Board of Contract Appeals General Services Administration Washington, D.C. 20405 DISMISSED IN PART FOR LACK OF JURISDICTION; RESPONDENT'S MOTION FOR SUMMARY RELIEF DENIED: June 9, 2000 GSBCA 15224 EXECUTIVE CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Don R. Robideau, Vice President of Executive Construction, Inc., Oak Brook, IL, appearing for Appellant. Catherine C. Crow, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and NEILL. DANIELS, Board Judge (Chairman). Executive Construction, Inc. (Executive) agreed to complete, for the General Services Administration (GSA), installation of an elevator capture system at the United States Post Office (Loop Station) in Chicago, Illinois. In its complaint in this case, Executive contends that it is entitled to be paid two separate sums: $75,826 for work it performed to modify construction which had been done consistent with GSA-approved shop drawings, and "the costs of re-testing the entire fire alarm system." GSA filed a motion with two purposes: first, to dismiss for lack of jurisdiction the portion of the case dealing with the costs of re-testing the fire alarm system; and second, to grant to the agency summary relief as to the portion dealing with the modification of previously-performed construction. We grant the motion as to jurisdiction and deny the motion as to summary relief. Background On October 22, 1993, GSA awarded to Tunnel Electric Construction Co. Inc. (Tunnel) a contract to install an elevator capture system at the Loop Station. Respondent's Statement of Uncontested Facts (Uncontested Facts) 1.[foot #] 1 The work called for in the contract included installation of a fire alarm system within the elevator system. Id. 2. Tunnel subcontracted the fire alarm system work to Sound Incorporated (Sound). Id. 3. Sound prepared shop drawings of this system and submitted them to GSA for review. Id. 4. On April 25, 1994, Sound's revised shop drawings were marked by GSA "approved as noted." The agency's stamp includes an asterisk after this legend, leading to the remark "subject to contract requirements." Id. 5; Appeal File, Exhibit 58 at 1. According to Executive, Sound (for Tunnel) performed the work in accordance with the shop drawings. Notice of Appeal at 2, Exhibit 4. By March 1996, Tunnel had not yet completed all work under this contract. In that month, Tunnel filed for bankruptcy and rejected "any and all interest in [the] contract," and GSA terminated the contract for default. Uncontested Facts 7. On October 30, 1997, GSA entered into a "Release and Tender Agreement" with Tunnel's surety and Executive. The agreement required Executive "to complete any and all remaining and uncompleted work under the Contract Documents in strict accordance with the terms and conditions of the Contract Documents and this Agreement as though [Executive] had been the original signatory to the Contract." Uncontested Facts 8, 9. The agreement further provides: THAT [Executive] acknowledges that neither Surety [n]or [GSA] makes any representation or warranty as to the work previously performed by [Tunnel]. [Executive] agrees to accept the work performed by [Tunnel] and the existing site conditions "As Is" and "Where Is", without representation, warranty, or guaranty as to quantity, quality, character, condition, size or kind, or that the same is in condition or fit to be used for the purposes for which intended. [Executive] waives any and all right to bring a claim, demand, suit or cause of action against [GSA] for any increased cost or scope of work which arises during performance of the work contemplated by this Agreement and which results from the condition of the work previously performed by [Tunnel], including but not limited to latent or patent ----------- FOOTNOTE BEGINS --------- [foot #] 1 The portions of the Uncontested Facts cited in this opinion are indeed uncontested. ----------- FOOTNOTE ENDS ----------- defects or increases in cost or scope due to differing site conditions. Id. 10. In November 1998, a GSA fire protection engineer reviewed the as-built drawings of the fire alarm system installed by Sound and found that the system did not meet two specifications set forth in the contract. Uncontested Facts 13; Appeal File, Exhibits 34, 39. These specifications are stated in two subparagraphs of paragraph 3.02 of section 16721. They deal with risers and the circuiting of speakers. Uncontested Facts 13, 14. GSA directed Executive to modify the fire alarm system so that it would conform to these two specifications. Uncontested Facts 15. Executive then proposed that it perform the work in exchange for additional compensation of $75,826. Id. 16. The agency's contracting officer, believing that the Release and Tender Agreement made Executive responsible for completing all work in accordance with contract requirements, directed the contractor to perform the corrective work at no additional cost to GSA. Id. 18; Appeal File, Exhibit 50. On September 23, 1999, Executive claimed that it was "entitled to additional compensation" for finishing the fire alarm system in accordance with the specifications in question. Uncontested Facts 19; Appeal File, Exhibit 51. In neither this letter nor previous correspondence did Executive mention anything about re-testing costs. Uncontested Facts 17, 20. The contracting officer denied the claim for the costs of completing the fire alarm system. Id. 21. Executive's Notice of Appeal of the contracting officer's decision seeks $75,826 "for correcting certain deficiencies found in the fire alarm work that was installed by the original contractor for this project." Notice of Appeal at 1. In its complaint, Executive also states that it is requesting "the costs of re-testing the entire fire alarm system. The re-testing costs will be performed on a time and material basis." Complaint at 2. Discussion Jurisdiction The Contract Disputes Act of 1978 prescribes the procedure which a contractor must follow in order to put one of its claims before a board of contract appeals. First, the contractor must submit the claim in writing to the agency's contracting officer. Then the contracting officer must issue a decision on the claim (or fail to issue a decision within a fixed period of time, in which case a decision denying the claim will be deemed to have been made). Only then may the contractor place the matter before the appropriate contract appeals board. 41 U.S.C. 605, 606 (1994 & Supp. IV 1998); Grant Communications, Inc. v. Social Security Administration, GSBCA 14862-SSA, 99-1 BCA 30,281, at 149,781. Executive has not yet submitted to the GSA contracting officer a claim for fire alarm re-testing costs. Consequently, it may not place this matter before us at this time. The re- testing issue is dismissed for lack of jurisdiction.[foot #] 2 Summary Relief Executive maintains that GSA is responsible for the costs of correcting work which was not performed in accordance with contract specifications. The contractor advances two reasons for its conclusion. First, the Release and Tender Agreement it entered into with GSA requires Executive "to complete any and all remaining and uncompleted work under the Contract Documents"; because the work GSA now finds improper was finished before Executive appeared on the scene, it is not covered by the agreement. Second, the work is consistent with shop drawings GSA approved; because Executive was not involved in the initial shop drawing submittal process, it reasonably assumed that the agency, in approving the drawings, had accepted the work as shown.[foot #] 3 GSA contends, in its motion for summary relief, that neither of these reasons is sufficient to support Executive's position. According to the agency, as a matter of law, the contractor is responsible for the costs of corrective work. GSA notes that by signing the Release and Tender Agreement, Executive accepted Tunnel's work "As Is" and "Where Is" and "waive[d] any and all right to bring a claim, demand, suit or cause of action against [GSA] for any increased cost or scope of work which arises during performance of the work . . . which results from the condition of the work previously performed by [Tunnel]." Further, Executive's signature obliged the contractor to complete the job "in strict accordance with the terms and conditions of the Contract ----------- FOOTNOTE BEGINS --------- [foot #] 2 Of course, if Executive were later to submit to the contracting officer a claim for fire alarm system re-testing costs, and the contracting officer were to render a decision on that claim (or allow enough time to elapse without issuing a decision), Executive could then appeal his decision to the Board. For Executive to receive money as a result of filing its claim, the claim must "seek[], as a matter of right, the payment of money in a sum certain." 48 CFR 33.201 (1999); William D. Euille _________________ & Associates, Inc. v. General Services Administration, GSBCA ----------- FOOTNOTE BEGINS --------- 15261 (May 3, 2000). [foot #] 3 Neither party has suggested that the "as noted" caveat to the approval involved either of the specifications at issue now. Executive maintains that it relied on GSA's approval of these shop drawings (and others) in deciding whether to enter into the Release and Tender Agreement. Notice of Appeal at 2; Complaint at 2. ----------- FOOTNOTE ENDS ----------- Documents." The agency also points out that approval of shop drawings was "subject to contract requirements." Summary relief, the Board's analogous procedure to summary judgment in court, is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law. In considering motions for summary relief, the Board draws all reasonable inferences in favor of the non-movant. Vehicular Technologies Corp. v. Titan Wheel International, Inc. (Fed. Cir. May 22, 2000); McKay v. United States, 199 F.3d 1376, 1380 (Fed. Cir. 1999); Twigg Corp. v. General Services Administration, GSBCA 14387, 98-2 BCA 29,803, at 147,621. The purpose of summary relief is not to deprive a litigant of a hearing, but to avoid an unnecessary hearing when only one outcome can ensue. Vivid Technologies, Inc. v. American Science & Engineering, Inc., 200 F.3d 795, 806 (Fed. Cir. 1999). We agree with GSA as to the merits of Executive's first argument in support of its conclusion that GSA is liable for the costs of correcting the work in question. The issue may be readily resolved by examining and interpreting the Release and Tender Agreement; no additional evidence is necessary. Executive's reading is inaccurate and incomplete. It is inaccurate in that work performed by Tunnel (or by Sound under Tunnel's control) was not complete unless it met all contract requirements. The reading is incomplete in that it is limited to only a snippet of the document. GSA's reading of the agreement, by including the statement that Executive waived the right to bring a claim against GSA for increased work which results from the condition of work previously performed by Tunnel, gives reasonable meaning to and harmonizes all of the relevant agreement provisions. This understanding is therefore preferred. E.g., Twigg Corp. v. General Services Administration, GSBCA 14064, 98-1 BCA 29,452, at 146,215 (1997) (citing several decisions of the Court of Appeals for the Federal Circuit); 7 World Trade Co., L.P. v. Securities & Exchange Commission, GSBCA 13284-SEC, 96-1 BCA 28,240, at 141,006 (same). It says, in effect, that if some of Tunnel's work was not finished satisfactorily, Executive rather than GSA or Tunnel's surety is responsible for the costs of completion. The fact that the work which did not conform to contract specifications was done on Tunnel's watch, rather than Executive's, does not affect Executive's liability for ensuring that the work is performed properly. Executive stands in Tunnel's shoes for this purpose. The other question posed here -- whether the agency's approval of the shop drawings "subject to contract requirements" makes the contractor responsible for compliance with contract specifications which are inconsistent with what is shown on the drawings -- is not subject to such quick resolution. The law is clear on this point: Generally, when an agency approves shop drawing submittals which conflict with contract requirements, the approval is considered to be general in nature and does not excuse the contractor from complying with those requirements.[foot #] 4 Where, however, the contractor in its submittal clearly and conspicuously indicates discrepancies between the shop drawings and the contract requirements, approval of the drawings constitutes approval of the variance from the requirements. Montgomery Ross Fisher & H. A. Lewis, a Joint Venture, GSBCA 7318, 85-2 BCA 18,108, at 90,898; W. M. Schlosser Co., GSBCA 7261, 84-3 BCA 17,610, at 87,737; see also, e.g., Kordick & Son, Inc. v. United States, 12 Cl. Ct. 662, 669 (1987); William F. Wilke, Inc., ASBCA 28742, 87-1 BCA 19,390, at 98,035-36 (1986). We cannot be certain, based on the limited information presented thus far, whether Tunnel and its subcontractor Sound made any clear and conspicuous indication, in shop drawings or in other submittals to GSA, that they intended to provide the agency with something other than what was called for in the contract specifications. Although the shop drawings are a part of the record, we have no guide in explaining their meaning. Nor do we have any idea whether Tunnel and/or Sound gave GSA, in addition to the drawings, any separate statement as to variance from the specifications. Surely Executive could have called to our attention, in responding to GSA's motion for summary relief, any evidence which would show that the facts of this case fall within the exception to the general rule set out above. The contractor is proceeding without benefit of counsel, however, and may well not have understood what it has to prove in order to prevail as to entitlement. The court of appeals teaches that where a trial court is uncertain whether to grant or deny a motion for summary judgment and believes that the case would benefit from a full hearing, it may deny the motion. SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed. Cir. 1999). To ensure that we have all the relevant facts before proceeding to decision on the merits, we so exercise our discretion here. Decision Executive's request for payment of costs of re-testing the fire alarm system is DISMISSED FOR LACK OF JURISDICTION. GSA's MOTION FOR SUMMARY RELIEF as to the contractor's claim for $75,826 for work it performed to modify construction which had been performed consistent with agency-approved shop drawings is DENIED. ----------- FOOTNOTE BEGINS --------- [foot #] 4 The contract between GSA and Tunnel contains a standard clause reflecting this rule: "Approval of drawings and schedules will be general and shall not be construed as permitting any departure from the contract requirements." Appeal File, Exhibit 1 at 22. ----------- FOOTNOTE ENDS ----------- _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge