Rowe proposed using another light which was also a fog light and, while that proposal was pending, proposed using a light that appeared to meet the contract's requirements. Regarding the carpeting, Ms. Huddleston pointed out that if Rowe moved the partition forward, this issue would be resolved. Finally, she discussed the problems with attaching the Lexan to the partition, the installation of the jack handles, and the problems with rivet placement. Ex. 83. In her September 30 letter, Ms. Huddleston told Rowe that, in accordance with the requirements of the contract, it should notify her in writing when Item 001 would be ready for reinspection and when Item 002 would be ready for inspection. Ex. 83. Rowe told Mr. Mould on September 30 that it would be ready for inspection of Items 001 and 002 on October 3. Mr. Mould asked Rowe to provide a notification that it was ready for inspection when the vans were actually completed. Ex. 91. On September 30, Rowe wrote to Ms. Huddleston concerning the multiple outlet duct issue. Rowe said that the contract "requires rear evaporator with multiple outlet ducts in the rear vehicle compartment." Rowe went on to describe how it would comply with this requirement. Ex. 85. Ms. Huddleston said that she had forwarded Rowe's proposed method for complying with this contract requirement to Mr. Mould for evaluation during his inspection of the first production vehicles. Ex. 88. On October 2, Rowe sent Ms. Huddleston a weight analysis of the type of van that it was using for the contract. Rowe said that Mr. Mould had asked for this analysis. Ex. 89; T. 893. According to Mr. Mould, he did not ask for this information. He explained that during his September 30 visit to Rowe, Rowe provided him with this weight analysis and he explained to Rowe the contract required Rowe to weigh one of its vans. The weight analysis did not establish that Rowe had actually weighed a van. Mr. Mould intended to follow up on this issue when he conducted his next inspection. Ex. 93; T. 249. At some point in October, Rowe provided Mr. Mould with the information that he needed to determine that Rowe's vans met the contract's GVWR requirement. T. 243-44, 252, 265. Also on October 2, Mr. Mould spoke with Mr. Campbell about scheduling a visit regarding another contract. In the course of that conversation, Mr. Campbell said that he thought that the first production vehicles for the INS contract would be ready on October 3. Mr. Mould asked Mr. Campbell to check the actual status of the vehicles with Rowe's quality control manager and then call Mr. Mould by the end of the day. Mr. Campbell did not call Mr. Mould. Mr. Mould telephoned Rowe on October 3 at approximately 10:30 in the morning, and asked about the status of the first production vehicles. Rowe said that Item 002 was completed and Item 001 would be completed by the end of the day. Mr. Mould said that he would be there concerning the other contract on October 8, and that he would inspect the INS vans on that date. Ex. 91. On October 3, Alice E. Ross wrote to Rowe and explained that she had replaced Ms. Huddleston as the administrative contracting officer. In her letter, Ms. Ross said that she understood that Rowe was not ready to have a first production vehicle inspected, but would be ready on October 8. She also said that she was concerned that the delay would affect the revised delivery schedule for the vans. She asked Rowe to contact her immediately if it anticipated any delay. Ex. 90. Rowe responded to this letter on October 4, stating that it had two Item 002 vans and three Item 001 vans completed, and that Rowe was "comfortable with the vehicle as it has evolved." Rowe did not say that it anticipated a delay. Ex. 92. On October 8, Mr. Mould went to Rowe's facility in Powhatan to inspect Items 001 and 002. He first looked at Item 001. He saw right away that one front seat had an arm rest and the other did not. In addition, there were no records to show when Rowe had corrected the deficiencies that Mr. Mould had noted during his first inspection of this same van. Rowe also said that Item 001 did not represent its intended vehicle configuration. Mr. Mould explained that the purpose of having a first production vehicle was to establish a standard that all of the vehicles would meet. Rowe withdrew Item 001 from inspection. Ex. 94. Mr. Mould inspected the Item 002 van that Rowe had available on October 8. He saw that there were substantial differences between the Item 001 van and the Item 002 van. Mr. Mould noted several defects in the Item 002 van that he inspected, and he discussed these with Rowe. Rowe advised him that the van was not representative of Rowe's final product, and that it was currently initiating other design changes while working on another vehicle. Mr. Mould explained the purpose of a first production vehicle. Rowe said that it expected to be ready for inspection again on October 15. Mr. Mould told Rowe to provide him and Ms. Ross a written confirmation that the vans were completed and actually ready for inspection. Ex. 94. Among the defects that Mr. Mould noted on the Item 002 van on October 8 were the following: The partition did not have a side mounting. No information was available to substantiate that the jack complied with the contract's requirements. The gap between the Lexan panel and the van was greater than the tolerance permitted by the contract. Rowe did not have the required operator, service, and parts manuals. The attachment for the front seat belt harness had been moved so that it was in the drivers' compartment, and there was no documentation to show that this complied with FMVS Standards 208, 209, and 210. All of the rustproofing required by the contract was not done. So far as Mr. Mould knew, the vehicle had not been weighed. The seats in the rear compartment were mounted on their frames with only two rivets at the front and two rivets on the top, and so the seats exhibited too much movement in the center. Mr. Mould sent a copy of his inspection report to the contracting officer and to Rowe. Ex. 94. Mr. Campbell testified that Mr. Mould used a clipboard to pry up the front of one seat, which popped off one of the rivets. T. 861. Mr. Mould denied this. T. 1927. Mr. Globerman explained that because fiberglass is flexible and these seats are several feet long, using only two rivets to secure the front of a seat would allow the seats to be vandalized and would not be acceptable. T. 1486. Mr. Mould asked for documentation that Rowe was using an approved seat attachment procedure that met FMVS standards. T. 412. Rowe provided him with a sheet of paper that contained an installation procedure for the seats, including using four rivets to attach the seats to the frames. The paper, which did not contain any company s letterhead, contained a handwritten note from an employee of C.E. White, the company that supplied the fiberglass seats, who said that he agreed with the number of rivets, and that "typing errors" were being corrected. Ex. 513. Mr. Mould had dealt with C.E. White in the past and knew that company usually issued its certifications on company letterhead. T. 1920. Mr. Mould asked Rowe to provide a certification without errors, or to identify the errors in the certification that it had in hand. T. 412. Mr. Campbell testified that Rowe had completed more than 100 seats by October 8, but had not installed all of the seats into the vans. T. 1198-99. During his October 8 inspection, Mr. Mould also noted several workmanship defects on the Item 002 van. Among these were rough and sharp edges on some of the components in the rear compartment; an inoperable seat belt retraction device; walls and vent cover not mounted flush; one window cage was not securely mounted; and the main electrical wiring harness on the driver's side of the van was located behind the partition where it would be accessible to the passengers. Ex. 94. Rowe notified Mr. Mould on October 9 that it was correcting the defects noted during his October 8 inspection, and that Items 001 and 002 would be ready for inspection on October 15. Ex. 95. On October 11, Rowe provided Ms. Ross with a written response to Mr. Mould's inspection report. Rowe said that it would include side mount brackets on all of the vans. It said that documentation concerning the jack was available at Rowe's facility. The partition had been re-designed to comply with the tolerance set out in the contract. Rowe would prepare wiring diagrams for the equipment that it installed and would provide these with parts and service manuals. Rowe said that it would use eight rivets, instead of four, to secure the rear compartment seats to their frames. It said that it would perform the rustproofing required by the contract. Rowe also said that it had weighed one of its vans on October 2, but had misplaced the weight ticket and so would weigh another van. Concerning workmanship, Rowe said that it would correct the problems and would also take care to ensure that its employees understood the need for quality workmanship. Rowe said that it had designed a cover for the part of the wiring harness that was exposed in the rear compartment, and that this problem was created when the partition was moved. Ex. 97. Rowe did, in fact, correct the problem with the exposed wiring harness by installing a four-inch plate on the left side wall to contain the wires. T. 416, 1969- 70. Rowe was correct that it had weighed a van on October 2; the van was the Item 002 van that Rowe presented for inspection on October 8. Ex. 94, 196. Rowe s October 11 letter also addressed the front seat belt harness issue. Regarding the attachment for the front seat belt harness, Rowe said that its original configuration had the belt mounted to the Ford mount, with the "D" ring on the drivers' side of the partition. Rowe said that "the government ordered" Rowe to move the partition forward, and that this resulted in the "O" ring being in the rear compartment. The Government "indicated that this option was not the best," so Rowe found a seat belt manufacturer, Kenidyne, that provided a kit that Rowe "certified as meeting the necessary safety standard." Ex. 97. Mr. Globerman explained that, typically, the partition would be constructed so that it would enclose the shoulder harness anchor point, so that the passengers could neither damage the seat belts nor put their hands through to attack the driver and assistant driver. The anchor point could be boxed in or else the partition could be sloped to eliminate problems with exposed anchor points. T. 1468-69. Meanwhile, on October 10, Ms. Ross sent Rowe a cure notice. The notice incorrectly stated that the contract required delivery within 150 days after receipt of an order. Ms. Ross went on to say that Rowe had failed to make progress toward providing GSA with an acceptable first production vehicle, and that unless this situation was cured by October 21, GSA might terminate Rowe's right to proceed with the contract for default, in accordance with FAR 52.249-8. Ex. 96. This FAR clause does not apply to commercial item contracts, and was not a part of Rowe's contract. Rowe responded to the cure notice on October 15. Rowe said that the contract specifications were more suited for a Dodge van than for a Ford van. Rowe explained that Dodge vans are shaped more like a rectangle, and Ford vans are shaped more like an oval. This difference in shape affected, for instance, the amount of work required to move the partition back or forward. Ex 99. Mr. Campbell testified at the hearing that the specifications were flawed because they were based upon a Chrysler van, and not a Ford van. T. 847. He pointed out that there are a number of differences between the vans made by the two manufacturers. But, despite the differences, Rowe was able to use a Ford van to satisfy the contract specifications. T. 986-99. Mr. Globerman testified that the specifications were not based upon a Chrysler van, and that the shape of a particular van did not render the specifications defective. T. 1387-90. In fact, the specifications were written to require a GVWR that would exclude a Chrysler van from being used on the contract. Ex. 2; T. 1387-88, 1507. In its response to the cure notice, Rowe also said that it had been ordered to move the partition "nine documented" times, which had caused Rowe to have to build seven different partitions, because as the partition was moved up or back, its size and shape had to be changed due to the oval shape of the van. If the partition was moved, other items inside the van had to move also, which meant fabricating new parts and initiating new installation procedures. Rowe said that it had "six different prototype submissions" because a one-inch shift in the position of the partition resulted in the "total redesign of approximately 90% of the upfitted parts." Rowe said that, three months earlier, it had asked GSA for a fixed partition position approximately one inch forward of its initial position, but that GSA ordered Rowe to move the partition back by approximately three inches. Now, Rowe said, the partition was approximately one inch forward of where Rowe had suggested placing it, which meant a net of five inches of movement in nine moves. Rowe said that it had repeatedly asked someone from GSA or the INS to come to the facility to see the van or to allow Rowe to bring the van to the agency. Rowe said that both agencies scheduled visits, but never came. Finally, Rowe alleged that GSA had begun negotiations with Rowe s vehicle supplier to build out a van for the INS van contract. Rowe said that this was Rowe's "understanding," but did not provide any facts to establish how it had reached that understanding. Ex. 99. Mr. Campbell testified that a representative of Powhatan Ford told him that Mr. Mould had authorized Powhatan Ford to build a truck. T. 863. Mr. Mould provided Ms. Ross with comments concerning Rowe's October 15 response to the cure notice. Mr. Mould said that Rowe never "formally" asked for any meetings with GSA and INS. He also said that Rowe's allegation that it had been ordered to move the partition nine times was not true. He said that Rowe was never directed by the Government to install the partition in any particular location, and that the contract permitted Rowe to install the partition wherever it wanted. He recounted his visits to Rowe's facility as follows. On July 22, Rowe was still in the planning stage. Rowe advised Mr. Mould that its intended partition location would hinder mounting the jack behind the driver's seat, and Mr. Mould advised Rowe that the partition location was Rowe's option, so long as it did not interfere with the driver's seat adjustment path. Mr. Mould next evaluated the partition on September 19, for Item 001. He noted a workmanship defect, which was that a section of the floor covering was not secured in front of the partition. He also noted that the location of the partition allowed a passenger to reach into the front compartment by the assistant driver's seat. Rowe said that it would move the partition forward to resolve these problems. When Mr. Mould went to Rowe's facility on September 30 to inspect an Item 002 van, the partition was not installed. On October 8, Rowe did not present an Item 001 van for inspection. Rowe said that the Item 002 van that it had available on that date did not represent its final configuration. Ex. 105. In the course of this appeal, Rowe produced no records of any kind to show that GSA directed Rowe to move the partition "nine documented" times, as Rowe asserted in its response to the cure notice. On October 15, Mr. Mould made a quality assurance visit to Rowe's facility and inspected an Item 001 van and an Item 002 van. Mr. Mould informed Ms. Ross that Rowe had made progress regarding compliance with specifications and workmanship, and that although deficiencies were noted during the inspection, Rowe either corrected them on the spot or began corrective work. Rowe still needed to provide information to show that its fiberglass seat mounting had been done in an acceptable manner. Ex. 100. Mr. Mould determined that the location and mounting of the partition was adequate. Ex. 105. That same date, Mr. Mould sent Rowe a letter concerning his visit. Mr. Mould stated that two of the deficiencies he identified (seat belt mounting for the assistant driver had been moved to the drivers' compartment and the mounting was unacceptable; allowing passengers access to wiring behind the driver's side partition) were resolved by Rowe during his visit. During his visit, Rowe began correcting two other deficiencies (seat frames in the first three rows had exposed holes in the rear of the frame which had sharp edges; passenger seat attachments were not tamper resistant). Documentation was missing for two items (inspection records showed work done in June when it had been done in October; there was no documentation concerning the fiberglass seat attachments). Ex. 101. On October 15, Rowe provided a flood light that met the requirements of the contract and GSA accepted the light. T. 315-16. On October 18, Rowe provided Mr. Mould with quality inspection sign-off sheets, and notified him that it would have two vans ready for inspection on October 22, and two more vans ready on October 25. Ex. 102. Rowe did not say anything about the fiberglass seats, and the quality sign-off sheets did not say anything about installing tamper resistant seat mechanisms or covering the rough exposed holes in the rear of the seat frame. Mr. Mould called Rowe on October 23 to speak with Mr. Campbell, but he was not available. Ex. 107. Mr. Mould told Mr. Jackson that Rowe needed to provide documentation to show that the fiberglass seat attachment was acceptable. Ex. 104. Mr. Mould said that he intended to visit Rowe's facility on October 29 for an inspection, and Rowe said that it would possibly have eight to ten vans ready. Ex. 107. In Mr. Campbell's view, Mr. Mould's concern about the exposed holes in the rear of the seat frame was an aesthetic concern because there were other pieces of metal in the van with edges just as rough as those on the holes. T. 1203- 04. Mr. Globerman explained that Federal Standard 307 specifically states that one reason for rejection of a vehicle is rough, sharp, or unfinished edges. T. 1494-95. On October 25, Rowe sent Mr. Mould information from C.E. White concerning the attachment of the fiberglass seats to their frames. The cover sheet stated that the information consisted of amended installation instructions. The instructions said to install three rivets across the top of the seat, three rivets across the bottom of the seat, and one rivet on each side of the seat, for a total of eight rivets. Ex. 107, 192; T. 1919-27. Mr. Campbell testified that Rowe had to install additional rivets at Mr. Mould s insistence, and that this delayed Rowe because it had to add rivets to seats that were otherwise completed. T. 861-62. Mr. Mould testified that he did not order Rowe to use additional rivets in each seat. T. 413, 1927. Mr. Muncie testified that he was sure that Rowe made the decision to add rivets when Mr. Mould pointed out that the seat was not secured to the frame. T. 1552. On October 29, Mr. Mould and Don Conklin from GSA in Atlanta went to Rowe's facility in Powhatan. The purpose of the visit was to perform a final evaluation of the first production vehicles and to evaluate Rowe's intended quality controls for the remainder of the vans to be produced. Ex. 106. They reviewed and discussed inspection documentation with Mr. Campbell, Mr. Muncie, and Mr. Jackson. They agreed that the inspection records would show that all of the vans' characteristics had been examined in accordance with documented quality procedures. They examined the first production vehicles. Tamper resistant mechanisms to prevent seat removal had been installed, and the rear seats had aluminum covers riveted over the open holes in the seat frames. Both of these actions had been performed satisfactorily. The seat belt mountings on the floor had not been installed in a consistent manner, and Rowe corrected this. The driver's seat belt would become binding after minimal usage, and Rowe said that it would evaluate the design and location of the mounting bracket. Rowe said that five vans had been produced. Looking at these vehicles, Mr. Mould noted that workmanship deficiencies were apparent. GSA told Rowe that a follow-up visit would be expedited and accomplished on October 31 to verify Rowe's corrective actions and to determine the acceptability of the first production vehicles. Ex. 107. During the October 29 visit, Mr. Conklin asked Mr. Campbell if he could support his allegation that Rowe had been directed to produce a variety of partitions. Mr. Campbell's response was "vague." He indicated that GSA in Crystal City had directed the partition to be moved, but did not say who gave such direction and had no documentation to back up his assertion. Mr. Conklin concluded that there might be two different partition configurations, but that these were attributable to Rowe's failure to establish the partition location before it began trying to produce vans. Ex. 130. Mr. Globerman testified that he never told Rowe where to place the partition. He recalled that, at some point, GSA told Rowe that the partition could not be placed where it would interfere with the travel of the drivers seats, because this would not comply with a FMVS standard. T. 1460, 1463, 1465-66. Mr. Conklin could not understand why Rowe did not develop a pattern for the partition before it actually began producing the partitions. Ex. 130. Similarly, Mr. Globerman testified that Rowe should have had no difficulty constructing the partition if it had created a template or a pattern before actually beginning production. T. 1434-35. Mr. Mould also said that he would have expected Rowe to make a template and adjust the template until the location was correct. T. 1856. On October 30, Rowe wrote to Mr. Mould and told him that it would provide GSA with a firm production schedule within ten days. Rowe also said that it had devised a way to eliminate the binding problem with the driver's seat belt. It said that quality control worksheets were being revised in order to reflect all of the characteristics of the vans. Ex. 108. Rowe eliminated the binding problem with the driver's seat belt by tack welding an oval clip to the upper corner of the partition. T. 1917, 1973. On October 31, Mr. Mould went to Rowe's facility in Powhatan. He inspected and approved the first production vehicles for Items 001 and 002. Ex. 109, 110. He also inspected six other vans which needed some minor corrective work before Mr. Mould could approve them. That work was in progress when Mr. Mould left Powhatan. Mr. Mould's contemporaneous records show that Mr. Campbell telephoned him that evening, said that the corrections had been made and that all of the paperwork had been completed concerning the vans, and asked if Mr. Mould could come back to Powhatan and approve the vans the next day, November 1, because Rowe could make arrangements to ship the vans that day. Mr. Mould was not scheduled to work on November 1, and the next date that he had available to return to Powhatan was November 6. Mr. Mould agreed to meet with Mr. Campbell on the evening of October 31. Mr. Mould and Mr. Campbell met at a hotel in Fredericksburg, Virginia, and Mr. Mould reviewed the records that Mr. Campbell brought, which were for five of the six vans that Mr. Mould had inspected that day and one van that Mr. Mould had not inspected. The records needed some corrections, which were made, and Mr. Mould approved the five vans that he had inspected. Ex. 109, 112. On October 31, when Mr. Campbell and Mr. Mould met in Fredericksburg, Mr. Mould provided Mr. Campbell with some literature concerning a hotel that was for sale. Mr. Campbell says that Mr. Mould asked him to look at the literature and call the real estate agent. T. 858. Mr. Mould said that he provided Mr. Campbell with the literature as a result of an earlier conversation he had with Mr. Campbell and Mr. Jackson about the lack of hotels in the Powhatan area. Mr. Mould mentioned that there was a hotel for sale in the area, and Mr. Campbell and Mr. Jackson expressed some interest in it, so Mr. Mould picked up a sales brochure and gave it to Mr. Campbell on October 31. T. 1962-63. Mr. Campbell testified at the hearing that on October 31, Mr. Mould directed Rowe to move the partition up toward the top of the van so that the carpet could be pushed under the partition. T. 1181-82. He also testified that, on that date, Rowe had not moved the drivers' seat belt attachment points, and that Rowe moved the mounts later after telling GSA that Ford would not accept Kenidyne's attachment method. He testified that Mr. Muncie submitted something to Ford and to C.E. White concerning the Kenidyne fixture, and that Ford responded by rejecting the fixture. T. 1208-09, 1215, 1217, 1233. There is nothing else in the record to establish that Rowe ever asked Ford about the Kenidyne attachment, that Ford rejected the attachment, or that Rowe informed GSA that Ford would not accept Kenidyne's attachment method. Mr. Globerman testified that if a contractor moved a seat belt attachment point, he would have wanted a certification that the van met FMVS standards because he doubted that Ford would have approved moving the attachment points. T. 1470-71. Mr. Mould testified that before he approved the first production vehicle, Rowe provided him with information concerning a Kenidyne fixture and said that it complied with FMVS requirements. T. 1915-16. In Mr. Mould s opinion, the documentation that Rowe provided concerning compliance with FMVS standards for seat belt modifications was adequate. T. 118, 1916-18. According to Mr. Campbell, Rowe intended to start "ramping up" to full production after GSA approved the first production vehicle. Mr. Campbell explained that Rowe had the equipment it would have needed to manufacture parts until an outside manufacturer could begin supplying Rowe with parts. Some of the equipment was never installed, however, because Rowe did not obtain access to the three-phase power needed to run the equipment. T. 1242-46. Mr. Mould explained that Rowe had acquired its equipment a month or two earlier, but that it was not installed, so Rowe's workers were trying to fabricate metal parts by hand. This was made more difficult because there were no production drawings that the workers could use to fabricate the parts in a consistent manner. Instead, the workers were using one panel as a guide to shape another. T. 1936-37. Mr. Mould testified that he never saw any design drawings, such as he would have expected a manufacturer to have. T. 1858. Mr. Mould's testimony is consistent with that of Mr. Muncie, who said that one reason Rowe was unable to complete the contract within the required time was because it did not have drawings so that Rowe could make parts repetitively and accurately. He said that Rowe basically used a trial and error method for developing its vehicle. T. 1540-41. Rowe never intended to produce the component parts for the vans. Instead, it intended to purchase those parts from others and then install them in the vans. T. 838. Early in the contract, perhaps in late June or early July, Rapid Motor Sports built one partition and one set of side panels, but Rapid did not build any more partitions or side panels. T. 820-21, 825-26, 1024. Mr. Campbell testified that GSA rejected some of Rapid s parts prior to the time that Rowe provided a van to Mr. Mould in July, but there is nothing in the remainder of the record to support this statement. T. 1024. On November 1, Ms. Ross replied to Rowe's October 15 response to the cure notice. Ms. Ross recounted the history of Mr. Mould's visits to Powhatan, and denied that GSA had ordered Rowe to move the partition. Ms. Ross said that vans were due to be delivered on November 26, and that she would monitor the contract closely to assure that Rowe met the delivery date. As for Rowe's allegation that the Government had approached someone else to purchase vans, she said that her office was not aware of any other procurement. Ex. 111. Mr. Mould returned to Powhatan on November 8. He noted during this visit that the five vans that he had approved on the evening of October 31 had not been shipped. Rowe said that it was making arrangements to have the vans delivered and that it expected they would be picked up soon. Rowe presented Mr. Mould with the necessary documentation concerning the sixth van that he had inspected on October 31, and he approved that van for delivery. Ex. 112. On November 8, Rowe also presented Mr. Mould with four vans (three Item 001 vans and one Item 002 van) for inspection. Mr. Mould rejected these vans because they had numerous defects, which he detailed in a written report. Ex. 112. One of the defects concerned the seats in the rear compartment, which were supposed to be attached to the floor using tamper resistant mechanisms to prevent the passengers from releasing the seats. Ex. 5 at 2; Ex. 112. During Mr. Mould s inspection of Rowe s first production vehicles on October 31, he saw that Rowe had tightened a bolt that restricted the seat release handle so that it could not be pulled up to release the seats. During the November 8 inspection, Mr. Mould found that some seats could be released by pulling the handle, and he rejected three vans for not having seats that were securely mounted. Ex. 112; T. 404-05. Before leaving Powhatan on November 8, Mr. Mould talked to Mr. Campbell and Mr. Jackson about Rowe's obligation to perform a thorough inspection of vans before they were submitted to GSA. Also, they discussed the continuing problem with manuals. Rowe had only a Ford parts manual available. It did not have a manual for the parts that it had installed or a Ford service manual, as required by the contract. Rowe said that it was having problems obtaining manuals from Ford, and that it was in the process of completing the documentation concerning the parts that it had installed. Mr. Mould noted in his report to Ms. Ross that Rowe's current production rate was approximately five vans per week, and that he expected that Rowe would not be able to deliver the vans as required by November 26. Ex. 112. Mr. Mould returned to Powhatan on November 18, to reinspect the four vans that he had rejected on November 8. Minor workmanship problems existed, but were corrected by Rowe while Mr. Mould was there and Mr. Mould approved the vans. Rowe also presented three more vans for inspection, and Mr. Mould approved them after Rowe corrected some minor problems. Mr. Mould told Ms. Ross that Rowe was producing four vans per week, which was not sufficient to enable Rowe to deliver within the time required by the contract. Mr. Mould recommended that Ms. Ross issue a "show cause" notice to Rowe. Mr. Mould also noted that Rowe had not set up the equipment that it had acquired to use for metal fabrication. Mr. Mould had approved thirteen vans to be delivered, but all of the vans were still sitting in Powhatan. One of Rowe's employees told Mr. Mould that Rowe had invoiced GSA for all of these vans, plus the first production articles. Mr. Mould discussed this with the Rowe employee, because the contract provided that invoices were supposed to contain shipping dates. The employee told Mr. Mould that Mr. Campbell handled the invoicing, and Mr. Campbell was not there. Ex. 115. During Mr. Mould's November 18 visit, Mr. Muncie explained that tightening the bolt that restricted the seat release handle for the rear seats would not always prevent the seats from being released. Mr. Mould testified that, at that time, Mr. Muncie decided to tack weld the handle so that it could not be pulled. Mr. Mould stated that he did not tell Rowe to tack weld the handles. Mr. Muncie testified that Rowe said that it would tack weld the handles and Mr. Mould said that this would be fine if it made the seat secure. Ex. 115; T. 404-05, 1553-54, 1933. Mr. Campbell testified that Mr. Mould recommended welding the seats in place, and that Rowe thought that welding the seats was a bad idea. T. 896-98. Mr. Campbell, however, was not at the November 18 inspection. Ex. 115; T. 1941. Mr. Mould recalls that approximately five vans plus two first production vehicles that had been previously inspected and approved contained handles that Rowe would have needed to tack weld. T. 408-09, 1935. Mr. Mould saw Rowe employees perform the tack weld, and it took approximately two to three minutes per weld, for a total of ten minutes per van. Mr. Mould believed that, shortly after his November 18 visit, all of the tack welding was completed on vehicles that had been previously inspected and approved. T. 421-22, 2009-10. Mr. Campbell finds it unlikely that the bolt could be sufficiently tightened on some seats, and not on others, because the vans as they arrived from Ford were uniform. T. 964. Mr. Globerman testified that vans are built within a range of tolerances, and that all vehicles are not exactly alike. T. 1474. Mr. Mould returned to Powhatan on November 25 in order to inspect six vans. Mr. Mould found minor deficiencies, which Rowe corrected, and Mr. Mould approved the vans for delivery. Rowe still had not delivered any of the vans that Mr. Mould had previously approved. Mr. Mould again recommended that Ms. Ross issue a "show cause" notice, because Rowe was producing only four vans per week. Mr. Mould reached Mr. Campbell by telephone, and Mr. Campbell said that Rowe had encountered a problem having the vans picked up due to the holiday week. Ex. 116. On November 25, Mr. Campbell wrote to Ms. Ross and told her that Rowe was having to compete with Christmas shipping traffic, and wanted to use a method of delivering the vans other than the method specified in the contract. Also, Mr. Campbell said that Rowe had all 219 vans on hand and parts to complete almost 100 vans. He asked for the contract s payment terms to be changed. Ex. 117. On November 26, Mr. Mould informed Mr. Conklin that he had been making weekly trips to Rowe's facility, but that Rowe had not shipped any vans. Mr. Mould felt that time was being wasted traveling to Powhatan every week, without any vans being delivered. Mr. Mould said that he planned to stop going to Powhatan until Rowe delivered some vans, and asked Mr. Conklin whether he agreed with this decision. Ex. 118. On December 2, Rowe wrote to Alice Ross. Rowe said that an inspection had been scheduled for either that day or December 4. Ex. 120. There is nothing in the record to show that any inspection was, in fact, scheduled for December 2. According to a December 3 memorandum written by Mr. Mould, Rowe called him on December 2 and told him that it had four vans ready to be inspected. Rowe also said that no arrangements had been made to ship vans. Mr. Mould told Rowe to call him when it had vans ready to be inspected and when arrangements had been made with a trucking company to pick up the vans, so that he could schedule a visit and inspect all completed vans at one time. Ex. 122, 135. In its letter to Ms. Ross, Rowe said that vans would be ready for inspection on December 4, 10, 17, and 24, and Rowe asked when Mr. Mould would resume his inspections. Ex. 120. On December 2, Ms. Ross sent a show cause notice to Rowe. The notice said that all of the vans were to have been delivered on November 26, but that no vans had been delivered. Ms. Ross said that, because Rowe had failed to deliver vans as required by the contract, GSA was considering terminating Rowe's contract pursuant to the default clause set out in FAR 52.249-8. Ms. Ross said that, "[p]ending a final decision in this matter," Rowe would have the opportunity to show that its failure to perform arose from circumstances beyond its control. Ms. Ross asked for a written response by December 13. She said that any assistance given by GSA concerning the contract or any acceptance of delinquent deliveries would be solely for the purpose of mitigating damages, and that GSA did not intend to waive any of its contract rights. Although Ms. Ross sent a copy of her show cause notice to the GSA contracting office in Crystal City, there is no evidence that she had the prior approval of the office to send the notice. Ex. 121. Also on December 2, Ms. Ross sent a letter to Rowe. In it, she responded to Rowe's November 25 request to change the method of delivering the vans, and said that this would not be practical. In response to Rowe's inquiry as to when inspections would resume, Ms. Ross said that GSA would be glad to inspect a substantial number of vehicles when they are ready for shipment. Ms. Ross also said that she was concerned about vans that had been approved, but were still sitting in Powhatan, because damage to those vans could occur before they left Rowe's facility. She noted that the delivery date had passed and that she had issued a show cause notice. Ms. Ross then asked Rowe to provide her with a schedule for delivery of vans, and said that if Rowe and GSA did not agree upon a firm schedule, GSA might have to terminate Rowe's contract. Ex. 123. On December 3, Rowe responded to Ms. Ross's December 2 letter. Rowe said that all vans previously approved "are and have been scheduled for shipment." Rowe said that its problems with shipment were due to the holiday season, but that it expected some trucks to arrive to pick up vans later that week. Rowe said that it had provided a timely notice to Mr. Mould that vans would be ready for inspection, but that Mr. Mould had not arrived to perform the inspection. As for making shipments, Rowe said that it had scheduled shipments three times, and that the shipments had to be canceled because Mr. Mould would not approve vans for shipment. Rowe asked Ms. Ross what she considered to be a "substantial number" of vehicles. Ex. 124. On December 4, Ms. Ross responded to Rowe's December 3 letter. She said that Mr. Mould was willing to inspect and accept vans, but that it was not cost effective to travel to inspect one or two vans, which would then sit for weeks without being delivered. She said that if Rowe was ready to ship vans, Mr. Mould would be there to inspect within seven days after being asked to do so by Rowe, as required by the contract. Ms. Ross explained that Mr. Mould had not stopped his inspections, but merely asked that Rowe have a number of vans ready for inspection before calling him. She also pointed out Rowe's difficulty shipping vans due to the holiday season was due to the fact that Rowe was not ready to ship vans sooner. Ms. Ross also said that Rowe had attempted to "cloud the issue" of its failure to deliver, and that this "will not prevent termination of this contract unless your company moves very quickly to construct and present the entire number of vehicles to GSA for inspection." She reminded Rowe that GSA was considering terminating the contract. Ms. Ross reminded Rowe that she had asked for a delivery schedule. She said that if Rowe could not provide a realistic, firm schedule, she would conclude that Rowe would not be able to perform. Ex. 125. On December 5, Mr. Mould told Ms. Ross that he could schedule a visit to Rowe's plant during the week of December 9 in order to inspect any vans that were ready, to evaluate Rowe's progress, and to provide Ms. Ross with the status of deliveries. Mr. Mould also said that it was not true that Rowe had arranged for vans to be shipped three times, and that the shipments had been delayed. Mr. Mould also said that it was time for Rowe to begin fulfilling its obligations, or else GSA should terminate the contract for cause. Ex. 128. Concerning Rowe's arrangements for shipping, Rowe provided a letter written in January 1997, by a trucking company. The letter said that on July 2, Rowe said that it would have vans ready to ship in three to four weeks. On July 24, Rowe and the trucking company agreed that the company would transport vans as soon as they were released by GSA for delivery. The trucking company was at Rowe's facility on July 29, ready to transport a van, which had to be inspected by GSA before it was released for shipment on July 31. The trucking company said that it again began transporting vans for Rowe on December 2. Ex. 155. Whatever van the trucking company transported on July 31, it could not have been one of the vans produced for the INS contract, because the first production article was not approved until October 31. Also, so far as the record of this appeal shows, no van produced for the INS contract was shipped on December 2. Rowe notified GSA on December 5 that one van had been picked up from Powhatan for delivery to the INS. Rowe also asked when GSA would resume its inspections. Ex. 129. On Friday, December 6, around noon, Rowe sent a letter via telefacsimilie to Ms. Ross stating that the shipper for vans that Rowe expected to be inspected on December 2 or 4 arrived on December 5, but was unable to load any vans due to the lack of inspection. Rowe said that it had two other trucks at its plant, and asked that it be allowed to ship two vans to Pennsylvania and two to Maryland, even though those vans had been approved for shipment to Florida. Ex. 131. Ms. Ross was not in the office on December 6. At approximately 4:10 p.m. that day, Mr. Campbell spoke with Ms. Huddleston concerning his letter to Ms. Ross. Ms. Huddleston told Mr. Campbell to send her information right away to show that the vans he wanted to ship had been approved for shipment. At 4:30, Ms. Huddleston had not heard from Mr. Campbell, so she called him. He said that he could not provide the information that she requested and that the truckers could not wait to load the vans any longer. Ex. 133. In fact, the vehicle identification numbers of the vans that Rowe asked to ship did not match any of the vehicle identification numbers of the vans that Mr. Mould had approved for shipment. Ex. 112, 114- 16, 131. Contrary to the statements made in Rowe's letter, Rowe's records show that it shipped five vans on December 4 or 5. Ex. 141, 606. On December 9, Rowe received a telephone call from one INS employee who had received Rowe's vans. The INS employee made several complaints about the vans. Ex. 519. Apparently, Rowe told Mr. Mould about the conversation, and he reviewed the contract requirements with the INS employee and then told Rowe that, for the most part, the INS employee's complaints reflected his own preferences, and not contract requirements. Ex. 137. The record does not contain any other INS complaints about the vans. On December 10, Rowe sent Ms. Ross what it termed a "partial response" to her December 4 letter. Rowe asked for a meeting within seven days to establish an appropriate and reasonable inspection and delivery schedule. Rowe said that it would expect to "convert its weekly performance schedule into a daily performance schedule" within thirty days after the meeting. Ex. 134. Mr. Mould made his last visit to Rowe's plant regarding the INS van contract on December 10. December 10 is the sixth workday after December 2, which is when Rowe told Mr. Mould that it had vans ready to be inspected, so Mr. Mould's visit was within the time that the contract required him to inspect after being asked to do so. Ex. 3 at 29; Ex. 137. Mr. Mould inspected and approved seven vans, after Rowe corrected a few deficiencies. Mr. Muncie told Mr. Mould that it would be two weeks before any more vans would be ready. Mr. Mould told him to give seven work days' notice when he was ready for an inspection. Ex. 137. Rowe shipped four vans on December 9 or 10. Ex. 140, 141. Rowe shipped five vans on December 11, and five vans on December 12. Ex. 140-43. Mr. Campbell testified that GSA was making changes to the vans' configuration up until December 10. T. 1254-55. Mr. Campbell also testified that Mr. Muncie never said that it would be two weeks before any more vans would be ready for inspection. T. 1256. Mr. Campbell, however, was not at the December 10 inspection. Ex. 137; T. 1941. On December 11, Ms. Ross received a telephone call from someone who identified himself as a representative of Powhatan Ford. The person said that Mr. Mould had inspected and approved a van that Powhatan Ford had built. The person also inquired as to the status of Rowe's contract. Ms. Ross said that she could not discuss Rowe's contract, and suggested that if he had any finished vans, he should offer them to Rowe. Ex. 138. Mr. Mould said that he had never inspected any vans at Powhatan Ford, but he had conducted a pre-award survey there in October for another contract. In the course of his survey, Powhatan Ford showed him a van that had been stripped and explained how the van would be finished. As a result of his pre-award survey of Powhatan Ford, Mr. Mould recommended that Powhatan Ford not receive the other contract. Ex. 139; T. 1954-56. On December 13, Rowe responded to the show cause notice. Rowe's response listed numerous reasons for the delay in performance, none of which Rowe believed to be its fault. For the first time, Rowe set out the number of days that it believed it had been delayed by GSA's actions. Rowe said that GSA had (1) required Rowe to use eight rivets to hold the fiberglass seats to their frames, and that this delayed Rowe by fourteen days, beginning on October 22; (2) required Rowe to cover the holes in the rear of the fiberglass seats, and that this delayed Rowe by seven days, beginning on October 22; (3) required Rowe to install a vent cover, and that this delayed Rowe by 104 days, from June 19 until September 30, plus an added twenty-five days for ordering, manufacturing, receiving, installing, and testing the vent cover; (4) would not permit Rowe to use Celotex insulation, and that this delayed Rowe by ninety-two days beginning in mid- July; (5) required Rowe to provide eight different options for the size of the sliding door opening, and that this delayed Rowe by thirty-six days at some unspecified time; (6) moved the partition nine times, and that this delayed Rowe by thirty-nine days at some unspecified time; (7) required Rowe to move the stripe on the Item 002 vans, and that this delayed Rowe by 120 days at some unspecified time; and (8) made changes to the contract, and that these changes delayed Rowe by 115 days between April 23 and December 12. Ex. 144. Mr. Campbell testified that the response to the show cause notice accurately stated that Rowe experienced a total delay of 129 days due to the time that GSA took to issue the vent cover modification. T. 1087-88. In its response to the show cause notice, Rowe also said that its current production rate was 22% faster than "the proposed transition from prototype to full production." Rowe said that it was "on pace for double production and delivery capacity within 2 weeks and to double again within the two weeks following that time period." Rowe said that it had begun training an evening shift that would offer its first van within five days. Rowe explained that it intended to build an average of twenty-five vans per week beginning on January 1, 1997, and to continue at that rate through the third week in February 1997. Rowe said that its shipping schedule should accelerate from thirty vans in December to eighty-nine vans in January, with the final 100 vans shipped by the end of February. Rowe attached a three-page chart showing Rowe's sequence of work and the typical duration of that work. Rowe said that if GSA needed more details, Rowe would provide them. Rowe did not explain what it would do differently in order to achieve the production rates that it set out in its letter. Ex. 144. In Mr. Mould's opinion, based upon his observations, Rowe could not have met the schedule that it proposed in its response to the show cause notice. Rowe did not have the capacity to convert more than four or five vans per week. T. 1952. Rowe shipped one van on December 13, and one van on December 17. Ex. 148, 606. Also on December 17, Rowe called Mr. Mould and told him that it would have three or four vans completed on December 18, and asked that Mr. Mould come to Powhatan that day. Mr. Mould reminded Rowe that the contract required seven working days' notice that Rowe was ready for an inspection. Ex. 149. On the morning of December 18, Ms. Ross sent a memorandum to Ms. McIntosh and Mr. Pickeral in Crystal City. The memorandum recommended the termination of Rowe s contract performance, and Ms. Ross asked Ms. McIntosh and Mr. Pickeral to sign the memorandum if they concurred with that recommendation. Mr. Pickeral was retiring and was being replaced as the procuring contracting officer by Jim Compton. Mr. Pickeral, Mr. Compton, and Ms. McIntosh signed the memorandum and wrote the date, December 18, after their signatures. The memorandum contains a chronology of some of the events that occurred during the course of the contract. The memorandum also says that Rowe s response to the show cause notice contained untrue allegations and excuses for the delay in production. Ex. 147; T. 438-39. On December 20, 1996, GSA terminated Rowe's contract performance. The notice stated that GSA was terminating Rowe's right to proceed because Rowe did not deliver all of the vans within the time required by the contract and because Rowe's failure to perform was not due to causes beyond Rowe's control or without Rowe's fault. The termination notice was signed by Joel Rogero, whose position description labels him as a supervisory contract administrator, which is what a contracting officer is called in his office. Ex. 152; T. 1731. The title under his signature on the termination notice is administrative contracting officer. Ex. 152. Ms. Ross could not sign the termination notice because her warrant was limited to $100,000, and Mr. Rogero was the only contracting officer in the office with a warrant large enough to sign the notice. T. 1742, 1773. Before Mr. Rogero signed the termination notice, he discussed the contract with Ms. Ross and with his supervisor. He also reviewed the entire contract file, and a folder that contained a summary of events and backup documentation, including Rowe s response to the show cause notice. He also made sure that the contracting office in Crystal City had concurred with the decision to terminate Rowe s performance. T. 1737-41. Mr. Rogero decided to terminate Rowe s performance because Rowe had failed to deliver by the due date. T. 1741, 1745. He did not accept Rowe s explanation for why it was unable to deliver on time. He went through the file and researched each of Rowe s allegations and determined that its delays were not excusable. T. 1745-48. Mr. Rogero spent one day reviewing the file and making his decision to terminate Rowe s performance of the contract. T. 1775-76. In reaching his decision, Mr. Rogero considered the factors set out in FAR 49.402-3(f). T. 1754-69. He explained that the FAR did not require him to consider these factors because this was a commercial item contract that contained the termination for cause clause. Still, he used the factors for guidance when he made his decision. T. 1768-69. He did not believe that Rowe s performance up to that time supported Rowe s projected schedule for delivering all 219 vans. T. 1761-64. He did not notify the Small Business Administration (SBA) of his decision to terminate Rowe s performance. Mr. Rogero explained that SBA s concurrence was not required and, although the SBA might have tried to help Rowe resolve its problems, it could not have performed the contract for Rowe. T. 1768. Mr. Rogero explained that Ms. Ross prepared the termination notice and erroneously labeled it a "Termination for Default" and referred to the Termination for Default clause, instead of the Termination for Cause clause. He did not notice this error because he was interested in the substance of the notice itself, and in determining whether Rowe's nonperformance was excusable. He surmised that Ms. Ross made this error because the commercial item Termination for Cause clause was relatively new, and this was one of the first terminations in his office of a contract containing that clause. He testified that his intent was to terminate the contract for cause. T. 1743-44. Mr. Campbell testified that after the termination, he spoke with Mr. Rogero, who said that he did not know anything about the contract, and that someone had just given him the termination notice to sign. T. 878-79, 1261. Mr. Rogero recalled speaking with Mr. Campbell, and recalled many of the details of that conversation. He testified that he never indicated to Mr. Campbell that he was not exercising his own independent judgment. T. 1772-74. Discussion Rowe filed this appeal from the contracting officer's decision on March 19, 1997. We held a hearing in this case on October 27-28, October 30, November 10, 1998, and February 8-12, 1999.[foot #] 8 Near the conclusion of the hearing and again in a written order, the Board directed the parties to support the statements of fact contained in their post-hearing briefs with citations to the record. T. 2120; Order on Proceedings (Mar. 24, 1999). Despite this direction, Rowe s post-hearing opening brief, which consists of sixty-five single- spaced pages, contains almost no supporting references to the record. The same is true of Rowe's post-hearing reply brief, ----------- FOOTNOTE BEGINS --------- [foot #] 8 On August 19, 1998, we set October 27-30, 1998, as the days that Rowe was to present its case, and February 8-11, 1999, as the days that GSA was to present its case. On October 28, 1998, Mr. Campbell explained that he would not be able to be present the next day, so Rowe's third day of hearing was October 30, and its fourth hearing day was November 10, 1998. On February 8, 1999, GSA's first day of hearing, no one appeared for Rowe, and so GSA's hearing extended into February 12, 1999. We ordered Rowe to present its case earlier than GSA as a sanction for Rowe's persistent failure to cooperate in discovery, to comply with the rules of the Board, and to comply with the Board's orders. Rowe Inc. v. General Services Administration, ______________________________________________ GSBCA 14136, 98-2 BCA 29,951. ----------- FOOTNOTE ENDS ----------- which consists of sixty-three double-spaced pages. Both briefs are filled with a myriad of conclusions and charges based upon no stated facts. In the process of resolving this appeal, the Board viewed the unsupported factual allegations and the baseless conclusions and charges as lacking any foundation, unless the Board happened to find support for them during its own review of the 320 exhibits and the 2,270 pages of hearing transcript. In addition, before the hearing, Rowe raised some issues that it does not discuss in either of its post-hearing briefs. To the extent that Rowe did not pursue an issue in its briefs, we deem that Rowe abandoned the issue. GSA established that Rowe did not deliver 219 vans to GSA by November 26, 1996, and that as a result of Rowe s failure to deliver on time, GSA terminated Rowe s performance. Rowe asserts that the vans were not due to be delivered on November 26, that the termination action was flawed for a variety of reasons, and that many actions by GSA delayed Rowe s performance. Rowe did not establish, by a preponderance of the evidence, that its assertions are correct. Rowe also accuses several GSA employees and one employee of a Ford dealership of criminal conduct and of altering and manipulating documentary evidence. Rowe has not established that there is any basis for its accusations. I. GSA's prima facie case Rowe s contract did not contain a Termination for Default clause. Instead, because the contract was a commercial item contract, it contained a clause that permitted GSA to terminate the contract for cause in the event of a default. In Wellington House v. General Services Administration, GSBCA 14665, 99-1 BCA 30,279, and in Integrated Systems Group, Inc. v. Social Security Administration, GSBCA 14054-SSA, 98-2 BCA 29,848, we stated that the Government must prove by a preponderance of the evidence that its decision to terminate a contract for cause is proper, just as it has to prove that a decision to terminate for default is proper. If the Government presents a prima facie case that its termination was proper, the burden shifts to the appellant to come forward with evidence to rebut the Government s case. Wellington House, 99-1 BCA at 149,733; Integrated Systems Group, 98-2 BCA at 147,742. GSA made a prima facie showing that its decision to terminate Rowe s contract was proper. On December 20, 1996, the date of the termination notice, Rowe had not delivered the vans required by the contract, within the time required by the contract. The contract, as modified, required Rowe to deliver 219 vans not later than November 26, 1996. As of November 26, GSA had inspected and accepted twenty-one vans, including the two first production vehicles, and Rowe had delivered none of those vans. As of December 20, GSA had inspected and accepted an additional seven vans, and Rowe had delivered twenty-one vans. GSA s decision to terminate Rowe s contract based upon Rowe s failure to deliver the vans within the time required by the contract was proper unless Rowe can establish either that its performance was not due by November 26, that the termination action was flawed, or that its failure to make timely deliveries was excusable. II. Performance due date Rowe argues that the contract was not actually a commercial item contract and so time cannot be of the essence. Rowe's Reply Brief at 20. We reject this argument because Rowe does not explain why the contract, which said that it was for the procurement of commercial items and which contained the clauses peculiar to commercial item contracts, was not a commercial item contract. More importantly, Rowe does not explain why the November 26 delivery date would not be essential if the contract were not a commercial item contract. Rowe also argues that the delivery date was not important because GSA took a long time to respond to Rowe s requests for clarification and made unilateral changes to the contract without changing the delivery date. We address these arguments below, in our discussion of whether Rowe s failure to deliver was excusable. Rowe contends that GSA waived the November 26 delivery date because it did not terminate Rowe s contract within a reasonable time after that date. Rowe's Reply Brief at 19. As the Court explained in DeVito v. United States, 413 F.2d 1147 (Ct. Cl. 1969): The necessary elements of an election by the non- defaulting party to waive default in delivery under a contract are (1) failure to terminate within a reasonable time after the default under circumstances indicating forbearance, and (2) reliance by the contractor on the failure to terminate and continued performance by him under the contract, with the Government s knowledge and implied or express consent. 413 F.2d at 1154. The DeVito doctrine applies when the Government fails to terminate within a reasonable time after the default. The purpose of the doctrine is to protect unwary contractors who, due to the Government's failure to terminate within a reasonable time, are led to believe that time is no longer of the essence and who undertake substantial efforts and incur large costs after the performance date has passed. If the prospect of a termination is clear and the contractor makes little tangible progress between the delivery due date and the date of the termination, the Government has not waived the delivery date. State of Florida, Dept. of Insurance v. United States, 81 F.3d 1093 (Fed. Cir. 1996); Olson Plumbing and Heating v. United States, 602 F.2d 950 (Ct. Cl. 1979); Pelliccia v. United States, 525 F.2d 1035 (Ct. Cl. 1975). GSA terminated Rowe s right to proceed twenty-four days after the November 26 delivery due date. During those twenty- four days, GSA sent Rowe a show cause notice, which said that GSA was considering terminating Rowe s contract and which gave Rowe the opportunity to show that its failure to perform was due to circumstances beyond its control. GSA gave Rowe eleven days to respond to the show cause notice and stated that any acceptance of delinquent deliveries by GSA would be for the purpose of mitigating damages. In two separate letters, GSA asked Rowe for a schedule for delivering vans and stated that if Rowe and GSA could not agree upon a firm schedule, GSA might have to terminate Rowe s contract. GSA did not promise to agree to a new schedule. GSA also said that it was willing to inspect vans, but that Rowe would have to move quickly to present all of the vans to GSA for inspection in order to avoid termination of the contract. Mr. Mould made one trip to Rowe s plant to inspect vans. During those same twenty-four days, Rowe presented seven vans to Mr. Mould which he accepted, and Rowe delivered twenty-one of the vans that Mr. Mould had previously accepted. Rowe also sent GSA a partial response to one of GSA's inquiries about a delivery schedule, and it responded to the show cause notice. On December 10, one of Rowe's employees told Mr. Mould that it would be two weeks before any more vans would be ready. We reject Rowe s argument that GSA s actions waived the November 26 delivery date, because we conclude that GSA did not take an unreasonable time to terminate after Rowe's default. The delivery due date, November 26, 1996, was a Tuesday. The following Monday, GSA sent Rowe a show cause notice and allowed Rowe eleven days to respond. GSA terminated Rowe's right to proceed on December 20, one week after receipt of Rowe's response to the show cause notice. GSA was entitled to take some time to decide what to do in response to Rowe's default, and it was not unreasonable to take a total of twenty-four days to issue a show cause notice, to receive a reply to the show cause notice, and to issue a termination notice. Furthermore, the circumstances do not indicate forbearance by GSA. GSA directed Rowe to show cause why its contract should not be terminated and stated that GSA's acceptance of any vans would be in order to mitigate its damages. GSA asked Rowe for a delivery schedule and said that it was willing to inspect vans, but cautioned Rowe that it would have to present all of the vans to GSA quickly in order to avoid a termination. Instead of indicating to Rowe that GSA had acquiesced in Rowe's breach, GSA's words made it clear that termination was a possibility. In addition, there is no evidence to establish either that Rowe undertook substantial efforts and incurred large costs after the delivery date passed, or that GSA knew of any such efforts and costs. Between the delivery date and the date of termination, Rowe offered seven vans for inspection. When GSA inspected those vans, a Rowe employee told the GSA inspector that no more vans would be ready for two weeks. So far as the record shows, Rowe made little tangible progress between the delivery due date and the date of the termination. Thus, even if GSA had taken an unreasonable amount of time to terminate Rowe s performance, which it did not, GSA did not waive the November 26 delivery date. III. Termination action Rowe argues that the termination action was flawed, and that the flaws rebut GSA's prima facie showing that the termination was proper. Specifically, Rowe asserts that the termination was the result of a plot between GSA and a local Ford dealer, that the true reason for the termination was dissatisfaction with the end product by the INS, that the decision to terminate was arbitrary and capricious because the person who signed the termination notice did not exercise independent judgment in reaching his decision, and that GSA made a number of procedural errors in terminating the contract. Rowe's Opening Brief at 2-4, 11, 13-15, 40; Rowe's Reply Brief at 2, 11. As explained below, we reject each of Rowe's arguments. The evidence does not establish that GSA and a local Ford dealer devised a plan that led to the termination of Rowe's right to perform. On December 11, Ms. Ross received a telephone call from someone who identified himself as a representative of Powhatan Ford. The person said that Mr. Mould had inspected and approved a van that Powhatan Ford had prepared. The person also inquired as to the status of Rowe's contract. Ms. Ross said that she could not discuss Rowe's contract, and suggested that if the caller had any finished vans, he should offer them to Rowe. Mr. Mould never inspected any vans at Powhatan Ford, but he did conduct a pre-award survey there in October in connection with another contract. In the course of that survey, Powhatan Ford showed him a van that had been stripped and explained how the van would be finished. As a result of the survey, Mr. Mould recommended that Powhatan Ford not receive a contract. Ms. Ross's admonition that the person who called her should offer any finished vans to Rowe and Mr. Mould's unfavorable recommendation are not consistent with a plot against Rowe. Although Rowe contends that there were rumors in Powhatan that Powhatan Ford was going to replace Rowe and perform the INS van contract, there is no evidence to establish that these rumors had any foundation in fact. The evidence does not establish that GSA terminated the contract due to the INS's dissatisfaction with the vans. On December 9, Rowe received a telephone call from one INS employee who made several complaints about Rowe's vans. When Mr. Mould learned about this conversation, he reviewed the contract requirements with the INS employee and then told Rowe that, for the most part, the INS employee's complaints reflected his own preferences, and not contract requirements. There is nothing in the record to show that anything more came of the INS employee's complaints, or that any other complaints were ever made by the INS. By the time of the INS employee's one telephone call to Rowe, GSA had already sent Rowe a show cause notice. There is nothing in the record to show that GSA's decision to terminate Rowe's performance was the result of INS's dissatisfaction with the vans. Turning to Rowe's next allegation of flaws in the termination procedure, we conclude that Mr. Rogero exercised independent judgment in reaching his decision to issue the termination notice. Before Mr. Rogero signed the termination notice, he discussed the contract with Ms. Ross and with his supervisor. Mr. Rogero also spent one day reviewing the entire contract file and a folder that contained a summary of events and backup documentation, including Rowe s response to the show cause notice. He researched each of Rowe s allegations and determined that its delays were not excusable. Mr. Rogero considered the factors set out in FAR 49.402-3(f) and used the factors for guidance when he made his decision.[foot #] 9 Mr. Rogero decided to terminate Rowe s performance because Rowe had failed to deliver by the due date. He did not accept Rowe s explanation of why it was unable to deliver on time, and he did not believe that Rowe s performance supported its projected schedule for delivering all 219 vans. Mr. Rogero's assessment of the reasons Rowe gave for its inability to deliver on time was reasonable, as we explain below when we address Rowe's allegations that GSA caused delays to Rowe's performance. His assessment of Rowe's projections for future performance was also reasonable. On December 10, Rowe said that it could convert its weekly production rate to a daily rate -- in other words, it could quintuple its production -- within thirty days after a meeting with GSA. Rowe did not explain what could possibly be accomplished at one meeting to result in such a dramatic increase in production. On December 13, Rowe represented that it could double its production within two weeks and then double it again within the following two weeks in other words, it could quadruple its production. Rowe did not present any plan for achieving these goals or any facts to support its projections. Rowe said that it would hire a second shift of workers, but Rowe had made that same statement on September 6. Rowe did not represent either that it had found an outside parts manufacturer or that it was in a position to install the equipment that would have perhaps enabled its workers to fabricate parts more accurately and efficiently. Mr. Rogero's decision that Rowe's projections were not supportable was well justified. To substantiate Rowe's allegation that Mr. Rogero did not exercise independent judgment in deciding to terminate Rowe's performance, Mr. Campbell testified that he spoke with Mr. Rogero after he issued the termination notice, and Mr. Rogero stated that he did not know anything about the contract and simply signed the notice. Mr. Rogero, however, testified that he ----------- FOOTNOTE BEGINS --------- [foot #] 9 As discussed more fully below, Mr. Rogero was permitted, not required, to refer to FAR 49.402-3(f) when he was deciding whether to terminate Rowe's performance. ----------- FOOTNOTE ENDS ----------- decided to issue the termination notice after reviewing the contract file and determining that Rowe's failure to deliver on time was not excusable. He recalled a great deal about his conversation with Mr. Campbell, and he denied indicating that he had not exercised his own judgment in deciding to issue the termination notice. There is no evidence that anyone told Mr. Rogero to sign the termination notice, or that Mr. Rogero would have shirked his responsibility, had such a direction been given. Rowe has not established by a preponderance of the evidence that Mr. Rogero failed to exercise independent judgment in reaching his decision to terminate Rowe's contract. Finally, we examine Rowe's contention that we should reverse the termination decision because GSA made a number of procedural errors in terminating the contract. Specifically, Rowe argues that (1) the termination notice said that the contract was being terminated for default, instead of for cause, which means either that the notice was flawed or that the termination was actually for default, and not for cause, (2) GSA did not notify the SBA of the termination action as required by part 49 of the FAR, (3) no contracting officer read Rowe's response to the show cause notice as required by part 49 of the FAR, (4) Ms. Ross lacked the authority to sign the show cause notice because part 49 of the FAR required her to obtain the approval of the contracting office in order to send that notice, (5) there was no contracting officer assigned to the contract, (6) there was no proper delegation of authority to GSA officials in Atlanta because Ms. McIntosh signed the delegation memorandum for Mr. Pickeral, and (7) Mr. Rogero lacked the authority to issue the termination notice because he was not a contracting officer and because GSA officials in Crystal City were prohibited by the FAR from delegating to GSA officials in Atlanta the authority to issue a termination for default notice. Issue III (1) The termination notice erroneously stated that the termination was for default, when the termination was actually for cause. Rowe's contract did not contain a termination for default clause. Instead, because the contract was a commercial item contract, part 12 of the FAR required the contract to contain a clause that permitted GSA to terminate Rowe's contract for cause if Rowe defaulted by not performing. FAR 12.301(b). Mr. Rogero stated that he intended to terminate the contract for cause, and that the notice's statement that the termination was for default was a drafting error. There is no evidence to show that the reference in the notice to a termination for default was anything more than an error on the part of the person who drafted the notice. The fact that the termination notice erroneously referred to a termination for default instead of a termination for cause does not nullify the notice. In order for Rowe to establish that an error in the termination notice invalidated the notice, Rowe would have to establish that the error was harmful. In Philadelphia Regent Builders v. United States, 634 F.2d 569 (Ct. Cl. 1980), the plaintiff claimed that the default termination notice was improper because it contained several defects which violated procurement regulations. For example, the notice did not contain the proper contract number and date, did not state that the Government reserved all of its rights, did not state that the decision to terminate was made pursuant to the contract's disputes clause, and was not signed by the contracting officer. The court held that these defects did not mean that the termination notice was invalid. The plaintiff was not misled by the notice and did not show that it had been harmed in any way by the defects. The court said that to nullify the termination notice "solely on the grounds of these harmless technical defects would be to grant plaintiff an entirely unwarranted windfall." 634 F.2d at 573; accord State of Florida v. United States, 81 F.3d 1093 (Fed. Cir. 1996) (notice did not advise contractor of appeal rights); Decker & Co. v. West, 76 F.3d 1573 (Fed. Cir. 1996) (notice incorrectly stated the time for appeal); Rafael Francis, DOTCAB 1566, 85-3 BCA 18,339 (notice did not contain an effective date). Like the contractor in Philadelphia Regent Builders, Rowe has not established that it was harmed by an error contained in the termination notice. The notice provided Rowe with all of the information that it needed to understand the action that GSA was taking and the reason for that action, and set out Rowe's appeal rights. There is no evidence to show that Rowe was misled by the error contained in the termination notice. In fact, Rowe was able to file an appeal here at the Board and to proceed to an eight-day trial on the merits. The Court in Decker said that it is a "basic principle that harm should accompany a defect in an otherwise proper termination notice in order for the contractor to seek relief based on that defect." 76 F.3d at 1579. Here, Rowe has not shown that any harm resulted because the notice referred to the termination as being for default instead of for cause, so Rowe is not entitled to any relief based upon that defect. Issues III (2) through (4) Even if part 49 of the FAR required GSA to notify the SBA of the termination action, required a contracting officer to read Rowe's response to the show cause notice, and required Ms. Ross to obtain the approval of the contracting office in order to send the show cause notice, and even if the evidence established that GSA did not fulfill these requirements, this would not invalidate GSA's termination action because the requirements of part 49 did not apply to that action. GSA terminated Rowe's commercial item contract for cause, and according to the regulations governing terminations for cause, GSA was not supposed to follow any of the procedures set out in part 49 of the FAR when it terminated the contract. FAR 12.403(a) provides that the requirements set out in part 49 of the FAR, which apply to terminations for convenience and for default of some types of contracts, "do not apply" when a commercial item contract is terminated and contracting officers "shall" follow the procedures in section 12.403. Although contracting officers "may" continue to use part 49 "as guidance" to the extent that it does not conflict with section 12.403, section 12.403 does not contain the numerous requirements found in part 49 and does not require GSA to take any of the actions that Rowe says GSA failed to take. Although part 12 of the FAR did not require Ms. Ross to obtain the prior approval of the contracting office when she issued her show cause notice, the delegation letter to GSA in Atlanta from GSA in Crystal City did contain such a requirement. The letter said that the administrative contracting officer could issue a show cause notice in accordance with FAR 49.402-3(b), which requires the administrative contracting officer to obtain the approval of the contracting office before issuing a show cause notice. Ms. Ross's failure to obtain the approval of the contracting office before issuing the show cause notice does not require us to invalidate GSA's termination action, however, because Rowe has not shown that it was harmed by Ms. Ross's actions. The contracting office was aware of Ms. Ross's actions because she sent that office a copy of the show cause notice. So far as the record shows, no one in the contracting office ever objected to Ms. Ross's having sent the show cause notice. In addition, the notice afforded Rowe the opportunity to respond and to explain its position, and Mr. Rogero considered Rowe's response before he decided to terminate Rowe's performance. In the absence of a showing of prejudice, as discussed in the previous section of this opinion, we will not invalidate GSA's termination action based upon the fact that the contracting office did not see the show cause notice before it was sent. See Darwin Construction Co., GSBCA 10193, 91-1 BCA 23,419, at 117,486-87 (1990). Issue III (5) The record does not establish that the contract lacked a contracting officer. Mr. Pickeral was the procuring contracting officer who signed the contract, and he concurred in the termination action. Mr. Pickeral was retiring and being replaced by Mr. Compton, who also concurred in the termination action. Rowe did not show that, at any point during the life of the contract, there was a period when there was no contracting officer assigned to the contract. Issue III (6) Mr. Pickeral's delegation to the Atlanta office was not defective, even though Mr. Pickeral did not sign the delegation memorandum himself. It was Mr. Pickeral's decision as the procuring contracting officer to delegate administration of the contract to Atlanta. The delegation memorandum was signed by Ms. McIntosh, the contract specialist, for Mr. Pickeral. There is no evidence that Mr. Pickeral ever revoked the delegation or expressed any disagreement with the delegation memorandum. Rowe did not establish that the memorandum was defective simply because it was signed by Ms. McIntosh for Mr. Pickeral, or that any such defect harmed Rowe. Issue III (7) Rowe did not establish that Mr. Rogero lacked the authority to terminate the contract. Without citing to any fact in the record, Rowe says that Mr. Rogero lacked a contracting officer's warrant. Mr. Rogero testified that he signed the termination notice because he was the only person in the office with a warrant large enough to sign the notice. Mr. Rogero signed the termination notice as an administrative contracting officer. His position description calls him a supervisory contract administrator, and he testified that this is what a contracting officer is called in his office. There is no evidence to the contrary. Whether the FAR prohibited GSA officials in Crystal City from delegating to GSA officials in Atlanta the authority to issue a termination for default notice is irrelevant to Rowe's appeal because Rowe's performance was terminated for cause, and not for default. As mentioned previously, a termination for cause is subject to a different set of regulations than is a termination for default. Rowe has not established either that any FAR provision prohibited GSA in Crystal City from delegating to GSA in Atlanta the authority to terminate a contract for cause, or that if there is such a FAR provision, Rowe was harmed by a violation of that regulation. IV. Delay Rowe's final argument is that it did not perform within the time permitted by the contract because GSA delayed Rowe's progress. Rowe implies that Ms. Huddleston and Mr. Mould thought that GSA delayed Rowe's performance, because they agreed that Rowe's performance period should have been extended by ninety or 120 days. Rowe's Opening Brief at 1. Rowe's contention is not supported by the weight of the evidence. Mr. Campbell testified that, around July 12, Ms. Huddleston suggested that Rowe be given a 120-day extension, and later said that she would modify the contract to give Rowe a ninety-day extension. Mr. Campbell said that Ms. Huddleston made this latter statement during a telephone conversation with him and Mr. Mould. Mr. Mould said that, as far as he knew, there was never any conversation during which Ms. Huddleston recommended giving Rowe an added ninety days to perform. Ms. Huddleston testified that she never made such a suggestion, and that she was not aware of anyone discussing such an extension. When Rowe wrote to Ms. Huddleston on July 12 and said that "the Government" had suggested extending the performance period by ninety days, Ms. Huddleston responded on August 19 by denying what she called Rowe's request for a ninety- day extension. Mr. Mould suggested in July 1996, that Ms. Huddleston consider establishing new delivery dates, but he never suggested that the performance period be extended by any specific number of days or that GSA was responsible for any delay. Rowe has not established by a preponderance of the evidence that Ms. Huddleston and Mr. Mould recommended either a ninety-day or a 120-day extension to the contract's performance period. Rowe also asserts that its nonperformance within the time required by the contract was due to delays it experienced because (1) this should not have been a commercial item contract, (2) there was a lack of continuity in contracting personnel, (3) the specifications were defective, (4) GSA made changes to the contract's requirements, and (5) GSA was not responsive to Rowe's requests for inspections, meetings, information, and clarifications. Issue IV (1) Rowe asserts that this contract should not have been one for commercial items, but Rowe offers no explanation for its assertion. Rowe's Opening Brief at 16. Also, Rowe never establishes how designating the contract as one for commercial items had any impact upon Rowe's ability to complete the work required by the contract within the performance period. Issue IV (2) Although Rowe contends that this contract was administered by six contracting professionals in a six-month period and that this lack of continuity delayed Rowe's performance, this contention is not supported by the facts. Rowe's Opening Brief at 46. The contract was administered by GSA officials in Atlanta. One handwritten note in the appeal file says that the administrative contracting officer was Ms. Graham, but the record does not show that Ms. Graham ever took any action concerning Rowe s contract. Ms. Huddleston was assigned as the administrative contracting officer, and Ms. Ross replaced her in October 1996. Mr. Rogero signed the termination notice, but was not otherwise actively involved in administering the contract. Rowe cites to no evidence to establish that the change in administrative personnel delayed its performance. Issue IV (3): Defective specifications Rowe says that its performance was delayed primarily because of specifications that lacked adequate information to enable Rowe to manufacture an acceptable vehicle. Rowe s Opening Brief at 17, 42, 54. Rowe complains about defects in the specifications concerning mesh size, air ducts in the rear compartment, the size of the sliding door opening, the shape of the van, and the striping on the Item 002 vans. Rowe's Opening Brief at 17, 21, 32, 33, 36, 49. Rowe also argues that GSA tacitly acknowledged that the specifications were defective when it issued a subsequent solicitation with specifications that differed in some respects from the specifications contained in Rowe's contract. Rowe's Opening Brief at 4-5, 45-46. Mesh size Rowe contends that it was delayed due to an error in the specified mesh size. Rowe's Opening Brief at 17. The parties agree that the specification contained an error because it required the partition to be fabricated of "No. 9 woven mesh, (1 to 1/4) inches on centers." The evidence establishes that this error was obvious to those who read the specification for GSA and for Rowe. Mr. Mould and Mr. Dellinger testified that "1 to 1/4" inch appeared to be a typographical error because when dimensions are specified, they go from a smaller number to a larger number. Mr. Dellinger and Mr. Mould testified that "1 to 1/4" inch was a clear typographical error. Mr. Campbell testified that Rowe thought that the mesh size was supposed to be 1-1/4 inches. Consistent with Mr. Campbell's testimony, in a July 12 letter to Ms. Huddleston, Rowe stated that the mesh specification was incorrect and should read 1 to 1 1/4 inches. Mr. Globerman stated in an August 7 memorandum that Rowe had informed GSA of the typographical error concerning the mesh size. Given the obviousness of the error in the specification, if Rowe had any doubts about what was required, Rowe should have asked GSA to clarify the requirement before it submitted its bid, which would have given GSA the opportunity to correct its error.[foot #] 10 Apparently, however, Rowe did not have any doubts about what mesh size was required. During Mr. Mould s July 10 visit to Rowe s plant, Mr. Campbell informed Mr. Mould that prior INS van contracts had specified 1 to 1-1/4 inch mesh, and that Rowe had already ordered its mesh. The record shows that Rowe ordered 1-1/4 inch mesh in mid-July, before receiving any directions from GSA concerning the mesh size. Even if the defect in the specifications had not been obvious, there is no evidence that this defect caused any delay to Rowe s progress. On August 19, Ms. Huddleston told Rowe that she would issue a modification to change the dimensions to 1 to 1-1/4" inches on centers. On September 19, Ms. Huddleston issued this modification. Clearly, Rowe s work was not held up waiting for Ms. Huddleston s direction, because Rowe ordered its mesh in mid-July, before receiving any direction or clarification from GSA concerning the mesh size. Rowe has not established that the obvious defect in the mesh specification, which Rowe recognized was a defect and which did not delay Rowe s purchase of the mesh, caused a delay to Rowe s progress. Air ducts in the rear compartment Rowe asserts that the specifications for air ducts were defective. Rowe's Opening Brief at 21. The specifications required that the air conditioning system be the chassis manufacturer s dual evaporator system, with the rear evaporator located behind the partition, with multiple outlet ducts. The next sentence specified that the auxiliary rear floor heater and air conditioner including outlets in the rear passenger compartment had to be made tamper resistant. Rowe contends that Mr. Mould read this to mean that the vans needed two air conditioning systems. Rowe's Opening Brief at 22. There is no evidence to support this contention. Mr. Mould s concern, beginning with his July 10 visit to Rowe s plant, was with the number of outlet ducts in the rear of the vans, and not with the number of air conditioning systems in the vans. ----------- FOOTNOTE BEGINS --------- [foot #] 10 Rowe did not assert that the specifications were defective in any respect until September 6, 1996, nearly five months after award. ----------- FOOTNOTE ENDS ----------- The specification was not defective. Rowe read the contract to say that only one outlet duct was required in the rear compartment, and GSA read the contract to say that more than one duct was needed in the rear of the van. According to Mr. Campbell s testimony at the hearing, Rowe based its interpretation upon the fact that it could have offered a Standard Item 34 van, which came equipped with only one outlet in the rear compartment. Of course, Rowe could also have offered and, in fact, did offer a Standard Item 24 van, which came equipped with multiple outlet ducts in the rear compartment. The fact that Rowe could have offered either one of two standard item vans does not shed any light upon the correct reading of the terms of the contract because regardless of which van was used, it had to be modified to meet GSA s requirements. Looking at the contract terms quoted above, even if Rowe did not understand the first sentence to say that multiple outlet ducts were to be located in the rear compartment, the next sentence clearly states that there would be outlets in the rear compartment. On September 30, Rowe had installed multiple outlet ducts in the rear compartment, and they appeared to Mr. Mould to be satisfactory. That same day, Rowe wrote to Ms. Huddleston that the contract requires rear evaporator with multiple outlet ducts in the rear vehicle compartment, and described how it would comply with that requirement. The evidence does not establish that the specifications were unclear about the requirement that Rowe had to fulfill. Rowe did not show either that any delay occurred due to the outlet duct specification, or that if any delay did occur, it was attributable to GSA. When Mr. Mould visited Rowe s plant on July 10, Rowe informed him that the vans would have only one outlet duct in the rear compartment. Mr. Mould told Rowe to write to Ms. Huddleston about this, so that any necessary action could be taken before Rowe submitted its first production vehicle for inspection. Rowe did not write to Ms. Huddleston about this issue until September 6, and did not ask her for a contracting officer s decision until September 25. On September 30, Ms. Huddleston said that she would issue a final decision. But on that same date, Rowe told Ms. Huddleston that it would provide multiple outlet ducts in the rear compartment. If Rowe was delayed by its misunderstanding of the specification, which Rowe has not established, the delay was attributable in part to the fact that Rowe waited so long to ask the contracting officer to resolve the issue. Size of the sliding door opening Rowe contends that the specification was defective because it resulted in the sliding door opening on the Ford vans that it supplied being too small to be usable. Rowe s Opening Brief at 32-33. The specifications required the vans to have a sliding side door, and required Rowe to install some type of limiting device that would prevent the door from opening beyond one-half of its normal opening distance. The solicitation did not specify how large the door opening had to be. The normal opening distance of the sliding side doors on the vans that Rowe provided is 39.6 inches, and one-half of this is 19.8 inches.[foot #] 11 Rowe never established that a 19.8 inch opening is too small to be usable. On July 22, Mr. Mould saw a stop in place that allowed the door to open half-way, and the opening was big enough for a person to enter and exit the van. As far as Mr. Mould was concerned, Rowe had fulfilled the contract s requirement. On September 3, the opening size became an issue because Rowe had moved the stop so that the door opened approximately three- quarters of its normal opening distance. Mr. Mould discussed this requirement with GSA officials in Crystal City, and they decided that the opening should be between twenty and twenty-four inches.[foot #] 12 A twenty-inch opening, which the GSA officials thought was acceptable, is not significantly greater than the 19.8 inch opening that Mr. Mould first observed on one of Rowe s vans. Rowe has not established that the specification was defective. Rowe did not establish that it was delayed by GSA due to the specification concerning the opening distance of the sliding door. Rowe says that it was delayed because it provided eight different design options before GSA approved an opening that was twenty-two inches wide. Rowe s Opening Brief at 32-33. Rowe's contention is supported only by its response to the show cause notice, which also says that it provided eight different designs, and not by any documents created at the time the events in question occurred. Mr. Campbell testified that Mr. Mould rejected the placement of the door stop three times, and that Rowe made repeated requests for clarification of this requirement. Mr. Campbell s testimony is not supported by Mr. Mould s contemporaneous inspection reports or any other documents created when these rejections and requests would have occurred. The record shows that Mr. Mould was satisfied with the door opening on July 22, and that the size of the opening only became ----------- FOOTNOTE BEGINS --------- [foot #] 11 All of this information was, of course, available to Rowe before it submitted a bid based upon supplying Ford vans. [foot #] 12 The contract was never modified to allow for an opening other than one-half of the normal opening distance. ----------- FOOTNOTE ENDS ----------- an issue on September 3 when Rowe made the opening larger than permitted by the specification. Sometime between Mr. Mould s September 3 visit to Rowe s plant and his September 19 visit, Rowe relocated the door stop so that the opening was acceptable. Rowe has not shown that it experienced any delay as a result of moving the door stop that is attributable to GSA. Shape of the van Rowe says that the specifications were defective because they were not suitable for oval-shaped vans like the Ford vans that Rowe provided. Rowe's Opening Brief at 33. Rowe explained that, due to the vans' oval shape, when Rowe moved the position of the partition, the dimensions of the partition changed and this delayed Rowe's performance. The specifications did not require contractors to supply vans with any particular shape. Before Rowe submitted its bid, it knew that Ford vans were oval- shaped. The specifications plainly stated that the van required a partition and that where the partition met the sides of the van, the gap could not exceed 0.75 inches. Just as plain were the consequences of having to move the position of the partition within an oval-shaped van, while maintaining the 0.75 inch maximum gap. Rowe nonetheless chose to supply Ford vans and was able to meet the requirements of the specifications using those vans. The fact that the specifications permitted Rowe to use an oval-shaped van does not mean that the specifications were defective, even if some aspects of Rowe's performance were not the same as they would have been if Rowe had been able to find and to supply vans with perfectly rectangular interiors. Striping on the Item 002 vans Rowe asserts that the specifications were defective because they contain a drawing to show where the stripe on the side of the Item 002 van was to be placed, and the placement of the stripe on a Ford van in the position shown in the drawing was not acceptable to GSA. Rowe says this caused delays because on July 17, GSA rejected a van with the stripe applied as shown in the contract, and GSA did not respond to Rowe's numerous demands for clarification. Rowe says that GSA asked Rowe to provide "engineered options" for the placement of the stripe, but Rowe refused to do this. Rowe says that it submitted a revised diagram on September 17, and GSA modified the contract on September 30 to correct the position of the stripe. Rowe's Opening Brief at 37. Rowe also says that GSA accepted one of three computer assisted design detailed engineering drawings, and then refused to compensate Rowe for the drawings. Rowe's Opening Brief at 49. There is little to no support in the record for most of Rowe's statements, and Rowe cites to nothing to support its allegations. The facts, as shown in the record, are that Mr. Mould saw a van with a stripe applied on August 19. He did not like the appearance of the stripe, but it was applied in accordance with the contract's requirements, so he did not reject the van. Mr. Mould did, however, tell Ms. Huddleston that the contract should be changed to lower the placement of the stripe. On September 6, Rowe said that GSA would have to tell Rowe where to place the stripe. Rowe asked the manufacturer of the stripe to superimpose the stripe s pattern onto a Ford van, and on September 17, Rowe sent GSA a suggestion for the placement of the stripe. On September 19, Ms. Huddleston told Rowe that the placement of the stripe would be evaluated during inspection of the first production vehicle. Also on September 19, Mr. Mould recommended that GSA accept Rowe's suggestion. On September 30, GSA modified the contract to accept Rowe's suggestion. Even if we assume that the specification was defective because GSA did not like the appearance of the stripe when Rowe placed it in the location required by the contract, Rowe has not shown that the defect delayed its performance. There is no evidence to show how any issue concerning the stripes could have affected production of the Item 001 vans, which did not require stripes. The only evidence suggesting that Rowe was delayed in producing the Item 002 vans is contained in Rowe's response to the show cause notice, which alleges that Rowe was delayed by 120 days due to the striping issue. The response to the show cause notice, however, does not outweigh the other evidence in the record. The first time that Rowe presented an Item 002 van to GSA for inspection was October 8. The evidence does not establish that Rowe had any Item 002 vans completed before October 8, except for the stripe, and was waiting for the September 30 modification to present those vans to GSA for inspection. In fact, the Item 002 van that Rowe presented for inspection on October 8 contained several defects, and Rowe said that the van did not represent Rowe's final product and that it was initiating design changes to the Item 002 van. In addition, Rowe has not shown how placing the stripe on the outside of the van affected any of its other work, most of which was performed inside the van. As Mr. Campbell testified, the stripe could be applied at any time, concurrently with other work. Rowe has not established that the specification provisions concerning the stripe delayed its performance, even if the specification was defective. Subsequent solicitation Finally, Rowe says that GSA must have thought that the specifications in Rowe's contract were defective because in a subsequent solicitation, GSA changed some of the requirements that were found in Rowe's contract. Rowe's Opening Brief at 4-5, 45-46. Specifically, the subsequent solicitation spelled out the precise make and model of the flood light that the contractor was to attach to the roof of the Item 001 van, the number of air ducts required in the rear compartment, and the width of the sliding door opening. T. 1425, 1431, 1457. At the hearing, Mr. Globerman testified that these changes were not needed in order to eliminate an ambiguity or to clarify the terms of the contract. Due to GSA's experience with Rowe, however, GSA decided to make the requirements more restrictive for the subsequent contractor. T. 1426, 1890. The fundamental problem with Rowe's argument is that Rowe has not established that the provisions of its contract concerning the flood light, the air ducts, and the door opening were defective and needed to be corrected.[foot #] 13 The fact that GSA wrote the subsequent solicitation to restrict the subsequent contractor by dictating its choice of flood lights, the number of ducts that it installed, and the width of the door opening, does not mean that Rowe's contract was unclear. When the Government and a contractor disagree about the language of a contract, the Government acts responsibly when it takes action to eliminate the source of the disagreement in later contracts. Such action by the Government does not prove, however, that the contract was unclear as originally written. Martin Lane Co. v. United States, 432 F.2d 1013 (Ct. Cl. 1970). Issue IV (4): Changes Rowe alleges that GSA made changes to the following contract requirements, and that these changes prevented Rowe from performing within the time set out in the contract: (1) striping on the Item 002 vans, (2) seat rivets, (3) arm rest, (4) alternator, (5) vent cover, (6) jack, (7) spare tire lock, (8) flood light, (9) seat attachment (welds), (10) iron bracket, (11) partition attachment, (12) partition fabrication, (13) partition installation, and (14) seat belts. Striping on the Item 002 vans Rowe says that it was delayed due to a change GSA made to the contract's requirement for stripes. Rowe's Opening Brief at 37. Earlier, we concluded that Rowe's performance was not delayed even if the striping specifications were defective. We reach the same conclusion, for the same reasons, here. Although GSA did change the contract's requirement for striping on the Item 002 vans, there is no evidence to suggest that this change affected the Item 001 vans in any way. As for the Item 002 vans, Rowe could have applied the stripes at any time, concurrent with other work. Nothing establishes either that Rowe's work inside the vans was affected by the stripes, or that Rowe could have presented an Item 002 van for inspection any earlier than it did, but for the change to the stripes. ----------- FOOTNOTE BEGINS --------- [foot #] 13 Rowe does not argue that the flood light specification was defective. Rather, Rowe argues that GSA made changes to the contract's requirement for the flood light. Rowe's Opening Brief at 36. We address this in the following section of our discussion. ----------- FOOTNOTE ENDS ----------- Rowe asserts that GSA changed the contract by requiring Rowe to provide the striping for the Item 002 vans, and that this change delayed Rowe's performance. Rowe's Reply Brief at 21. The contract says that the striping "shall be furnished and applied to the vehicle." This language does not suggest, as Rowe contends, that the stripes would be furnished by the Government and applied by Rowe. The requirement to furnish and apply stripes was one of many tasks that the contract required Rowe to perform. When GSA required Rowe to furnish the striping, it was requiring no more than the terms of the contract required. GSA did not change the contract when it required Rowe to provide the striping for the Item 002 vans. Seat rivets Rowe says that its performance was delayed because GSA changed the contract to require Rowe to secure fiberglass seats to their frames using eight rivets, instead of four rivets. Rowe's Opening Brief at 19-20. The evidence does not establish that GSA changed the terms of the contract by requiring Rowe to install eight rivets in each seat. Rowe intended to attach fiberglass seats to the original equipment manufacturer's seat frames in the rear compartment. The contract required that the seat attachment be "in a manner equal to a seat furnished as a complete assembly by a seat manufacturer." On October 8, Mr. Mould saw that the seats were mounted with only two rivets along the front of the seat and two rivets on the top of the seat. In Mr. Mould's opinion, the seats moved too freely in the center because they were mounted with only two rivets. Mr. Globerman explained that because fiberglass is flexible and the seats are several feet long, using only two rivets would allow the seats to be vandalized. Mr. Campbell testified that Mr. Mould used a clipboard to pry up the front of one seat, but Mr. Mould denied this. Mr. Mould asked for documentation to show that Rowe's method of attaching a seat complied with FMVS standards, and Rowe provided Mr. Mould with a sheet of paper that contained an installation procedure for the seats, including using only four rivets to attach the seats to the frames. The paper was not on any company's letterhead, and contained a handwritten note from an employee of the company that supplied the seats, stating that he agreed with using four rivets and also stating that "typing errors" were being corrected. Mr. Mould asked Rowe to provide a certification without errors, or to identify the typing errors in the sheet of paper. On October 11, three days after Mr. Mould inquired about Rowe's seat attachment procedure, Rowe said that it would use eight rivets, instead of four, to secure the seats to the seat frames. On October 15, and again on October 23, Mr. Mould told Rowe that he still needed documentation to show that Rowe's planned method of attaching the seats was acceptable. On October 25, Rowe sent Mr. Mould the seat manufacturer's amended seat installation instructions, which showed the use of eight rivets to attach the seats. Six days later, Mr. Mould approved Rowe's first production vehicles. Although Mr. Campbell testified at the hearing that Mr. Mould insisted upon using eight rivets to secure the fiberglass seats to their frames, Mr. Mould testified that he was sure that it was Rowe's idea to use eight rivets. Mr. Muncie also testified that he was sure that Rowe made the decision to use additional rivets when Mr. Mould pointed out that the seats were not secured to the frames. The contemporaneous documentation of record shows that GSA identified a problem with the seat attachment and three days later, Rowe said that it would use eight rivets to attach the seats. At that time, Rowe did not mention that the use of eight rivets instead of four was Mr. Mould's idea, and did not say that Mr. Mould was insisting upon the use of eight rivets. The contemporaneous documentation also shows that Rowe did not provide Mr. Mould with acceptable information concerning the method it was using to attach its seats until October 25, and that the information stated that the use of eight rivets to secure the seats was an acceptable method of installation. Rowe has not established, by a preponderance of the evidence, that GSA changed the contract to require Rowe to use eight rivets to secure the fiberglass seats to their frames. Arm rest Rowe contends that GSA attempted to insist upon the installation of arm rests, and that this delayed Rowe's performance. Rowe's Opening Brief at 21. Rowe has not established either that GSA attempted to change the terms of the contract by insisting upon the installation of arm rests, or that GSA's actions delayed Rowe's performance. If GSA had insisted that Rowe install arm rests on the drivers' seats, this would not have amounted to a change to the contract because the contract plainly required the drivers' seats to have arm rests.[foot #] 14 The evidence does not show, however, that GSA insisted that Rowe install arm rests. Instead, because the vans that Rowe supplied did not come with arm rests, GSA asked Rowe for a credit of $50 per van. GSA also discussed with Rowe whether they could trade the arm rests for a roof vent cover. Although Rowe attempted to install arm rests in the vans, there is no evidence to show that this was done at GSA's suggestion or with GSA's prior knowledge, much less at ----------- FOOTNOTE BEGINS --------- [foot #] 14 Even if, as Rowe says, the contracting officer realized that the vans that Rowe purchased would not have arm rests and there is conflicting evidence concerning this point there is no evidence to show that the contracting officer ever agreed that the vans that Rowe provided to GSA would not have arm rests. ----------- FOOTNOTE ENDS ----------- GSA's insistence. Instead of changing the contract by insisting that Rowe provide seats with arm rests, GSA modified the contract on September 30 to eliminate the arm rest requirement in exchange for Rowe's providing a roof vent cover. As for any delay related to the arm rests, Mr. Mould never rejected Rowe's vans for not having arm rests, because he was aware that GSA and Rowe were discussing this issue. Rowe has not shown how the resolution of the arm rest issue had any impact upon its performance of any of the other work required by the contract. Alternator As part of its argument that GSA changed the contract's requirements, Rowe says that GSA rejected the alternator that Rowe supplied. Rowe's Opening Brief at 25. There is no evidence to support Rowe's contention. At the September 3 preliminary inspection, Mr. Mould asked Rowe to provide information to show that the alternator it supplied was the one required by the contract. There is nothing in the transcript or in any of the GSA inspection reports to show that GSA ever rejected Rowe's alternator, or that the alternator was ever at issue during Rowe's performance of the contract. Vent cover Rowe contends that GSA delayed Rowe's progress by modifying the contract on September 30 to require an additional roof vent cover. Rowe's Opening Brief at 26-28. This is the cover that Rowe provided in exchange for GSA's deleting the requirement for an arm rest, discussed above. Most vents have a fixed cover screwed over the vent. The cover that Rowe planned to install was hinged and was designed to swing up, and it could be tampered with from outside the van. The cover also had to be opened and closed manually from inside the passenger compartment, and had a detachable knob. Rowe says that requiring a different roof vent cover delayed its progress because the substitute cover had to be installed before the interior head liner and the insulation were installed, and that this is one of the items that delayed Mr. Mould's approval of the first production vehicles. Rowe did not point to any evidence, and we found none, to show that the vent cover was an issue that delayed Mr. Mould's approval of the first production vehicle. Similarly, a preponderance of the evidence does not show that the installation of the cover delayed work inside the van. Mr. Campbell testified that Rowe's workers would have had to install the vent cover before installing the head liner and the insulation inside the van unless his workers used cutting screws to install the cover; he did not think that his workers used cutting screws. Mr. Globerman explained how the vent cover was supposed to be attached and concluded that if the vent itself had been properly installed, there would have been no reason for anyone to need to do any work inside the van in order to attach the vent cover. Mr. Muncie explained how the vent cover was attached, and testified that the cover could be installed even if the interior of the van had been installed previously. Mr. Muncie did not believe that his co-workers had to go inside the vans in order to install the vent covers. Mr. Campbell's testimony does not outweigh that of Mr. Globerman or Mr. Muncie. If the addition of the requirement for a new vent cover increased Rowe s performance time, which Rowe has not established, the corresponding deletion of the requirement for arm rests would by the same argument have reduced Rowe's performance time. There is no evidence to show that it took Rowe longer to install the vent cover than it would have taken to comply with the contract's requirement for arm rests by removing the existing drivers' seats and installing seats with arm rests, or by installing arm rests on the existing seats, or by installing a center console with arm rests. The only evidence to support Rowe's contention that it was delayed by the vent cover issue is found in its response to the show cause notice, when it said that it was delayed for 129 days beginning on June 19, and Mr. Campbell's testimony. The response to the show cause notice was created long after the alleged delays began, and neither it nor Mr. Campbell's testimony explains how Rowe could have been delayed by 129 days due to the vent cover modification. A preponderance of the evidence does not establish that the September 30 contract modification delayed Rowe's progress. Jack Rowe says that GSA changed the contract by requiring a certification concerning the jack, and that this caused Mr. Mould to reject the first production vehicle, which delayed Rowe. Rowe's Opening Brief at 36. The evidence of record shows that on October 8, Mr. Mould noted that Rowe did not have any information available to show that the jack complied with the contract's requirements, and this was one of several reasons that Mr. Mould rejected the Item 002 van. On October 11, Rowe said that the information concerning the jack was available at its facility. Mr. Mould approved Rowe's first production vehicles on October 31. Asking Rowe to establish that the jack it provided met the contract's requirements did not constitute a change to the contract, and there is no evidence to show that GSA's request delayed Rowe's progress. Spare tire lock Rowe contends that GSA changed the contract by requiring Rowe to show that its spare tire was placed under the vehicle with a locking device, as required by the contract, and that this caused Mr. Mould to reject the first production vehicle, which delayed Rowe. Rowe's Opening Brief at 36. It is true that Mr. Mould rejected the Item 001 first production vehicle on September 19 due, in part, to a concern about the locking device. When Mr. Mould inspected the van, the spare tire did not seem to have a locking device. When Mr. Mould asked about this, a Rowe employee said that he did not know where the locking device was. Four days later, Rowe told Mr. Mould that Ford s design incorporates the function of a lock. Two days after that, Rowe told Ms. Huddleston that it would provide a locking device attached to the left rear door of the van. We agree with Ms. Huddleston s observation that Rowe s position concerning the locking device was unclear and contradictory. Mr. Mould was responsible for ensuring that Rowe provided a locking device as required by the contract. Asking Rowe to explain how it met the spare tire locking device requirement did not constitute a change to the contract requirement, and there is no evidence to show that GSA s actions delayed Rowe s progress. Flood light Rowe argues that all of the different lights that it proposed to install above the sliding doors of the Item 001 vans met the contract s requirements, and that GSA changed those requirements when it rejected Rowe s choices of lights. Rowe s Opening Brief at 36. The facts do not support Rowe s position. The contract required Rowe to install an adjustable flood light, and the lamp was supposed to be contained in an ABS type plastic housing measuring approximately four inches by six inches. On September 3, when Mr. Mould conducted a preliminary inspection of a van, he noted that the light provided by Rowe was 5-1/2 inches by 3-1/8 inches. It was not adjustable, and there was no documentation available to show that the housing was ABS type plastic. On September 18, Rowe asked what GSA meant by ABS type plastic, and it said that it was going to supply a Signal Stat model 512WD light. On September 19, during Mr. Mould s inspection of an Item 001 first production vehicle, he noted that Rowe had the same light attached to the van as had been attached on September 3; he also noticed that the light was a fog light, and not a flood light. Mr. Dellinger spoke with Rowe and they identified an acceptable light, a Signal Stat model 629WD, that would meet the contract requirements. On September 23, Rowe said that its light met the ABS requirement. On September 25, Rowe said that it wanted to supply a Signal Stat model 612WD, which is three inches by five inches. On September 30, Ms. Huddleston wrote to Rowe and explained what ABS type plastic is, and also reminded Rowe that a flood light, and not a fog light, was required. The light that Rowe provided on October 15 met the contract s requirements. GSA never changed the contract requirements for the light. GSA rejected lights Rowe proposed to use that did not meet those requirements. Rowe proposed to supply a light that was not adjustable, when the contract called for an adjustable light. Rowe proposed to supply a fog light, even though a fog light is not the same as a flood light because the different types of lights disperse light in different patterns. Rowe proposed to supply a light that was approximately three by five inches. We cannot fault GSA for deciding that a light this size is not approximately the same size as one that is four by six inches because the larger light has an area that is approximately one and one-half times greater than the smaller light. After GSA assisted Rowe in identifying a light that met the contract s requirements, Rowe proposed to supply a different light. If Rowe experienced any delay as a result of the light issue, the delay was not attributable to any change made by GSA. Seat attachment (welds) Rowe alleges that GSA changed the contract on December 10, 1996, by requiring Rowe to tack weld the passenger seats in place. Rowe s Opening Brief at 43. The evidence does not support Rowe s allegation. On October 15, Mr. Mould noted that the passenger seat attachments were not tamper resistant, as required by the contract. Later that month, Mr. Mould saw that Rowe had corrected this problem by tightening a bolt so that the seat release handle was restricted. During his November 8 inspection, Mr. Mould saw that tightening the bolt did not always prevent a seat from being released, and he rejected three vans on that date due to this problem. On November 18, Mr. Muncie explained to Mr. Mould that tightening the bolt would not always prevent the rear seats from being released. Mr. Muncie and Mr. Mould testified that Rowe decided to tack weld the seat release handles so that the seats could not be released. The evidence does not show that GSA changed the contract on December 10 or on any other date to require Rowe to weld the passenger seats in place. Mr. Campbell testified that Mr. Mould directed Rowe to tack weld the handles on the seats, but Campbell was not present on November 18, when the decision was made to tack weld the handles. Mr. Mould s record of his December 10 inspection does not mention anything about tack welding the seat release handles, and Mr. Campbell was not present for the December 10 inspection. Mr. Muncie and Mr. Mould recalled that it was Rowe's decision to tack weld the seat release handles in order to comply with the requirements of the contract. A preponderance of the evidence does not support Rowe s contention that GSA changed the contract to require Rowe to tack weld the seats in place. Iron bracket Rowe alleges that GSA changed the contract on November 25, 1996, by requiring Rowe to weld an iron bracket to the passenger side window cover. Rowe s Opening Brief at 43. Mr. Mould s inspection report for this day shows that he approved six vans, and says that he noted only minor deficiencies which Rowe corrected. There is no evidence in the record to support the allegation that GSA on November 25, or on any other date changed the contract by ordering Rowe to weld an iron bracket to the passenger side window cover. Partition attachment Rowe contends that GSA changed the contract when it rejected a method of attaching the partition to the body of the van, after it had previously approved that method of attachment. Rowe s Opening Brief at 35. The evidence in the record establishes that in early September, before Rowe submitted a first production vehicle for inspection, GSA told Rowe that it was not sufficient to secure the partition to the body of the van with rivets, and that Rowe needed to mount the partition with nuts, bolts, and screws. Rowe responded that it had used its method of attachment in other contracts, and that GSA would have to modify the INS van contract if it wanted Rowe to do something else. The record does not establish what method of attachment GSA approved in other contracts, what method of attachment Rowe used in other contracts, or whether those other contracts contained the same requirements for securing the partition as did the INS van contract. Rowe has not shown that GSA changed the contract by approving a method for attaching the partition in the INS vans and later rejecting that method of attachment. Partition fabrication Rowe contends that it asked GSA, in May 1996, if it could construct the partition in the same manner as the prior contractor, and that GSA agreed. According to Rowe, Mr. Mould then rejected the partition and GSA had to change the contract to allow Rowe to construct the partition as it wished. Rowe also says that there were unspecified problems with attaching the Lexan shield to the partition, and GSA had to change the contract to resolve these problems. Rowe says that GSA s actions and changes regarding fabrication of the partition delayed its progress. Rowe s Opening Brief at 35. There is nothing in the record to show that Rowe asked GSA any questions about fabrication of the partition in May 1996, or that GSA agreed to a method of fabrication different from that required by the contract. On September 3, when Mr. Mould conducted his preliminary inspection, he saw that Rowe was spot welding the mesh to L-frame, instead of pinning it to channel frame as required by the contract. Rowe was not attaching the Lexan forward of the partition, as required by the contract. Because fabricating the partition as Rowe wished to do would require a modification to the terms of the contract, Rowe was going to ask Ms. Huddleston about this. The next day, Mr. Mould and GSA officials in Crystal City decided that Rowe s method of fabricating the partition would be acceptable if it proved to be durable during the inspection of Rowe s first production vehicle. On September 6, Rowe advised Ms. Huddleston that the method of fabrication it wished to use had been used in other contracts. Even though the contract specifically told Rowe to fabricate the partition by pinning the mesh to channel frame and did not say that Rowe could spot weld the mesh to L-frame, Rowe told Ms. Huddleston that GSA would have to modify the contract if it wanted Rowe to do anything other than spot weld the mesh to L- frame. On September 19, Ms. Huddleston told Rowe that she would consider approving an alternative method of fabricating the partition if Rowe asked for a deviation from the terms of the contract. On September 27, Rowe asked to be allowed to weld the mesh to an L-frame, with the welds four inches apart. Ms. Huddleston issued a contract modification on September 30, approving Rowe s proposed method of fabricating the partition, instead of pinning the mesh to channel frame. The evidence does not support Rowe s allegations that GSA approved a method of fabricating the partition, then rejected that method, and then subsequently modified the contract to approve that method of fabrication. Instead, the record shows that Rowe wanted to fabricate the partition in a manner different from that specified in the contract, and GSA acted promptly when it modified the contract on September 30 to approve the deviation requested by Rowe on September 27. Rowe included a videotape in the record of this case, and the videotape shows several partition configurations. Ex. 615. The videotape does not outweigh the other evidence in the record concerning the partition, because it was made in early 1997, after Rowe's performance was terminated, and does not establish why there were several partition configurations. Ex. 188 at 3. Partition installation Rowe says that GSA changed the contract by directing Rowe to move the partition nine times, that Rowe made seven design changes to the partition in order to satisfy GSA, and that this delayed Rowe s progress. Rowe also says that Mr. Mould threatened to reject the vans unless the partition was placed where he wanted it to be placed. Rowe s Opening Brief at 33-35. Although there are documents in the record showing that Rowe moved the partition, these documents establish that Rowe did so in order to satisfy the requirement of the contract that the partition separate the passenger compartment from the drivers' compartment. Mr. Mould saw a partially completed van with a partition installed on September 3, but he could not verify whether the location of the partition was acceptable until he saw a completed van. Mr. Mould saw a completed van on September 19, when he inspected Rowe's Item 001 first production vehicle. He observed that the floor covering was not properly secured and that the partition was placed so that a passenger could reach into the front compartment and grab the assistant driver. Rowe said that it would move the partition forward to eliminate these problems. When Rowe moved the partition, this resulted in the main electrical wiring harness on the driver's side of the van being exposed so that it could be reached by passengers in the rear compartment. Rowe made a panel to cover the wiring, which solved that problem. Directing Rowe to move the partition so that the passenger compartment was separated from the drivers' compartment did not constitute a change to the terms of the contract. Instead, such direction was necessary in order to ensure that Rowe complied with the contract's requirements. The record contains two documents that are consistent with Rowe's allegation that it was directed to move the partition nine times. One is Rowe s response to GSA s show cause notice, in which Rowe said that the partition had moved nine times. The other is Rowe's response to GSA's cure notice, in which Rowe said that it had been ordered to move the partition nine "documented" times. There is, however, no documentation showing any such order or direction by GSA. When Mr. Conklin asked Mr. Campbell if he could support his contention that Rowe had been directed to move the partition nine times, Mr. Conklin found Mr. Campbell's response to be vague, and Mr. Campbell indicated that GSA in Crystal City had directed the partition to be moved. He did not say who gave that direction and he had no documents to back up his statements. Also in response to GSA's cure notice, Rowe said that three months earlier, which would have been some time in July, GSA had ordered Rowe to move the partition back by three inches. Rowe made similar statements in its September 23 and 25 letters to Mr. Mould and Ms. Huddleston. Presumably, this is one of the nine "documented" times that, according to Rowe, GSA ordered the partition moved. It appears that Rowe was referring to the fact that on July 22, Mr. Mould advised Rowe that the partition could not interfere with moving the drivers' seats. But, Mr. Mould did not see a van with a partition installed at that time. Mr. Campbell said that Mr. Mould directed Rowe to move the partition numerous times. Mr. Mould said that he never ordered Rowe to move the partition, and that he did not know of any other GSA employee telling Rowe to move the partition. Mr. Muncie's recollection was that Mr. Mould wanted to ensure that the partition was placed so that the passengers could not reach the drivers. He testified that Mr. Mould told Rowe that the partition would have to be moved in order to meet the requirements of the contract, but that Mr. Mould did not tell Rowe where to place the partition. The only time that Mr. Mould rejected a van for a problem with the partition was on September 19, when he rejected an Item 001 van for seven reasons, including workmanship problems. One of Mr. Mould's comments concerning workmanship was that Rowe had advised that it would move the partition forward to decrease the space between the passenger compartment and the assistant driver's space. Rowe has not established either that GSA directed Rowe to move the partition nine times or that Mr. Mould threatened to reject the vans unless Rowe placed the partition where Mr. Mould wanted it to be placed. Mr. Mould did advise Rowe that it should not locate the partition where it would interfere with the movement of the drivers' seats, and he also advised Rowe that the partition would have to be located so that passengers could not reach into the drivers' compartment. Rowe's response to the cure notice and the show cause notice, and Mr. Campbell s testimony, are not sufficient evidence to overcome the testimony of Mr. Mould and Mr. Muncie, and the contemporaneously created documents in the record concerning Mr. Mould's inspections and directions, which do not support the conclusion that he or anyone else in GSA either directed Rowe to move the partition nine times or threatened to reject vans unless the partition was placed in a specific spot. Seat belts Rowe contends that Mr. Mould ordered Rowe to move the drivers' and passengers' seat belts to locations other than the original equipment manufacturer's locations. Rowe's Opening Brief at 34. The contemporaneous documentation of events concerning the seat belts shows that on September 4, GSA and Rowe discussed the fact that Rowe's vans had shoulder harnesses, and not just seat belts, and these could be hazardous because of the purpose for which the INS intended to use the vans. Although GSA intended to discuss this with the INS and report back to Rowe, the record does not show whether GSA got back in touch with Rowe concerning this issue or, if it did, when that contact was made. On September 26, however, Mr. Campbell told Ms. Huddleston that one of his workers had found a way to attach both belts to the floor instead of to the roof, and that Rowe could do this at no cost because it would have to detach and reattach the belts in any event. Ms. Huddleston told Mr. Campbell to submit his request in writing and to include any effect that this change would have upon Rowe's "liability with Ford." On September 30, Rowe told Mr. Mould that it might relocate the seat belt/shoulder harness so that it would be mounted on the floor. Consistent with Ms. Huddleston's advice, Mr. Mould told Rowe that if it moved the mount, it needed to make sure that its mounting met FMVS standards. On October 8, Mr. Mould observed that Rowe had moved the attachment for the front seat belt harness so that it was located in the drivers' compartment, and there was no documentation to establish that this complied with FMVS standards. Mr. Mould documented this observation in an inspection report that he sent to Ms. Huddleston and to Rowe. On October 11, Rowe explained that when it moved the partition forward, this left part of the seat belt attachment in the rear compartment. Because GSA said that this was "not the best," Rowe planned to use a kit made by Kenidyne that would permit Rowe to meet the required safety standards. In a letter to Rowe concerning his October 15 visit to Rowe's plant, Mr. Mould stated that Rowe had moved the seat belt mounting for the assistant driver to the drivers' compartment. Mr. Mould's letter says that the mounting was unacceptable, but that Rowe corrected the problem during Mr. Mould's visit. On October 29, Mr. Mould noticed that the driver's seat belt would bind after minimal usage, and Rowe said that it would evaluate the design and location of the mounting bracket. The next day, Rowe said that it had eliminated the binding problem. Mr. Mould testified that before he approved the first production vehicle, Rowe provided him with information concerning a Kenidyne fixture and said that it complied with FMVS requirements. In Mr. Mould's opinion, the documentation that Rowe provided established that it had complied with FMVS standards. Although Mr. Campbell testified that Mr. Muncie submitted some documentation to C.E. White and to Ford concerning the Kenidyne attachment, that Ford responded that it would not accept the Kenidyne fixture, and that he told GSA about Ford's response, there are no documents to support Mr. Campbell's testimony. Mr. Campbell testified that Rowe moved seat belt attachments at GSA's direction. He also testified that, as of October 31, Rowe had not moved the drivers' seat belt attachments, and only moved those mounts after telling GSA that Ford would not accept the Kenidyne attachment method that Rowe had proposed to use. Mr. Campbell's recollection is not consistent with the information contained in the documents summarized in the preceding paragraphs, which were created at the time the events at issue occurred. When Rowe spoke with Ms. Huddleston and Mr. Mould in late September, the summaries that they prepared of their discussions show that Rowe had determined that it could change how the seat belts were attached to the vans, and GSA's only concern was that whatever Rowe did had to comply with FMVS standards. Mr. Mould documented his observation that Rowe moved attachments and mountings before October 31. There is nothing in any of the parties' documents of record to suggest that Rowe ever told GSA that Ford would not accept the Kenidyne attachment method that Rowe proposed to use. Mr. Mould, who had initially expressed concern about compliance with FMVS standards, testified that Rowe provided him with information to show that the Kenidyne kit met those safety standards. As explained earlier, if Rowe had to move the partition forward in order to comply with the contract's requirement that the partition separate the rear compartment from the drivers' compartment, then moving the partition did not constitute a change to the terms of the contract. If moving the partition resulted in a problem with the location of the seat belt attachments, Rowe could have solved that problem by boxing in the attachment point or by sloping the partition. The record indicates that it was Rowe's decision to use a Kenidyne kit to eliminate problems with the location of the seat belt attachments, and that Rowe provided information to GSA to satisfy its concerns about safety standards. The evidence does not establish that Mr. Mould ordered Rowe to move the drivers' and passengers' seat belts to locations other than the original equipment manufacturer's locations. Issue IV (5): Inspections, meetings, information, and clarifications Rowe asserts that it was delayed because GSA did not provide a timely response to Rowe's request to change the contract to provide one ventilator instead of the two ventilators specified, and because GSA did not timely approve the use of Celotex insulation. Rowe's Opening Brief at 26, 30. Throughout its briefs, Rowe argues generally that its progress was delayed due to GSA's refusal to perform timely inspections, to meet with Rowe, to provide Rowe with information that it needed in order to perform, and to clarify the terms of the contract. Ventilators Rowe has not established that it was delayed due to the length of time that GSA took to approve Rowe's request to change the contract's ventilator requirement. On May 24, more than one month after it was awarded the contract, Rowe wrote to GSA in Crystal City and asked whether it could provide one ventilator instead of the two required by the contract. On May 28, GSA in Crystal City told Rowe to send its information to GSA in Atlanta. On June 6, GSA in Crystal City learned that Atlanta had not received any information from Rowe, and so Crystal City sent Rowe's information to Atlanta. On June 6, GSA was waiting for additional information from Rowe concerning its proposal. On June 19, GSA modified the contract to provide that the one ventilator that Rowe wanted to use was acceptable. Rowe ordered the vents one week after GSA issued the modification. There is no evidence in the record to show that Rowe's progress was delayed by not being able to order the ventilators sooner than it did, and Rowe has not established that GSA took an unreasonable amount of time to decide whether to issue the change order. Celotex The contract required Rowe to install foam insulation in the rear compartment ceiling and walls, and the insulation had to be fire resistant per FMVS Standard 302. On July 22, Mr. Mould noticed that the label on the Celotex insulation that Rowe planned to use stated that it would ignite and cause harmful vapors. Rowe did not have any evidence that Celotex complied with FMVS Standard 302. Rowe wrote to GSA in Crystal City on July 25, and asked the officials there to approve the use of Celotex. Rowe said that GSA had approved the use of Celotex in other contracts, and that Celotex met an ASTM standard. Neither Mr. Mould nor Mr. Globerman recalled whether Rowe used Celotex on other GSA contracts. The record contains a copy of one prior GSA contract, and the type of insulation that Rowe was required to use was different from Celotex. Rowe did not establish that the ASTM standard is the same as FMVS Standard 302, or that a material that meets the ASTM standard would automatically meet the FMVS standard. On July 29, Rowe told Mr. Mould that it was having some difficulty verifying that Celotex met the contract requirements, and said that it would send him some test certifications from Celotex. The next day, Mr. Mould and GSA employees in Crystal City contacted a representative of the manufacturer of Celotex, who did not know whether Celotex would meet FMVS Standard 302. GSA sent the manufacturer a copy of that standard and told Rowe to obtain a certification from the manufacturer or to arrange for a test of the insulation material. GSA was willing to accept Rowe's use of Celotex, so long as the performance of the Celotex would be at least the equivalent to the performance of a material that met the requirements of FMVS Standard 302. On August 5, Rowe told GSA in Crystal City that it would have to stop work because of the Celotex issue, and suggested that it be allowed to use Reflectex insulation. A few days later, Mr. Globerman and Mr. Dellinger told Ms. Huddleston that they thought Celotex was acceptable. Mr. Globerman explained that when he told Ms. Huddleston that Celotex could be used in lieu of a material that met the requirements of FMVS Standard 302, he intended to recommend to her that she permit Rowe to deviate from the terms of the contract. Mr. Globerman did not say that Celotex met the contract s requirements. On August 19, Ms. Huddleston told Rowe that she would issue a modification to the contract to allow Rowe to use either Celotex or Reflectex, with Mylar bubble insulation in areas where foam insulation could not be used. On September 6, Rowe said that requiring the use of Mylar bubble insulation was a change to the contract, and that it had ordered a laboratory test to establish that the Celotex insulation complied with FMVS Standard 302. By then, however, Celotex was no longer an issue because on September 4, the manufacturer of Celotex told Rowe that an independent testing laboratory had determined that Celotex met the requirements of FMVS Standard 302. Consequently, no contract modification was ever issued concerning Celotex, and Rowe used Celotex to fulfill the contract's requirements. Rowe has not established that it was delayed due to GSA's actions related to the Celotex insulation. Rowe proposed to use Celotex without having any documentation to show that it met the requirements of FMVS Standard 302, as required by the contract. GSA was not obligated to accept Celotex without knowing whether it met the requirements of the contract, and it was not obligated to accept a material that met some other standard. As soon as Rowe established that Celotex met the contract requirements, it was able to use Celotex as its insulating material. If Rowe was delayed, it was due to the fact that Rowe proposed to use Celotex without being able to establish that it met the requirements of FMVS Standard 302. Inspections Rowe contends that GSA's actions related to the scheduling of inspections resulted in a delay to Rowe's delivering the vans within the time required by the contract. On July 22, Rowe told Mr. Mould that a first production vehicle would be ready to be inspected on July 29. On July 29, Mr. Mould contacted Rowe and learned that the first production vehicle would not be ready that week. On August 13, Mr. Mould planned to inspect Rowe's first production vehicle on August 20. On August 19, however, Mr. Mould was at Rowe's facility in connection with another contract, and he saw that Rowe would not have an INS van ready to be inspected the next day. Mr. Mould next planned to go to Powhatan on August 28. That morning, Mr. Mould and Ms. Huddleston called Rowe's facility at 8:00, and Mr. Mould called again at 8:45 and spoke with Mr. Muncie. Mr. Muncie said that a van was not completed, and that Mr. Campbell would call Mr. Mould to tell him whether there were any open items. Mr. Mould waited until 10:00 for a telephone call and, when none came, he scheduled another appointment. On September 3, Mr. Mould went to Rowe's plant and saw an Item 001 van. Rowe was not completely ready to submit the van for inspection at that time, so Mr. Mould conducted a preliminary inspection. Mr. Mould returned to Rowe's facility on September 19, and after initially refusing to do so, Rowe made an Item 001 van available for inspection. On September 30, Mr. Mould traveled to Powhatan to inspect an Item 002 van, but none was ready for inspection. Rowe told Mr. Mould that it would be ready to have an Item 002 van inspected and to have the Item 001 van reinspected on October 3, and Mr. Mould told Rowe to provide him a notice that it was ready for inspection when the vans had actually been completed. On October 3, Mr. Mould telephoned Rowe and learned that the Item 002 van was completed and the Item 001 van would be completed the next day. Mr. Mould said that he would be at Powhatan on October 8 in connection with another contract and would inspect Rowe's vans on that date. Mr. Mould conducted his inspection as scheduled on October 8. Rowe withdrew the Item 001 van from inspection, and stated that neither of the vans represented its final vehicle configuration. Mr. Mould told Rowe to let him know when it had vans that were completed and actually ready for inspection. Mr. Mould returned to Powhatan on October 15, and saw that Rowe had made progress. On October 18, Rowe said that it would have vans ready for inspection on October 22 and 25. Mr. Mould told Rowe that he would return on October 29, which he did. Mr. Mould returned again two days later, on October 31, and approved Rowe's first production vehicles and a few other vans. Mr. Mould was at Rowe's facility to inspect vans on November 8, November 18, and November 25. Rowe called Mr. Mould on December 2, and stated that it had vans ready to be inspected. Mr. Mould told Rowe to call him when it had vans ready to be inspected and when it had made arrangements to have vans shipped, so that he could schedule a visit and inspect all completed vans at one time. Also on December 2, Ms. Ross told Rowe that GSA would be glad to inspect a "substantial number" of vans when they were ready for shipment. On December 4, Ms. Ross said that if Rowe was ready to ship vans, Mr. Mould would be there to inspect within seven work days after being requested to do so by Rowe, as required by the contract. Mr. Mould made his last visit to Rowe's plant on December 10, which is within seven work days after December 2, the date that Rowe had asked Mr. Mould to conduct an inspection. Mr. Mould told Rowe to give him seven work days' notice when it was ready for another inspection. On December 17, Rowe asked Mr. Mould to come and inspect vans the next day. Mr. Mould reminded Rowe that the contract called for him to receive seven work days' notice when Rowe was ready for an inspection. GSA terminated Rowe's performance on December 20. Rowe has not established that any of GSA's actions related to the scheduling of inspections resulted in a delay to Rowe's delivering the vans within the time required by the contract. Rowe alleges that GSA canceled scheduled inspections on August 20 and 28, 1996, and actually stopped inspections altogether. Rowe's Opening Brief at 58; Rowe's Reply Brief at 16, 45-46. Although Mr. Mould did not visit Rowe's plant on August 20, this was because he had been there the day before and saw that Rowe would not have a van ready to inspect the next day. Mr. Mould did not visit Rowe's plant on August 28, because he telephoned Rowe that morning to see whether any vans were available for inspection and never received a response to his inquiry. Although GSA wanted Rowe to arrange to ship vans, GSA never stopped its inspections. The contract required Rowe to provide GSA fifteen days notice prior to the day that the first production vehicle would be ready for inspection, and required GSA to inspect vans thereafter within seven work days after being requested to do so by Rowe. Rowe has not established that GSA failed to make a timely inspection in response to receiving either a notice or a request from Rowe. Meetings, information, and clarifications Rowe says that Ms. Huddleston worked at home during most of the contract period due to the Olympic games being held in Atlanta, and that this resulted in her taking a long time to respond to Rowe's requests. Rowe's Opening Brief at 59. Mr. Campbell testified that Rowe did not have an e-mail address, a home telephone number, or a mailing address for Ms. Huddleston and that this caused a large part of the delay to Rowe's progress. Ms. Huddleston testified that she worked at home for a few days and was on vacation for a few days in July, and that her telephone calls at work were forwarded directly to her house when she was working at home. Rowe has not established by a preponderance of the evidence that Ms. Huddleston worked at home for most of the contract period, or could not be reached by telephone, or that her schedule interfered with Rowe's ability to perform in a timely fashion. As discussed more fully below, Rowe has not shown that Ms. Huddleston took an unreasonable amount of time to respond to Rowe s letters and requests. Rowe complains that GSA did not hold a "kick off" meeting, that its repeated requests for meetings were ignored, and that no contracting officer ever visited its facility in Powhatan. Rowe's Opening Brief at 18, 27, 35. It is true that no contracting officer ever visited Rowe's facility in Powhatan and that most of Rowe s contact was with Mr. Mould, who was the designated inspector for this contract. He met with Rowe pre- award and reviewed the specification requirements, and he provided the contracting officer and other GSA employees with timely and thorough reports of his visits to Powhatan during Rowe s period of performance. Ms. Huddleston and GSA employees in Crystal City spoke with Rowe representatives by telephone, and the record is filled with GSA s written responses to Rowe s numerous letters. The evidence shows that GSA spent a great deal of time and effort responding to Rowe s requests for clarification. Rowe has not shown that anything more could have been gained by Ms. Huddleston or Ms. Ross traveling from Atlanta, or that the lack of such a visit or meeting caused Rowe to fail to deliver the vans within the time required by the contract. Finally, Rowe alleges that it was delayed because GSA took months to issue simple clarifications and contract modifications. Rowe's Reply Brief at 18. GSA first modified the contract on June 19 to allow Rowe to provide one ventilator instead of the two required by the contract, and to state that gray was an acceptable color for the fiberglass seats, when the contract did not require any particular seat color. Apparently, Rowe asked to use gray seats in late May, but the first written request from Rowe concerning seat color is dated June 5. Regarding the ventilators, on May 24, Rowe asked GSA in Crystal City about supplying one ventilator instead of two. On June 6, GSA in Crystal City was waiting to receive additional information about the vents from Rowe, and Rowe had not forwarded its request to GSA in Atlanta. Approximately two weeks after GSA in Atlanta received Rowe's requests, GSA issued a contract modification regarding seat color and the ventilator. In addition to the fact that Rowe has not established that GSA took an unreasonable amount of time to issue this modification, Rowe has not established that it was delayed because GSA took until July 19 to act upon Rowe s requests. On August 19, Ms. Huddleston responded to two letters from Rowe. In response to Rowe's July 12 letter, Ms. Huddleston confirmed that the contract did not require power windows and locks even though a few delivery orders called for these items, that Rowe was required to supply stripes for the Item 002 vans, and that the mesh size was stated incorrectly in the contract and should read "1 to 1-1/4" inches. In response to a July 25 letter from Rowe to GSA in Crystal City, Ms. Huddleston said that GSA would accept vans without arm rests for a $50 credit, and she said that Rowe could use Celotex or Reflectex, and Mylar bubble insulation in areas where foam insulation could not be used. Ms. Huddleston asked Rowe to let her know if additional performance time would be needed and, if so, to submit an offer of consideration. She also asked Rowe to let her know what its intentions were concerning the arm rests. On September 6, after Ms. Huddleston had twice asked Rowe to respond to her August 19 letter, Rowe said that it needed a contract modification before it could proceed. Although Ms. Huddleston s August 19 letter said that she would issue a contract modification, no modification was necessary regarding the stripes or the arm rests, because the contract was clear concerning those items. As for the Celotex insulation, by the time Rowe responded to Ms. Huddleston on September 6, no contract modification was needed because it had been established by that time that Celotex met the contract requirements. Although GSA issued a modification on September 19 to delete the requirement set out in a few delivery orders for power windows and locks, Rowe does not contend that it was delayed in any way by the fact that GSA took until September 19 to acknowledge that a few delivery orders called for power windows and locks. The September 19 contract modification also stated the proper mesh size, but Rowe recognized that the mesh size originally stated in the contract contained an error and Rowe did not wait to hear from Ms. Huddleston before ordering its mesh, so the lack of a modification before September 19 did not delay Rowe s progress. Also on September 6, Rowe raised several new issues with Ms. Huddleston, including the necessity for a vent cover, the width of the sliding door opening, the placement of the stripes, and the method that it wanted to use to fabricate the partition. Rowe explained how it read the contract regarding the number of air ducts required in the rear compartment. Ms. Huddleston spoke with Rowe on September 17, and they resolved the vent cover issue by agreeing to exchange the arm rests for vent covers. On September 19, Ms. Huddleston provided Rowe with a written response to its September 6 letters. She pointed out that as of August 19, the only open issue concerned the arm rests, and that this had since been resolved. She repeated the contract s requirement concerning the width of the sliding door opening, which was clear, and she told Rowe that the placement of the stripes would be evaluated at the time Rowe provided a first production vehicle for inspection. She also stated that GSA would consider an alternate to the method of fabricating the partition set out in the contract if Rowe asked for a deviation from the terms of the contract. She also modified the contract to extend Rowe's performance period by thirty-eight days, due to the time that GSA took to respond to Rowe's July 12 letter. On September 25, Rowe asked Ms. Huddleston for a decision concerning the number of air ducts required in the rear compartment, and asked for a deviation from the contract s requirement for fabricating the partition. On September 27, Rowe asked to be allowed to weld the partition s mesh to an L-frame. On September 30, Ms. Huddleston issued a contract modification to delete the requirement for an arm rest in exchange for Rowe s supplying a vent cover, to provide striping on the Item 002 vans in the manner that Rowe had applied the stripes on September 19, and to allow Rowe to fabricate the partition as it proposed. Also on September 30, Ms. Huddleston said that she would issue a decision concerning the number of air ducts required in the rear compartment. That same day, Rowe wrote to Ms. Huddleston and said that it would supply multiple ducts in the rear compartment, so this was no longer an issue. The facts summarized in the preceding paragraphs do not support Rowe s contention that its progress was delayed because GSA took months to issue simple clarifications and contract modifications. Rowe has not established either that any of GSA s reviews took an unreasonable amount of time, or that Rowe s progress was delayed by GSA s actions for more than the thirty- eight days of additional time that GSA gave Rowe to perform. V. Other Allegations In its opening brief, Rowe accuses Mr. Mould of soliciting a bribe during his October 31 meeting with Mr. Campbell in Fredericksburg. Rowe's Opening Brief at 40. We lack the jurisdiction to decide whether an employee is guilty of a crime. There is no need for us to refer this matter to GSA's Office of Inspector General, because that office has already investigated Rowe's charges. T. 1961-63. In its reply brief, Rowe accuses GSA witnesses and GSA counsel of conspiring to obstruct justice and to offer perjured testimony. Rowe asks that we sanction counsel and report him to the appropriate bar association, and that we suggest to the Department of Justice that it prosecute counsel, several other GSA employees, and an employee of a Ford dealership for violations of a criminal statute. Rowe s Reply Brief at 10, 25, 39, 44, 63. Rowe also accuses GSA of altering Exhibit 147 because the document does not have a telefacsimilie date and time line stamped at the top of its pages, and of manipulating the evidence by not making a GSA letter dated August 1, 1996, which is referred to in Exhibit 43, a part of the appeal file. Rowe s Opening Brief at 2; Rowe s Reply Brief at 38. Because these charges are quite serious, we have examined them carefully. The testimony of GSA s witnesses was largely consistent with the contemporaneous documentation created during the course of the contract and this, coupled with the demeanor of the witnesses at the hearing, leads us to conclude that their testimony was worthy of belief. Although Rowe accuses witnesses of giving perjured testimony and counsel of suborning that testimony, to the extent that Rowe makes any specific accusations, they are based largely upon the fact that Rowe chooses not to believe the testimony of the witnesses, even though Rowe points to no contrary evidence that outweighs that testimony. As for the exhibits, GSA filed Exhibits 43 and 147 with the Board and served them on Rowe on April 21, 1997. If Rowe had questions or concerns about those documents, the proper time to raise them was in the twenty-two months before the hearing began, and not in the post-hearing briefs. Nonetheless, we reviewed Rowe's allegations that the documents were altered and that the evidence was manipulated by GSA. Exhibit 147 is signed and dated by three people. The fact that it lacks a telefacsimilie stamp does not show that GSA altered the document. For all we know, GSA does not have a copy of the document with such a stamp on it. Exhibit 43 refers to a GSA letter dated "August 1, 1996," which allegedly states that Mr. Campbell had assured the INS that Rowe would complete the contract in fewer than 180 days. The record does not contain a GSA letter dated August 1, 1996, but it does contain a GSA letter dated August 19, 1996, that mentions Mr. Campbell's assurances to the INS. Although the author of Exhibit 43 testified at the hearing, Rowe did not ask her any questions about the "August 1, 1996" GSA letter. If there is such a letter, the description of it contained in Exhibit 43 suggests that it is cumulative of other evidence concerning the assurances that Mr. Campbell gave the INS, and we have not found those assurances to be relevant to our disposition of this appeal. Rowe has not established that GSA manipulated the evidence in this appeal by not including a GSA letter dated August 1 in the appeal file. Rowe has not come close to establishing that the charges it makes about counsel and GSA witnesses have any basis whatsoever. Accordingly, we will not take any of the actions that Rowe suggests. Decision Rowe was required to deliver 219 vans to GSA by November 26, 1996. When Rowe failed to deliver the vans by that date, GSA terminated Rowe s performance. Rowe did not establish that the termination action was flawed or that GSA s actions delayed Rowe s performance. Rowe s appeal of GSA s termination action is, therefore, DENIED. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: __________________________________ ______________________________ ____ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge