DENIED: January 8, 1998 GSBCA 14167 ASSOCIATED ENVIRONMENTAL SYSTEMS OF MID-AMERICA, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Harold W. Mitts, Jr., of Svoboda and Mitts, Kansas City, MO, counsel for Appellant. Adele Ross Vine, Office of Regional Counsel, General Services Administration, Kansas City, MO, counsel for Respondent. Before Board Judges DANIELS (Chairman) and GOODMAN. GOODMAN, Board Judge. Appellant, Associated Environmental Systems of Mid-America, Inc. (AES), appeals the contracting officer's decision dated February 14, 1997, denying its claim in the amount of $9,564 for additional charges incurred in the construction of caissons and the amount of $8,015 for quality control tests. The parties have agreed to submit the appeal for a decision on the written record pursuant to Board Rule 109,[foot #] 1 and appellant has elected the accelerated procedure pursuant to Board Rule 203. As discussed below, we deny the appeal. Findings of Fact 1. Contract number GSO6P94GYC0035(N) (the contract) for the east wall extension of the Social Security Administration building in Kansas City, Kansas was awarded to the Small Business Administration (SBA) under the SBA s 8(a) program for subcontract ----------- FOOTNOTE BEGINS --------- [foot #] 1 62 Fed. Reg. 52,347 (Oct. 7, 1996) (to be codified at 48 CFR 6101). ----------- FOOTNOTE ENDS ----------- to AES. The contract was awarded on July 19, 1994, for the base bid, lump sum amount of $323,206.93. Appeal File, Exhibit 8. Claim for Additional Payment for Extra Concrete, Material, Labor, Haul Off and Extra Depth for Caissons 2. Contract specification Section 02380, entitled "Caissons," reads, in relevant part: 1.1 GENERAL A. RELATED DOCUMENTS 1. Drawings and general provisions of Contract, including General and Supplementary Conditions and Division 1 Specification Sections, apply to this Section. B. SUMMARY . . . . 2. Extent of caissons is shown on drawings, including locations, diameters of shafts, estimated bottom elevations, top elevations, and details of construction. . . . . 1.3 EXECUTION A. CAISSON EXCAVATION 1. General: Excavate holes for caissons to required bearing strata or elevations shown on drawings. Excavate holes for closely spaced caissons, and those occurring in fragile or sand strata . . . . 2. Caisson design dimensions shown are minimums. The design of caissons is based on assumed strata bearing capacity. If bearing stratum is not capable of maintaining bearing capacity assumed, foundation system will be revised as directed by Architect. Revisions will be paid for in accordance with Contract conditions relative to changes in Work. . . . . 17. Depth of Bearing Stratum: If indicated depth or shaft excavation is reached without developing required stratum bearing capacity, immediately suspend excavation operations and inform Architect. Architect will determine procedures to be followed. 18. Where changes in indicated depth or dimensions are required, or additional soil borings are required, proceed with such work when directed in writing by Architect. 19. Overexcavation: No payment will be made for extra length, when caisson shafts are excavated to a greater depth than required or authorized by Architect, due to overdrilling by Contractor. Complete caisson and fill extra depth with concrete if other conditions are satisfactory. Overexcavated shafts will be measured and paid for to original design or authorized depth. . . . . F. MEASUREMENT AND PAYMENT 1. Basis of Bids: Bids shall be based on number of caissons, design length from top elevation to bottom of shaft (extended through the bell, if applicable), and diameter of shaft and bell, as shown on drawings. 2. Basis for Payment: Payment for caissons will be made on actual net volume of caissons in place and accepted. The actual length, shaft diameter, and bell diameter (if applicable) may vary to coincide with elevations where satisfactory bearing strata are encountered, and with actual bearing value of bearing strata determined by testing services, and with stability and characteristics of soil strata. Adjustments will be made on net variations of total quantities, based on design dimensions for shafts and bells. 3. There will be no additional compensation for excavation, concrete fill, reinforcing, casings, or other costs due to unauthorized overexcavating of shafts or bells. No payment will be made for rejected caissons. Appeal File, Vol. 1, Exhibit 1. 3. The relevant contract drawing, #70-16-01, indicates the diameter of the caissons as thirty inches and specifies the lower elevation of each of the nine caissons. Appeal File, Vol. 2, Exhibit 1. 