Board of Contract Appeals General Services Administration Washington, D.C. 20405 CROSS-MOTIONS FOR SUMMARY RELIEF DENIED: June 4, 1998 GSBCA 14387 TWIGG CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Maurice J. Mountain of Barton, Mountain & Tolle, McLean, VA, counsel for Appellant. Gerald L. Schrader and Joseph L. McCann, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), VERGILIO, and DeGRAFF. DANIELS, Board Judge. One of the tasks required to be performed by Twigg Corporation under a contract with the General Services Administration (GSA) for the renovation of parts of the Columbia Plaza Office Complex in Washington, D.C., was installing a fire alarm system. After Twigg's electrical subcontractor, Jenkins Electrical Contracting, had done this work, GSA noticed that the wire used in fire alarm speaker circuits was different from and not of the quality of that specified by the contract. The agency required Twigg to remove and replace this wire. Twigg complied, but claims that it is entitled to recover the costs it incurred in doing so. Twigg maintains, in a motion for summary relief, that GSA is liable for the costs because the contractor made the initial installation in reliance on its reasonable interpretation of the response made by GSA's architect-engineer for this project, Girard Engineering, PC, to shop drawings for the system submitted by Twigg. GSA maintains, in a cross-motion for summary relief, that GSA is not liable because the architect-engineer's comments could only be reasonably read as requiring a resubmittal of the shop drawings before installation began. Both parties' positions are insupportable on motions for summary relief. We consequently deny both motions on this claim. Twigg makes an alternative claim, as well: because GSA's directive to remove and replace the initially-installed wire constituted economic waste, the contractor is entitled to recover its costs of complying with the demand, but the agency may offset from that amount the reasonable loss of value to the fire alarm system the Government would have suffered had the non-conforming wire remained in place. The scant information the parties have put forward as to this matter does not suffice to support either motion for summary relief. Facts Contract provisions Shop drawings required by the contract's specifications were to be submitted to Girard, with a copy to the agency's field office for the project. Appeal File, GSBCA 13901[foot #] 1, Exhibit 1 at 01300-2, -3 ( 1.3.A.1, first 1.5.A.1[foot #] 2). Girard had the authority to approve or disapprove submittals. Id. at 01300-2 ( 1.3.A.2). It could exercise this power by marking a submittal as "Approved" (work may proceed, provided it complies with contract documents), "Approved as Noted" (work may proceed, provided it complies with notations and corrections and with contract documents), or "Disapproved, Resubmit" (do not proceed with work; revise submittal in accordance with notations thereon and resubmit). Id. at 01300-8 (second 1.5.A). Even if shop drawings were marked "Approved" or "Approved as Noted," this did "not relieve the Contractor from responsibility for any errors or omissions in such drawings, nor from responsibility for complying with the requirements of [the] contract." Id. at 21 of Construction Contract Clauses (Fixed Price) (clause 28(e)); see also id. (clause 30(g)). Girard was not authorized to approve submittals containing deviations or variations from contract requirements; only the contracting officer or an individual "delegated such authority in ----------- FOOTNOTE BEGINS --------- [foot #] 1 Twigg has filed several cases with this Board challenging decisions made by the contracting officer on various claims submitted under this contract. In briefing the matter now before us, counsel for both parties have referenced documents contained in the appeal files for two other cases, GSBCA 13901 and 14386. [foot #] 2 Section 01300 of the contract contains two paragraphs designated 1.5. ----------- FOOTNOTE ENDS ----------- writing" by him could do this. Appeal File, GSBCA 13901, Exhibit 1 at 01300-2 ( 1.3.A.2) . The contract provided: If shop drawings show variations from the contract requirements, the Contractor shall describe such variations in writing, separate from the drawings, at the time of submission. If the Contracting Officer approves any such variation, the Contracting Officer shall issue an appropriate contract modification, except that, if the variation is minor or does not involve a change in price or in time of performance, a modification need not be issued. Id. at 21 of Construction Contract Clauses (Fixed Price) (clause 28(f)). One of the areas of work for which shop drawings were required was the fire alarm system; the contractor had to "[p]rovide point-to-point wiring diagrams showing the points of connection and terminals used for all electrical field connections in the system." Appeal File, GSBCA 13901, Exhibit 1 at 16723-8 to -9 ( 1.8.B.1). The contract stated that as to