Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________________ MOTION FOR SUMMARY RELIEF DENIED: December 2, 1999 _______________________________________________________ GSBCA 14430-TD ROXCO, LTD., Appellant, v. DEPARTMENT OF THE TREASURY, Respondent. James A. Pemberton of King & King, Washington, DC, counsel for Appellant. David H. Brunjes, Office of the Legal Counsel, Federal Law Enforcement Training Center, Department of the Treasury, Glynco, GA, counsel for Respondent. Before Board Judges BORWICK, HYATT, and DeGRAFF. DeGRAFF, Board Judge. In mid-1994, the Department of the Treasury invited bids for the construction of two buildings in Glynco, Georgia. Treasury asked contractors to submit one bid based upon using calcium silicate masonry (CSM) blocks and a second bid based upon using precast concrete panels for the exterior of the buildings. On September 30, 1994, Treasury awarded a contract to Roxco, Ltd. for construction of the buildings using CSM blocks. Exhibit 1. Two problems concerning the CSM blocks arose during Roxco's construction of the buildings, and these problems resulted in Roxco submitting a claim to Treasury's contracting officer dated May 22, 1997. The first problem concerned the coursing pattern that Treasury wanted Roxco to use when it laid the CSM blocks. The second problem concerned the discoloration of some of the blocks. The contracting officer denied Roxco's claim on September 18, 1997, and Roxco filed this appeal. Exhibits 355, 357. Treasury filed a motion for summary relief, Roxco filed an opposition to the motion, and Treasury filed a reply to Roxco s opposition. Summary relief is appropriate when there are no genuine issues of material fact in dispute and when the moving party is entitled to relief as a matter of law. A fact is material if it will affect our decision. An issue is genuine if enough evidence exists such that the fact could reasonably be decided in favor of the non-movant at a hearing. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). As explained below, we deny Treasury s motion because we find that there are genuine issues of material fact in dispute. CSM Coursing Factual findings Section 04220, paragraph 3.03A of the specifications required Roxco to lay the CSM blocks in a running bond coursing pattern. Exhibit 1. Consistent with the specifications, contract drawing A3.6 showed a running bond pattern for the CSM blocks.[foot #] 1 Exhibit 2. In February 1995, Roxco asked Treasury for some added details concerning the CSM coursing. Roxco said that drawing A3.6 showed a running bond pattern with a twelve-inch piece at the corners, and also showed running bond with a 3-5/8 inch piece at the corners. Exhibit 16. Other drawings did not show the CSM blocks. Exhibit 2. On April 7, 1995, Treasury reissued drawings A3.1, A3.2, and A3.6. Although Treasury made no changes to drawing A3.6, Treasury changed drawing A3.1 to show a corner detail for the CSM blocks, and changed drawing A3.2 to show a wing wall detail for the CSM blocks. Both the corner detail and the wing wall detail showed where Roxco should make cuts to the blocks. Exhibits 2. On April 18, 1995, Roxco pointed out that the drawings did not show any control joints for the CSM block construction. Exhibit 43. Treasury notified its architect of this, and on April 27, Treasury reissued drawings A3.1 and A3.2 to show where Roxco should place the control joints. Exhibits 2, 39. Roxco told Treasury that the April 27 drawings did not provide details concerning either the coursing at the control joints or cuts to the blocks at the control joints. Exhibit 43. On May 5, Treasury reissued drawings A3.1 and A3.2. Note 3/A3.2 was added to drawing A3.2, to provide details regarding the cuts at the control joints. Exhibit 2. On May 12, 1995, Treasury asked Roxco for a price proposal to cover a change order for labor, material, supervision, and ----------- FOOTNOTE BEGINS --------- [foot #] 1 In deciding this motion, the Board reviewed the drawings for the first building, but not the drawings for the second building. The parties did not point out in their briefs that there were any differences between the two sets of drawings that would affect our consideration of the motion. ----------- FOOTNOTE ENDS ----------- equipment necessary to provide control joints and symmetrical coursing. Exhibit 59. Roxco s June 6 proposal asked for $133,150.93, which included the cost of 672 cuts for control joints, 1124 cuts at the stair towers, 672 cuts at the wing walls, and 496 cuts at the corners of the buildings. Exhibit 59. After receiving Roxco's proposal, Treasury decided that it was not responsible for anything other than the cost of the control joints, that it had not directed Roxco to use the coursing pattern shown in the reissued drawings, and that Roxco did not need the information contained in the reissued drawings to lay the CSM blocks. Exhibit 64. On August 18, Treasury told Roxco that it was not required to follow the coursing scheme set out in any of the reissued drawings. Exhibit 111. Treasury acknowledges that adding the requirement for control joints constituted a change to the contract s terms. Respondent s Opening Brief at 2. On September 13 and 19, 1995, Roxco provided Treasury with price proposals 14, 15, and 16 for making 672 additional control joint cuts, plus the cost of expansion joint material and backer rod used to create the control joints. The total amount Roxco requested in the price proposals was $13,162.43. Exhibits 117, 119. The parties signed modification 10 to the contract on June 6, 1996. The modification stated that Treasury accepted Roxco s September 13 and 19, 1995 proposals numbered 14, 15, and 16 for exterior masonry control joint work in the amount of $13,000. The modification, which dealt with a number of issues in addition to the control joints, extended Roxco s performance period by seven days, and contained a release which read as follows: In consideration of the modification(s) agreed to herein as complete equitable adjustments for the cost increase confirmed by this modification, the Contractor hereby releases the Government from any and all liability under this contract for further adjustments attributable to such facts or circumstances and giving rise to this modification, with no exceptions. Exhibit 1. On September 25, 1995, Roxco asked for a change order to cover the work required by the coursing scheme set out in reissued drawings A3.1 and A3.2. Exhibit 121. Treasury responded that the drawings had been issued at the request of Roxco and that Roxco s bid indicated that it knew what work was required by the contract. Exhibit 122. In its claim, Roxco says that the reissued drawings required it to change the start and stop point of the coursing at each added control joint, and also required it to make many extra stone cuts. Roxco asks for $97,170.98 for 1146 additional CSM blocks that it had to use due to Treasury's actions, 1714 additional cuts that it had to make to the CSM blocks, and four months of additional scaffolding and lift time, plus overhead and profit. Roxco also asks for $141,345.12 for 120 days of "extended fixed field expenses" that resulted in part from the coursing problem and in part from the discoloration problem, discussed below. Exhibit 355. Discussion Treasury says that the reissued drawings did not change any of the contract requirements concerning coursing. Respondent s Opening Brief at 4-6. Treasury says that the contract specifications and drawing A3.6 originally required a running bond coursing pattern, and that this never changed. The revised drawings did, however, add a corner detail and a wing wall detail showing where Roxco should make cuts to the blocks, and also added details on the cuts at the control joints. In response to Treasury s motion, Roxco provided two affidavits stating that Treasury s revised drawings constituted changes to the terms of the contract. Affidavit of Ron Robbins (Robbins Affidavit) (August 13, 1999) 26; Affidavit of Ben Turnage (Turnage Affidavit) (August 16, 1999) 6. Because the reissued drawings contain added details showing where Roxco should make cuts to the blocks, and because two Roxco affidavits assert that those drawings made changes to the contract requirements, we cannot find as an undisputed material fact that the reissued drawings left unchanged the contract requirements concerning coursing. Even if the coursing pattern itself did not change, the addition of the details and the control joints could have changed the work required in order to achieve that pattern. Treasury argues that even if the reissued drawings constituted a change to the contract, Roxco should have ignored those drawings and constructed the building in accordance with the original drawings as Treasury advised Roxco it could do on August 18, 1995. Treasury points out that Roxco never mentioned, pre-bid, that it needed to know anything more in order to lay the CSM blocks, and so, presumably, Roxco could have used the original contract documents to lay the blocks. Respondent s Opening Brief at 6. Roxco s claim seems to acknowledge that it could have used the original contract documents to lay the blocks, because the claim is based upon a comparison of the costs Roxco allegedly incurred when it followed the reissued drawings, and the costs that it would have incurred had it used the original contract documents to lay the CSM blocks. However, one of the affidavits that Roxco used to oppose Treasury s motion states that the drawings did not provide adequate details for erection of the blocks. Robbins Affidavit 2, 4. Roxco s claim says that the original documents glaringly omitted a key piece of the design.[foot #] 2 Because there is a ----------- FOOTNOTE BEGINS --------- [foot #] 2 We expect that, as this case moves forward, the parties will address whether a glaring omission of a key design element would give rise to a pre-bid duty to inquire. ----------- FOOTNOTE ENDS ----------- dispute as to whether Roxco could have used the original contract documents to lay the CSM blocks, summary relief concerning this point is inappropriate. Treasury says that Roxco cannot establish that it incurred any additional expense due to following the directions set out in the reissued drawings, because Roxco did not actually follow those drawings when it laid the CSM blocks. Respondent s Opening Brief at 7. If Roxco did not follow the reissued drawings when it laid the blocks, Roxco will have a difficult time establishing that any changes made by those drawings caused Roxco to incur the additional costs that it claims. Treasury supports its contention with the affidavit of an architect who reviewed the contract documents and drawings and examined the two buildings in Glynco, Georgia. She concluded that Roxco used a running bond coursing pattern, but did not follow the corner detail shown in the reissued drawings and did not construct all of the control joints required by the reissued drawings. Affidavit of Karen A. Hilker (June 1, 1999) 1-6. As Roxco points out, however, Treasury inspected and accepted Roxco s work and never complained that Roxco failed to lay the blocks according to the contract requirements. Ms. Hilker s affidavit does not explain how she believes the reissued drawings required Roxco to lay the blocks or how Roxco actually laid the blocks. We cannot grant Treasury s motion concerning this issue because undisputed facts do not establish that Roxco failed to lay the CSM blocks in accordance with the reissued drawings. Treasury contends that modification 10 was both an accord and satisfaction, and a release of Roxco s claims concerning the change to the contract that required Roxco to construct control joints. Treasury asserts that modification 10 compensated Roxco for all of the costs associated with the control joints, including costs associated with any delay. Respondent s Opening Brief at 8-12. One of the affidavits submitted by Roxco in opposition to Treasury s motion points out that Roxco s June 6, 1995 price proposal was provided in response to Treasury s request for a proposal to provide control joints and symmetrical coursing. The price proposal included work related to the control joints, the stair tower, the wing walls, and the corners. Roxco s September 13 and 19, 1995 proposals, however, dealt only with the control joint matter and not with anything related to coursing. It was only the September 13 and 19 proposals that Treasury accepted as part of modification 10. Roxco never intended for modification 10 to settle anything other than payment for the control joints and, Roxco says, Treasury was aware of Roxco s intentions. Robbins Affidavit 6-10. We cannot summarily conclude that modification 10 operates to bar the claims that Roxco makes in this appeal, because there are disputed facts concerning this issue. Finally, in its statement of uncontested facts, Treasury sets out facts tending to show that Treasury did not delay Roxco s progress. Respondent s Statement of Uncontested Facts at 8-9. Treasury does not rely upon these facts in its motion, except to say in one sentence that Roxco was not ready to begin construction of the CSM walls until October 1995. Respondent s Opening Brief at 8. Treasury never develops this argument, choosing instead to argue that modification 10 bars Roxco s claim of delay. Roxco says in its statement of genuine issues that Treasury s uncontested facts are irrelevant. One of the affidavits submitted by Roxco in support of its opposition to Treasury s motion states that the changes imposed by the reissued drawings substantially disrupted and delayed Roxco s performance. Turnage Affidavit 6. We do not resolve the issue of whether Treasury delayed Roxco s progress because it is not clear that Treasury s motion puts that issue before us. We anticipate that delay will continue to be an issue in this appeal, and we caution Roxco that it cannot expect us to agree that Treasury s contentions are irrelevant. Roxco s claim asks to be paid for the costs of four months of scaffolding and lift time, plus four months of "extended fixed field expenses" that resulted in part from the coursing problem. Treasury s contentions are certainly relevant to these parts of Roxco s claim, which depend upon Roxco being able to establish that Treasury delayed its progress. CSM Discoloration Factual findings Section 04220 of the specifications said that CSM blocks manufactured by Arriscraft Corporation would be acceptable to Treasury, as would any equivalent blocks. Exhibit 1. Roxco said in its opposition to Treasury s motion that Treasury s interrogatory responses concede that there was no product equivalent to the Arriscraft blocks, and Treasury does not refute this in its reply brief. Therefore, for purposes of this motion, we will assume that there were no blocks that were the equivalent of those made by Arriscraft. On December 7, 1994, Roxco submitted to Treasury information concerning the CSM blocks manufactured by Arriscraft, including information concerning handling and storage of the blocks, and asked Treasury to approve the use of the Arriscraft blocks. One of the storage instructions was to [p]rovide necessary means to prevent staining of units during storage. Another was to [c]over stored units if exposed to the weather for an extended period of time. Exhibit 6. Treasury approved Roxco s submittal on December 21, 1994. Exhibit 8. Roxco had the majority of the Arriscraft blocks delivered to the job site in February and March 1995, with more blocks delivered in early June 1995. Exhibit 146. Apparently, Treasury paid for the blocks soon after they were delivered. The blocks as they arrived from Arriscraft were covered with shrink wrap. Robbins Affidavit 16. In mid-August, the blocks were still in their original shrink wrap, and the blocks were quite wet. Exhibit 112. When Roxco unwrapped the blocks in order to use them in October 1995, it found that many of the blocks were discolored. Exhibit 129. Roxco says that it complied with Arriscraft s directions for storage. Robbins Affidavit 15, 16. In its claim, Roxco asks for $315,640.21 for the effort it made to determine the appropriate method for cleaning the discolored blocks, separating the blocks into piles for cleaning, cleaning 18,445 blocks before they were installed, cleaning 18,445 blocks after they were installed, 120 days of expanded general conditions/accelerative costs, and claim preparation costs. Roxco also asks for $141,345.12 for 120 days of "extended fixed field expenses" that resulted in part from the discoloration problem and in part from the coursing problem, discussed above. Exhibit 355. Discussion Treasury contends that it did not direct Roxco to clean 18,445 blocks both before they were installed and after they were installed, as Roxco claims. Respondent s Opening Brief at 15-17. One of the affidavits submitted by Roxco in support of its opposition to Treasury s motion states that Treasury made Roxco clean all of the blocks before and after installation. Robbins Affidavit 24. We cannot resolve this issue summarily due to this dispute as to a material fact. In its statement of uncontested facts, Treasury sets out facts tending to show that Roxco s progress was not delayed by the discolored CSM blocks. Respondent s Statement of Uncontested Facts at 14-16. Treasury does not rely upon these facts in its motion. One of the affidavits submitted by Roxco in support of its opposition to Treasury s motion states that the problem with the discolored blocks did delay Roxco s progress. Robbins Affidavit 25. We do not resolve the issue of whether Treasury delayed Roxco s progress because it is not clear that Treasury s motion puts that issue before us. In addition, there are material facts in dispute concerning this issue. In its motion for summary relief, Treasury challenged the suggestion in Roxco s claim that Treasury had superior knowledge concerning Arriscraft s CSM blocks. Although Treasury stated that there is no evidence to support Roxco s suggestion, it did not submit an affidavit or any other evidence to show that it lacked superior knowledge. Although Roxco has the ultimate burden of proof concerning this issue, it was Treasury s burden to put forward facts in support of its motion if it wanted summary relief. Without such facts, we cannot grant this part of Treasury s motion. Treasury argues that Roxco, and not Treasury, is responsible for the discoloration of the blocks. Treasury says that the fact that it listed Arriscraft blocks as an acceptable product did not relieve Roxco from its obligation to ensure that the CSM blocks were stored properly, even if Treasury paid for the blocks. Respondent s Opening Brief at 12-14. Treasury points out that the contract s Permits and Responsibilities clause provided that Roxco was responsible for all materials delivered until completion and acceptance of the entire work. In addition, the contract s Payments Under Fixed-Price Construction Contracts clause provided that payment by Treasury did not relieve Roxco from its sole responsibility for all material. The Inspection of Construction clause provided that if Treasury made any inspections, they were for its sole benefit and did not relieve Roxco of responsibility for damage to material before acceptance. Exhibit 1. Roxco s response to Treasury s argument is not persuasive. Roxco says that Treasury s approval of Roxco s submittal and payment for the blocks constitutes an admission that Roxco s storage method was acceptable, and cites four cases in support of this proposition: J. D. Hedin Construction Co. v. United States, 347 F.2d 235 (Ct. Cl. 1965); Winn-Senter Construction Co. v. United States, 75 F. Supp. 255 (Ct. Cl. 1948); George A. Fuller Co. v. United States, 69 F. Supp. 409 (Ct. Cl. 1947); Daly Construction, ASBCA 32457, 87-3 BCA 20,182. Winn-Senter stands for the unremarkable proposition that a statement made during contract performance is entitled to great weight; the case did not involve an admission. Hedin and Fuller state that a contracting officer s extension of time (Hedin) and acknowledgment of delays (Fuller) constitute rebuttable evidentiary admissions. The court of appeals in Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994), expressly overrule[d] Hedin to the extent that it stands for the proposition that a contracting officer's decision constitutes a strong presumption or an evidentiary admission of the extent of the government's liability, albeit subject to rebuttal. 24 F.3d at 1403. Daly did not concern an admission and was also decided before Wilner. None of Roxco s cited cases convinces us that Treasury s approval of the submittal or payment for the blocks constitutes an admission, much less a binding admission. Roxco believes that it is important that Arriscraft was the only source for the CSM blocks, but does not explain how this relieves it from its responsibility for properly storing the blocks. Roxco says that it followed Arriscraft s directions for storing the blocks, and also says that when Arriscraft visited the job site in August 1995, it did not say that Roxco was storing the blocks improperly. Again, Roxco does not explain how this would relieve Roxco from its contractual responsibility to store the blocks properly. Roxco suggests that because Treasury specified a product that was only available from one manufacturer, we should treat the CSM blocks as if they were Government-furnished material. Roxco cites nothing to establish that this suggestion is meritorious. Even though Roxco s rejoinder to Treasury s argument concerning responsibility for the discoloration of the CSM blocks is less than compelling, we cannot grant Treasury s motion for summary relief because we do not know why the blocks discolored. Based upon our review of exhibits contained in the appeal file, Treasury s position was, at one time, that the blocks discolored because Roxco stored them improperly by leaving them in their shrink wrap and otherwise exposed to the elements for nine months. Roxco s position was, at one time, that the blocks discolored due to the salt air and humidity in Glynco, Georgia. It is not clear whether Roxco intends to maintain that position in the face of Treasury s recent assertion that the blocks have been in place for four years and have not discolored and also given the fact that a sample block, which was not encased in shrink wrap, did not discolor. The reason the blocks discolored is likely to be important. It might be that the case deserves to be resolved one way if the blocks discolored because they were stored improperly, and a different way if Treasury specified blocks that were unsuitable for use in south Georgia. Because the parties filings do not establish why the blocks discolored, we cannot grant Treasury s motion for summary relief. Decision Treasury s motion for summary relief is DENIED. The Board will enter a separate order establishing further proceedings in this appeal. ___________________________________ MARTHA H. DeGRAFF Board Judge We concur: ________________________________ _________________________ _________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge