November 18, 1994
Appeal of
KENNETH and VERNELL CHADWELL
UNDER LEASE AGREEMENT
PSBCA No. 3529
APPEARANCE FOR APPELLANT:
Kenneth Chadwell
APPEARANCE FOR RESPONDENT:
Mark E. Dennett, Esq
OPINION OF THE BOARD
Appellant has filed an appeal from a Contracting Officer's decision denying three claims totaling $3,111.40 for additional work performed under a contract for construction and leaseback of a post office. The parties waived a hearing and submitted the appeal on the record.
FINDINGS OF FACT
1. On June 5, 1992, Appellant, Kenneth and Vernell Chadwell, husband and wife, was awarded a contract by Respondent, United States Postal Service, for the construction and leaseback to Respondent of a postal facility located in Lake Dallas, TX. The lease was to begin on August 26, 1993, and end on August 25, 2003, at an annual rental of $37,694. The lease additionally contained four five-year renewal options (Respondent's Appeal File (AF)-A). Kenneth Chadwell operated K. C. Enterprises, the entity that was to construct he facility (AF-F, G, H, I).[1]
2. The facility was to be constructed in accordance with "USPS Drawings dated 04/09/92, Project No. 3A1652, Building Size 'K' of 5,779 SF, consisting of nine sheets, all referring to subject project together with USPS Specifications for Lake Dallas, TX" (AF-A).
3. The contract contained no "Changes" Clause, but did contain the standard "Claims and Disputes" Clause (Id.).
4. The contract specifications in Division 01000 "General Requirements" contained a provision entitled "General Scope" which stated in part:
"A. In case of contradiction between plans and specifications, the specifications shall govern. Final decision shall be made by the Contracting Officer." (AF-B).
5. The contract's "Construction Rider" provided in pertinent part in its paragraph 10:
"10. LICENSES, PERMITS, SAFETY, INDEMNIFICATION
a. The offeror is, without additional expense to the Postal Service, responsible for identifying and complying with zoning requirements, if applicable, obtaining any necessary licenses and permits required for privately owned buildings, and for complying with any applicable Federal, State, and municipal laws, codes, and regulations, in connection with the performance required under or related to this contract...." (AF-A).
6. Paragraph 01200 K of the contract specifications stated:
"PERMITS: Contractor shall be responsible for all permits, fees, etc., and comply with all laws, rules and regulations bearing on the work of this contract." (AF-B).
7. Note 4 of sheet 1 of the contract drawings stated "Install concrete culverts at drives if necessary. Coordinate possible culverts and drainage requirements with the city." (Contract drawings)
8. The contract contained a "Tax Rider-Reimbursement of Paid Taxes" provision which stated in part:
"a. The lessor agrees to pay all general real estate taxes levied on the land and buildings hereby demised.... The lessor must pay all assessments and fees of every kind and nature other than general real estate taxes without reimbursement by the Postal Service. Assessments, 'special assessments,' or like charges are not considered general real estate taxes under the terms of this lease." (AF-A)
9. Division 08000 of the specifications pertained to doors and windows. Section 08307 contained the hardware schedule for doors. It stated in pertinent part:
G. Door No. 7 Wood or Hollow Metal, Interior:
1. 1-1/2 pair butts, 4-1/2 x 4-1/2 T2127, US26D.
2. 1 passage set 161N, US26D with lever handle.
3. 1 door stop 1330A, Brookline US26D.
***
K. Door No. 11 Single Steel:
1. 1 each Schlage L9456P mortise deadbolt lockset with thumb latch on workroom side and keyed on exterior side.
2. 1-1/2 pair hinges, ball bearing, 4-1/2 x 4-1/2, US260, NRP.
3. 1 each closure, surface mounted, 3009-V PA 180 degrees.
4. 1 threshold, 3-1/2 x 1/2" aluminum.
5. 1 Kickplate, 10" x door width by 2" - 16 ga. aluminum.
L. Door No. 12 Single Wood: (same as Door No. 7.)"
The description of Door No. 12 and its hardware requirement was erroneous. It should have read "Door No. 12 Single Steel: (same as Door No. 11)" (AF-B; Contract Drawings 4 and 6).
10. Door 11 and Door 12 are shown on the contract drawings as doors to the outside.[2] Door 7 is shown as an interior door between a storage room and the workroom (contract drawing 4).
11. Carrier Door Elevation E on drawing 4 shows a requirement for rubber bumpers and a deadbolt on Door 12 (contract drawing 4).
12. The Door Schedule on drawing 6 describes Doors 11 and 12 as metal doors. The rear elevation on the same drawing depicts a bumper on the outside of the Door 12 ingress door (contract drawing 6).
13. The Door Schedule on drawing 6 for door 12 lists the width of the door as 3 feet 6 inches. Elevation E on drawing 4 likewise shows a width of 3'6" for Door 12. The dimension shown on the building perimeter for the opening for Door 12 on drawing 4 is 3'10", however (contract drawings 4, 6).
14. Specification section 08504 "Safety Glazing" states in relevant part:
"Any glass installed in doors or 4' 0" either side of doors, or adjacent to walkways or vestibules shall be glazed in accordance with Federal Safety regulations with tempered or safety glass." (AF-B).
15. Contract drawing 6, Front Elevation and G Elevation, depicts glass walls adjacent to store front doors (Doors 1 and 6) (contract drawing 6).
16. On August 30, 1993, Appellant submitted a claim in the amount of $866 to Respondent's representative, representing (1) the cost for supplying the same hardware on Door 12 as on Door 11 in accordance with previous instructions given Appellant by the Contracting Officer's representative, and (2) apparent additional work performed in installing Door 12 in a width of 3' 6" (AF-F).
17. Another claim was submitted to Respondent's representative on August 30, 1993. In this claim Appellant sought $1,632.29 for the installation of glass walls adjacent to Doors 1 and 6 (AF-G).
18. On September 13, 1994, Appellant submitted a third claim to Respondent's representative seeking payment of $613.11, one-half the cost billed to Appellant by the City of Dallas for resurfacing the street adjacent to the postal facility (AF-H).
19. By final decision dated November 10, 1993, the Contracting Officer denied Appellant's claims (AF-I). A timely appeal was taken.
DECISION
Claim No. 1 - Door 12
In this claim Appellant seeks an additional $866, representing the cost of supplying more expensive hardware on Door 12 than required by the specifications and apparently performing additional work in installing Door 12 at a width of 3' 6".
In regard to the hardware aspect of the claim Appellant relies on the contract specification's statement that Door 12 is a wooden door requiring the same hardware as Door 7. Appellant contends that since the contract specifications (Division 01000-Finding of Fact (FOF) No. 4, supra) state that the specifications govern in the case of conflicts between drawings and specifications, the requirement shown on the contract drawings for heavier duty hardware for Door 12 may be disregarded. Appellant's position is well taken.
The contract specifications identified Door 12 as a wooden one, the drawings showed otherwise. Door 12 is shown on the drawings as an outside door with a requirement for a rubber bumper and deadbolt, the same requirement shown for Door 11, also an outside door. The door schedule on the drawings also shows both doors 11 and 12 to be metal doors. Considering the small amount of Appellant's claim and the work involved the conflict between the drawings and specifications pertaining to the Door 12 hardware was not an obvious one. In addition, Appellant could rely solely on the specification hardware designation to the exclusion of the drawing requirements based on Division 01000 of the contract specifications. Hensel Phelps Construction Co. v. United States, 886 F.2d 1296 (Fed. Cir. 1989). Appellant is entitled to recover that portion of the Door 12 claim pertaining to hardware.
Appellant's theory of recovery for that portion of the Door 12 claim pertaining to door installation is unclear. Appellant correctly identifies the disparity in dimensions shown on the contract drawings for the width of Door 12 (FOF No. 13). However, Appellant has not particularized how such inconsistent dimensions caused it to perform any extra work in installing either the door or the underlying foundation. It is Appellant's burden to prove any added work performed under the contract. Baltimore Contractors Incorporated, GSBCA No. 3791, 77-1 BCA ¶ 12,234; Fred Wareh Constr. Co., ASBCA No. 24210, 81-2 BCA ¶ 15,396; Elrich Contracting, Inc., GSBCA No. 10936, 93-1 BCA ¶ 25,316. Here Appellant has not done so.
Appellant's claim pertaining to additional installation costs for Door 12 is denied.
Claim No. 2 - Doors 1 and 6
Appellant seeks a payment of $1,632.29, representing the cost for the supply and installation of glass walls adjacent to Doors 1 and 6, described in the specifications as single aluminum storefront. Appellant contends that the specifications describe material and installation requirements for the doors, but contain no requirement for installing glass walls adjacent to the doors and therefore that such installation work constituted a compensable change in contract requirements.
Appellant errs. Specification section 08504 "Safety Glazing" referred to glass installation "4' 0" either side of doors" (See FOF No. 14). The requirement for the glass walls, showing the specific location of the walls was clearly depicted on contract drawing 6 Front Elevation and G Elevation. The specifications and drawings both comprise the contract requirements. They complement each other and must be read together. In this instance there is no ambiguity between the two and no inconsistencies between them. Appellant's claim has no merit.
Claim No. 3 - Resurfacing
In this claim Appellant seeks reimbursement from Respondent of $613.11 which the City of Dallas billed Appellant for street resurfacing adjacent to the postal facility. Appellant reasons that the resurfacing was the direct result of the contract drainage requirements required by Respondent and thus Respondent's cost responsibility. Respondent argues that the contract provisions (FOF 5, 6 and 7) placed responsibility on Appellant for obtaining all licenses, permits, fees, etc., and coordinating drainage requirements with the city in contract performance, and thus absolve Respondent of any responsibility to reimburse Appellant for the resurfacing cost.
Respondent has no liability, but not for the reasons it relies upon. The licenses, permits and coordination requirements are affirmative responsibilities imposed upon Appellant in performing the contract. Here the City of Dallas apparently without consultation with Appellant and for reasons not contained in the record took the initiative to resurface a street adjacent to the facility and billed Appellant for the work. There is no contractual provision requiring Respondent, the lessee, to reimburse Appellant for the cost of the work. This situation is not different from any other assessment which is Appellant's responsibility under the Tax Rider of the lease (FOF 8). Appellant's claim thus has no merit.
Summary
That portion of Appellant's claim No. 1 pertaining to door hardware is granted. The matter is remanded to the Contracting Officer for calculation of the amount due Appellant. The remainder of Appellant's claim No. 1 and claims Nos. 2 and 3 are without merit. They are denied.
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