this system, "Before any work is commenced, the submittal must be approved by the GSA Regional Safety and Environmental Management Division." Id. at 16723-8 ( 1.8.A). The contract required that the fire alarm system "shall be installed in accordance with the drawings, specifications and referenced publications." Appeal File, GSBCA 13901, Exhibit 1 at 16723-1 ( 1.1.B). Among the specifications was this one, as to alarm wiring: "Notification appliance circuits shall be solid copper No. 12 AWG[[foot #] 3] size conductors at a minimum." Id. at 16723-22 ( 3.2.C). "Notification appliance circuits" involve speaker wiring. GSA's Statement of Genuine Issues at 2 (not contested in Twigg's Reply to GSA's Opposition). Other material, uncontested facts On November 17, 1994, Twigg submitted shop drawings for the fire alarm system to Girard for review and approval. Complaint 9; Answer 9; Appeal File, GSBCA 14386, Exhibit 9. Twigg now acknowledges that the drawings were deficient in their "lack of details concerning the selection of the speaker wire" to be installed. Twigg's Reply to GSA's Opposition at 3. Girard reviewed the submittal. On December 12, 1994, the architect- engineer stamped it "Revise as Noted" and returned it to Twigg, listing eleven notes and comments with which the contractor had ----------- FOOTNOTE BEGINS --------- [foot #] 3 "AWG" is an abbreviation for "American wire gauge." C. M. Harris, Dictionary of Architecture & Construction _________________________________________ 33 (1975). This is a system used for designating wire diameter in electrical wiring. Numbers range from 6 to 40; the larger the number, the smaller the diameter of the wire. Id. at 16. ___ ----------- FOOTNOTE ENDS ----------- to comply. None of the comments mention the type of wiring to be used. Girard did not check the box on its stamp instructing Twigg to resubmit the drawings. At the same time, Girard provided a copy of the transmittal with the same instructions to the GSA field office for this project. Twigg's Statement of Uncontested Facts 8; see GSA's Statement of Genuine Issues at 2-7, 9 (not addressing this much of 8[foot #] 4); Appeal File, GSBCA 14386, Exhibit 13. In the fall of 1995, GSA directed Twigg to submit to it a number of its drawing packages which had previously been approved by Girard. GSA wanted to send the packages to various Government offices, including, for the first time, the agency's own Regional Safety and Environmental Management Division. Twigg transmitted its fire alarm system submittal (with Girard's notations on that document) on December 19, 1995. Twigg's Statement of Uncontested Facts 15; see GSA's Statement of Genuine Issues at 13-15 (not addressing this much of 15 and acknowledging that the division named did not receive the submittal earlier); Appeal File, GSBCA 14386, Exhibit 49. On January 17, 1996, the fire alarm system submittal was rejected by a team leader in the Fire Protection Engineering Section of GSA's Regional Safety and Environmental Management Division. The team leader wrote thirty-four detailed comments, each of them demanding that Twigg furnish additional details regarding the components and operation of the system. She also noted, "The fire alarm system is presently being installed and could be completed soon." Twigg's Statement of Uncontested Facts 17; see GSA's Statement of Genuine Issues at 13-15 (not addressing this much of 17); Appeal File, GSBCA 14386, Exhibit 51. GSA and its representatives had been present at the project while this installation had been taking place. Complaint 11; ----------- FOOTNOTE BEGINS --------- [foot #] 4 To help the Board understand whether genuine issues of material fact exist, our Rules of Procedure require that a movant file with its motion for summary relief a Statement of Uncontested Facts and that the opposing party file with its opposition a separate document titled Statement of Genuine Issues. The latter document is to "identify, by reference to specific paragraph numbers in the moving party's Statement of Uncontested Facts, those facts as to which the opposing party claims there is a genuine issue necessary to be litigated. An opposing party shall state the precise nature of its disagreement and give its version of the facts." Rule 108(g) (48 CFR 6101.8(g) (1997)). The Statement of Genuine Issues filed by GSA in response to Twigg's motion is vague and incomplete; it consists primarily of argument. In light of the Rule's mandate for specificity, we consider that for the purpose of resolving the motions for summary relief, GSA has accepted the assertions in Twigg's Statement of Uncontested Facts which the agency has not addressed directly. ----------- FOOTNOTE ENDS ----------- Answer 11; Twigg's Motion at 30; GSA's Statement of Uncontested Facts 4. A GSA consultant, Klinker & Associates, reported to the agency on March 13, 1996: The fire alarm system speaker wire is a stranded conductor (19 strands), twisted shield pair, with the following markings: OMNI cable P/N 011402 14 awg type CL2 75 C (UL) E100316. The CL2 designation implies that cable should be used for remote control signaling systems. The conductors look like aluminum (silver color). . . . [T]his wire . . . does not meet the specification requirements (16723, par. 3.2C) of a solid copper #12 awg. Twigg's Statement of Uncontested Facts 24; GSA's Statement of Genuine Issues at 18 (not referencing this paragraph); Appeal File, GSBCA 14386, Exhibit 66. Twigg's only rejoinder to this statement is an assertion that the wire "was not aluminum, but was stranded copper wire with a 'tinned' coating that gave it a silver-colored appearance." Twigg's Statement of Uncontested Facts 24. Both Klinker and the team leader in the Fire Protection Engineering Section of GSA's Regional Safety and Environmental Management Division recommended that Twigg remove and replace the speaker wire. According to Klinker, one of its engineers and a representative of the Department of State (GSA's tenant in the building) "approved the installation of 14 gauge, solid copper, West Penn #995 TSP cable for fire alarm system use. . . . This conductor approval does not relinquish the operational system requirements from the contractor." Twigg's Statement of Uncontested Facts 24, 28, 29; GSA's Statement of Genuine Issues at 18 (not referencing these paragraphs); Appeal File, GSBCA 14386, Exhibits 66, 75, 78. Twigg's subcontractor, Jenkins, removed and replaced the original speaker wire over a two-week period during March 1996. Twigg's Statement of Uncontested Facts 30; GSA's Statement of Genuine Issues at 18 (not referencing this paragraph). Discussion Resolving an issue on a motion for summary relief is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of demonstrating the absence of genuine issues of material fact. All evidence must be viewed in the light most favorable to the nonmoving party, with all reasonable factual inferences to be drawn in favor of the nonmoving party. S. A. Ludsin & Co. v. Small Business Administration, GSBCA 13777-SBA, 97-1 BCA 28,812, at 143,726, aff'd, No. 97-1249 (Fed. Cir. Apr. 3, 1998); 6th & E Street Associates v. General Services Administration, GSBCA 13559, 96-2 BCA 28,444, at 142,098 (both citing Dairyland Power Cooperative v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994)). Twigg maintains that GSA is obligated to pay the costs of removing and replacing the originally-installed fire alarm speaker wire because the contractor installed that wire after having received conditional approval of its shop drawings from the entity authorized to grant such permission (the agency's architect-engineer, Girard). There are at least four problems with this theory. The first is that the approval was, as stated, conditional upon Twigg's revising the drawings and making its installation in compliance with Girard's comments, and Twigg has not even asserted that it made the necessary changes. (GSA insists that the contractor did not make the changes. GSA's Statement of Genuine Issues at 8; Appeal File, GSBCA 14386, Exhibits 51, 52, 62.) A second problem is that the drawings, in Twigg's words, "lack[ed] . . . details concerning the selection of the speaker wire" to be installed. Because the drawings do not specify the wire, Girard's comments (which do not mention wiring at all) could not plausibly be construed as an authorization to use any particular variety of wire. Girard's "revise as noted" message can reasonably be considered only as a version of the permitted marking "approved as noted," which meant that work may proceed, provided it complies with notations and corrections and with contract documents. The contract specifications mandated the use of wire which, as Twigg now admits, Twigg's Motion at 3, 34-35, was different from what the contractor installed. Another problem is that although the contract required that variations from its specifications be specially described by the contractor to the agency's contracting officer, Twigg has not suggested that the shop drawings or other submissions for the fire alarm system noted deviations or were sent to the only persons who could have approved them (the contracting officer or an individual designated by him). Thus, even if Girard had expressly approved use of the non-conforming speaker wire, that approval, per the contract, would have been meaningless. Twigg asserts that neither it, nor Jenkins, nor Jenkins's supplier, "thought the wire originally selected and installed on this project was a 'substitution' or a 'deviation' and thus they can hardly be faulted for allegedly failing to call that fact to the Government's attention during the submittal process." Twigg's Reply to GSA's Opposition at 4. If it is true that the contractor and its associates did not understand that a "stranded conductor (19 strands), twisted shield pair, with the . . . marking[] . . . 14 awg" did not meet the requirement for "solid copper No. 12 AWG size conductors at a minimum," this is not a failing which can be blamed on the Government. Anyone working in the electrical field ought to know that stranded conductor is not solid, and that 14 AWG wire has a smaller diameter than 12 AWG. The fourth problem with Twigg's theory is that the contractor did not secure approval of its fire alarm system shop drawings from GSA's Regional Safety and Environmental Management Division before beginning work on the system, as required by the contract. Twigg simply assumed that Girard had received this approval before marking the drawings "revise as noted" and sending them back to Twigg. The contractor has advanced no basis for making this assumption. Even if the assumption were valid, however, this would not excuse Twigg's failure to describe the proposed deviation to the contracting officer for its use of wire which did not meet a contract specification. We cannot accede to Twigg's notion that simply because the contractor installed speaker wire as part of the fire alarm system subsequent to the architect-engineer's having conditionally authorized installation of the system, the Government must accept that wire or pay for having it removed and replaced with the kind of wire Twigg, by contract, had agreed to provide. We therefore deny Twigg's motion for summary relief as to its primary claim. If Twigg is ultimately to prevail on this portion of the case, it must overcome the infirmities we have identified. GSA's motion for summary relief as to Twigg's primary claim is predicated on the idea that "the terms 'Revise As Noted,' even though the 'Resubmit' box was not checked by Girard Engineering, can only reasonably be read in modern contract and trade law as meaning that revisions to the fire alarm system, as noted with much detail in Girard's two pages of notes, had to be made and resubmitted for approval by Girard and ultimately by GSA." GSA's Cross-Motion for Summary Relief at 4. The agency does not explain why this is so, and in our view, the notion strains credulity. If Girard wanted Twigg to resubmit its drawings, it could and should have checked "resubmit"; since it did not do this, we cannot imagine why any prudent person would think that it was requiring the contractor to transmit the drawings as revised. We must consequently deny GSA's cross-motion as to the primary claim. As to the alternative claim, Twigg correctly notes that in Granite Construction Co. v. United States, 962 F.2d 998 (Fed. Cir. 1992), the Court of Appeals for the Federal Circuit stated: We recognize that the government generally has the right to insist on performance in strict compliance with the contract specifications and may require a contractor to correct nonconforming work. However, . . . the government should not be permitted to direct the replacement of work in situations where the cost of correction is economically wasteful and the work is otherwise adequate for its intended purpose. In such cases, the government is only entitled to a downward adjustment in the contract price. Id. at 1007 (citations omitted). Whether this case fits the conditions for applying Granite's "economic waste" exception to the general rule is not at all clear from the filings made thus far by the parties. We do not know whether the cost of correction was economically wasteful. Twigg says that the cost (Jenkins's expenses and Twigg's markups) was in excess of $100,000, but whether this amount represents the reasonable value of the work is in dispute. See Respondent's Revised Brief in Opposition to Appellant's Motion at 3-4 and affidavit cited therein. Whatever the reasonable value may be, whether spending that amount was wasteful relative to the benefits the Government obtained by replacing the speaker wire has not been addressed by the parties. At least as important, neither party has provided anything other than bare contentions as to the other critical element established in Granite -- whether the originally-installed wire was adequate for its intended purpose. See Amtech Reliable Elevator Co. v. General Services Administration, GSBCA 13184, 95-2 BCA 27,821, at 138,728; Gramercy Contractors, Inc. v. General Services Administration, GSBCA 11843, 93-3 BCA 26,204, at 130,433. GSA seems ultimately to have accepted solid, 14- gauge wire, rather than the originally-specified solid, 12-gauge wire, in lieu of the originally-installed stranded, 14-gauge wire. Does the acceptance of wire of the same gauge as what was originally installed have implications for the acceptability of the installation? Does the agency's insistence on solid, rather than stranded wire have implications for the acceptability? The parties have provided no information on the basis of which we could answer these questions or others which may bear on the issue. On cross-motions for summary relief, we cannot resolve the alternative claim. Decision Both motions for summary relief are DENIED. The parties are directed to provide to the Board, within two weeks of the date of this decision, a joint proposal for further proceedings in this case. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge