October 27, 2006
Appeal of
DELRIC CONSTRUCTION COMPANY, INC.
PSBCA No. 5284
Under Contract No. 3324-95-03-B-0139
APPEARANCE FOR APPELLANT:
Robert Ricciardi
APPEARANCE
FOR RESPONDENT:
Barbara H. Frazier, Esq.
St. Louis Law Office
United States Postal Service
OPINION
OF THE BOARD
Appellant, Delric Construction Company, Inc., completed a building renovation and electrical switchgear replacement project for Respondent, United States Postal Service. Appellant claimed that Respondent delayed its performance and asserted a claim for extended overhead. The contracting officer partially granted the claim, and Appellant appealed the denial of the remainder.
At the election of the parties, this appeal
is being decided on the record without an oral hearing in accordance with 39 C.F.R. §955.12. Both
entitlement and quantum are at issue (Order dated
FINDINGS OF FACT
1. On
2. The contract provided that the entire work
was to be completed within 180 days after Appellant’s receipt of the Notice to
Proceed. Appellant received the Notice
to Proceed on
3. The contract’s Suspensions and Delays clause
provided, in part,
“a. If
the performance of all or any part of the work of this contract is suspended,
delayed, or interrupted by:
(1) An order or act of the
contracting officer in administering this contract; or
(2) by a failure of the
contracting officer to act within the time specified in this contract—or within
a reasonable time if not specified—an adjustment will be made for any increase
in the cost of performance of this contract caused by the delay or interruption
(including the costs incurred during any suspension or interruption). An adjustment will also be made in the
delivery or performance dates and any other contractual term or condition
affected by the suspension, delay, or interruption. However, no adjustment may be made under this
clause for any delay or interruption to the extent that performance would have
been delayed or interrupted by any other cause, including the fault or
negligence of the supplier, or for which an adjustment is provided or excluded
under any other term or condition of this contract.”
(AF 5, Contract Clause C.2, Suspensions and
Delays (Clause B-16) (January 1997); Stip. 23).
4. The contract’s Excusable Delays clause
authorized granting Appellant a time extension for performance, but without
compensation, if Appellant’s work was delayed by a cause beyond Appellant’s
control and without Appellant’s fault or negligence (AF 5, Contract Clause C.3,
Excusable Delays (Clause B-19) (January 1997); Stip.
24).
5.
The work of Project B included installation of a power pole and replacement
and relocation of the facility’s transformer. The contract required Appellant to “provide
all material, labor, services, equipment, licenses, and other items required
for the work,” and Appellant was responsible for construction associated with
the new transformer, coordinating the switchover of the new electric service,
allowing the local utility (PSE&G) to inspect the
installation before backfilling, and providing a qualified, independent electrical
inspector to approve the installation and submit a “cut card” to PSE&G. (AF 5, 7; Stip. 28).
6. PSE&G was to supply the new transformer and to identify
the location of the new power pole.
Appellant’s first progress schedule, submitted January 6, 2004, showed
the electric transformer relocation work to begin with PSE&G’s
placement of the pole on June 8, 2004 (AF 8; Stip.
31). However, Appellant needed the
location of the pole so that it could construct necessary trenching and install
primary electrical conduits in advance of placing the new transformer. The old transformer location interfered with
and prevented certain of the Project A work on the
building platform, namely excavation for the platform footings and work around
the new carrier entrance, so performance of that work turned on a prompt
relocation of the transformer. (AF 61, 76).
7. Before
PSE&G would begin its work, including marking the
location of the pole, the utility required that the transformer order be
finalized and that it receive advance payment for the new transformer and for
its costs associated with the installation (AF 1, 7, 12, 18; Declaration
of Kirk Bennett (“Bennett Decl.”) ¶ 9; Declaration of
William C. Slack dated October 31, 2005 (“Slack Decl.”),
¶ 5; Declaration of Manuel Montesino ¶ 3).
8. Finalizing
the order for the transformer and making the advance payment were Respondent’s
obligations (AF 1, 7, 12; Bennett Decl. ¶ 9; Slack Decl. ¶ 5).
9. On
10. On
11. At
the
12.
In an
13.
By the
14.
Between March 15, when Appellant first advised Respondent of the
importance of the pole location, and
15. A
private company rented space on the roof of Respondent’s building for a
cellular telephone tower, and AT&T, as a sub-lessee, had its equipment on
the tower (Declaration of Andrew Fistner
¶ 4). Before the new transformer
could be energized, AT&T had to transfer its electrical connections to the
new transformer. Respondent had notified
AT&T and the tower owner before the project began and at the beginning of
the project that their electrical connections would need to be relocated to the
new transformer. (Declaration
of Andrew Fistner ¶ 4; Slack Decl.
¶ 5; Second Slack Decl. ¶ 15)).
16.
Appellant knew that AT&T’s connections would have to be relocated to
the new transformer before it was energized and had been notified by
Respondent’s architect at the
17. AT&T
engaged another contractor to transfer its electrical connections. However, when this contractor came on site to
switch the connections sometime before the
18.
By
19.
On September 25, 2004, Appellant’s electrical subcontractor submitted a proposal
to AT&T to perform the necessary work to transfer AT&T’s connections to
the new transformer (through the same contact person Appellant was made aware
of in February 2004 (Finding 16)) (AF 64; Declaration of Robert Ricciardi dated October 10, 2005 (“Ricciardi
Decl.”), ¶ 40; Declaration of Manuel Montesino ¶¶ 5, 6).
On
20. The contract required Appellant to submit
shop drawings and receive approval from the architect in advance of
constructing certain elements of the project, including the masonry
products. The contract required Appellant
to submit the shop drawings “sufficiently in advance of construction
requirements to permit at least 10 working days for checking and appropriate
action.” (AF 5,
Contract Clause C.6, Shop Drawings, Coordination Drawings, and Schedules
(Clause B-56) (January 1997), subsection e).
21. Appellant
submitted the masonry shop drawings to Respondent’s architect on
22. The
architect’s formal written approval of the masonry submittals was sent on or
about
23.
Appellant submitted about 60 Requests for Information (“RFIs”) throughout the project, seeking clarification from
the architect of plan and specification requirements (AF 9, 11, 98 (pp. 4-5); Ricciardi Decl. ¶ 5).
24. By
letter of
25.
On or about
26. In
a
27. On
28.
By final decision issued
DECISION
Appellant claimed
entitlement to $20,000 per month for extended general conditions for a period
of three months of delay it alleges was caused by Respondent. Although granting Appellant a 90-day time
extension in Modification 1, Respondent agreed to pay Appellant only $40,000,
apparently considering only two months of the delay to be compensable. In this appeal, Appellant seeks to show it is
entitled to payment of $20,000 for the third month of the delay.
Appellant argues that its completion of the
project was delayed by PSE&G’s delay in marking
the location of the new utility pole, and delivering and eventually energizing
the transformer. Further, it claims that
it was also delayed by the masonry submittal process, numerous discrepancies in
the plans, an excessive number of change orders on the project, and AT&T’s
delay in moving its electrical connection to the new transformer. It contends that it has shown at least 90
days of compensable delay and that it has demonstrated that it incurred monthly
general conditions expenses far in excess of the $20,000 per month it claimed
from Respondent.
Respondent argues that
Appellant has failed to demonstrate that any conduct by Respondent was the sole
cause of identifiable, specific, unreasonable delay to the project and that
Respondent’s grant of Appellant’s extended general conditions for two of the
three months claimed fully compensated Appellant for any delay damages. Furthermore, Respondent claims that
Appellant’s attempt to base its claim for extended general conditions on
alleged delays other than that related to PSE&G’s
conduct is (1) barred by the general release in Modification 1 and (2)
beyond the Board’s jurisdiction because Appellant has never submitted a delay
claim to the contracting officer based on these other grounds.
Appellant
contends that Respondent is responsible for all delay caused by PSE&G, but focuses most on Respondent’s alleged failure to make the required advance payment to the
utility in a timely manner. Appellant
first requested that Respondent make the payment on
To
establish entitlement to extended general conditions for a period of delay, it
is Appellant’s burden to demonstrate the extent to which overall completion of
the project was delayed. See Wilner v.
In addition to claiming that Respondent’s
alleged delay in making the required advance payment delayed it, Appellant claims
to have been delayed by PSE&G’s failure to
respond promptly to Appellant’s requests to mark the location of the new power
pole once the payment was made, verify
the location of transformer and switchgear pads, deliver the transformer, and
energize the transformer once it was installed (Finding 24). However, the contract required Appellant to
coordinate with PSE&G (Finding 5), and other than
the responsibility to make the advance payment, Respondent was not shown to
have had any duty or ability to control the actions of PSE&G. Accordingly, PSE&G’s
delays unrelated to the advance payment were not delays caused by Respondent. Therefore, to the extent Appellant was
entitled to an extension of time due to PSE&G’s
conduct, such extension would not be compensable. See Finding 4;
We are not persuaded by
Respondent’s arguments that Appellant’s reliance on other grounds for its delay
claim is barred by Modification 1 or is beyond the Board’s jurisdiction as not
included in a claim considered by the contracting officer. The broad release language in Modification 1
relates only to the items included in the Modification (Finding 25). The other grounds asserted herein by
Appellant were not addressed in the Modification. Furthermore, Appellant’s claim of
Appellant claims that AT&T’s
delay in transferring its electrical connections to the new transformer
supports its claim to a compensable time extension. However, as with the PSE&G
delay discussed above, Appellant has failed to demonstrate that this delay led
to a delay in overall project completion. See Wilner
v.
In
any event, Appellant bears some responsibility for delay by AT&T. Appellant knew that AT&T had to transfer
its electrical connections to the new transformer, and Respondent had notified
Appellant in February 2004 of AT&T’s interest in contracting with
Appellant’s electrical subcontractor to perform the work and identified the
contact person at AT&T (Finding 16).
There is no evidence Appellant pursued this path until late in the
project, and, eventually, Appellant’s electrical subcontractor did relocate
AT&T’s electrical service (Finding 19), but later than Appellant
wished. As both parties may have had an
opportunity to avoid the AT&T delay, even if Appellant had shown the
existence of overall project delay, any time extension to which Appellant might
be entitled on this basis would not be compensable. See ADCO
Constr. Inc., PSBCA
Nos. 2355, 2465, 2480, 90-3 BCA ¶ 22,944 at 115,173; The Polote Corp., PSBCA Nos. 1297,
1428, 87-1 BCA ¶ 19,490 at 98,497.
The other grounds Appellant contends justify
payment of its extended general conditions do not. The delay in the architect’s review of
the masonry submittals was, at most, one working day beyond the 10-working-day
period suggested in the contract for conducting such review (Findings 20-22), and
oral approval of the submittals was given even earlier (Finding 22). This has not been shown to be unreasonable. See Bruno Law v.
Appellant has
failed to prove by a preponderance of the evidence that it is entitled to
compensation for its extended general conditions beyond that included in
Modification 1. The appeal is denied.[2]
Norman D. Menegat
Administrative
Judge
Board Member
I concur: I concur:
William A. Campbell David
Administrative
Judge Administrative Judge
Chairman Vice Chairman
[1]
That the contracting officer granted Appellant the full 90-day extension it
requested does not raise a presumption that Respondent was at fault for the
delay on which the extension was based. See
[2] This appeal
was from the deemed denial of Appellant’s