August 17, 1994
Appeal of
RKM CONSTRUCTION COMPANY, INC.
Under Contract No. 079986-90-B-0088
PSBCA No. 3370
APPEARANCE FOR APPELLANT:
Richard K. Montoya
APPEARANCE FOR RESPONDENT:
Gregg R. Sackrider, Esq.
OPINION OF THE BOARD
Appellant, RKM Construction Company, Inc., has appealed from the partial denial of its claim for the cost of additional work allegedly performed in connection with a work order issued by Respondent, United States Postal Service, for the expansion of the loading dock and parking lot at the Manitou Springs, Colorado Post Office. Both entitlement and quantum are at issue.
FINDINGS OF FACT
1. Contract No. 079986-90-B-0088, an indefinite quantity construction ("IQC") contract, was awarded to Appellant on May 16, 1990. The contract provided for the performance of repair and alteration jobs at various Postal Service facilities in the eastern portion of Colorado through the issuance of "work orders." (Appeal File Tab (AF) 1).
2. The IQC solicitation and contract documents contained, among other parts, an 85-page "unit price schedule" consisting of preprinted unit prices for various detailed items of work.[1] Under this solicitation, the offeror's bid consisted only of a "multiplier," which was a percentage figure to be applied across the board to the list of preprinted unit prices. The preprinted unit prices, as adjusted by the contractor's multiplier, were to be used in establishing the prices of work orders issued pursuant to the contract. Under this scheme, the negotiations leading up to each work order would be limited to establishing the quantities of each IQC item to be performed and the quantity and price of any work that was needed but that was not represented by an IQC item. The multiplier offered by Appellant and incorporated into its contract was "0.88". (AF 1, 1A).
3. The contract contained the following provisions relevant to this dispute:
"B.4 QUANTITY OF WORK
***
b. Adjustments, if required, in quantities listed in the work order will be made on the basis of actual, quantities, approved, and installed and/or removed in the final work."
"C.11 INDEFINITE-QUANTITY CONTRACT
***
b. The price per unit of each proposal item in this contract will include all materials, labor, and equipment required to perform the work described in the attached specification. The work will be done on work orders issued as required for various amounts and types of work covered by the specification ...."
"C.12 PROPOSALS
***
b. The contract amount for each work order will be the total of each unit price included in that order, times the quantity required, times the multiplier entered on the proposal. This amount includes all profit, overhead, bonds, insurance, and other contingencies and no allowance for such items will be made after contract award ...."
"C.13 WORK ORDERS
a. No work will be performed until a written work order has been signed by the contractor and the contracting officer ....
b. Each work order will describe the extent of work to be removed and the extent and type of new work to be installed. Descriptions may be written, by sketch or by drawing ....
***
f. Items of work required by any work order that are not covered by the price schedule will be negotiated for each work order before the work order is issued, provided, however, that the cost of work not covered by the price schedule may not exceed 25 percent of the total amount of any work order ...."
"G.3 DIFFERING SITE CONDITIONS
a. The contractor must promptly, and before the conditions are disturbed, notify the contracting officer in writing of--
1. Subsurface or latent physical conditions at the site differing materially from those indicated in this contract; or
2. Previously unknown physical conditions at the site of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in work of the character required in this contract.
b. The contracting officer will promptly investigate the conditions. If they are found to differ materially from those indicated or anticipated and will cause an increase or decrease in the contractor's cost of, or the time required for, performance of any part of the work under this contract (whether or not changed as a result of such conditions), the contractor will be entitled to an equitable adjustment ...." (AF 1A).
4. The work order for the Manitou Springs Post Office loading dock addition and parking lot extension, the work at issue here, was issued by the Contracting Officer on August 13, 1991. In summary, the work under the project consisted of two distinct parts. The loading dock addition required demolition of concrete pavement in front of the existing loading dock, excavation of that area for footings and foundation walls for the addition, pouring a concrete slab for the addition, extending the existing roof canopy, installation of a "scissors lift,"[2] and electrical work for additional lighting and for the lift. The parking lot addition consisted primarily of minor demolition of concrete paving and curbing, excavation of the area for the new parking lot area, constructing a retaining wall (including excavation for the footing), backfilling behind the wall, and pouring a concrete slab. (AF 1, 55).
5. The process that led to the issuance of the work order began with the issuance of a letter to Appellant in July 1991 asking for a fee proposal for the work described in drawings and specifications that had been delivered to Appellant the month before. Appellant's superintendent, Bud Beckwith, developed a list of IQC items in response to the request and transmitted the list to Respondent's Contracting Officer's Representative and Project Manager, Ray Roberts. As was his usual practice and because he had worked with Mr. Beckwith on twenty other successful projects, Mr. Roberts gave the list only a cursory examination, noting primarily that the bottom line price[3] of $41,984.32 was in close agreement with a construction estimate of $42,171 developed for Respondent by its contract architect/engineer (A/E) firm. Mr. Roberts did not examine the IQC line items proposed by Appellant to see if they were consistent with the work required by the project drawings and specifications. A work order reflecting the items as proposed by Mr. Beckwith for Appellant was executed by Mr. Beckwith and the Contracting Officer. The work order, as issued, reflected the $41,984.32 proposed by Appellant. (AF 55, 57A, 58, 59; Transcript page (Tr.) 118, 147).
6. As issued, the work order did not reflect the work required by the plans and specifications in several significant areas. These deficiencies in the work order were apparently not recognized until Appellant filed a number of claims under the contract seeking compensation for work allegedly performed beyond the requirements of the work order. (Tr. 56).
7. Appellant ultimately sought $42,679.11 for work allegedly not required by the original work order and for additional work performed because of what Appellant alleged were site conditions not reflected in the plans and specifications. In a final decision dated September 18, 1992, the Contracting Officer approved the claim in the amount of $6,183.48 after applying the contract multiplier. (AF 5, 5A).
8. Both before and after the filing of its appeal, the parties engaged in extensive negotiations, including an unsuccessful attempt to use alternate dispute resolution procedures. RKM Construction Company, Inc., PSBCA No. 3370, 93-3 BCA ¶ 26,255. At the subsequent hearing in this appeal, the parties agreed that they would, in effect, attempt to reconstruct a work order for this project reflecting the work that Appellant had actually performed. It was agreed that IQC prices, as adjusted by the 0.88 multiplier, would be used for items contained in the list of IQC items and that Appellant would be entitled to recover its costs, with appropriate markups, for work not represented by IQC items. It was also agreed that the document designated Appellant's Exhibit 1 represented Appellant's total claim[4] in this matter and would, in effect, form the framework for a decision in the appeal. (Tr. 6-8). A copy of Appellant's Exhibit 1 is attached as an appendix to this Opinion. Item numbers, which did not appear on the original of Exhibit 1, have been added to the left margin by the Board for ease of reference.
9. Of the 96 items appearing on Exhibit 1, the following are contested in whole or in part by Respondent and will be discussed in the Findings of Fact and Decision which follow: 1-6, 8-16, 21-23, 33, 38, 39, 45, 50, 51, 53, 57-59, 62, 63, 76-78, 81, 82, 89, 93-96. (Respondent's brief). The total amounts allowed for the uncontested items are: $28,820.57 for IQC items[5] to which the 0.88 multiplier must be applied, and $2,932.45 in non-IQC items[6] on which Appellant is entitled to markups for overhead and profit.
Job Mobilization -- Item 1[7]
Findings of Fact
10. Appellant's president testified that the work under the contract had been interrupted four times by Appellant's need to get clarification from Respondent as to whether to continue the work -- because of the site conditions and because of the weather (Tr. 12). However, Appellant provided no details of the dates of the alleged interruptions or any evidence concerning actions taken by Appellant's forces as a result of the interruptions.
11. A preconstruction conference was held at the work site on October 16, 1991 (AF 52). On October 18, 1991, Appellant furnished Respondent's contract A/E with a proposed schedule for the work. The schedule showed work beginning on October 21 and finishing on December 5, 1991. Pouring of concrete for the footings at the dock and parking lot was scheduled for October 25. (AF 51).
12. Work on the project was delayed by snow in October. The extent of the delay is not indicated by the record. However, by November 8, 1991, Appellant was ready to pour the footings at both the dock and the parking lot. This represented a two-week delay in the schedule Appellant had established (Finding 11). By that date all the concrete demolition and excavation for the footings had been completed. (Tr. 58; AF 49).
13. In January, 1992, Respondent's contract architect/engineer wrote to Appellant asking about an apparent lack of progress in the previous month. The record contains no reply from Appellant, but does show that progress resumed shortly thereafter. (AF 38, 39). The IQC price for mobilization was $689.00 (AF 1A).
Decision
Appellant, which, as the party seeking recovery, has the burden of proof in this appeal, Roger H. Elliott, PSBCA No. 3285, 1993 WL 73426 (Feb. 12, 1993); F & B Realty, PSBCA No. 2529, 91‑2 BCA ¶ 23,788, argues that the job was stopped three times because of site conditions and that Appellant was asked to continue by Respondent's Architect. Respondent does not oppose the payment of one IQC charge for the original mobilization, but objects to the payment of a second mobilization charge, arguing that there is no evidence to show that Appellant incurred any costs which could be characterized as remobilization charges. Respondent also argues that except for the letter from the A/E (Finding 13) inquiring as to the lack of progress on the project, there is no evidence that Respondent ever directed Appellant to resume the project.
We agree with Respondent that the evidence does not support Appellant's claim that it incurred costs for activities that could be characterized as a second mobilization because of site conditions or the actions of Respondent. Appellant has not identified the nature of the costs it seeks to recover beyond alleging that there was another mobilization. Therefore, we conclude that Appellant has not met its burden of proof with respect to the second mobilization.[8]
Appellant is entitled to payment of the IQC price of $689.00[9] for the original mobilization. Its claim for a second payment of $689.00 is denied.
Permits & Fees -- Item 2
Findings of Fact
14. The evidentiary record in this appeal contains no mention of this item - i.e., no explanation of which permits and fees were included in the $500.00 claimed under this item. There is also no record that this item was claimed by Appellant prior to the submittal of Appellant's Exhibit 1 at the time of the hearing.
Decision
In its reply brief, Appellant argues that this item represented fees for the disposal of material removed from the site -- e.g., "concrete, sod, boulders, etc." However, since it offered no evidence concerning this item,[10] Appellant has failed to meet its burden of proof and may not recover. Therefore, this portion of the claim is denied.
Scaffolding
-- Items 3 & 4
Finding of Fact
15. Appellant utilized scaffolding on this job for installation of the wood trim and the dock canopy ceiling. The scaffolding was used for a total of approximately 7 workdays (during two separate periods) and was on site, but unused, for approximately 2 workdays. The IQC price for the scaffolding was $53.00 per week. (Tr. 154; AF 1A).
Decision
Appellant argues that the scaffolding was used for steel erection and framing as well as installation of the wood trim and ceiling, and that the scaffolding was on site for four weeks. Respondent argues that the evidence demonstrates that the scaffolding was only on site for two work weeks.
Based on the evidence, we conclude that the scaffolding was in use for approximately two weeks and that Appellant is entitled to recover the costs associated with that period of time. We note also that, according to the schedule submitted by Appellant following the preconstruction meeting (AF 51), the steel work, framing, and painting were to be accomplished in a period of approximately two weeks -- from November 19 to December 4.
Appellant may recover the IQC price for two weeks of scaffolding (including the extra height section): $53.00 x 2 = $106.00.
Barricades -- Item 5
Finding of Fact
16. Although listed in the original work order, no barricades were used at the site during the course of the job (Tr. 158).
Decision
In its reply brief Appellant states that it does not contest Respondent's position that no barricades were used. Accordingly, this portion of the claim is denied.
Rental of 580 Backhoe and Loader -- Item 6
Finding of Fact
17. The 580 backhoe was used to dig the footings for the parking lot retaining wall and may also have been used to help dig the footings in the dock area and to backfill the parking lot excavation. The backhoe was on site for a maximum of 3 days. The IQC price for a 580 backhoe was $241.56 per day. (Tr. 13-17, 156, 172).
Decision
Appellant argues that it is entitled to payment for 10 days of rental for the backhoe, but has provided no credible evidence (such as rental receipts or testimony from someone with personal knowledge of the length of the rental) to substantiate its claim. The testimony of Appellant's president as to the length of the rental was not based on personal knowledge and was unsupported by documentary evidence. Respondent's on-site witness testified that the backhoe was at the site for a maximum of three days, and we accept that testimony as credible. Accordingly, Appellant may recover the IQC price for the backhoe rental for a period of three days.
This portion of the claim is granted in the amount of $724.68 [$241.56 x 3].
Sawcutting Concrete -- Item 8
Findings of Fact
18. The portions of the concrete slab that Appellant was required to sawcut were approximately 7 inches thick (Tr. 165, 179; contra Tr. 20).
19. The portion of the concrete slab that was cut by saw consisted of an approximately 10-foot line adjacent to the old section of curved curbing plus approximately 37 feet along the straight curbing that was to be removed prior to construction of the new parking lot (Tr. 162; Respondent's Exhibit (Resp. Exh.) 2; AF 1D, sheet A3 (site plan)). Therefore, Appellant performed a total of 47 feet of sawcutting of 7-inch thick concrete.
20. The IQC price for sawcutting concrete was $2.22 per linear foot for the first two inches of thickness plus $1.09 per linear foot for each additional one inch of thickness. Therefore, the price for sawcutting 7-inch thick concrete was $7.67 per linear foot. (AF 1).
Decision
Appellant takes the position it is entitled to recover for 98 feet of sawcutting 10-inch thick concrete, although it has provided no basis for the calculation of 98 feet. Respondent argues that only 10 feet of sawcutting of 4-inch thick concrete was required. However, Respondent's on-site witness offered credible testimony that sawcutting also occurred in an area along a curb that Respondent has not included in its calculations. Further, Respondent has not shown the basis for its apparent conclusion that only 4-inch thick concrete was involved.
Appellant is entitled to recover the IQC price for sawcutting 47 feet of 7-inch thick concrete, or $360.49 [$7.67 x 47].
Concrete Slab Demolition and Removal -- Items 9-12
Findings of Fact
21. The portions of the concrete slab that Appellant was required to demolish and remove were approximately 7 inches thick (Tr. 165, 179; contra Tr. 20).
22. The portion of the concrete slab that Appellant was required to demolish and remove, i.e., the section immediately in front of the existing dock, was demolished by the use of a jackhammer. No wire mesh or dowels were found in that concrete, except that short dowels were found along the expansion joints that formed the border of the area to be demolished. No sawcutting was required in this area. Further, Appellant did not use a hydraulic breaker on the backhoe in the demolition of this concrete. (Tr. 159, 161, 163, 164; contra Tr. 24).
23. The area demolished and removed was approximately 33' x 14' for a total of 462 square feet or 51.33 square yards (AF 1D, sheet A1 (see shaded area)). The IQC price for removal of 6" to 8" thick concrete paving was $6.35 per square yard (AF 1).
Decision
There is little disagreement between the parties as to the area of concrete that had to be removed. The primary disagreements involve the method of demolition, the thickness of the concrete and the unit price to be applied to the demolition.
As to the method of demolition, Appellant contends it used a hydraulic breaker attached to the backhoe to demolish the concrete. However, Appellant has offered no evidence to support that contention -- either in the form of testimony by a witness with personal knowledge or any documents demonstrating that the device was rented. Respondent's on-site witness offered credible testimony that the concrete was demolished by the use of jackhammers only and that a hydraulic breaker was not used. Accordingly, we conclude that Appellant may not recover for the rental of the hydraulic breaker under Item 12 of the claim. That portion of the claim is denied.
As to the thickness, Respondent offered credible testimony from its on-site witness that the thickness was 7 inches. Appellant offered the testimony of its president who did not have personal knowledge of the thickness. Based on Respondent's evidence, we have found that the thickness of the concrete was 7 inches.[11]
With respect to the proper unit price, Appellant initially utilized the IQC price for the removal of 4-inch sidewalk and adjusted it for the increased thickness. In its reply brief, Appellant argued that the proper unit price to be applied is that for the demolition of 4-inch sidewalk found in the section of the IQC unit price schedule related to "Architectural Barrier Compliance." Respondent takes the position that the proper unit price to be applied is the IQC price for demolishing and removing 6-inch to 8-inch thick concrete paving.
We conclude that the proper price to be applied is that urged by Respondent. Appellant has not shown any basis for applying the Architectural Barriers unit price. Further, Appellant has also not shown that the proper price to be used is the unit price for 4-inch sidewalk removal, particularly in the face of the existence of an IQC item exactly representing the work accomplished. Accordingly, the unit price to be applied will be that for demolition and removal of 6-inch to 8-inch concrete, or $6.35 per square yard.
Appellant is entitled to recover the IQC price of $325.95 [51.33 square yards x $6.35 per square yard] for concrete demolition.
Excavation -- Items 13, 14, 16, 21, 23
Findings of Fact
Dock Area
24. Excavation at the dock area consisted almost exclusively of digging the trenches for the footings. Respondent's Exhibit 4, a diagram prepared by Respondent's architect, is a fair representation of the actual amount of excavation that was performed at the dock area, as also reflected in photographs of the site. We conclude that 26.79 cubic yards of material was excavated for the dock footings. We also conclude that 25 percent, or 6.70 cubic yards, of that excavation was rock excavation.[12] Therefore, there was a total of 6.70 cubic yards of rock excavation and 20.09 cubic yards of unclassified excavation in connection with the loading dock footings (Items 13 & 16, respectively). (Resp. Exh. 4; AF 44-2, 48-3, 48-4 (photographs); AF 24, 21).
Parking Lot
25. Excavation at the parking lot consisted of two areas -- the footings for the retaining wall and removal of grass and topsoil prior to placing the concrete pavement. The area in which the footings were excavated sloped approximately 18 inches from one end of the retaining wall to the other. Respondent's Exhibit 4, the architect's diagram, would be a fair representation of the amount of excavation required for the wall footings if the footing depth had been "stepped" to maintain an approximately uniform depth below grade. However, Appellant dug the footing without "stepping" -- i.e., the bottom of the excavation remained level along its entire length. Appellant's technique was a reasonable approach to installing the footing, although additional excavation was required using this method. Appellant performed 44.9 cubic yards of unclassified excavation in connection with these footings.[13] There was no rock excavation in connection with the excavation of these footings.[14] (Resp. Exh. 4; AF 48-5, 48-6 (photographs); AF 21, 24, 49; Tr. 198-99, 239).
26. Excavation in the parking lot area other than for the wall footings was also required. The area on which the parking lot was constructed was a grassy area, initially at a level above the final parking lot grade. Grass and topsoil were excavated and removed from the area. Neither party provided any calculations of the amount of excavation required. Based on the contract drawings, the approximate area of the new parking lot was 116 square yards. Soil was removed to a depth that we estimate (from photographs in the record (AF 44-3)) to be approximately one foot. Using these dimensions, we find that 38.7 cubic yards of unclassified excavation was performed in connection with the parking area. There was no rock excavation performed in connection with this area. (Resp. Exh. 2; AF 44-3; Tr. 174).
A total of 83.6 cubic yards of unclassified excavation (44.9 cubic yards for the retaining wall and 38.7 cubic yards for the parking lot surface) and no rock excavation took place in connection with the parking lot work (Items 21 & 14, respectively).
Hand Excavation
27. Appellant's claim initially included 15 to 20 cubic yards of hand excavation in connection with the parking lot and dock areas. In evaluating that claim, Respondent's architect concluded that some hand excavation took place, but allowed only 10 cubic yards. Appellant's ultimate claim, the one under consideration here, reduced the amount claimed to 10 cubic yards. We conclude that 10 cubic yards of hand excavation was performed on the job as a whole. (AF 21, 27, 34).
28. The IQC price for unclassified excavation is $3.34 per cubic yard. The IQC price for rock excavation in a trench is $112.36 per cubic yard. The IQC price for hand excavation is $25.82 per cubic yard. (AF 1).
Decision
Unclassified Excavation -- Dock and Parking Lot
Appellant claims that it performed approximately 174 cubic yards of unclassified excavation, but concedes that that amount actually included its claim for 120 cubic yards of rock excavation (Tr. 70-71). Appellant also claims 10 cubic yards of hand excavation in completing this project. Appellant has provided virtually no calculations or records to support the claimed amounts. However, since it is clear that excavation did take place, we have used the available record to reach our conclusions as to the quantities involved.
With respect to unclassified excavation, Appellant claims it is entitled to recover for 55.55 cubic yards in the dock area, 77.77 cubic yards in the wall area, and 41.33 cubic yards in the parking lot area, for a total of 174.65 cubic yards. Appellant cites the plans and specifications but gives no details as to how it derived its figures.
Respondent argues that recovery for unclassified excavation should be limited to 54.85 cubic yards, as calculated by Respondent's architect and presented in Respondent's Exhibit 4, rather than the 174 cubic yards claimed by Appellant. As explained in Findings 24-26, above, we concluded that the architect omitted some of the unclassified excavation from his calculations in connection with the retaining wall. Nonetheless, we have largely accepted those figures, with appropriate modifications, as accurately representing the amount of excavation performed. Respondent agrees that the unit price to be applied to this type of excavation is $3.34 per cubic yard. Accordingly, Appellant may recover the IQC price of $346.32 for 103.69 cubic yards of unclassified excavation (Items 16 & 21).
Rock Excavation -- Dock Area
In the claim on which this appeal was based, Appellant claimed 120 cubic yards of rock excavation. In its earlier claims (AF 27, 34), Appellant claimed 21 cubic yards and 23 cubic yards total rock excavation. In its brief, Appellant argues that of the total excavation it claims for footings (77.77 cubic yards + 55.55 cubic yards) approximately half (65 cubic yards) was rock excavation. Appellant has provided no support for any of these calculations. Appellant relies largely on letters it received from Respondent's contract architect to support its position that there was, in fact, some rock excavation involved in the project. In those letters, the architect, who had visited the site numerous times, stated that he had evaluated back-up information submitted by Appellant with respect to a number of items, including rock excavation. He concluded that 25 percent of the excavation for the dock footings was rock excavation.[15] The architect repeated that conclusion in a second letter to Appellant.
Respondent takes the position that Appellant is not entitled to any recovery for rock excavation. Respondent argues first that the Board should not consider the letters written by Respondent's architect because they were intended for settlement purposes and are inadmissible to prove the facts stated therein.
Respondent argues next that the evidence with respect to excavation methods shows that Appellant's problems in the dock area were caused by the use of undersized equipment, rather than by the presence of rock. Respondent further argues that Appellant failed to give the notice required by the Differing Site Conditions clause when it encountered the rock. Finally, Respondent argues that the conditions encountered by Appellant do not meet the definition of "rock," as that term is normally used.
As indicated in Finding 24 above, having considered the evidence and arguments we conclude that Appellant did encounter some rock in the excavation of the dock area footings. In arriving at this conclusion we rely primarily on the statements in letters from Respondent's architect to Appellant that he was satisfied that Appellant had encountered "solid rock and cobbles" and that the rock constituted 25 percent of the excavation. We do not accept Respondent's argument that these letters are inadmissible. We note that Respondent placed them in the appeal file and interposed no objections to their admissibility during the course of the hearing. The letters themselves do not convey the impression that they were part of settlement negotiations, and the architect's brief reference to settlement in the course of his testimony was unconvincing (Tr. 217-220).
We also do not accept Respondent's arguments based on the failure to give any notice under the Differing Site Conditions clause. The ground rules set up for this hearing were that the objective would be to reconstruct a work order reflecting the work that actually took place. Therefore, as the evidence demonstrates that rock excavation took place, failure to give the Differing Site Conditions notice is irrelevant.
Therefore, Appellant may recover the IQC price for 6.7 cubic yards of rock excavation (Item 13) at $112.36 per cubic yard, or $752.81.[16]
Hand Excavation
In response to an earlier claim of 15 to 20 cubic yards of hand excavation, Respondent's architect allowed 10 cubic yards. Appellant has now claimed 10 cubic yards of hand excavation. In its brief, Respondent concedes that some hand excavation took place but argues that there is no support for 10 cubic yards. Respondent states that it "would agree" to 2.75 cubic yards, based on 5 percent of the 54.85 cubic yards of unclassified excavation it contended took place, but has provided no basis for the 5 percent factor it asserts. Based on the architect's prior allowance of 10 cubic yards, we conclude that Appellant may recover for that amount of hand excavation.
Appellant may recover the IQC price for 10 cubic yards of hand excavation (Item 23) at $25.82 per cubic yard, or $258.20.
"Sitefill" Material -- Items 15 & 22
Findings of Fact
29. In its claim, Appellant sought payment for an additional 70 cubic yards of fill material in the dock area (Item 15). It also sought payment for 150 cubic yards of fill material (also including 70 "additional" cubic yards) in the parking lot area. (Appnt Exh 1; appendix).
30. The IQC price for sitefill material is $6.73 per cubic yard (AF 1).
Decision
Respondent concedes that Appellant is entitled to recover for 70 cubic yards in addition to the 80 cubic yards in the original claim. However, Respondent contends that Appellant is only entitled to one 70-cubic-yard addition, rather than the two it is claiming. Appellant has not opposed Respondent's argument.
Accordingly, we conclude that Appellant may recover the IQC price for a total of 150 cubic yards of fill material under these two items at a unit price of $6.73 per cubic yard, or $1,009.50.
Concrete Walls (Dock Area) -- Item 33
Findings of Fact
31. In its claim, Appellant sought to recover for 13.5 cubic yards of concrete for the foundation walls in the dock area at $353.93 per cubic yard (Appnt Exh 1).
32. The concrete foundation walls in the dock area were required to be 8 inches thick and 4 feet high (not including the height of the footing). Respondent's Exhibit 6-1, prepared by Respondent's architect, is a fair representation of the volume of concrete necessary to construct the walls as required by the drawings. Based on that document, we conclude that 7.03 cubic yards of concrete were required for the walls. The IQC price for 8-inch concrete walls is $353.93 per cubic yard. (AF 1A & 1D; Resp Exh 6-1; Tr. 208).
Decision
Respondent argues that the calculations performed by its architect, as represented by Exhibit 6-1, accurately reflect the amount of concrete required to construct these walls. In its reply brief, Appellant includes a calculation based on a wall height of 5 feet, and argues that the amount of concrete required was 7.4 cubic yards.
The drawings clearly require a wall height of 4 feet and Appellant has offered no explanation for its calculation based on a 5-foot height. Accordingly, we conclude that Appellant may recover for the volume of concrete as calculated in Respondent's Exhibit 6-1.
Appellant may recover the IQC price for 7.03 cubic yards of concrete at the unit price of $353.93 per cubic yard, or $2,488.13.
Concrete Retaining Wall (Parking Lot Area) -- Item 45
Findings of Fact
33. Appellant's claim sought to recover for 16.5 cubic yards of concrete for the retaining wall at the parking lot at the price of $353.93 per cubic yard.
34. The contract drawings require that the bottom of the retaining wall be a minimum of 1' 6" below grade. Since Appellant built the wall without "stepping" the footing excavation (see Finding 25), the wall was constructed with an average height of 5 feet. Respondent's architect calculated the volume of the wall using a height of 5 feet and concluded that 8.7 cubic yards of concrete were used. Respondent's Exhibit 6-2, which shows the architect's calculations, is a fair representation of the amount of concrete used. Therefore, we conclude that 8.7 cubic yards of concrete were used. The IQC price for concrete for 8-inch walls is $353.93 per cubic yard. (AF 1A & 1D, Resp Exh 6-2; Tr. 209).
Decision
Respondent argues that the architect's calculations accurately represent the amount of concrete that should have been used to build the wall and that Appellant should not recover for any concrete beyond that amount. In its reply brief, Appellant offers a calculation paralleling that of the architect, but using a wall height of 6 feet rather than 5 feet. Appellant contends that the amount of concrete should be 10.37 cubic yards rather than 8.7 cubic yards as calculated by the architect.
As indicated in Finding 34, the wall was constructed using a height of 5 feet and 8.7 cubic yards of concrete. Appellant has offered no support for its utilization of a wall height of 6 feet. Therefore, Appellant may recover for 8.7 cubic yards of concrete.
Appellant may recover the IQC price for 8.7 cubic yards of concrete at $353.93 per cubic yard, or $3,079.19.
Forming Footings -- Items 38 & 50
Findings of Fact
35. Appellant's claim sought reimbursement for building wooden forms for the footings in the dock area (Item 38) and the retaining wall (Item 50) (Appellant's Exhibit 1).
36. The footings in both the dock area and at the retaining wall were poured directly against the sides of the excavation. No forms were built for use in pouring the footings. (AF 49; Tr. 235-38).
Decision
Respondent argues that Appellant should not recover for the form work because the evidence indicates it was not performed and because, even if it was performed, the cost would have been included in the IQC item covering concrete footings.
The unchallenged evidence in the record, including the architect's on-site observations, indicates that wooden forms were not constructed for the footings in either area. Therefore, there is no basis for recovery for these items.
This portion of the claim is denied.
Wall Footings -- Items 39 & 51
Findings of Fact
37. Appellant's claim sought to recover the cost of constructing footings for the dock area foundation walls and for the parking lot retaining wall. The contract drawings required Appellant to pour concrete footings at both locations. Appellant's claim sought payment for 11.29 cubic yards of concrete for the dock walls and 11.29 cubic yards for the parking lot wall. The claim utilized an IQC price of $196 per cubic yard for concrete footings from a portion of the unit price schedule labeled "Architectural Barriers Compliance." The $196 per cubic yard price included all reinforcing steel and all excavation and backfilling. The price also applied to footings with a maximum width of two feet and a maximum height of one foot. (Appnt Exh 1; AF 1D).
38. The contract specifications for the Manitou Spring project specify two possible concrete mixes, both of which have a "3000 psi" strength requirement (AF 1C, page 03300-4). The main IQC unit price schedule contained an item, no. 00.3 AO 500, reading: "CONCRETE FOOTINGS; 3000 psi concrete minimum" at a price of $84.25 per cubic yard (AF 1A, page 1A-79 (reverse)). There were also separate items within the unit price schedule for "REINFORCING STEEL" of various sizes with unit prices expressed on an "LF" (i.e., per linear foot) basis (id.).
39. In pouring the footing for the dock walls, Appellant used dimensions slightly greater than those specified in the drawings. Specifically, at those locations specifying a 16-inch width, Appellant used an 18-inch width and at those locations specifying a 3-foot, 4-inch width, Appellant used a 3-foot, 6‑inch width. Further, Appellant used a 14-inch depth instead of the 12-inch depth specified. Respondent's Exhibit 5-1, prepared by Respondent's architect, when adjusted for the above dimensional changes, is a fair representation of the amount of concrete poured for the dock footing. As adjusted, the total volume of concrete used was 4.7 cubic yards, rather than the 3.6 cubic yards calculated in Respondent's Exhibit 5-1. (AF 49; Resp Exh 5-1).
40. Appellant also poured the footing for the parking lot retaining wall using footing dimensions somewhat greater than those specified in the contract drawings. Appellant used a width of 3 feet, 6 inches instead of the 3 feet, 4 inches specified, and used a depth of 14 inches instead of the 12 inches specified. Respondent's Exhibit 5-2, adjusted for the above dimensional changes, is a fair representation of the amount of concrete poured for the retaining wall footing. As adjusted, the total volume of concrete used was 10.57 cubic yards, rather than the 8.63 cubic yards calculated in Respondent's Exhibit 5-2. (AF 49; Resp Exh 5-2)
Decision
Appellant argues that the $84.25 IQC price for these footings should not be applied because the IQC line item includes only material and not labor, and because the IQC item specifies what Appellant contends are "non-structural" footings, i.e., footings without reinforcing steel, as contrasted with footings with reinforcing steel in place, which were used here.
Respondent argues that Appellant is attempting to circumvent use of the correct IQC prices and that the IQC price set out in Finding 38, above, is the proper price to apply. Respondent also argues that the IQC price should be applied to the volumes of concrete calculated in Respondent's Exhibits 5-1 and 5-2.
We do not accept Appellant's argument that the Architectural Barriers price should be applied. IQC item 00.3 AO 500 describes a concrete footing with 3000 psi concrete. The footings required by the project specifications were to be poured using concrete meeting the 3000 psi requirement. Further, the presence of line items for reinforcing steel in the section of the IQC unit price schedule for concrete reflects the intent that pricing for a concrete footing with reinforcing steel be calculated by adding the price of the concrete to the price of the steel.
We also conclude that the $196-per-cubic-yard, Architectural Barriers Compliance price is inapplicable here since the dimensions of the footings actually installed exceeded the maximum dimensions for which those prices were applicable, and because that price includes reinforcing steel and excavation, both of which have been separately priced in Appellant's claim.
Therefore, Respondent is correct in arguing that the $84.25 IQC price is to apply to the footings.[17]
Also, as the parties have agreed, Appellant is to be paid on the basis of the concrete actually installed, rather than on the basis of the volume of concrete specified by the drawings.
Accordingly, Appellant may recover the IQC price of $84.25 per cubic yard for 4.7 cubic yards of concrete, or $395.98, for the dock walls (Item 39) and for 10.57 cubic yards of concrete, or $890.52, for the parking lot retaining wall (Item 51).
Stair Nosings -- Item 53
Findings of Fact
41. Appellant's claim seeks the IQC cost of a total of 7 stair nosings at $28.06 each.
42. The contract drawings required Appellant to construct three concrete stairs leading down from the new loading dock. By February 24, 1992, those stairs had been constructed and included metal stair nosings on each stair. On or about March 13, 1992, the contract architect directed Appellant to replace the three stairs with four stairs having a greater width (4 feet instead of 3 feet, 6 inches). The new stairs were installed by Appellant and also contained metal stair nosings. Since the new stairs were wider than the old stairs and since the stair nosings on the new stairs extend their full width, we conclude that the old stair nosings were not reused on the new stairs. (AF 12-2, 36-4, 36-6 (photographs); AF 20, 29).
Decision
Respondent takes the position that Appellant should only be reimbursed for the nosings for the new stairs. However, as we have found, nosings were installed on both the old and new stairs. Further, the record does not indicate that the requirement to install the new stairs was attributable to any failure on Appellant's part. Accordingly, Appellant is entitled to reimbursement for the nosings on both sets of stairs.
Appellant may recover the IQC price for 7 stair nosings at $28.06 each, or $196.42
Railings -- Items 57, 58, 62, 63, 81, 82
Findings of Fact
43. The contract drawings required pipe railings to be installed in three places:
a. On both sides of the stairs leading down from the loading dock -- railings with two "horizontal" pipes. The railings were each approximately 4 feet, 6 inches long for the original set of stairs (see Finding 42).
b. On both sides of the opening in the loading dock in which the scissors lift was located. The railings had three horizontal pipes and were each approximately 7 feet long.
c. On top of one section of the wall separating the old parking lot from the new parking lot section. This railing had three horizontal pipes and was 9 feet long.
In addition, when the stairs Appellant first installed were replaced (Finding 42), different railings were also installed. Neither party has provided evidence as to the length of the new railings, which also consisted of two horizontal pipes. Since the number of stairs was increased by one, and since the depth of a single stair tread was approximately 1 foot, we conclude that the new railings were approximately 1 foot longer than the old railings, or 5 feet, 6 inches long. All of the installed railings were made of steel. (AF 1D, 29-3; AF 12-2, 36-3, 36-4, 36-6 (photographs); Tr. 77).
44. The IQC price for steel railings with two horizontal pipes is $28.06 per linear foot. This price includes priming and painting the railing. There is no IQC price for pipe railings with three horizontal pipes. (AF 1A).
45. Appellant's claim sought a total of 10 linear feet of steel railings with two horizontal pipes (IQC item 00.5 BO 100), 23 linear feet of aluminum railings with two horizontal pipes (IQC item 00.5 BO 120), and a total of 23 feet of steel railings with four horizontal pipes (IQC item 05.4 58 245). The claim also sought the cost of painting 10 feet of two-pipe railings (IQC item 00.9 BO 164) and 25 feet of three-pipe railings (IQC item 00.9 BO 165).
Decision
Respondent argues that Appellant should be compensated for steel railings only, since no aluminum railings were used. Respondent also contends that a reasonable price for three-horizontal-pipe railings would be 50 percent more than the IQC price for two-pipe railings. Respondent supports this estimate by asserting that a large part of the railing price is installation and that it costs no more to install a three-pipe railing than a two-pipe railing.
Appellant offers no argument in support of its railing items, but its president testified during the hearing that his claim was derived solely from information on the contract drawings.
As explained in Finding 43, the contract required the installation of two- and three-pipe steel railings. Further, the record indicates that the actually installed railings were consistent with those requirements. Accordingly, we conclude that Appellant may not recover for aluminum railings or for four-pipe railings.
In the absence of any better method of estimating offered by the parties, we also accept Respondent's 50 percent "surcharge" on the two-pipe railings as the price to be applied to three-pipe railings. However, since there is no IQC price for these railings, the 0.88 multiplier will not be applied and Appellant will be entitled to appropriate markups.
Therefore, Appellant may recover for pipe railings as follows:
a. Stair railings: 20 feet[18] of two-pipe railings, including painting, at the IQC price of $28.06 per foot for an IQC total of $561.20.
b. Loading dock (scissors lift) railings: 14 feet of three-pipe railing, including painting, at the non-IQC price of $42.09 per foot[19] for a total of $589.26.
c. Parking lot railing: 9 feet of three-pipe railing, including painting, at the non-IQC price of $42.09 per foot for a total of $378.81.
General Field Welding -- Item 59
Findings of Fact
46. Appellant's claim seeks payment for 20 additional hours of welding time allegedly required to cut reinforcing bars and wire mesh found in the concrete paving in front of the original loading dock. That section of concrete was demolished and removed prior to digging trenches for the loading dock foundation walls. (Tr. 35).
47. Based on the testimony of an employee of the Manitou Springs post office, who was the only actual observer to testify on this point, we conclude Appellant did not encounter any wire mesh or reinforcing bars in the concrete that was demolished. The only similar metal encountered was a series of short (one foot) dowels used to hold together the pavement on either side of an expansion joint at the edges of the demolished concrete. Those dowels did not have to be cut in order to remove the old pavement or in order to pour the new slab. (Appnt Exh 2 (photograph); Tr. 163, 164).
Decision
Respondent argues that the expansion joint dowels were not cut and, therefore, a welder was not used in that effort. Moreover, Respondent argues that it would not have taken a welder 20 hours to do this work, had the dowels actually been cut. Respondent does not contest the original allowance of 2 hours of welder time. Appellant offers no arguments in response.
We have concluded that, based on the evidence, Appellant did not encounter any wire mesh or reinforcing bars in the demolished concrete. The dowels that were encountered did not have to be cut or removed in order to proceed with the project. Therefore, Appellant has failed to prove that the additional welder hours were required.
Accordingly, this portion of the claim is denied. Appellant may recover the IQC price for only the two uncontested hours of welding services at $48.23 per hour, or $96.46.
Roofing -- Items 76-78
Finding of Fact
48. The roofing work performed in connection with this project was included in a different work order and/or contract. The pricing of this work order was not intended to include the roofing work. (Tr. 93).
Decision
Although the specifications and drawings that were a part of this work order cover roofing work, Respondent introduced testimony and now argues that the work was technically funded under a different work order or different contract. Appellant introduced no evidence to refute Respondent's testimony. Further, in its reply brief, Appellant offered no arguments in opposition to the position taken by Respondent.
This portion of the claim is denied.
Electrical Work -- Items 89 & 94
Findings of Fact
49. The contract plans required the addition of a number of lights in the dock area, along with the associated wiring and switches, including a photoelectric control switch. Further, the plans required electrical work in connection with the installation of the scissors lift, including a circuit breaker and associated wiring changes. (AF 1D, drawing E‑1).
50. At about the time of the preconstruction conference, it was recognized that the electrical service in the post office required some additional work. An estimate by an engineering firm was that the work could be performed for approximately $690.00. The work, as estimated by the engineering firm, did not require the addition of a circuit breaker or other electrical components other than wire. Appellant was directed to negotiate with its electrical subcontractor to have the work performed. The subcontractor performed the work for $540.00. (AF 5D-6; AF 50; Tr. 79).
51. Appellant's claim includes uncontested items for lights, wiring, and the photoelectric control switch (Items 88, 90-92). The claim also includes an item for a circuit breaker (Item 89) at the IQC price of $49.41.
52. Appellant's claim also includes an item (Item 94) identified only as "Electrical L&M" in the amount of $2,581.80. Appellant has provided no evidence concerning the details of the elements of this claim item.
Decision
Respondent has contested item 89, contending that the circuit breaker actually was included in the electrical modification described in Finding 50 and, therefore, should be included in the non-IQC price of $540.00. Therefore, Respondent argues that the circuit breaker should not be separately listed for payment.
Having examined the drawings and the engineer's estimate of the electrical modification work, we conclude that the circuit breaker was not a new addition because of the modification but was, instead, part of the original work. Accordingly, under Item 89 Appellant may recover the IQC price for the circuit breaker, or $49.41
The hardware and labor items listed under Items 88-92 appear to encompass all the electrical work originally required by the contract drawings, but do not include the additional work explained in Finding 50. Therefore, Appellant may also recover the cost of the electrical modification discussed above, at a non-IQC price of $540.00. There is no basis for any additional payments for electrical work, other than for work associated with the relocation of some electrical and hydraulic lines, to be discussed under Item 95 below. Accordingly, Appellant may recover only $540.00, on a non-IQC basis, under Item 94.
Carpentry -- Item 93
Findings of Fact
53. Carpentry was required as part of the project work primarily in the area of the extended canopy/roof over the loading dock. Appellant's claim included uncontested items for wood framing, fascia, plywood, molding, nails, and carpentry labor (Items 64-75).
54. Some of the carpentry work was performed by Appellant's subcontractor, Custom Builders (Tr. 278-79). Appellant's claim includes an item, Item 93, labeled "Carpentry/Custom Builders."
Decision
Respondent argues that it has agreed to items covering all the carpentry work on the project and contends that it should not be liable for unspecified work performed by Custom Builders under this item. Respondent further argues that Appellant has provided no evidence concerning what work the subcontract was for and why it should be chargeable to the Postal Service.
The uncontested items (Items 64-75) appear to cover all the carpentry work required under the work order. In order to recover further, Appellant was obligated to provide evidence showing that the work performed under Item 93 was beyond that covered by the earlier items. Appellant has failed to provide such evidence. Accordingly, Appellant may not recover under this item.
This portion of Appellant's claim is denied.
"Rene Mods" -- Item 95
Findings of Fact
55. Appellant's claim sought the recovery of $4,860 under the category which it labeled "Rene Mods." In an earlier claim, dated April 9, 1992, Appellant sought payment for six miscellaneous items of extra work, the total of which was also $4,860, under a category labeled "Change #2." We note also that one of Appellant's subcontractors was Rene Loranger. In the absence of any more reasonable explanation, we conclude that the item labeled "Rene Mods" consists of the miscellaneous items of work originally claimed under "change #2" of Appellant's April 9, 1992, claim. (AF 27; Tr. 47).
56. The first three items under change #2 were for the relocation of electrical and hydraulic lines and a requirement to cover these lines where they ran on the outside of the building. Toward the end of contract performance it was recognized that it would be necessary to move some electrical and hydraulic lines in order to remedy an interference problem between those lines and the scissors lift. Appellant was also required to add a cover to protect the relocated lines where they were mounted on the outside of the building. This work was performed by Appellant and/or its subcontractor. (AF 5D-8, 29-2, 36, 12-3). In his final decision, the Contracting Officer approved these items for payment and calculated the cost of the items as $296.32 before markups for profit and overhead (AF 5D-8).
57. The fourth and fifth items on the change #2 list were the costs of redoing the stairs and handrails leading down from the loading dock. The Contracting Officer approved reimbursement for 11 linear feet of two-pipe handrails and 16 linear feet of stairs, using IQC prices. (AF 5D-9).
58. The sixth item on the change #2 list was an item to cut and cap a roof drain which was no longer to be used. The record does not indicate whether this item was ultimately performed (see AF-38-5; AF 25, 29) and it was not addressed in the Contracting Officer's decision. Further, the record contains no evidence with respect to the cost of performing this item.
Decision
Neither party has addressed this item in its brief. However, based on the facts as found above, we conclude that Appellant may recover for these items, except for the roof drain work, as follows:
Relocating and covering electrical and hydraulic lines: Appellant may recover the cost of this work as calculated by the Contracting Officer in his decision. Appellant offered no evidence to contradict the calculations performed by the Contracting Officer and we accept them as reasonable. Therefore, Appellant may recover $296.32 on a non-IQC basis.
Stairs and railings: The cost of the replacement railings has been allowed in connection with the discussion of that subject under the "Railings" items, above. Therefore, it will not be allowed again here. As to the stairs, we conclude that the cost of the new stairs (which consisted of four stairs with a width of four feet, or 16 linear feet) has already been allowed in uncontested item 35. However, we see no item in Appellant's claim for the original stairs that were constructed and then replaced. Therefore, Appellant may recover the cost of those stairs (which consisted of three stairs with a width of 3 feet, 6 inches, or a total of 10-1/2 linear feet) under this item. Therefore, Appellant may recover for 10-1/2 linear feet of stairs at the IQC price of $15.73 per foot, or $165.17.
Roof drains: In the absence of evidence that this work was completed and any evidence concerning the cost of this work, if it was completed, Appellant may not recover under this item.
Colorado Asphalt -- Item 96
Findings of Fact
59. Appellant's claim sought $2,754 as payment for site demolition work performed by Colorado Asphalt, a subcontractor (Tr. 39).
60. Appellant offered no evidence as to the nature of the work performed under this item and how it differed from the pavement demolition already claimed under Items 9-12, above.
Decision
Respondent argues that the work apparently performed by Colorado Asphalt has already been included in earlier items and, therefore, should not be included again here. Appellant offered no counter argument.
Appellant has failed to meet its burden of proving that it should be compensated under this item for work different than the work already covered by Items 9-12, above. As it appears that the work under the earlier items is the same as that included here, Appellant may not recover under this item.
This portion of the claim is denied.
Overhead
and Profit
61. For non-IQC items, Appellant is normally allowed to add 10 percent overhead and 10 percent profit to arrive at a "bottom line" amount (Tr. 36, 104).
Summary
As discussed in Finding 9, the total recovery for the uncontested items is $28,820.57 for IQC items and $2,932.45 for non-IQC items. As to those items that were contested, Appellant may recover the following amounts:
Item No. IQC amount Non-IQC amount
1 $689.00
3-4 106.00
6 724.68
8 360.49
9-11 325.95
13 752.81
16 & 21 346.32
15 & 22 1,009.50
23 258.20
33 2,488.13
39 395.98
45 3,079.19
51 890.52
53 196.42
57, 58, 62, 63, 81, 82 561.20 968.07
59 96.46
89 49.41
94 540.00
95 165.17 296.32
$12,495.43 $1,804.39
No recovery is allowed under Items 2, 5, 12, 14, 38, 50, 76-78, 93, and 96.
The final amount of the work order at issue in this appeal is to be calculated as follows:
The total IQC amount is $28,820.57 + $12,495.43 for a total of $41,316.00. Applying the 0.88 multiplier results in a total of $36,358.08.
The total non-IQC amount is $2,932.45 + $1,804.39 for a total of $4,736.84. To this total we add 10 percent overhead ($473.68) and 10 percent profit ($521.05),[20] for a total non-IQC amount of $5,731.57.
Therefore, the final total amount of the work order under this appeal, i.e., the total amount of a work order representing the work actually performed by Appellant, is $36,358.08 + $5,731.57, or $42,089.65, which is the total amount Appellant may recover.
David I. Brochstein
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman
[1] The parties have adopted the designation "IQC item" to refer to items included in the unit price schedule. As an example of the level of detail of the IQC items, the list included work such as: "CORE DRILLING; reinforced concrete or masonry up to 8" thick; water and power available; 2" diameter hole," with a preprinted price of $16.82 each.
[2] Apparently used to facilitate loading and unloading mail trucks whose bed height did not match that of the dock.
[3] After application of the 0.88 multiplier.
[4] That is, Appellant's proposed version of the revised, final work order -- containing the costs of all work performed by Appellant.
[5] Items 7, 17-20, 25-32, 34-36, 40-44, 46-49, 52, 54, 55, 60, 68, 71-73, 79, 80, 84, 85, 87, 88, 90.
[6] Items 24, 37, 56, 61, 64-67, 69, 70, 74, 75, 83, 86, 91, 92.
[7] Unless otherwise noted, references to item numbers from this point forward refer to the numbers assigned by the Board and noted on the appendix to the Opinion.
[8] Both before and during the hearing, Appellant's president was cautioned concerning the need to provide evidence to support the elements of Appellant's claim (Tr. 25-30).
[9] The amount set forth here is the full price from the IQC unit price schedule. Appellant's actual recovery for IQC items will be adjusted below to reflect the 0.88 multiplier.
[10] Allegations and statements in briefs do not constitute proof or evidence. Connecticut Paper Corporation, PSBCA No. 88, 1975 WL 1984 (June 24, 1975; Appeals of Praoil, S.r.L., ASBCA Nos. 41499, 44369, 94‑2 BCA ¶26,840; DWS, Inc. Debtor‑in‑Possession, ASBCA No. 29743, 93‑1 BCA ¶ 25,404 at 126,542; Jen‑Beck Associates, VABCA Nos. 2107 et al., 87‑2 BCA ¶ 19,831 at 100,321‑22.
[11] During the course of the hearing, the Board refused to accept into evidence an unsigned, undated document alleged to have been drafted by the subcontractor who performed much of the actual work at the site and who was not present to testify. That document stated that the concrete was thicker and contained metal mesh. Even if the Board had exercised its discretion and accepted this hearsay evidence the result would not be different. The Board would give substantially more weight to the testimony offered by a witness testifying from personal knowledge and present at the hearing subject to cross examination.
[12] See the discussion in decision portion, below.
[13] The amount of material calculated for the "stepped" footings was 28.06 cubic yards. (Resp. Exh. 4). Added to this is the volume of a triangular section 70 feet long by 4 feet, 4 inches wide and varying uniformly from 18 inches in depth to zero depth, for an additional 16.84 cubic yards of excavation.
[14] There was one large boulder in the area of the retaining wall footing. That boulder, however, was not removed, but was incorporated into the footing. (Tr. 232, 237).
[15] The total rock excavation the architect allowed was 18.75 cubic yards. However, that number was based on total excavation of 75 cubic yards at the dock area, rather than the 26.79 cubic-yard total we have concluded actually took place.
[16] Since there was no rock excavation at the parking lot retaining wall (Finding 25), Appellant may not recover under Item 14.
[17] Appellant's claim contains separate items for reinforcing steel (Items 46 and 47), which are uncontested by Respondent.
[18] Two railings for the original steps at 4 feet, 6 inches each plus two railings for the new steps at 5 feet, 6 inches each.
[19] The two-pipe price of $28.06 per foot plus 50 percent ($14.03) for a total of $42.09 per foot.
[20] Rather than a straight 20 percent add-on, as calculated by Respondent, these percentages are usually calculated by adding 10 percent overhead to the costs and adding 10 percent profit on the total of costs plus overhead. See e.g., The Little Susitna Co., PSBCA No. 2929, 92-1 BCA ¶24,727; Beredo Const. Co., Inc., PSBCA No. 2888, 91-3 BCA ¶24,092. The Board sees no reason to depart from the usual practice and has, therefore, followed that practice in adding overhead and profit.