October 23, 1998
Appeal of
SWEDE CONSTRUCTION CORPORATION
Under Contract No. 232098-95-B-0147
PSBCA No. 4099
APPEARANCE FOR APPELLANT:
Ronald M. Sanderson
APPEARANCE FOR RESPONDENT:
Deborah A. Davis, Esq.
OPINION OF THE BOARD
Appellant, Swede Construction Corporation, has appealed a final decision of the contracting officer denying Appellant's claim for $47,262.60 and an additional 240 days to be added to the contract's schedule, for delays Appellant contends were caused by Respondent, United States Postal Service, during a repair project at the Monongahela, Pennsylvania Post Office. The parties have elected to submit their case on the record in accordance with 39 C.F.R. §955.12. Only entitlement is at issue.
FINDINGS OF FACT
1. On June 14, 1995, Appellant was awarded Contract No. 232098-95-B-0147, in the amount of $142,779, for general repairs to the Monongahela, Pennsylvania Post Office. Work was to be completed in 180 calendar days from notice to proceed. Among other work under the contract, Appellant was to construct additional parking and drives at the exterior of the post office, perform interior painting and repair, refinish the workroom floor and rehabilitate existing wood windows inside the post office. (Appeal File Tab (AF) 50).
2. The contract included the following relevant provisions:
"C.12 WORKING HOURS
a. It is contemplated that all work will be performed during the customary working hours of the trades involved unless otherwise specified in this contract. Work performed by the contractor at its own volition outside such customary working hours shall be at no additional expense to the Postal Service.
b. The contractor must refer to the contracting officer any requests from occupants of buildings included in the contractor's work area to change the hours of work.
* * *
G.1 CONDITIONS AFFECTING THE WORK
The contractor is responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions that can affect the work or its costs. . . .
* * *
G.6 USE OF PREMISES
a. If the premises are occupied, the contractor, any subcontractors, and their employees must comply with the regulations governing access to, operation of, and conduct while on the premises and must perform the work required under this contract so as not to unreasonably interfere with the conduct of Postal Service business or use and occupancy by the Postal Service tenants. . . .
* * *
G.28 PERFORMANCE AT OCCUPIED POSTAL PREMISES
* * *
b. The contractor must coordinate its use of the premises with the installation head or other representative designated by the contracting officer. . . ." (AF 50).
3. Appellant attended a pre-bid conference on April 25, 1995. At this conference, the postmaster informed bidders that critical operational areas (including the workroom), were busy until approximately 10:00 a.m. and again after 3:00 p.m., but non-critical areas could be worked in all day. The postmaster also informed bidders that all work must be coordinated with her. (Declaration of Cherie Gisoni; AF 48).
4. At this same meeting, the postmaster informed prospective bidders that exterior work would have to allow the Postal Service to have access to the dock, whether on gravel or paving, for one truck per day and Postal Service carriers to use wheeled hampers to load mail on their trucks away from the dock. (AF 48).
5. On July 6, 1995, Appellant attended a pre-construction conference at which Appellant was again informed that Postal Service carriers leave the workroom at approximately 10:20 a.m. and return between 3:15 and 3:45 p.m. each day. Appellant was also reminded that all work had to be coordinated with the postmaster. Appellant was given notice to proceed with the work at this meeting, thereby establishing January 2, 1996, as the date by which work was to be completed. (Declaration of Cherie Gisoni; AF 47).
6. An inspection performed on November 21, 1995, disclosed that Appellant had not completed a significant portion of the contract work (AF 49). Unfinished work included cement markers, signage, HVAC, floor installation and refinishing, railings, dock bumpers, asphalt wear course and top soil/seeding. Of these items of unfinished work, only the asphalt wear course and floor installation and refinishing required coordination with the postmaster. (Declaration of Theodore J. Balchunas; AF 31, 43).
7. At a December 5, 1995 meeting between Appellant and representatives of Respondent, Appellant agreed to request a time extension and to complete the flooring in the Spring so as not to disrupt post office operations during the busy month of December. Appellant stated that it would install the asphalt wear course in the Spring because the Winter weather would not permit an earlier installation. (Declaration of Theodore J. Balchunas; AF 31, 44).
8. The postmaster arranged for Appellant to work nighttime hours (outside of normal work hours), when it completed the repair and refinishing of the workroom floor (Declaration of Cherie Gisoni; AF 49).
9. On August 30, 1996, Appellant submitted a claim for $47,262.60 and 240 days of time extension because of delays allegedly caused by Respondent (AF 32).
10. Appellant did not complete work on the project until September 1996 (Declaration of Theodore J. Balchunas; AF 31).
11. The contracting officer never issued any stop work orders or otherwise gave any directions to Appellant during contract performance (Declaration of Theodore J. Balchunas).
12. By final decision dated June 6, 1997, the contracting officer denied Appellant's claim, and Appellant filed a timely appeal (AF 2, 3).
DECISION
Appellant argues that its performance on the contract was disrupted by directions of the Monongahela Postmaster to stop work, relocate work or to resequence work. Appellant further argues that it was not foreseen and beyond contract requirements that work on refinishing the workroom floor would be restricted to the hours of 10:00 a.m. to 3:00 p.m., and that this restriction reduced its productivity.
Respondent argues that any increased costs incurred by Appellant or delays in performance were caused by Appellant's failure to perform according to contract requirements. Respondent also argues that the contract clearly warned Appellant that all work must be performed so as not to unreasonably interfere with the conduct of Postal Service business. Respondent further notes that the restriction on performance of workroom floor refinishing during the hours of 10:00 a.m. and 3:00 p.m. was addressed at both the pre-bid meeting and pre-construction conference, both of which were attended by Appellant. Finally, Respondent argues that Appellant's claim must fail because Appellant has not supported it with evidence in the record.
Appellant, which is the party seeking recovery, has the burden of proof in this appeal. RKM Construction Co., Inc., PSBCA No. 3370, 94-3 BCA ¶ 27,137; Roger Elliott, PSBCA No. 3285, 1993 WL 73426 (Feb. 12, 1993); F&B Realty, PSBCA No. 2529, 91-2 BCA ¶ 23,788. For the reasons set forth below, we find that Appellant has failed to sustain this burden.
Appellant made generalized complaints about the postmaster having interfered with the work Appellant performed. However, with the exception of the restriction on working in critical interior areas prior to 10:00 a.m. or after 3:00 p.m., Appellant has not proven other interference that directly led to a delay in performance
It was Appellant's responsibility to perform the contract without unreasonable interference with Respondent's business operations and to obtain the information necessary to do so. See Nicholas Nova Construction Co., PSBCA No. 1206, 85-1 BCA ¶ 17,846. The contract warned Appellant that coordination of the work with the postmaster would be necessary to avoid unreasonable interference with Postal Service operations. If Appellant believed that the postmaster's actions caused a change to the contractually permitted work hours, it was to bring such conduct to the attention of the contracting officer in accordance with clause C.12 of the contract, and there is no evidence that Appellant ever did so until it filed its claim (See Finding of Fact No. (FOF) 2). Moreover, both at a pre-bid conference and again at the pre-construction conference, Appellant was specifically informed that work in critical interior areas would be restricted to the hours of 10:00 a.m. and 3:00 p.m. (FOF 2, 3-5)[1]. Thus, it should have come as no surprise to Appellant when this restriction was enforced. Any resultant increased costs or delays in performance should have been anticipated.
Appellant alleged but did not prove that its request to work beyond the normal work hours was denied. Appellant was permitted to work at night when refinishing the workroom floor (FOF 8). Appellant has not shown that other requests for similar work arrangements were denied by the postmaster.
Furthermore, Appellant chose to delay placing the asphalt wear course on the exterior parking lot until the Spring because of the Winter weather (FOF 7). This delay, therefore, cannot be attributed to actions by Respondent's representatives[2].
Accordingly, this appeal is denied.
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] Appellant argues that its officials understood from the pre-bid conference that the workroom floor would be busy until 10:00 a.m. and after 3:00 p.m., but did not understand that work in the area would be prohibited except between 10:00 a.m. and 3:00 p.m. This argument is rejected. Appellant must have known that it could not perform hardwood floor repair and refinishing in space busy with postal employees.
[2] While there is evidence that more than one vehicle per day used the dock, contrary to the advice the postmaster gave bidders at the prehearing conference (see FOF 4), there is no evidence that this occurred during the paving or that such use had any effect on Appellant's performance of the paving.