4. Based upon the design of the caissons as reflected in the contract documents, the contractor's bid proposal included 110 cubic yards of concrete for the caissons. Appeal File, Exhibit 2. 5. Prior to performance of caisson work, appellant proposed a change to use skin friction piers. This proposal was rejected by the Government, and in a letter dated September 23, 1994, the Government stated, "We decline to further consider an alternate approach to pier drilling work. Therefore, you are directed to proceed with work as provided by the plans and specifications." Appeal File, Exhibit 15. 6. On October 20, 1994, the contracting officer's representative faxed a memorandum to appellant stating, in relevant part, "Caissons are to be drilled to bottom elevations as shown on the plans. You are directed to proceed with caisson drilling and placement per plans and specifications." Appeal File, Exhibit 18. 7. By letter dated November 13, 1995, appellant submitted requests for additional payment in the amount of $9,564 for extra concrete material, labor, haul off and extra depth for caissons. Appeal File, Exhibit 23. 8. Included in appellant's claim is a letter dated November 3, 1995, from appellant's subcontractor, Bruner Dahlstrom Construction, Co., Inc., which stated, in relevant part: According to the specifications for the above referenced project, specifically Section 02380- Caissons, Paragraph F, Measurement and Payment subparagraphs 1 thru 5 . . . our bid was based on specific quantities of concrete as shown on drawing." Subparagraph 2 states that the "payment for caissons will be made on actual net volume of caissons in place and accepted." Please find attached a breakout of extra concrete material, labor, haul off and extra depth drilled pier net costs. Appeal File, Exhibit 23. 9. Appellant's claim was based on an alleged total quantity of 160 cubic yards of concrete poured into the nine caisson excavations as compared to what it alleges was an original bid estimate of eighty-eight cubic yards of concrete. Appellant has submitted invoices from its concrete supplier indicating that 160 cubic yards of concrete was delivered to the project during the excavation of the caissons. Appeal File, Exhibit 23. 10. Appellant's drilling subcontractor, Great Plains Drilling Company, maintained contemporaneous records of the caissons which show as-built dimensions, entitled "Drilled Pier Reports." Appellant's Record Submission, Exhibit 8. 11. By letter dated February 14, 1997, the contracting officer denied appellant's claim for additional work in constructing the caissons on the basis that the claim was not supported by documentation from the contractor, that the contract drawings provided for minimum volumes of excavation computed from drawings for thirty inch diameter excavation rather than the thirty-six inch diameter excavation as quoted by appellant's subcontractor, and that the claim failed to identify any changes in the work from that required by the design due to unforeseen conditions at the site. The contracting officer additionally noted that the claim did not establish that prior approval for drilling the larger diameter holes was sought or received from the architect or contracting officer s representative as required by the contract specifications. Appeal File, Exhibit 28. 12. Appellant appealed the contracting officer's decision to this Board by notice of appeal dated April 29, 1997. Appeal File, Exhibit 30. 13. Appellant submitted the following affidavit testimony of the superintendent of its subcontractor, Bruner Dahlstrom Construction Co., Inc.: Based upon my personal observation of the caisson construction for . . . October 24 to October 28, 1994, I hereby state that each caisson required approximately 16 yards of concrete. I base this amount upon the fact that it took approximately 1 trucks to fill each caisson. I personally observed each truck backed up to each caisson hole and observed the concrete flowing directly from those . . . trucks into each caisson. . . . . I personally observed the bottom elevation of each of the nine caissons and all had very soft and nonbearing soil conditions. In at least of the caissons, the physical condition of the bottom of each was that of pure water. The water in each of these caissons in fact reached heights of within 14 feet of the surface. That means that each caisson had approximately 40 feet of water in it. . . . . After several attempts to de-water several of the caissons . . . the water level did not decline at all, despite the fact of pumping huge amounts of water from each caisson. At this point, [the owner's consultant] authorized sending the snorkel down 40 feet in an attempt to place the concrete at the bottom of the caisson excavation in hopes of displacing the water. The head pressure exerted from a 55 foot by 30 inch excavation is tremendous, with no resistance from any suitable soil at the base of the caisson, the concrete mushroomed at the bottom and after awhile the concrete finally began to rise in the caisson forcing the water out of the top of the caisson. I reviewed the concrete delivery tickets the days of delivery and found them to be accurate based upon the conditions encountered and my experience with concrete and the area the concrete normally covers. I state that all of the concrete from the bills received from [the concrete supplier] are accurate based upon . . . my experience in working with concrete. Affidavit of Matt Spangler (Spangler Affidavit) (Dec. 12, 1997) 5-12. 14. Appellant supplied affidavit testimony from its concrete supplier which read, in relevant part: [The concrete supplier] was the first concrete supplier in the local area to purchase and use a computerized batch system that electronically monitors and gauges the amount of concrete loaded into each concrete mixer truck. . . . . Based upon my review of the delivery tickets . . . I can personally state that the concrete indicated thereon is in the correct amount and was on each of the mixers as set forth in each of those delivery tickets. Affidavit of Steve McDonald (McDonald Affidavit) (Dec. 15, 1997) 3, 5. 15. The contracting officer submitted the following testimony by affidavit: Calculations of concrete that would be used to fill the nine, 30 inch diameter caissons . . . would amount to 86.05746 cubic yards total. . . . This calculation is based upon the premise that caissons were drilled with a 30" augur as designed and the plans and specifications were followed. This is supported by the caisson logs furnished by the contractor. Each of the piers drilled was not drilled to a depth beyond or larger than the design requirement if the drilled pier reports[[foot #] 2] are accurate. The 160 cubic yards of concrete claimed by AES [to be poured in place] through the billings of [the contractor's concrete supplier] could not have been placed . . . in the caissons excavation. . . . A review of the drilled pier reports for diameter & depth of caissons, as submitted, establish[es] that the design depth was not exceeded for piers 1, 3, 5, 6, 7, 8 & 9. The pier reports are incomplete for piers 2 & 4. However, based on the pier reports for all, except for computed amounts for 2 and 4, and if the piers were drilled to the depth and diameter as shown in the drawings for 2 and 4, only 92.78 cubic yards of concrete would have been placed in the caissons. . . . It is further noted that the delivery reports submitted by [the contractor's concrete supplier] for the dates shown and quantities indicated don't match up with the pier logs. For instance, on October 24, 1994, 39 cubic yards are shown as delivered when only 18.61 cubic yards was indicated to have been used. Affidavit of Menard O. Smith (Smith Affidavit) (Dec. 4, 1997) 5-7. Claim for Reimbursement for Quality Control Tests 16. By letter dated April 19, 1996, appellant submitted a request for a final decision to the contracting officer for additional payments for quality control tests in the amount in $8,015. Appellant stated that the quality control tests were performed by Professional Service Industries, Inc., and billed to Bruner Dahlstrom Construction Co., Inc., appellant s subcontractor. Appeal File, Exhibit 26. 17. These tests for which appellant seeks reimbursement were for 1) caisson drilling soil report; 2) subgrade compaction test; and 3) structural steel inspection. Appeal File, Exhibit 27. 18. Contract provisions relevant to this claim are as follows: SECTION 02380 - CAISSONS 1.1 GENERAL . . . . C. SUBMITTALS ----------- FOOTNOTE BEGINS --------- [foot #] 2 Appellant's Record Submission, Exhibit 8. ----------- FOOTNOTE ENDS ----------- . . . . 4. Certified Caisson Report for each caisson . . . . . . . . D. QUALITY ASSURANCE . . . . 5. Record and maintain information pertinent to each caisson and cooperate with other testing and inspection personnel to provide data for required reports. 6. Concrete Testing Service: Employ testing laboratory to perform material evaluation tests and to design concrete mixes. 7. Owner will employ separate testing laboratory to perform field quality control tests. 8. . . . Tests not specifically indicated to be done at Owner s expense, including retesting of rejected materials and installed work, are Contractor s responsibility. Appeal File, Vol. 1, Exhibit 1. 19. Also relevant to this claim is the following provision of the contract: SECTION 05120 - STRUCTURAL STEEL . . . . 1.3 EXECUTION . . . . B. QUALITY CONTROL 1. Engage an independent testing and inspection agency to inspect high-strength bolted connections and welded connections and to perform tests and prepare test reports. 2. Owner will engage an independent testing and inspection agency to inspect high- strength bolted connections and welded connections and to perform tests and prepare test reports. Appeal File, Vol. 1, Exhibit 1. 20. The Construction Contract clause, Federal Acquisition Regulation (FAR) 52.246-12 -INSPECTION OF CONSTRUCTION, which was incorporated into the contract by reference, states in part: . . . . (b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. . . . (c) Government inspections and tests are for the sole benefit of the Government and do not-- (1) Relieve the Contractor of responsibility for providing adequate quality control measures; Appeal File, Vol. 1, Exhibit 1. 21. By letter dated February 14, 1997, the contracting officer denied appellant's claim for quality control services on the basis that the contract did not provide for, or authorize, the contractor to procure these services on behalf of the Government. The contracting officer further noted that the Government procured these services directly from Huntingdon Testing Laboratories through a separate contract, and not from the company for whose services appellant requests additional compensation. Appeal File, Exhibit 28. 22. The contracting officer submitted the following testimony by affidavit: [T]he specification states that the "owner will employ separate testing laboratory to perform field quality control tests" . . . . GSA obtained services of a separate testing laboratory, Huntingdon Testing Laboratories, through a contract with the Construction Manager, Energy Masters Corporation. The specification does not delegate the right or responsibility to the contractor, AES, to employ a testing laboratory for the owner. Smith Affidavit 9. 23. Respondent has submitted the reports prepared by Huntingdon Testing Laboratories for the caissons. Appeal File, Exhibit 32. 24. Appellant filed a notice of appeal at this Board dated April 29, 1997, challenging both the contracting officer's decisions. Appeal File, Exhibit 29. Discussion Claim for Additional Payment for Extra Concrete, Material, Labor, Haul Off and Extra Depth for Caissons Appellant claims that it is entitled to additional compensation because the soil conditions at the bottom of the excavations were not stable, which required additional amounts of concrete in excess of that included in its bid. Respondent contends that there was no reason to excavate the caissons to a depth lower than that indicated in the contract documents, that the Government directed the contractor to excavate per plans and specifications, and there is no indication that amounts of concrete greater than those amounts included in the contractor's bid were actually used in this project. The contract entitles the contractor to additional compensation if the contractor was required to exceed the designed depth to meet bearing capacity. However, if the additional excavation was not needed to meet bearing capacity, the contractor is not entitled to additional compensation. Finding 2. Appellant is not entitled to recover the costs for this portion of the claim for several reasons. It has failed to prove that it excavated to a greater depth than required by the specifications. The contemporaneous records which indicate the as-built dimensions of the caissons show that the depths of the caissons do not exceed the design elevations.[foot #] 3 Finding 15. Additionally, appellant is unclear as to the amount of excess concrete for which it claims compensation. Appellant's original bid proposal included 110 cubic yards of concrete for the caissons as designed, Finding 4, even though, according to the Government's calculations, the caissons as designed would only require approximately 86.5 cubic yards of concrete. Finding 15. Contemporaneous records of concrete pours kept by the drilling subcontractor and submitted by the Government indicate that 92.78 cubic yards of concrete would have been placed in the caissons if the caissons for which as-built records do not exist were drilled to the design elevations. Id. Appellant