OPINION OF THE BOARD

Appellant, Karcher Environmental, Inc., contracted to perform asbestos abatement work at a Postal Service building. Appellant encountered unusually-shaped girders and asbestos fireproofing overspray on previously-insulated ductwork and piping, conditions it claimed were differing site conditions. It filed a claim for its increased cost of removing the fireproofing from the girders due to their shape, for its subcontractor's increased cost of reapplying fireproofing to the girders, for its cost of removing the fireproofing overspray from the previously-insulated ductwork and piping, and for its unabsorbed overhead resulting from the additional time necessary to complete the project. The contracting officer denied the claims and asserted Postal Service claims for liquidated damages, for a credit for unperformed work, for the cost of extra inspections and for the cost of repairing damage caused by Appellant. Appellant filed these appeals.

A hearing was held, and the parties have filed post-hearing briefs. Both entitlement and quantum are to be decided (Transcript of Hearing Page (“Tr.”) 7-8).

FINDINGS OF FACT

1. On June 11, 1996, Respondent issued a solicitation seeking offers for an asbestos abatement project at its main post office in Chula Vista, California. The project included the removal of the building’s suspended ceiling and removal of asbestos-containing materials, including sprayed-on fireproofing on the underside of the roof deck, on the roof support structure and on ducts and piping. Much of the ductwork and piping was wrapped with insulation, and the project included removal and disposal of that insulation. The specifications called for restoration of the premises after abatement, including applying non-asbestos fireproofing to the roof support structure, installing new insulation on the previously-insulated ductwork and piping and installing new ceiling tile. (Tr. 29, 32, 583-584; Appeal File, Tab (“AF”) 1; Stipulation of Facts (“Stip.”) ¶¶ 1, 2).

2. The solicitation advised that a preproposal meeting would be held at the site on June 18, 1996. Attendance by potential offerors was strongly urged but was not mandatory in order to submit a bid. (AF 1, Solicitation Paragraphs 6, J.9, PREPROPOSAL CONFERENCE AND SITE VISIT (Provision OA-8) (June 1988)).

Girders

3. The June 18 preproposal meeting included a tour of the facility. As the suspended ceiling was in place, little could be seen of the roof support structure, but the attendees were taken to a mechanical room at the mezzanine level where they were able to see up into the space above the suspended tile ceiling. A five- to ten-foot span of one fireproofed girder was within view at the top of the wall just below the roof decking. In a fan room visited by the attendees, there was a 20- to 30-foot span of a fireproofed girder visible along one wall of the room. (Tr. 399-400, 405-408, 413-414, 604; AF 2; Supplemental Appeal File, Tab (“SAF”) 22).

4. The building’s girders were unusual in shape and differed materially from what would ordinarily have been encountered in a project of this type (Tr. 47, 82, 90-91, 134, 192, 204, 239, 361-362, 409, 488, 494, 537; AF 14, 28, 34; SAF 8). Instead of the flat top and bottom flanges (also known as chords) common to “I-beam” or “wide-flange” beams, the girders that supported the roof joists at the Chula Vista Post Office had fluted or rolled top and bottom flanges. Additionally, instead of the flat, vertical “web” connecting the flanges common to the I-beam or wide-flange beam, the girders had a corrugated web, with corrugations running vertically from the fluted top chord to the fluted bottom chord. (Tr. 38, 40, 50-52, 90-91, 325-327, 430; Appellant’s Exhibits (“AX”) 1, 2, 9; AF 28).

5. The girders had been coated with sprayed-on fireproofing to a depth of more than an inch, making observation of the complete details of the unusual shape of the girders impossible (Tr. 193, 204). However, even with the fireproofing, the corrugated nature of the web of the two visible spans of girder could be discerned, and it should have been apparent to anyone viewing the girders that the web was not flat as would be expected if the girder were a wide-flange beam (Tr. 193, 329-332, 338, 369, 407-409, 426-428, 490, 604). That the top and bottom flanges of the girders were fluted or rolled could not be discerned by looking at the coated girders (Tr. 58, 414, 431, 490, 650).

6. At the time of the walkthrough, the post office was in full operation, and potential bidders were not allowed to scrape or disturb the fireproofing in the course of their examination of the site or to get above the suspended ceiling (Tr. 180-181, 249-250, 415, 503-504).

7. Appellant did not send a representative to the pre-bid walkthrough. However, Chris Knott, the subcontractor who Appellant eventually engaged to apply the fireproofing after completion of the asbestos abatement, did attend. (Tr. 32-33, 123, 177; AF 2, 31). Mr. Knott did not notice the unusual shape of the girders. He noticed a short span of what was, in fact, a girder in one of the mechanical rooms and noticed the corrugated pattern beneath the fireproofing, but at the time, he did not recognize the section as being part of a girder. (Tr. 181-182, 187, 196, 605-606).

8. A number of questions were raised at the walkthrough, causing Respondent to rethink parts of the project (AF 2). On June 28, 1996, Respondent issued Amendment 01 to the solicitation, addressing a number of the issues raised at the pre-bid meeting (AF 3). One of the issues raised by potential offerors at the job walkthrough was whether there were as-built structural plans available for review (Tr. 188, 191), and item 4 of the amendment noted, “Construction drawings of the original facility will be available for review by plan holders at the Chula Vista Post Office. Contact the Chula Vista Postmaster to arrange for viewing drawings.” (AF 3).[1] Even though Respondent’s consultant on the solicitation, Woodward-Clyde, was aware of the shape of the girders (Tr. 489), the amendment made no mention of the configuration of the girders (Tr. 496, 506, 54; SAF 197).

9. The construction drawings of the original facility referred to in Amendment 01 included structural drawings that depicted the girders. Structural Drawings S5 and S6 showed the joists and girders of the roof structure. Note 2 on Drawing S5 provided, “Girder sizes noted here are ‘Paulweb’ types as manufactured by ‘Macomber, Inc.’” The roof deck welding details on Drawing S6 depicted a beam identified as “Joist or Girder” end-on which showed a fluted top chord consistent with the condition found at the site. On Drawing S10, Sections 2 and 3 and Detail B showed an end-on view of the girders and depicted the configuration of the fluted top and bottom chords of the girders that

were found at the site. Section 4 and Detail 7 on Drawing S10 show a side view of girders consistent with the actual shape of the top and bottom chords. The corrugated web is not clearly shown, but the end-on views of the girders in Sections 2 and 3 and Detail B of Drawing S10 show a thickness to the web consistent with the corrugation actually found. These depictions of the web and chords of the girders differ materially from the depiction in Section 5 on Drawing S10 of an end-on view of what is identified as a “WF” (wide-flange) beam that looks like a typical I-beam with a thin vertical web and flat top and bottom chords. (Tr. 342-349; SAF 1).

10. Appellant received a copy of Amendment 01 before submitting its offer (AF 5, Section A.2), but it did not obtain or review the original facility drawings (Tr. 137). Appellant’s fireproofing subcontractor, Mr. Knott, reviewed the as-built construction drawings, but he was mainly interested in the roof framing plan and not the structural details (Tr. 188, 190, 195-196). He made takeoffs from the roof framing plans, S5 and S6 (SAF 1), to determine the linear footage of beams and surfaces to which he would have to apply fireproofing and from that calculated the quantities of material and labor that would be required (Tr. 196). He factored these calculations into his bid to Appellant and other potential offerors on the project (Tr. 195). Mr. Knott would have just skimmed or glanced at drawings such as S10, which contained structural details that he considered important only to a steel erector (Tr. 191, 196, 199, 200).

11. The solicitation included a number of photographs of conditions at the site, including two that showed the corrugated nature of the girders’ web. The photographs were not intended specifically to depict the corrugated shape of the web—Photograph 6 was labeled, “Spray-on fireproofing on roof decking and roof trusses,” and Photograph 7 was labeled, “Spray-on fireproofing on structural members (note overspray on studs and wallboard).” (AF 1, Solicitation Photographs 6, 7; Tr. 364-365). Nevertheless, both photographs showed fireproof-coated girders and both showed that the web of the girders was corrugated and not flat. The exact shape of the chords could not be ascertained from the photographs.

12. To prepare its offer, Appellant scaled the mechanical drawing included in the solicitation (AF 1, Drawing 3, Mechanical Piping and Ductwork Plan) to determine the extent of the ductwork and piping insulation on the project (Tr. 132-133, 163-164), reviewed the photographs in the solicitation (Tr. 30), reviewed the plans and specifications in the solicitation and used estimated quantities of work set forth in the specifications (Tr. 166; AF 1, Specification Section 1.06 B; AF 2, Section B.15). Appellant did not use figures specific to the structural members, including the girders, to be abated (Tr. 167). There is no evidence that either the number or size of the girders or the quantity of insulated versus uninsulated ductwork and piping had any direct bearing on Appellant’s calculation of the price it proposed for the project. Instead, Appellant applied a “factor” (not completely explained in the record) to the plan area as identified in the solicitation, 58,500 square feet (AF 1, Specification Section 1.06 B), based on its assumptions about the typical number and type of structural elements expected for this building. Among the assumptions that its “factor” was based on was that the beams (including the girders) in the building would be wide-flange beams common to this type of building. (Tr. 36-37, 59, 164-167, 170-172, 175, 486-487; AF 5, 10, 90).

13. Appellant was the low offeror and was awarded the contract on August 20, 1996, at a price of $1,065,000. The project was to be completed within 60 days after Appellant’s receipt of notice to proceed. (AF 1, 3, 6, 7,10; SAF 7).

14. The solicitation required offerors to propose unit prices for certain elements of the asbestos abatement work (AF 1, Specification Section 1.06 B; AF 3, ITEMS REQUIRING UNIT PRICING), and Appellant’s proposed unit price of $13 for “Removal and disposal of fireproofing per square foot” was accepted and became part of the awarded contract (Tr. 36, 113; AF 5, 10; Stip. 3).

