Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________ DENIED: July 27, 1999 ____________________ GSBCA 14864 TRATAROS CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Robert J. Sciaroni of Bell, Boyd & Lloyd, Washington, DC, counsel for Appellant. Jeremy Becker-Welts, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges NEILL, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. Trataros Construction, Inc. (Trataros) and the General Services Administration (GSA) entered into a contract that required Trataros to perform renovation work. Several disputes arose during the course of performance, including this dispute concerning the cutting of an isolation joint. The Board held a hearing in this case and several others on April 28-30, 1999. Because Trataros has not established that GSA changed the contract by requiring an isolation joint in both exterior walls and interior walls, the Board denies the appeal. Findings of Fact On September 26, 1996, Trataros and GSA entered into a contract to renovate the United States Post Office and Courthouse in Old San Juan, Puerto Rico. The structure consists of a three- story building built in 1914, and a smaller six-story building built in 1940. The north end of the 1940 building is built into the south end of the 1914 building, so that the two buildings touch one another along three walls. The part of the 1940 building that is nestled into the 1914 building consists, in large part, of two large light wells located on the west and east sides of a lobby that contains elevators and stairs. Ex. 1.[foot #] 1 The Contract The contract drawings relevant to this appeal consist of architectural drawings and structural drawings. The pertinent architectural drawings consist of plans, elevations, and sections. On the plans and structural drawings, numbered column lines run north-south, and lettered column lines run east-west. Ex. 1. Elevations 4-2 and 4-4 show the east and west elevations, respectively, of the two buildings. At the bottom of each elevation, there is a notation that reads: Saw-cut 3" wide isolation joint vertically from ground floor slab to 1'-0" above highest contact point of 1914 building. Isolation joint to be flush with intersecting corner. Joint to be filled with ethylene foam expansion/contraction material as specified in section 03300. Refer to structural drawings for additional isolation joint information. The notation points to a solid dark line running vertically, near column line J. In the middle of elevations 4-2 and 4-4 is a notation that reads, "Line of building isolation joint. See plans." This notation points to a solid dark line running vertically, near column line H.1. The two elevations, therefore, show that an isolation joint will be cut on the outside of the two buildings, and also advise the reader to refer to structural drawings and plans for further information concerning the isolation joint. Ex. 1. For the ground floor, the structural drawing is 7-S-5 and the plan is 3-1. Both the structural drawing and the plan show the interior of the buildings. Note 3 on drawing 7-S-5 says, "Isolation joint between 1914 building superstructure and 1940 building superstructure to be 3" typical above elevation 13.01." Ex. 1. The slab of the ground floor is at elevation 13.01. Tr. III at 231. Note 1 on drawing 7-S-5 refers the reader to the structural notes contained in drawing 7-S-1, one of which says that Trataros was to refer to architectural drawings for all project requirements not shown on the structural drawings. Structural drawing 7-S-1 also contains a note which says that all material was new unless it was specifically noted to be existing. ----------- FOOTNOTE BEGINS --------- [foot #] 1 "Ex." refers to respondent's appeal file exhibits. "Supp. Ex." refers to appellant's appeal file exhibits. "Tr. I," "Tr. II," and "Tr. III" refer to the April 28-30, 1999 hearing transcripts. ----------- FOOTNOTE ENDS ----------- Drawing 7-S-5 shows an existing isolation joint running west to east along column line H.1 from column line 6.5 to column line 8.4. Plan 3-1 shows a solid dark line running south to north along column line 3.4 from column line J to mid-way between column lines I and H.1. The plan also contains the same solid dark line running west to east in places along column line H.1 from column line 3.9 to column line 10.3, and a solid dark line running north to south along column line 11 part of the way between column lines H.1 and I. The key at the bottom of plan 3- 1 does not explain what the solid dark line shown on the plan represents. Ex. 1. The line, however, looks like the line shown on elevations 4-2 and 4-4 for the vertical isolation joint and like the lines shown on other plans for other floors, discussed in the following paragraph. Ex. 1; Tr. III at 229-30. For the first floor, the structural drawing is 7-S-6 and the plan is 3-2. Both the structural drawing and the plan show the interior of the buildings. Note 3 on drawing 7-S-6 says, "Isolation joint between 1914 building superstructure and 1940 building superstructure to be 3" typical above elevation 13.01." Drawing 7-S-6 shows a hashed line running south to north along column line 3.4 between column lines J and H.1, running west to east along column line H.1 between column line 3.4 and column line 11, and running north to south along column line 11 between column lines H.1 and J. This area encompasses the east and west light wells and the lobby containing the elevator and the stairs. A notation pointing to the hashed line says, "3" isolation joint. See Note 1." Note 1 refers the reader to the structural notes contained in drawing 7-S-1, discussed in the preceding paragraph. Plan 3-2 shows a solid dark line running west to east along column line J between column lines 3.3 and 3.4, then running along the same column lines as the hashed line on drawing 7-S-6, and then running west to east along column line J between column lines 11 and 11.2 . This solid dark line is labeled "isolation joint." The key at the bottom of plan 3-2 explains that the solid dark line shown on the plan represents the building isolation joint. Ex. 1. The solid dark line appears to be the same symbol used to depict the vertical isolation joint on elevations 4-2 and 4-4. Ex. 1; Tr. III at 156-57. Plan 3-2 refers to section 4-24, which shows an unbroken solid dark line running vertically along column line H.1 from the bottom of the building up to a point just above the highest contact point of the 1914 building. There is a note at the top of the line, and a note at the bottom of the line, and each note reads, "Building isolation joint." Ex. 1. Both the structural drawing and the plan show that, in some places, the solid dark line that represents the isolation joint falls within areas of new construction. In those places, Trataros could provide the joint as part of the new construction. In other places, however, the solid dark line falls outside areas of new construction. Ex. 1; Tr. II at 159, 163, III at 94-95, 233-35. For the second floor, the structural drawing is 7-S-7 and the plan is 3-3. For the third floor, the structural drawing is 7-S-8 and the plan is 3-4. Both the structural drawings and the plans show the interior of the buildings. The drawings and plans for the second and third floors are almost identical, so far as the isolation joint is concerned, to the drawings and plans for the first floor, which are described in the preceding paragraph. Ex. 1. The Dispute On May 25, 1997, Trataros submitted request for information (RFI) 218 to GSA. Trataros said that elevations 4-2 and 4-4 required it to cut the east and west exterior walls, but that this did not apply to interior walls. Trataros asked how the joint would have continuity. GSA s construction manager, O Brien Kreitzberg, Inc. (OK), responded on May 29, 1997, that the isolation joint would run at all floors around the north face of the skylights and around the north and lateral sides of adjacent rooms where "interface with new slabs will occur." OK went on to say that between the elevator lobby and the 1914 building there was a "gap" where the joint would have to be placed, and that pieces of the wall would have to be cut to "access that gap" at the first floor. Ex. 6. When Trataros received OK s response to RFI 218, it began looking at drawings other than elevations 4-2 and 4-4, in order to determine whether the drawings required saw-cutting an isolation joint in any locations other than those shown on the two elevations. Tr. III at 61-62. Trataros looked at section 4- 28, which shows south elevations of the east and west light wells, and did not see any isolation joint depicted on that section. Tr. III at 61-62. Trataros also looked at details 4 and 5 of elevation 4-26, which show the west elevation of the east light well and the east elevation of the west light well, between column line H and column line I. Tr. III at 65-66. These details do not show the isolation joint. Ex. 1. In the opinion of one GSA witness, these light well elevations contain architectural details that obstruct the view of the isolation joint. Tr. II at 181-84. A Trataros witness disagreed. Tr. III at 116. On November 24 and December 12, 1997, Trataros advised GSA that, while saw-cutting the isolation joint, Trataros had encountered reinforcing steel, miscellaneous iron, and other unforeseen objects. The obstructions consisted mainly of four- inch angle steel that was bolted between the two buildings. This angle steel was not shown on the contract drawings. Ex. 7; Supp. Ex. 3; Tr. III at 71-74. On March 10, 1998, GSA asked Trataros to submit a cost proposal for changing the contract to cut the isolation joint through all unforeseen obstructions. Supp. Ex. 8. Trataros responded on April 13, 1998, that it would cost $157,224.21 to perform this work. Supp. Ex. 10. In a May 14, 1998 discussion of the cost of cutting through the unforeseen obstructions, Trataros took the position that the drawings depicted construction of a new isolation joint only in the exterior of the building. On May 15, 1998, OK directed Trataros to Note 3 on structural drawings 7-S-5 through 7-S-9, and stated that constructing interior isolation joints was required by the contract. Ex. 8. Trataros responded to OK on May 20, 1998, and stated that the only reference in the contract to saw-cutting a vertical 3" wide isolation joint was found on elevations 4-2 and 4-4. Trataros also said that some drawings showed existing or new isolation joints. Supp. Ex. 13. On June 10, 1998, Trataros asked OK whether cutting the isolation joint as specified would achieve the "design intent" at two exterior locations. According to Trataros, even if it cut the isolation joint to the elevation specified, the buildings would not remain completely separated. Supp. Ex. 15. Trataros felt that the 1940 building was supported by the 1914 building at the corners of the 1914 building's loggia walls. Tr. III at 89; Supp. Ex. 16. On June 15, 1998, OK provided Trataros with a response from GSA s structural engineers, Metcalf and Eddy (M&E). In M&E s view, the isolation joint is best seen on elevations 4-2 and 4-4, and the building s structural drawings show that the buildings were independent at the lower elevations. M&E did not believe that the 1940 building was supported by the 1914 building. M&E marked up elevations 4-2 and 4-4 to show that the cut for the isolation joint should extend approximately four feet on each side of the structure from one foot above the 1914 building at column line J, over to column line I, and then vertically through the new parapet. Ex. 14, 24; Supp. Ex. 16, 18. On June 11, 1998, Trataros asked GSA what action was being taken on its cost proposal for changing the contract to cut the isolation joint through unforeseen obstructions. Supp. Ex. 17. On June 15, 1998, OK responded by directing Trataros to OK s May 15, 1998 letter. Supp. Ex. 18. Trataros asked GSA if it could make the isolation joint wider in order to avoid hitting the angle steel, but GSA said that the joint had to be 3" wide. Tr. III at 100; Supp. Ex. 18. On June 29, 1998, Trataros submitted a claim to GSA for an equitable adjustment of $97,761 to the contract price. Ex. 10. Trataros certified the claim on July 15, 1998. Ex. 11. Performance and Costs Trataros hired two subcontractors, first Concrete Cutting & Breaking (CCB) and then Cutting Technologies Inc. (CTI), to perform the saw-cutting work for the isolation joint. Ex. 25; Tr. III at 120. As best we can determine, CCB began work in mid- September 1997, and stopped work in either late October or early November 1997. On September 12, 1997, Trataros issued a $60,000 purchase order to CCB for saw-cutting 315 linear feet of isolation joints plus other work. Ex. 20. CCB encountered the angle steel, wore out two saw blades, and then waited for approximately two weeks for delivery of a different type of blade to handle both concrete and steel. Tr. III at 119. One Trataros witness estimated that CCB worked for approximately six or eight weeks, with some of that time spent waiting to receive the replacement saw blades. Tr. III at 119-21. In the time between the departure of CCB and the arrival of CTI, Trataros performed other construction work. Tr. III at 122. Some of this other construction work made it more difficult to perform part of the later saw-cutting work. Tr. III at 103. For example, Trataros erected a shear wall on the first floor, along column line J between column line 3.3 and column line 4.2. If there had not been a gap of several months between the two subcontractors, it would have been logical for Trataros to have cut the isolation joint in this location before erecting the shear wall. The erection of this shear wall made it more difficult for CTI to cut the isolation joint. Tr. III at 125-28, 132. At the hearing, a Trataros witness agreed that it would be fair to subtract the cost of saw-cutting the isolation joint in this location from the amount claimed in this appeal. Tr. III at 136-37. In June 1998, CTI submitted a proposal to Trataros to perform a total of 436 feet of saw-cutting plus some core drilling, for a price of $93,431.48. CTI calculated its price by the amount it intended to charge per day of work, and not per linear foot of saw-cutting. Ex. 16. Trataros accepted CTI's proposal and CTI began work in July 1998. Ex. 17, 18. In August 1998, Trataros issued a purchase order to CTI for $93,430. The work encompassed by the purchase order included saw-cutting the isolation joint, cutting and coring around a 30" column, and completing three pockets in the loading dock area. Ex. 22. CTI did not perform the work in the loading dock area. Trataros is not sure whether the cutting and coring work that CTI did around the 30" column was related to the isolation joint. Tr. III at 211. Trataros says that the contract required it to saw-cut 97.5 feet of isolation joints. Ex. 14. This is the length of the solid dark line shown on elevations 4-2 and 4-4 running near column line J and column line H.1. Tr. III at 68; Ex. 1, 24. Trataros says that it encountered obstructions in 70 of these 97.5 feet. Ex. 14. CBC did most of this work. Ex. 24; Tr. III at 197. Trataros says that it performed 207.25 feet of saw-cutting of isolation joints not required by the contract, and that it encountered obstructions in cutting 134 of these additional feet. CTI performed all of this work. All but eight feet of the 207.25 feet were cuts in interior walls in the area of the two light wells. Ex. 14, 24; Supp. Ex. 25. This eight feet consists of the two four-foot cuts on each side of the structure between column line J and column line I that M&E marked on elevations 4-2 and 4-4 in mid-June 1998. Ex. 14, 24; Supp. Ex. 16. In its responses to GSA's interrogatories, Trataros said that it had paid $103,431.48 for "all saw-cutting of isolation joint operations." Ex. 25. Trataros did not introduce any documentary evidence of amounts that it paid to CCB and CTI for saw-cutting the isolation joints. A Trataros witness testified that Trataros paid CCB $20,000 for all of its work, including saw-cutting, and paid CTI $79,962.17. He explained that Trataros paid CTI less than the amount set out in CTI's June 1998 proposal because CTI finished its work in fewer days than it expected. Tr. III at 199, 208. The witness who testified to these figures is Trataros's senior project manager, a professional engineer, who came to the project in July 1998. When he came to the project, he reviewed "all outstanding documents and claims" so that he could negotiate with GSA or submit claims. Tr. I at 108- 10, II at 60. At the hearing, Trataros said that its contract price should be equitably adjusted by $83,966 due to saw-cutting the isolation joint. Trataros explained that it wants to be paid for the amount that it paid to CTI less the amount that Trataros spent for the saw-cutting required by the contract and not performed by CCB ($15,000), plus the amount that Trataros spent assisting CTI in performing its saw-cutting work ($10,000), plus markups for overhead and profit, and one-half of one percent for bond costs. Both the $15,000 and the $10,000 are estimates, and Trataros provided no facts to substantiate the accuracy of these figures. Tr. III at 198-202, 207. Discussion The issue in this appeal is whether GSA changed the contract by requiring an isolation joint in both the exterior walls and the interior walls of the two buildings. Appellant s Post- Hearing Brief at 1, 10; Respondent s Post-Hearing Brief at 2, 3. Trataros does not assert that it is entitled to an equitable adjustment to the contract price due solely to encountering angle steel, and does not argue that the angle steel constituted a differing site condition. Trataros asks for an equitable adjustment due to what it asserts was changed work, and that work included cutting the angle steel.[foot #] 2 Trataros has not established, by a preponderance of the evidence, that GSA changed the terms of the contract by requiring ----------- FOOTNOTE BEGINS --------- [foot #] 2 Even if Trataros had argued that it was entitled to an equitable adjustment due solely to encountering the angle steel, there is no evidence in the record to show that the isolation joint work was more costly due to the existence of the angle steel than it would have been if the steel had not been present. For all the record discloses, the existence of the steel required nothing more than a change in saw blades, and did not result in any additional costs. ----------- FOOTNOTE ENDS ----------- an isolation joint in both the exterior walls and the interior walls of the two buildings. Elevations 4-2 and 4-4 point to a vertical isolation joint on the exterior of the buildings at column lines J and H.1, which Trataros was to create by saw- cutting. These drawings refer the reader to the contract s plans and structural drawings for further information concerning the isolation joint. The plans and structural drawings clearly show the isolation joint on the interior of the buildings. Note 3 on each relevant structural drawing states that the isolation joint would be "3" typical above elevation 13.01," which is the elevation of the ground floor slab. The plans and the structural drawings show an isolation joint running between the two buildings along column line H.1 and down to column line J, consistent with the location of the joint shown on elevations 4-2 and 4-4. The solid dark line that depicts the isolation joint on the plans appears to be the same as the symbol used to depict the vertical isolation joint shown on elevations 4-2 and 4-4. Only a small part of the joint was shown as existing on the plans and the structural drawings. In some places, the joint could be created as part of new construction, which Trataros did. In other places, the plans and structural drawings did not specify how Trataros was supposed to construct the joint, but the joint was clearly shown. Trataros focused its attention upon elevations 4-2 and 4-4, which show only the exterior of the buildings, and a few light well elevations, which perhaps hid the isolation joint behind architectural details. Looking at the elevations, the plans, and the structural drawings together and reading them as a whole, however, they require an isolation joint in the exterior and interior walls between the two buildings. Even if Trataros had established that GSA changed the terms of the contract, the evidence would not establish that Trataros is entitled to the amount that it seeks. The response that Trataros provided to GSA during discovery concerning its saw- cutting costs was inconsistent with the evidence that Trataros provided at the hearing. Trataros did not introduce any documentary evidence of the amount that it paid to CCB or CTI, and did not suggest that any of its records were missing or otherwise unavailable. The only evidence that Trataros introduced was by way of testimony from Trataros's project manager who, as far as we know, was not responsible for keeping the financial books and records for Trataros. In addition, a witness for Trataros agreed that it would be fair to subtract from the claimed amount the cost of saw-cutting the isolation joint along column line J between column line 3.2 and column line 4.2, but Trataros did not offer any evidence of this cost. Also, Trataros was not sure whether the amount that it paid CTI to cut and core around a 30" column was related to the isolation joint, but this is part of the amount that Trataros seeks to recover. Finally, Trataros provided no basis for estimating that it paid $15,000 for saw-cutting required by the contract and not performed by CCB, or for estimating that it spent $10,000 assisting CTI. Baseless estimates are no more than guesses, and we cannot make an equitable adjustment to a contract price based upon a guess. Therefore, even if Trataros had established that GSA changed the terms of the contract, the evidence would not provide a basis for equitably adjusting the contract price as requested by Trataros. Decision The appeal is DENIED. __________________________________ MARTHA H. DeGRAFF Board Judge We concur: ___________________________________ _________________________ _________ EDWIN B. NEILL ALLAN H. GOODMAN Board Judge Board Judge