April 20, 1994

Appeal Of

DOBEE INC.

Under Lease Agreement

PSBCA No. 3238

 

APPEARANCE FOR APPELLANT:

John H. Baker, Esq.

 

APPEARANCE FOR RESPONDENT:

Robert E. O'Connell, Esq.

 

OPINION OF THE BOARD

            Appellant, Dobee Inc., has appealed from a Contracting Officer's decision denying its claim for costs incurred in complying with the Contracting Officer's direction to replace asphalt paving and recompact the base course during the construction of the Mulino, Oregon, Post Office.  A hearing, limited to the issue of entitlement, was held at Appellant's request.

FINDINGS OF FACT

            1.  On March 9, 1990, Appellant and Respondent, United States Postal Service, entered into an Agreement to Lease, under the terms of which Appellant agreed to construct a new Post Office in Mulino, Oregon, and lease the facility to Respondent for a period of ten years with four five-year renewal options (Appeal File (AF)-5).

            2.  The Agreement to Lease called for completion of the facility not later than 180 days from the March 9 date, or by September 5, 1990.  The completion date was subsequently extended to December 4, 1990 (Id.; AF-18).  For reasons not related to this appeal completion of the facility was further delayed.  Construction of the facility was complete, except for the matter in dispute herein, on December 31, 1991 (Stipulation of Fact No. 1).

            3.  The specifications (Section 02500, part 1.02) for the asphalt concrete paving for the facility required the minimum acceptable density of the in-place material to be "97% of recorded testing agency specimen."  The minimal acceptable density for the aggregate base course for the paving was to be "not less than 95%" of maximum density, ASTM D 1557, Method D (Section 02500, part 3.01) (AF-1).

            4.  Appellant commenced the site work for the facility by stripping the over burden and vegetation, starting at the south end of the project site and proceeding in a northerly direction.  The customer parking area was to be on the southeastern portion of the site, while employee parking was to be in the

rear of the facility, the north end (Appellant's Exhibit (AX)-1; Transcript (Tr.) 7‑9).

            5.  After reaching the desired excavation depth, in August 1990, Appellant brought in approximately 1000 cubic yards of reject rock, crushed rock that has dirt mixed in it, a material considered suitable as a structural sub-base (AX-2, 15; Tr. 11-12, 68-69).  The reject rock was placed where all parking areas and the building were to be located (Tr. 68).

            6.  The reject rock was placed on top of stable soil with no deleterious organic material under it, in 4 to 6 inch lifts, and was rolled with a vibratory roller for compaction.  The total depth of the reject rock ranged from 8 to 30 inches.  The material was of good quality for sub-base use (AX-3; Tr. 69-70).

            7.  Thereafter in October 1990, Appellant brought 300 cubic yards of crushed rock to the work site, dumped the crushed rock on top of the reject rock and graded the crushed rock.  The average depth of the crushed rock was four to six inches (AX-4, 5, 6, 16; Tr. 15-18, 72-74).  Heavy equipment was thereafter rolled over the crushed rock in order to compact it (Tr. 74).

            8.  Additional crushed rock was brought to the site in February 1991, as two approaches to the site needed additional rock.  Additionally, an area at the north end of the employee parking had become soft, thus requiring complete excavation of that area and refilling the entire area with crushed rock, which was then compacted (AX-17; Tr. 20-21, 76-79).

            9.  Paving at the site commenced June 14, 1991 (AX-18).  The paving operation took three days to complete.  The method of performance was to fine grade the parking areas, compact and then pave.  The compaction was done by a vibratory roller (AX-8, 9; Tr. 22, 81-83).  The paving subcontractor encountered no compaction difficulties and no soft spots in the base course were evident (Tr. 83-84).  However, no compaction tests were taken by Appellant (Tr. 25).

            10.  Following the performance of the paving operation joint inspections of the work site were made by the parties in June, July and August 1991.  Questions as to the acceptability of asphalt patching work thereafter arose, as Appellant was required to add handicapped ramps and remove perimeter curbs, which work required patching of the asphalt (AF 19-24; Tr. 37).  Respondent's project manager was dissatisfied with the quality of the asphalt patching done by Appellant.  He found the patching to be uneven and erroneously believed that it had been done without a proper tack coat (Tr. 230-233; Respondent's Exhibit (RX)-D 1-3).  In fact the ramp asphalt was patched using a tack coat, a material which adheres asphalt overlay to already paved areas (AX-8; Tr. 37-40, 85-86).

            11.  A final inspection of the facility took place on October 31, 1991.  The punch list generated at that inspection by Respondent stated that the previously performed asphalt patching was marginal in quality, containing depressions and pock marks.  It was recommended that the paving be tested by a testing laboratory to assure compliance with the specification density or compaction requirement.  Base course testing was also recommended (AF-23).

            12.  Respondent's Project Manager thereafter drafted a letter to Appellant for the Contracting Officer's signature, which was sent on November 20, 1991, advising that the Postal Service was going to have the asphalt paving, base course, patching and ramps tested by a testing laboratory to determine compliance with the contract specifications (AF-25).

            13.  Respondent's contract architect thereafter made arrangements with Braun Intertec Northwest, Inc. ("Braun"), a testing laboratory, to have certain tests performed on the asphalt paving and base course at the Mulino site (AF‑26; Tr. 265-66).

            14.  Braun performed nuclear density tests at the site on December 13, 1991, on both the asphalt concrete and the aggregate base course.  Nuclear density tests are taken with a nuclear densometer and provide information as to the percent of compaction, moisture content, and wet and dry density.  Although Braun ordinarily checked the calibration of nuclear densometers before utilizing them for test purposes there is no evidence in the record from Braun's technician that he checked the calibration of the densometer he used for the field tests at the Mulino site (Tr. 295-96, 340-344).  Braun also took asphalt concrete cores and samples of base course from the site for testing at its laboratory (AF-26; Tr. 132-133).

            15.  Percentage of compaction of the asphalt concrete was calculated by dividing the actual density of the material--measured by nuclear densometer readings at the site and by specific gravity measurements made in the laboratory--by the maximum density of the material, determined by a "Marshall" test [See Finding of Fact No. 18, below] conducted in the laboratory (AF-26).

            16.  Twenty-three nuclear density measurements of the asphalt concrete were taken, three of which were in areas where the asphalt concrete had been patched.  The average percentage of compaction calculated for the asphalt concrete based on the nuclear density measurements in the non-patched areas was 90.9% and in the patched areas 79.9%.  The overall average was 89.5% (AF-26).

            17.  The density of the asphalt concrete was also determined by using specific gravity measurements made in the laboratory.  The average percentage of compaction calculated based on the specific gravity measurements was 94.4% (AF-26).  Variations in compaction percentage results of this magnitude--i.e., 89.5% using nuclear densometer measurements compared to 94.4% using specific gravity measurements--are unusual (Tr. 189, AF-26).

            18.  In all of these calculations, the maximum density used as the denominator was determined by utilizing a "Marshall" test (AF-26; TR. 196).  This test basically consists of heating the specimen, pouring the heated material into a mold, subjecting it to blows with a compaction hammer and then measuring the density (Tr. 149).  The ASTM standard for the Marshall test calls for 50 blows to be given to the specimen unless otherwise specified (Tr. 150, 300-01, 333; AF-1, 5).  Appellant's contract did not specify a greater number of blows.  However, Braun subjected the asphalt core samples to 75 blows (Tr. 166-67, 196, 333), a standard used for air traffic runways and taxiways (Tr. 150, 300-301).  Different test results can be expected if different blow counts are utilized (Tr. 165-66, 304).  The more persuasive evidence is that a 75 blow count test would show a higher maximum density than a 50 blow count test. Since the maximum density measurement from the Marshall test is the denominator in the calculation utilized to determine percent of compaction, using the higher 75‑blow count figure (as Braun did) resulted in a lower calculated percentage of compaction than would have been the case had a 50‑count maximum density figure been used.  (Tr. 166, 196, 338; AF-26).

            19.  Similarly, the percentage of compaction of the base course material was calculated by dividing the actual density of the material, as measured on‑site by the nuclear densometer, by the maximum density of the sample of the base rock determined by a laboratory test.  Braun's technician took three nuclear densometer measurements of the base course material.  The average percentage of compaction calculated based on those nuclear densometer measurements was 80.4% (AF-26).  If asphalt concrete was placed on a base course with as low a compaction value as shown in the Braun report it is highly unlikely the higher density level of the asphalt concrete calculated by the densometer or core tests could be achieved (Tr. 164-65, 190-91).

            20.  Braun's report to the Contracting Officer, dated December 30, 1991, contained the test results set forth in Findings of Fact 16 through 19, supra, and concluded that "it appears that the asphaltic concrete does not meet the required 97 percent compaction specification . . . ."  It further concluded that "the aggregate base rock does not meet the required 95% compaction specification . . ." (AF-26).

            21.  On January 14, 1992, the Contracting Officer by letter to Appellant ordered Appellant to:

"1.  Remove the existing blacktop.

 

2.  Develop the base aggregate and have it compacted to specified compaction and inspected by a qualified postal inspector.

 

3.  Replace the asphalt paving and striping to meet specifications.

 

Upon completion, contact this office for a final inspection."  (AF-28).

 

            22.  Upon receipt of the Contracting Officer's direction Appellant sent its project superintendent to the Mulino site to perform the corrective work (Tr. 30).  The work was commenced, but upon inspection of some of the base course Appellant's superintendent believed Braun's test results to be inaccurate and hired a testing firm, Carlson Testing, Inc. ("Carlson") to conduct tests on the asphalt and base course (Tr. 89-92).

            23.  Carlson's technician thereafter went to the Mulino site, verified the calibration of a nuclear densometer, and took six nuclear densometer measurements.  The technician also took three panels of asphalt and a base course sample back to Carlson's laboratory for testing (Tr. 119-21, 131).  Most of the densometer tests were taken in areas where the asphalt had been removed in accordance with the Contracting Officer's direction.  The base course therefore had been somewhat disturbed in those areas (Tr. 123).

            24.  Carlson tested the asphalt concrete using a 50 blow count Marshall test and calculated the average compaction of the asphalt concrete to be 96.9% (Tr. 150; AF-30), or rounded to 97%, as permitted by industry standards (Tr. 151, 199).  The average compaction of the base course was calculated at 93.3% (AF‑30).  However, since the base course had been disturbed by removal of the overlaying asphalt prior to testing, a separate controlled laboratory test experiment was conducted and established that the actual compaction of the base course in an undisturbed state would be approximately 2.7% to 3% higher (AX 35-39; Tr. 154-160, 191-92).

            25.  Appellant thereafter completed the work directed by the Contracting Officer in his letter of January 14, 1992, and a lease commencing March 1, 1992, was executed (AF-34).  On February 25, 1992, Appellant submitted a claim to the Contracting Officer in the amount of $28,752, representing the cost for the extra work performed.  Appellant also requested a lease commencement date of January 1, 1992.  On April 30, 1992, the Contracting Officer denied Appellant's claim by final decision.  This appeal followed (AF-31, 38, 39).

DECISION

            The issue for resolution in this appeal is whether Appellant complied with the requirements of the contract specifications in regard to the compaction of asphalt paving and aggregate base.  If Appellant complied with those requirements Respondent had no contractual right to require Appellant to perform the remedial work directed by the Contracting Officer without additional compensation.  Conversely, if Appellant did not comply with the compaction requirements Respondent was fully entitled to direct Appellant to take remedial measures of some nature to assure specification compliance.

            Respondent has taken no exceptions nor made any objections to the method of performance Appellant utilized in preparing the work site, constructing and compacting the base course, and paving with the asphalt, all as described in Findings of Fact Nos. 4-9.  Accordingly, it appears that no dispute exists that such procedures were in any way improper.

            We therefore look solely to the results of the tests conducted by Braun and Carlson to determine whether Appellant met the specification compaction requirements.  Both firms are established testing firms, yet the same types of tests utilized by them in testing the compaction of the asphalt and base course achieved divergent results.

            Based on the evidence in the record we are persuaded that Carlson's test results are more reliable.  In regard to the densometer tests significant differences were contained in Braun's report between the percent of compaction for the asphalt concrete calculated from the densometer data (89.5%) and the percentage of compaction calculated from the specific gravity test data (94.4%).  Carlson's field technician testified that the nuclear densometer he utilized in testing was checked for proper calibration immediately prior to the testing.  Braun presented no direct evidence from its site technician pertaining to pre-testing calibration.  Its evidence on this point only consisted of testimony as to its usual practices and post-testing verification of a hearsay nature.  We therefore attribute the difference between the nuclear densometer test results taken by the two laboratories to Braun's use of a densometer which was not properly calibrated or not used in the correct manner.  A further indication of the inaccuracy of Braun's densometer readings is the low compaction percentage (80.4%) of the base course as recorded from the nuclear density tests.  Appellant presented persuasive testimony that if asphalt concrete was placed on a base course with as low a compaction value as shown in the Braun report it is unlikely that the higher compaction levels of 89.5% or 94.4% for the asphalt concrete could be achieved.

            The suspect nature of Braun's test results is further evidenced by Braun's use of an incorrect 75 blow count Marshall test to ascertain maximum density.  The ASTM standard for the Marshall test calls for 50 blows to be given to the specimen unless otherwise specified and in the present case nothing more was specified.  The more persuasive evidence in the record is that a 50 blow count test to ascertain maximum density, as utilized by Carlson, would show a higher compaction percentage than the 75 blow count which Braun used.

            Carlson's nuclear densometer measurements on the aggregate base course, as supplemented by a separate controlled laboratory test, which we accept as valid, establish that Appellant met the specification's 95% compaction requirement for the base course.  We reject Braun's nuclear densometer measurements of the base course as unreliable.  Further, Carlson's tests on the concrete asphalt show the average compaction level was 96.9%, rounded to 97%, as permitted by industry standards for tolerance, and thus was in compliance with the contract specifications.

            Accordingly, we conclude the Appellant met the contract specification compaction requirements.  Respondent therefore had no right to order Appellant to redo the parking area without compensation.  Appellant's appeal is granted and the

matter is remanded to the Contracting Officer for negotiation of the amount of equitable adjustment, including Contract Disputes Act interest, due Appellant.

James D. Finn, Jr.

Administrative Judge

Vice Chairman

 

I concur:

James A. Cohen

Administrative Judge

Chairman

 

I concur:

David I. Brochstein

Administrative Judge

Board Member