15. The contract provided,

“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 cost. Any failure by the contractor to have done so does not relieve the contractor from responsibility for successfully performing the work without additional expense to the Postal Service.” (AF 1, Clause G.2, CONDITIONS AFFECTING THE WORK (Clause 11-1) (October 1987)).

16. The contract’s differing site conditions clause provided for an equitable adjustment to the contractor if its costs of performance were increased by its encountering of “[p]reviously 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.” (AF 1, Clause G.3.a.2, and b, DIFFERING SITE CONDITIONS (Clause 11-2) (October 1987)).

17. Notice to proceed was issued to Appellant on August 20, 1996, with Appellant instructed to begin work on September 3. The Notice advised that the period allowed for completion was 60 days, making the completion date November 1, 1996. (AF 10, 11, 12).

18. Shortly after Appellant began the abatement work, its workers discovered the unusual shape of the girders (Tr. 38, 40). On September 19, 1996, Appellant notified Respondent that it had encountered unusually-shaped beams (referred to by the parties as “Paulweb girders”) and that the shape of the girders was causing difficulties in removing the fireproofing (Tr. 44, 83, 227, 262-263, 423-425; AF 14, 37; Stip. 4).

19. Removing the existing fireproofing from the girders was significantly more difficult than Appellant had expected because of the shape of the chords and the corrugated web and the pockets created where the web and chord met (Tr. 40-41, 59-61, 83, 431, 565-566). Smaller tools were used than would have been required for cleaning wide-flange beams, and cleaning the fluted chords and the corrugations was much more time-consuming (Tr. 41-43, 48, 83, 206-207, 565-566; see Tr. 339; AX 2, 3, 4, 5, 6, 7).

20. Also, applying the non-asbestos fireproofing to the Paulweb girders required the use of more material and labor than would have been required for fireproofing standard wide-flange beams. (Tr. 38-40, 59-61, 121-123, 151; AF 76, 82, 94; SAF 8, 15; Stip. 4).

21. Under the contract’s equitable adjustment clause, Appellant was permitted to recover a maximum commission of 10% on the value of work performed by its subcontractor (AF 1, Clause F.2, EQUITABLE ADJUSTMENTS (CONSTRUCTION) (Clause FB-271) (August 1988)).

Ductwork and Piping

22. A substantial portion of the ductwork and all of the piping in the post office was wrapped with insulation, which Appellant was to remove and replace as part of the project. The project area contained 11,187 square feet of previously-insulated duct and 2,488 square feet of previously-insulated pipe. (In November 1996, Woodward-Clyde, Respondent’s consultant, calculated the amount of previously-insulated duct in the project to be 25,820 square feet. That result was sent to Appellant in a November 22, 1996 fax. However, Woodward-Clyde subsequently discovered that their first calculation was erroneous and after a number of iterations ultimately reached the conclusion, adopted by the contracting officer in a July 31, 1998 final decision, that there were 11,187 square feet of insulated duct in the project.) (Tr. 273, 398-399, 444-447, 453-454, 466-468, 471-474, 483, 576-577, 579, 580, 587-588, 596-599; AF 24, 59, 83, 114, 123; AF 1, Specification Section 01010-1.06 B; SAF 21, 28).

23. When it began removal of the insulation, Appellant discovered that the ductwork and piping beneath the insulation had received overspray from the original application of sprayed-on fireproofing which Appellant would be required to remove (AF 14, 17, 20). On September 19, 1996, Appellant notified Respondent that the condition was causing an increase in its costs of performance, suggesting that it would be seeking additional compensation. (AF 14).

24. The first step in cleaning the fireproofing overspray from the ducts and pipe was the “gross” cleaning, which was the removal of large sections or accumulations of fireproofing with scrapers and wire brushes (Tr. 65, 108-109, 209-211). Gross cleaning was followed by cleaning the folds and details of the duct and pipe with small tools (“detail cleaning”) and finally by a “wet wipe” of the surface with a cloth to remove the last traces of asbestos-containing fibers or dust (Tr. 46, 85-86, 92-93, 98, 101, 108-110, 474-475, 564, 568-569). For ducts and pipe splattered with fireproofing, gross removal of the splatters was necessary even if only lightly sprayed (Tr. 66-69, 85, 93-97, 113, 209-211; AF 122; SAF 16). Detail cleaning and wet wiping of the previously-insulated duct and pipe would have been required even if they had not received fireproofing overspray (Tr. 98, 101, 109-110).

25. Some surfaces of previously-insulated duct and pipe did not contain any fireproofing and some surfaces contained only a few splatters of fireproofing (Tr. 459, 464). However, other sections of previously-insulated duct and pipe bore substantial amounts of overspray, primarily on the top surface (Tr. 106; AF 14; SAF 16). Respondent conceded Appellant’s entitlement to be compensated for the removal of the overspray from the previously-insulated ductwork and piping (Tr. 9-10), but discounted the amount of duct and pipe surface used in its calculation of the amount of compensation to reflect its assessment of the amount of compensable abatement necessary.[2] Allowing for an offset of the areas that did not require asbestos abatement as computed by Respondent, the amount of fireproofing abated from previously-insulated duct was 3,706 square feet, and the amount of fireproofing abated from previously-insulated pipe was 842 square feet, resulting in total abatement of 4,548 square feet (AF 114). Applying the contract’s $13 per square foot rate (Finding 14) results in an amount of $59,124 for the overspray on previously-insulated duct and pipe (AF 114).

Sewer Blockage

26. On November 20, 1996, an employee of Appellant’s subcontractor caused a blockage in the facility’s sewer line by cleaning his fireproofing applicator in a toilet. Respondent’s cost to clear the line and extract water from carpets soaked by the backup was $1,334, and the cost to replace carpet damaged by the backup was $2,461. Appellant has acknowledged liability for these amounts. (AF 64, 89, 119; Appellant’s Exhibit 14).

Extra Inspections

27. Appellant performed its asbestos abatement work within containment areas, which were sealed enclosures it was required to construct of sealed sheet polyethylene (Tr. 39; AF 122, Photograph 2). The asbestos removal was done within the containment envelope, and a system of fans created negative pressure so that fibers and debris would not be expelled in the event of a breach in the containment. (Tr. 39, 203).

28. The specifications established that Respondent’s abatement consultant, Woodward-Clyde, would conduct monitoring and testing throughout the project to assure that required standards were being met. Under the specifications, work within a containment area would not be considered complete until it passed the specified tests performed by Woodward-Clyde. (AF 1, W-C Specifications Section 02089, AIR MONITORING AND TESTING).

29. The tests were to be performed at Respondent’s expense unless the abatement containment area failed the clearance tests, requiring additional abatement work and retesting. The specifications provided,

“It is the United States Postal Service’s intent to have, at no charge to the Contractor, one clearance test performed in each abatement area. . . . In the event that additional testing is required to obtain clearance, the United States Postal Service will not be responsible for delays or additional costs incurred due to additional testing. The Contractor will reimburse the United States Postal Service for costs incurred to perform additional testing, including but not limited to: the Asbestos Consultant’s time and materials, and laboratory analysis fees.” (AF 1, Specification Section 02080-3.03 H, p. 02080-29).

30. During the project, there were at least eleven instances where containment areas failed clearance tests. For conducting these tests, Respondent paid Woodward-Clyde $14,810, and claimed this amount from Appellant. (Tr. 125-130, 231, 233, 235, 437-439; AF 117). Woodward-Clyde billed $50 for each high volume pump (up to five per test) used during the failed tests even though these pumps could be purchased for about $200 (Tr. 125-130, 232-233). The total charge for such pumps used in failed clearance tests was $2,550 (AF 117).

31. On or about November 1, 1996, Appellant allowed a breach of one of the containment envelopes, and asbestos debris escaped (Tr. 234, 439-441). Once the breach was repaired and the debris cleaned up, Woodward-Clyde conducted air monitoring tests of the surrounding area to make sure the requirements of the contract were met. The cost of this air monitoring was $1,162, paid by Respondent. The cost included $250 for high volume pumps. (Tr. 233-234, 441; AF 51, 52, 72, 117, 118).

Unperformed Encapsulation

32. When abatement of the asbestos on top of a section of the lookout gallery was determined to be extremely difficult, Appellant and Respondent agreed that Appellant would encapsulate the asbestos-containing material instead of removing it. Appellant failed to perform the encapsulation, and the reasonable value of the work not performed was $4,563. Appellant agrees that Respondent is entitled to a credit in that amount. (AF 42, 44, 45, 47, 48, 50-54, 62, 116; AX 14).

Delay in Completion

33. The contract contained a liquidated damages provision, requiring Appellant to pay $1,000 per day for each calendar day it was late in completing the contract. However, the contract provided, “The contractor will not be charged with liquidated damages when the delay in completion, delivery, or performance arises out of causes beyond the control and without the fault or negligence of the contractor, or its subcontractors.” (AF 1, Clause C.4, LIQUIDATED DAMAGES (Clause 2‑10) (October 1987); Tr. 294).

34. The project was completed on December 5, 1996 (Tr. 118; AF 67; Stip. ¶¶ 6, 7). Contract Modification No. 01 had given Appellant a four-day extension, making the revised contract completion date November 5, 1996 (AF 50).

35. The contract work was never suspended, and Appellant continued working despite the difficulties it was encountering (Tr. 46, 153; AF 16, 17).

36. The time necessary to perform the project was increased by the requirement that Appellant remove fireproofing overspray from ductwork and piping that had previously been insulated (Tr. 48, 98).

37. During the project, Appellant’s subcontractor, which was performing a substantial portion of the asbestos abatement work, failed to maintain the schedule required by its agreement with Appellant due to understaffing, damage its employees caused on the job and other problems of its own making. That subcontractor finished its work at least 6 days late. (AF 99-103, 106-113).

Claims

38. On February 6, 1997, Appellant submitted an equitable adjustment request seeking $64,641 for the extra effort to remove fireproofing from the Paulweb girders, $370,448 for removing the fireproofing overspray from previously-insulated ducts and pipes, $8,969 for its subcontractor’s application of extra fireproofing to the girders and joists and $1,345 as its 15% markup on the extra fireproofing for a total contract adjustment of $445,403 and a time extension to December 5, 1996. (Tr. 151-152, 194; SAF 15; Stip. 9).

39. By letter dated March 21, 1997, the contracting officer rejected the request for an equitable adjustment (Stip. 10), and asserted a Postal Service claim against Appellant (AF 84).

40. In a May 2, 1997 final decision, the contracting officer formally asserted the Postal Service’s claim against Appellant in the amount of $129,678. The final decision referred to Respondent’s March 21, 1997 claim letter (Finding 39) which identified the breakdown of the claim as follows: (1) a credit for Respondent of $73,575 because the quantities of asbestos abated were, according to Respondent, less than the quantities estimated in the contract; (2) $14,810 for additional clearance testing by Respondent’s asbestos consultant, Woodward-Clyde; (3) $1,773 for additional inspections of the work by Respondent’s architect; (4) $1,162 for monitoring cleanup after the breach in the containment during the project; (5) a credit of $4,563 for Appellant’s failure to perform the encapsulation work; (6) $1,334 for repair of a sewer line blocked by Appellant’s subcontractor; (7) $2,461 for carpet damage resulting from the sewer blockage and (8) $30,000 in liquidated damages for delay in finishing the project from the required completion date of November 5, 1996, to December 5, 1996. The letter applied the unpaid contract balance of $31,679 to Respondent’s claim and demanded that Appellant pay the remainder, $97,999. (AF 84, 92; Tr. 229; Stip. ¶ 12).

41. On May 20, 1997, Appellant certified a claim identical to its request for equitable adjustment (Finding 38), except Appellant added a claim of $18,432 for extended home office overhead calculated using the Eichleay formula (Tr. 119-120, 153; AX 12; AF 14), raising the total claim to $463,835. (AF 94; Stip. 11).

42. On May 27, 1997, Appellant appealed the May 2 final decision asserting Respondent’s claim (Finding 40), and the appeal was docketed as PSBCA No. 4085 (AF 95; Stip. 14).

43. On June 4, 1997, the contracting officer issued a final decision denying Appellant’s affirmative claim certified on May 20 (Finding 41). (Tr. 46; AF 96).

44. Appellant appealed the June 4 final decision, and that appeal was docketed as PSBCA No. 4093 (AF 97).

45. In a July 31, 1998 final decision, the contracting officer revised his final decisions of May 2, 1997, and June 4, 1997. In the revision, Respondent dropped its $73,575 claim based on reduction of the scope of work and its $1,773 claim for its architect’s additional inspection services. Additionally, the contracting officer reversed his denial of Appellant’s claim for cleaning fireproofing overspray from the previously-insulated ductwork and pipe. However, he calculated the area so abated to be less than Appellant claimed, and he applied the density discount (Finding 25) to reduce further the amount of surface for which Appellant would receive payment. The total allowed Appellant for the ductwork claim was $59,124 (compensable square footage of abatement from ducts (3,706 square feet) and pipe (842 square feet) totaling 4,548 square feet x $13) plus interest of $4,674.64 for the period from May 23, 1997 (the date the contracting officer received the certified claim), until August 13, 1998. (Tr. 469-74, 590-594; AF 114 attachment; AF 28, 29; Stip. ¶¶ 15, 16). The contracting officer did not allow Appellant a time extension to accomplish the removal of fireproofing from the ducts and pipes because he believed the work could have been accomplished concurrently with the ongoing work in the same time frame (Tr. 271-272).

46. The July 31, 1998 final decision (Finding 45) was timely appealed and was docketed as PSBCA No. 4282.

DECISION

Girders

Appellant argues that it is entitled to additional compensation because it encountered a Type II differing site condition regarding the shape of the girders. It contends the configuration of the girders was unexpected, unusual and was not shown in the solicitation plans and specifications.

Respondent argues that the configuration of the girders was apparent from the photographs in the solicitation, from viewing the sections of the girders visible to those on the site visit and from reviewing the structural drawings of the as-builts made available to offerors. Therefore, although conceding the girders’ configuration was unusual, Respondent contends the indications in the above sources at least created an obligation for Appellant to investigate further and defeats Appellant’s differing site condition claim.

To prevail on a Type II differing site condition claim, Appellant must demonstrate that the shape of the girders could not have been ascertained from a reasonable site inspection and inspection of the contract data available to it. [3] See HK Systems, Inc., PSBCA No. 3712, 97-2 BCA ¶ 29,079 at 144,762; Union Roofing & Sheet Metal Co., PSBCA No. 2366, 90-1 BCA ¶ 22,505, aff’d, 909 F.2d 1496 (Fed. Cir. 1990); Youngdale & Sons Constr. Co. v. United States, 27 Fed. Cl. 516, 528-529, 537-538 (1993).

Features of the girders visible during the site visit and in the photographs in the solicitation indicated that the girders were not I‑beams. That the web was corrugated was evident notwithstanding the layer of fireproofing (Findings 5, 11). Although the fluted shape of the top and bottom flanges of the girder was not visible during the site walkthrough or in the solicitation photographs (Findings 5, 11), it should have been apparent to Appellant before submitting its offer that it was not dealing with standard wide-flange beams.

Additionally, available contract data included the as-built drawings, which would have revealed to Appellant the shape of the girders’ chords and specifically identified the girders as “Paulweb” type girders, had Appellant chosen to review the drawings.[4] Because this information plus the solicitation photographs and conditions visible during the site visit were available to Appellant, the shape of the girders was not an unforeseeable “previously unknown physical condition” within the meaning of the contract’s differing site condition clause (Finding 16). [5] See Union Roofing & Sheet Metal Co., Inc., PSBCA No. 2366, 90-1 BCA ¶ 22,505, aff’d, 909 F.2d 1496 (1990). Appellant’s differing site condition claim regarding the girders fails.

Appellant argues that Respondent’s failure specifically to disclose

information known to its consultant—the shape of the girders (Finding 8)—to potential offerors was a withholding of superior knowledge entitling Appellant to recover its additional costs. However, as discussed above, information regarding the shape of the girders was available to Appellant. Thus, Appellant lacks a necessary element to establish Respondent’s liability on a superior knowledge theory: that the information was not otherwise reasonably available to Appellant. See HK Systems, Inc., PSBCA No. 3712, 97-2 BCA ¶ 29,079 at 144,761; C. M. Moore Div., K.S.H. Inc., PSBCA No. 1131, 85-2 BCA ¶ 18,110 at 90,917, recon. denied, 86-1 BCA ¶ 18,573, aff’d, 818 F.2d 874 (Fed. Cir. 1987).

Appellant’s claim on behalf of the subcontractor it hired to reapply fireproofing after the abatement portion of the project was completed fails for the same reason—that the shape of the girders was not unforeseeable under the circumstances of these appeals. Having failed to establish its subcontractor’s claim, Appellant’s claim for a commission on that work (Findings 27, 45, 48) is also denied.

Overspray on Insulated Pipe and Ducts

The parties have stipulated that Appellant is entitled to compensation for removal of fireproofing overspray on ducts and pipes that had been previously insulated, and only quantum regarding the overspray claim is at issue (Finding 25). The parties agree that the contract’s $13 per square foot unit price (Finding 14) is to be used in calculating the amount due Appellant (Findings 25, 45). The dispute is over the amount of previously-insulated ductwork there was on the project and on how much fireproofing Appellant actually removed.

Based on the parties’ agreement and Respondent’s concession, we find that Appellant is entitled to be compensated for abating the fireproofing overspray on the previously-insulated ductwork and piping at the rate of $13 per square foot of duct and pipe abated. The Board has found as a fact, based on the evidence presented through the testimony of Respondent’s abatement consultant, that 11,187 square feet of ducts had been previously insulated (Finding 22). Appellant challenged Respondent’s calculation of the amount of ductwork, but did not present evidence of its own to support its claim.

Appellant discovered the condition soon after the project began and promptly identified it as a basis for a claim (Finding 23) and had continuous access to the ducts and piping during the course of the project. Yet Appellant evidently made no effort to measure or document the area affected by what it claimed was a differing site condition.[6] Instead of presenting its own figures for the amount of insulated duct, Appellant steadfastly held to the figure in Respondent’s consultant’s November 1996 calculation, a figure the consultant later discovered was erroneous (Finding 22), and never offered any evidence to support the accuracy of the November 1996 figure. At the hearing, Respondent’s consultant explained the iterations of and changes to his calculations, and Appellant has not persuaded us that any one of the earlier versions of the calculation or any other figure should be accepted. The amount of previously-insulated pipe was not in dispute, and the surface of such pipe was 2,488 square feet (Finding 22).

Much of the previously-insulated pipe and ductwork had little or no overspray on it and even that ductwork that had substantial overspray on one or two sides often had sides free from overspray (Finding 25). To recognize these variations, Respondent argues that percentages must be applied to sections of duct and pipe depending on how heavily the duct and pipe were splattered to reflect the actual amount of fireproofing abated. Appellant argues that there is no basis for such discounting based on the density of the overspray and that as there was some overspray on all sections of duct and pipe, the unit price should be applied to all the insulated duct and pipe.

We agree with Respondent. Appellant’s approach would entitle it to payment for the square footage of all previously-insulated ductwork, when we have found that not all of the previously-insulated ductwork had overspray on it and that the density of overspray varied throughout the project (Finding 25). The contract language specifically refers to the $13 unit price for “removal and disposal of fireproofing per square foot” (Finding 18) and cannot reasonably be read to apply the unit price to areas not bearing fireproofing.

Respondent’s consultant determined the percentage of coverage of the previously-insulated duct and pipe by assessing each span of duct or pipe. This discounting is a way of determining the square footage of duct and pipe where overspray was actually removed and disposed of within the meaning of the unit price section of the contract. While it is subjective and far less precise than would be a comprehensive assessment of each square foot of duct and pipe, it is the best evidence in the record on which we can base a finding regarding the square footage of fireproofing removed from previously-insulated ductwork and pipe. Accordingly, we accept Respondent’s discounted square footage for previously-insulated duct and pipe, 4,548 square feet, and find Appellant entitled to $59,124 (Finding 25), the amount granted in the contracting officer's final decision of July 31, 1998 (Finding 45).

Delay in Project Completion

Respondent seeks liquidated damages for the period between the contract completion date and actual completion, a period of 30 days. Appellant argues that encountering the unusual girders and the overspray on the insulated ducts and pipe delayed it 30 days and that the delays were excusable. It seeks relief from Respondent’s claimed liquidated damages and recovery of its extended home office overhead for the delay period, applying the Eichleay formula to the claimed period of delay.

Appellant claims that the delays were caused by the differing site conditions, but it has presented no specific evidence of how many days of delay were incurred due to the conditions. Nevertheless, Respondent’s concession that Appellant was required to perform more work than expected to remove fireproofing from the previously-insulated duct and pipe indicates that additional time was also expended in the work (Finding 36). Respondent contends that the delays were of Appellant’s own making—its problems with one subcontractor and its own failures to pass clearance tests (Findings 30, 31, 37).

The causes of delay for which Appellant may be responsible and the delays that are excusable because Appellant encountered fireproofing overspray under the duct and pipe insulation cannot be separated on this record, and, accordingly, neither side may recover on its delay claims. See Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed. Cir. 1982); Commerce International, Co. v. United States, 167 Ct. Cl. 529, 543, 338 F.2d 81, 90 (1964); John McShain, Inc. v. United States, 188 Ct. Cl. 830, 835, 412 F.2d 1281, 1285 (1969); Port-A-Built, PSBCA No. 3134, 94-2 BCA ¶ 26,694 at 132,770; ADCO Construction, Inc., PSBCA No. 2355, 2465, 2480, 90-3 BCA ¶ 22,944. Respondent’s request for liquidated damages is denied and Appellant’s claim for delay damages is denied.

Respondent’s Claims

Respondent has asserted a number of claims against Appellant relating to its performance of the contract and has asserted a right to collect by offset or recoupment from funds otherwise owed Appellant. Appellant mounts a general challenge to the claims by arguing that Respondent has failed to follow regulations in its Procurement Manual for effecting such recoupment. However, the section cited, PM 6.4.4.d, describes collection procedures that the contracting officer may follow, and that section does not confer upon Appellant any contractually enforceable procedural rights. Cf. DeMatteo Constr. Co. v. United States, 600 F.2d 1384 (Ct. Cl. 1979); Bowman's Transp. Co., PSBCA Nos. 1088, 1089 and 1092, 84-1 BCA ¶ 17,217; B&E Mail Transp., Inc., PSBCA No. 947, 82-2 BCA ¶15,912. Accordingly, any failure by Respondent to comply with this provision does not afford a basis for contractual relief.

Respondent has asserted a claim of $14,810 for testing performed by its consultant, Woodward-Clyde, of containment areas cleaned by Appellant that failed to pass the contract-required tests. The contract provides for Respondent’s recovery under these circumstances (Finding 29), and Appellant’s only challenge to the amount claimed was based on its evidence that the consultant’s billing of $50 for each high volume pump used in each failed test was excessive. Based on the evidence in the record, the per test charge for the pumps was excessive, and Respondent has not supported a lesser amount as reasonable. However, on a jury verdict basis, Respondent may recover $1,000 for the use of the pumps, which is the cost for which the five pumps used for the tests could have been purchased (Finding 30). See M.R. Kaplan, et al., PSBCA Nos. 1147, 1298, 1303, 1310, 88-3 BCA ¶ 20,827 at 105,318. Accordingly, the portion of Respondent’s retesting claim attributable to use of the high speed pumps--$2,550—is reduced to $1,000. This leaves the amount of $13,260 as the reasonable cost of inspections for failed tests. (Finding 30). Accordingly, Respondent is entitled to recover the amount of $13,260 for extra testing caused by Appellant’s failures to clean the containment areas sufficiently (Finding 30).

Respondent also asserts a claim of $1,162 for extra monitoring its consultant performed during cleanup of debris that escaped from one of the containment areas due to the negligence of Appellant’s employees. The reasonable purchase price of the five pumps used having been allowed Respondent in its retesting claim, above, this extra monitoring claim is reduced by the $250 charge for the high volume pumps used in the testing. This leaves $912 as the reasonable cost of the inspection due to the breach of the containment area (Finding 31). Respondent may recover $912 for this claim.

Respondent asserted claims that Appellant does not oppose for (1) cleaning a sewer line blocked when Appellant’s subcontractor’s employee cleaned fireproofing equipment in a toilet and drying soaked carpet, $1,334 (Finding 26), (2) replacement of the carpet that was water damaged from the sewer backup, $2,461 (Finding 26) and (3) a credit of $4,563 for Appellant’s failure to perform the encapsulation of the lookout gallery as agreed (Finding 32). As they are conceded by Appellant, they are recoverable by Respondent.

Conclusion

Appellant is not entitled to recover based on its differing site condition claim related to the shape of the girders. It is entitled only to what the contracting officer allowed regarding its claim for abatement of fireproofing on previously-insulated duct and pipe, and its appeal seeking additional amounts for that claim is denied. Appellant is not entitled to extended overhead for the additional time necessary to complete the project.

Respondent is entitled to recover $13,260 for failed clearance inspections; $912 for inspections after the breach of the containment area; $1,334 for the sewer blockage; $2,461 for replacement of the carpet that was water damaged from the backup and $4,563 as a credit for Appellant’s failure to perform the encapsulation of the lookout gallery. Respondent may not recover liquidated damages.

The appeals are granted in part and denied in part as specifically set forth above.

Norman D. Menegat

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

[1] Without stating specifically how they could be obtained, the original solicitation had also noted that facility drawings were available (AF 1, Asbestos Survey Report for Chula Vista Post Office, Section A.2). Additionally, Note 2 on Solicitation Drawing Sheet 3, Mechanical Piping and Ductwork Plan, advised, “All duct work shown is based on original drawings of the building dated June 1971. As-built conditions may vary.” (AF 1).

[2] The discount was based on a visual estimate of the amount of overspray on each span of duct and pipe, Woodward-Clyde field notes, observations, photographs and recollections of Woodward-Clyde’s on-site representative during the project. Woodward-Clyde recommended payment for varying rates, from 5-50%, depending on its assessment of how heavily a particular span of duct or pipe had been splattered with fireproofing overspray. Spans of ducts and pipes with few splatters of fireproofing were rated at 5%, i.e., Woodward-Clyde determined the amount of compensable surface by multiplying the total square footage of the particular span of duct or pipe by 5%. Sections with more heavily splattered ducts—heavy overspray on the top of the duct but little or none on the bottom—might be rated at 50%. (Tr. 455-458, 460-465, 548-569; AF 120, 122, 123).

[3] Because attendance at the site visit was not mandatory (Finding 2), Appellant claims that it is not bound by anything it would have discovered during the visit unless Respondent specifically advised offerors of the condition in an amendment to the solicitation. Appellant misstates the law applicable to this contract. Notwithstanding its failure to attend the pre-offer site visit, Appellant is charged with the knowledge it could have obtained from attending. See e.g. Federal Contracting, Inc., ASBCA No. 48280, 95-2 BCA ¶ 27,792 at 138,604; Conrad Brothers, Inc., PSBCA No. 1188, 84-3 BCA ¶ 17,580 at 87,583; Cibinic and Nash, Administration of Government Contracts, Third Ed., at 529.

[4] While generally, an asbestos abatement contractor might not be expected to scrutinize the as-built drawings’ structural details with the eye of a structural engineer, see Federal Insurance Co., IBCA Nos. 3236 et al., 96-2 BCA ¶ 28,415 at 141,925; Southern California Roofing Co., PSBCA No. 1737, 2032-35, 88-2 BCA ¶ 20,803; AWC, Inc., PSBCA No. 1747, 88-2 BCA ¶ 20,637, once the non-standard shape of the girders was known, or should have been known, it was incumbent upon Appellant to review carefully at least the available as-built drawings in sufficient detail to attempt to identify the nature of the girders. Appellant was not free to ignore pertinent documents referred to in the solicitation and available to offerors. E.g. HK Systems, Inc., PSBCA No. 3712, 97-2 BCA ¶ 29,079; Thomas J. Young, Jr., PSBCA Nos. 3885 & 3983, 98-2 BCA ¶ 29,772; Ashbach Constr. Co., PSBCA No. 2718, 91-2 BCA ¶ 23,787, aff’d, Ashbach Constr. Co. v. Frank, 960 F.2d 155 (Fed. Cir. 1992) (Table).

[5] Additionally, although none of the witnesses was familiar with the term “Paulweb”, that unknown designation of the girders should have raised questions.

[6] Appellant argues that it failed to record the amount of insulation removed because it relied on Respondent’s November 1996 calculation of the amount of square footage of insulated ductwork (Finding 22) and was surprised when it learned for the first time in July 1998 that Respondent was now urging a much smaller figure for the square footage of insulated duct. Appellant’s Brief, p. 32. There was no testimony or other evidence in the record to support this argument, and Appellant’s burden to prove the amount of damages it is entitled to is not relieved by its claimed reliance on Respondent’s November 1996 figures.