has also failed to prove that it actually placed the amount of concrete in the caisson excavations that it claims was delivered to the project site. Attempting to show that additional concrete was poured, appellant has submitted records from its concrete supplier showing that a total of 160 cubic yards of concrete was delivered to the project during the period of concrete pours for the caissons. Findings 9, 13, 14. It ----------- FOOTNOTE BEGINS --------- [foot #] 3 We note that records for two of the nine caissons are missing, but there is no indication otherwise in the record that the actual depths of the two caissons for which records do not exist exceeded the design elevations. ----------- FOOTNOTE ENDS ----------- reasons that since no other concrete work was being performed, this concrete must have been poured for the caissons. This argument does not seem credible, in light of the fact that the contemporaneous records indicate no drilling to depths greater than the design depths and no greater pours in volume than necessary to fill a caisson drilled to these depths. Findings 10, 15. Even though no other concrete work was ongoing at this time, delivery tickets showing total deliveries do not overcome the contemporaneous as-built logs as to depth and concrete pours in the individual caissons. Appellant's claim for additional payment for extra concrete, material, labor, haul off and extra depth for caissons is denied. Claim for Reimbursement for Quality Control Tests In the second part of its claim, appellant seeks additional payment for quality control tests in the amount of $8,015. These tests for which appellant seeks reimbursement were performed by its subcontractor, Professional Service Industries, Inc., for Bruner & Dahlstrom Construction Co., Inc. These were tests for 1) caisson drilling soil report; 2) subgrade compaction test; and 3) structural steel inspection. Findings 16, 17. Respondent's position is that the contract places the contractor on notice that the Government will employ a separate testing laboratory to conduct field quality control tests as deemed necessary by the Government. The Government did directly employ a testing laboratory, Huntingdon Testing Laboratories, for the purpose of conducting tests. Findings 21, 23, 24. In support of its claim for items 1 and 2, appellant cited Section 02380, paragraph 1.1.D.7 of the contract, which states: Owner will employ separate testing laboratory to perform field quality tests. Finding 18. With regard to the third item, under the quality control provision of Section 05120, Structural Steel, paragraph 1.3.B.1, appellant is required to: Engage an independent testing and inspection agency to inspect high-strength bolted connections and welded connections and to perform tests and prepare test reports. Finding 19. This same provision also contains substantially similar language which puts a similar obligation on the Government. It reads as follows: Owner will engage an independent testing and inspection agency to inspect high-strength bolted connections and welded connections and to perform tests and prepare test reports. Id. Additionally, the Construction Contract clauses (Fixed Price), (GSA FORM 3506), Clause 49, FAR 52.246-12--INSPECTION OF CONSTRUCTION (JUL 1986), states in part: . . . . (b) The Contractor shall maintain an adequate inspection system and perform such inspections as will ensure that the work performed under the contract conforms to contract requirements. . . . (c) Government inspections and tests are for the sole benefit of the Government and do not-- (1) Relieve the Contractor of responsibility for providing adequate quality control measures; Finding 20. The contract language clearly does not authorize the contractor or any of its subcontractors to hire, on behalf of the Government or at the Government s additional expense, an independent testing laboratory. Instead, it contains obligations on both the contractor and the owner to employ their own quality control experts, which is what occurred here. The Government employed its own independent contractor, and does not believe it also has an obligation to pay for the contractor's quality control tests. Respondent's interpretation is supported by the plain meaning of the contract language. Appellant's hiring of quality control experts was required by the contract. Appellant's claim for additional payment for quality control tests is denied. Decision The appeal is DENIED. ______________________ ALLAN H. GOODMAN Board Judge I concur: _______________________ STEPHEN M. DANIELS Board Judge