DENIED: July 27, 1992 GSBCA 10936 ELRICH CONTRACTING, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Francis J. Pelland of Sadur, Pelland & Rubinstein, Washington, DC, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. WILLIAMS, Board Judge. In this appeal filed on October 25, 1990, Elrich Contracting, Inc. (Elrich), appeals the final decision of a contracting officer denying its claim for $94,513 resulting from alleged Government-caused delays incurred under contract number GS-11P86MKC7279 for renovation and fire safety improvements at the U.S. Courthouse and Post Office in Alexandria, Virginia. Appellant alleges that 119 days of Government delay prevented it from substantially completing work until August 15, 1988, rather than its originally anticipated completion date of April 19, 1988.[foot #] 1 Appellant alleges it was delayed due to Government-imposed phasing of work, change orders, and the Government's delinquent ----------- FOOTNOTE BEGINS --------- [foot #] 1 Appellant's prehearing brief and complaint list the date of substantial completion as August 25, 1988. In its posthearing brief, appellant admits that August 15, 1988, is the date of substantial completion and the cut-off point for appellant's damages. Appellant's Posthearing Brief at 7 n.5. ----------- FOOTNOTE ENDS ----------- approval of its elevator submittal.[foot #] 2 Respondent argues that appellant's claim should be denied because (1) appellant did not have a feasible plan for completion of the contract before the completion date specified by the contract, (2) appellant's claim is barred under the doctrine of accord and satisfaction, (3) division of the contract work into three phases was not a Government-caused delay, (4) appellant caused delays to its contract work which were concurrent with or in addition to any alleged Government-caused delays, and (5) appellant cannot prove that it has sustained any damages. For the reasons stated below, we deny the appeal. Findings of Fact On September 29, 1986, Elrich was awarded contract number GS-11P86MKC7279, for renovation and fire safety improvements, U.S. Courthouse and Post Office, Alexandria, Virginia, in the amount of $2,503,000. Appeal File, Exhibit 3. Specifically, the contract work entailed interior rehabilitation work, including the demolition of existing facilities and furnishing and installation of new mechanical, electrical, and elevator features, primarily in the basement and on the first floor with minor work on the second and third floors. Appellant's Exhibit 7. The Contract Notice to proceed on the contract was received by Elrich on October 28, 1986. Appeal File, Exhibit 4; Transcript at 9. Pursuant to the contract all work was to be completed within 730 days after the date of receipt of notice to proceed, i.e., by October 27, 1988. Appeal File, Exhibit 1. Under the contract the contractor was required to relocate personnel while their respective work areas were under repair and keep the building in operation. Transcript at 114, 119. The contract specifications provide, in relevant part: It is the intent of this Contract that the building will remain in operation thoroughout (sic) the entire course of constrcution (sic) operations. It will be the responsibility of the Contractor to sequence his work in a manner to keep the building HVAC, Electrical and Plumbing Systems as well as exitways, functional as defined hereinafter through the course of the work. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Appellant's initial claim did not reference delinquent approval of elevator submittal as a reason for the delay. Appeal File, Exhibit 12. Appellant first raised this allegation in its prehearing brief filed on October 21, 1991. ----------- FOOTNOTE ENDS ----------- Work shall be sequenced so that no more than one (1) courtroom is taken out of service at any time. The Contractor shall submit a sequence of operations to the Contracting Officer for his review within 2 weeks after formal Notice to Proceed. Allow three weeks for review. No work may commence in any area until the sequence of operations is approved by the Contracting Officer. The Contractor shall update his sequence of operations (schedule) each month and in the event of any change. The Contractor shall be responsible to schedule the relocation of any Courts and Building staff within the building as required to accomplish his work. Any staff relocation shall be planned to move complete related operational groups of staff as a group to an area of equal size. The Contractor shall identify the locations of groups for moving. * * * The Contractor shall be responsible to sequence his Work to maintain the building in a neat, clean and orderly fashion. * * * Supplemental Appeal File, Exhibit 17 at 01010-8 -01010-9 (emphasis added). Additionally, the specifications stated: "[t]he contractor shall cooperate and coordinate his work and phase his operations such that the court may conduct its functions in an uninterruptible manner during this period." Id. at 01205-4. The contract contained several scheduling requirements, including Section 01155 - Schedules and Reports, Paragraph 1.02, Subparagraphs B and C: B. Arrange schedule to show how sequence of work is affected by requirements for work by separate contractors, work by Government, Government-furnished items, coordination with existing work limitations of continued occupancies, non-interruptible services, partial occupancy prior to substantial completion, site restrictions, provision for future work, seasonal variations, environmental control, and similar provisions of the total project. Refer to other sections of Division 1 and other contract documents for requirements. C. Individual Work Stages: Show significant stages for each category of unit of work, including (where applicable), but not necessarily limited to, subcontract letting, submittals, purchases, mock ups (sic), fabrication, sample testing, deliveries, installation, testing, adjusting, curing, start up and placement into final use and operation. Respondent's Supplemental Appeal File, Exhibit 17. Section 52.236-15 of the Federal Acquisition Regulations (FAR), which is incorporated by reference into the specifications, provides: (a) The Contractor shall within five days after the work commences on the contract or another period of time determined by the Contracting Officer, prepare and submit to the Contracting Officer for approval three copies of a practicable schedule showing the order in which the Contractor proposes to perform the work, and the dates on which the Contractor contemplates starting and completing the several salient features of the work (including acquiring materials, plant, and equipment). The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of work scheduled for completion by any given date during the period. If the Contractor fails to submit a schedule within the time prescribed, the Contracting Officer may withhold approval of progress payments until the Contractor submits the required schedule. (b) The Contractor shall enter the actual progress on the chart as directed by the Contracting Officer, and upon doing so shall immediately deliver three copies of the annotated schedule to the Contracting Officer. . . . Respondent's Supplemental Appeal File, Exhibit 17; 48 CFR 52.236- 15 (1991). Also incorporated in the specifications were sections 52.243 and 52.212-12 of the FAR governing changes and suspension of work, respectively, under the contract. Supplemental Appeal File, Exhibit 17. The contract also included a site investigation clause: (a) The Contractor acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost . . . . The Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site . . . . Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contactor (sic) from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the Government. Respondent's Supplemental Appeal File, Exhibit 17; FAR 52.236-3, Site Investigation and Conditions Affecting the Work (APR 1984), Construction Contract Clauses (Fixed-Price), at 6. Appellant's Estimate of the Completion Date Appellant's president testified that he estimated that the contract performance would take eighteen months, citing a handwritten bid sheet which bears the date "revised 9/22/86." Transcript at 40, 102; Respondent's Supplemental Appeal File, Exhibit 148. The only reference to the eighteen-month estimate for completion in the bid sheet is the entry "Gen. Conditions 18 mos, mtl. 7700 lab w/insurance 63,960." Respondent's Supplemental Appeal File, Exhibit 148 at 4. Appellant's president explained this as follows: A Exhibit 148 is estimate sheets for different facets of work. . . . Q . . . . Towards the middle of [page 4] where it says general conditions 18 months, what does that mean? A That's the time we allotted for supervision for this job. It's a full-time supervisory project. It's not one where a man could work as a carpenter and a laborer and superintendent. We had to put full-time supervision. At the time that I bid the job I figured we could get this job done within 18 months. Q How did you figure 18 months? A Looking at the contract, the work that we had to do. It's an estimate, like I said, like you estimate a labor hour for a certain facet of work. Or labor unit. It's an estimate. Q Did you write numbers on a sheet of paper to come up with that estimate? A Many times I'll do a calculation on a calculator and work it up from there. In this situation I don't believe I did. It was just an observation of the job itself. Q So you looked at the contract and you just decided 18 months? A I didn't just look at the contract. It's after I took everything off and I knew the job real well. Q What do you mean you knew the job real well? A When you get the bid documents you have to study everything and set the specification aside for the time being. You take your work off in quantities and labor units and material units from the drawings. You make a total takeoff, and you walk the job at least once. Usually I like to do it after I've taken the job off so I'm a little more familiar with it. You familiarize yourself with the project. You walk the area. You have to see how access is for materials, et cetera, for taking junk out and getting people in and out of the project. That's where you start getting your feel for the job. I never price any work until I look at the job first, particularly on a demolition, because that you have to really see. If they say you're going to hang that pair of doors there, you can't see it, but you know what's involved with hanging a door. So you work up this estimate to do the job. Many times -- and I won't say I did it on this -- you have your total man-hours and just project a completion time just working numbers together. There are several ways that you can do it, but it's not very accurate. This is our 345th project. Up until this project I know we ran over time on three jobs out of 345. This would be the fourth one. For whatever reason, our estimate of time is usually very close. Transcript at 101-04. Appellant's president further testified: Q You didn't have a schedule for the job when you bid the job, did you? A Never did. Transcript at 104. Schedules and Phasing of the Contract Elrich started work in late November of 1986. In response to a request by the GSA project inspector, appellant delivered a hand-drawn critical path method (CPM) schedule on or about December 1, 1986. Appellant's Exhibit 2; Transcript at 9. This schedule, which was stated to be "preliminary," only covered the basement area, not the first or second floors. Appellant's Exhibit 2. This was the first schedule appellant submitted. Transcript at 123. The schedule indicated that demolition work in the basement would start on November 17, 1986, and be completed within ninety-eight days. Transcript at 9-10; Appellant's Exhibit 2. Appellant intended that demolition of the first floor and new work in the basement would commence concurrently after demolition of the basement. Id. The GSA engineer also understood the preliminary CPM to indicate that first-floor demolition would start immediately after the basement demolition was completed. Transcript at 124. All work in the basement was scheduled for completion by September 28, 1987. Appellant's Exhibit 2. As of the contract award date, there were seventy to seventy-five people on the first floor of the courthouse. Transcript at 117-18. Of those people, approximately thirty-five were on the U.S. Marshal's staff and another thirty-five on the Clerk of the Court's staff. Id. Appellant's preliminary CPM displaced the Marshal's staff and failed to provide a relocation area for them. Id. at 124. GSA's project engineer testified that, after receipt of the CPM dated December 1, 1986, he spoke with Elrich's vice president about the first floor demolition and asked for a schedule for the rest of the project. Id. It was unclear to GSA's engineer then how Elrich was going to have both floors demolished and still provide working space for the Marshal's and Clerk's staffs. Id. The GSA project engineer asked for a new schedule, "two or three or four times," and was told by appellant's project superintendent that Elrich was in the process of preparing it. Id. at 125, 168. Appellant's president received no response to the preliminary CPM until a meeting on January 8, 1987, when the GSA project inspector informed those in attendance that all the basement work (demolition and rehabilitation) would have to be completed before moving to the first floor. Transcript at 10, 19-20. According to appellant's president, this was the first time he was informed that all the work in the basement would have to be completed before work on the first floor could commence. Id. At this point, appellant's president requested that the GSA project inspector give him "the directive to phase" from the contracting officer because he felt that the contract did not require one area to be completed before moving to another area. Id. at 20. Although appellant's president performed a site inspection pre-award, he testified: . . . [W]e had no idea of the number of people that had to be relocated. . . . I was out there twice. The basement was practically empty. The first floor in the front was the post office. They had a bunch of boxes and things stored in there and there were two people working there, and there were people in the back towards the loading dock, but I don't know how many. I didn't walk through every office. Transcript at 18. On March 5, 1987, appellant's president attended a meeting with GSA, and the GSA project engineer proposed a three-phase approach to performance of the contract; Phase I: complete all work in the basement area, Phase II: complete one section of first floor, and Phase III: complete the last section of the first floor and replace the elevator. Transcript at 12, 20; Supplemental Appeal File, Exhibit 108. Essentially, the GSA project engineer's plan was to move the Marshal's staff into the completed basement, since the basement was to be their new permanent location. Transcript at 116. Having moved the Marshal's staff, work on the first half of the first floor, where the Marshal's staff had been located, could be done. Id. Also, the Clerk's staff was to be permanently located where the Marshal's staff had been, and a new courtroom was to be where the Clerk's staff had been. Id. at 117. GSA's project engineer reasoned that after completion of the first half of the first floor, the Clerk's staff could be moved there and work on the second half of the first floor could commence. Id. The purpose of the phasing was "to accommodate the people that were currently occupying the first floor, the U.S. Marshal staff and the Clerk of the court staff." Transcript at 153. By letter dated March 11, 1987, Elrich's president informed GSA: During our meeting on March 5, 1987, you advised me that this project will have to be performed in three phases--that is: 1. the basement area; 2. the first floor area between column 6 and the exterior wall at the east end of the building; and 3. areas between column 6 and exterior wall at west end of building. If you concur with these phases and areas, please advise immediately and we will submit our additional costs for the phases mentioned above. Appellant's Exhibit 4. On or about March 23, 1987, the GSA project engineer sent a letter to all who had attended the March 5, 1987, meeting, to confirm the agreements which had been reached, including the phasing. Respondent's Supplemental Appeal File, Exhibit 108. The letter did not purport to respond to Elrich's March 11 letter or its comment regarding additional costs. Id. On or about June 16, 1987, Elrich submitted a schedule to the GSA project engineer. Appellant's Exhibit 6; Transcript at 49. Appellant's schedule incorporated the phasing into the original, preliminary CPM of December 1986. Id. According to appellant's schedule of June 16, 1987, all work in the basement would be finished in the middle of November 1987, and the entire project completed in the middle of January 1989. Id. The GSA project engineer made corrections to the June 16, 1987, schedule and, in a revised schedule dated June 17, 1987, showed completion of the basement (Phase I) on August 31, 1987. Appellant's Exhibit 7 at 1; Transcript at 49. Appellant's president agreed to the August 31, 1987, date. Transcript at 51. The revised June 17, 1987, schedule indicated a job completion date of mid- March 1989. The amended June 17, 1987, schedule, was agreed by GSA's project engineer and Elrich's superintendent resident to be "the most realistic schedule." Appellant's Exhibit 7; Transcript at 127. The schedule, however, contained the following notation: "All work could be completed by Dec. 16, 1988, providing some of Phase III work could be performed concurrent with Phase II work." Appellant's Exhibit 7 at 3. The Change to Daytime Work The noise of night work generated neighborhood complaints, violated the Alexandria noise ordinance, and caused several work stoppages. Transcript at 114-15. By letter dated December 19, 1987, Elrich advised GSA that the stoppages could not continue stating that "These work stoppages are impeding our progress, at an intolerable rate. If these work stoppages keep occuring (sic) at this current rate, God only knows when we can complete this project." Appeal File, Exhibit 123. As a result, Elrich and GSA negotiated a change, going to daytime work. Transcript at 115-16. According to GSA's construction representative, the change to day work resulted in some efficiencies such as not having to protect or clean up on a nightly basis and not having to pay fifteen percent premium time to union workers for working at night. Transcript at 135. The March 1988 Schedule Sometime in March of 1988, the GSA project engineer requested from appellant an updated schedule to reflect the progress of the work and the estimated completion of the project. Transcript at 137. On or about March 7, 1988, appellant submitted a schedule which reflected how the job would have gone without the phasing and change orders. Supplemental Appeal File, Exhibit 142; Transcript at 43-48, 137. Since the schedule did not reflect the work as it was currently being done, the Government requested a new schedule, but Elrich never sent one. Transcript at 137. Elrich did not submit any more schedules during the construction period. Id. Change Orders During demolition of the basement, unanticipated asbestos pipe insulation was discovered. Transcript at 10. A request for proposal was forwarded to Elrich on March 5, 1987, for removal of the asbestos material and reinsulation of the pipe. Id. Respondent's Supplemental Appeal File, Exhibit 19. After negotiations, the parties settled on $23,331 with a fifty-six-day time extension for removal only. Id.; Transcript at 11. Accordingly, GSA issued change order number one (CO1). Id. Elrich refused to sign CO1 because it stated, "[s]ettlement of this change order includes all direct and impact cost related to the change," and Elrich interpreted this to mean that the cost of delays and impact was included. Id.; Transcript at 13-14. Change order number seven (CO7) was issued on October 28, 1987, at the negotiated price of $95,516, with another fifty-six- day time extension, for extra work associated with rerouting ductwork in the basement. Respondent's Supplemental Appeal File, Exhibit 25. Change order number seven contained the language, "[s]ettlement of this change includes all direct, indirect and impact costs related to the change," and Elrich refused to sign CO7 for the same reason as CO1. Transcript at 11- 14.[foot #] 3 Regarding the time extensions awarded for Modifications 1 and 7, GSA's project engineer testified: Q Why did the Government award time for those change orders? A As I recall, [appellant's vice president] and I settled the majority of change orders on this job. As I recall, on 1 and 7 particularly we had settled that, I think, at no time extension, because we thought it could be done within the framework of the construction duration. [The vice president] called me back and said that he was going to have to have time extension on both 1 and 7 because [appellant's president] was concerned that perhaps we would exceed the contract duration. That's pretty typical for contractors. No one bids jobs to pay liquidated damages. When there is any change, for a contractor to ask for a time extension is not unusual at all. . . . . ----------- FOOTNOTE BEGINS --------- [foot #] 3 Elrich signed CO1 and CO7 on June 15, 1990, accompanied by a letter dated June 15, 1990, stating that Elrich was signing with the condition that its claim for delay and impact costs not be waived. Transcript at 13-14. ----------- FOOTNOTE ENDS ----------- Q Why did the Government give them time if the Government didn't believe they were due it? A I granted the time extension in the interest of getting the change orders settled and signed. Since we both agreed that we thought the work would be done prior to the contract duration date, my concern was getting these documents turned around and getting them processed. That was the basis of granting the time extension. . . . . It's not unusual. I would say it's probably more typical in the construction industry for contractors to request a time extension whether they need it or not. That's a hedge against paying liquidated damages. That's my experience anyway. . . . As, I recall on those two changes. . . we agreed on 56 days total for both of them. When I wrote them up I put 56 days in each one. Q Which change orders were those? A I believe it was 1 and 7. So when I write [sic] them up I made an error. I added 56 days to 7 and 56 days to 1. I knew it after I had written them up and sent them in. I looked at it down the road two or three weeks after that, that I had doubled the time. But I didn't retract it. I'd made an agreement and I didn't retract it. Transcript at 148-50. The Elevator Work On or about March 12, 1987, Elevator Control Service (Elcon), Elrich's elevator subcontractor, submitted drawings for the elevator to VVKR, the Government's architect and engineer on the project, for approval. Respondent's Supplemental Appeal File, Exhibit 145; Transcript at 21. On or about April 2, 1987, VVKR returned the submitted drawing with the following notation: | Approved | Final Approval. Fabrication May Proceed On | | Work As Shown. X | Approved | Fabrication May Proceed On The Basis Of | As Noted | Corrections Indicated. Original Submittal | | Shall Be Corrected Accordingly. | Revise And | Fabrication May NOT Proceed. Revisions | Resubmit | Shall Be Made And Submitted for Further | | Checking. |Disapproved | Does NOT Comply With Requirements Of The | | Contract Documents. * * * Respondent's Supplemental Appeal File, Exhibit 145; Transcript at 22. The redline changes on the drawings changed the height of the elevator door from seven feet to six feet, ten inches, and relocated a distribution panel to another wall. Id. Elcon made the corrections as indicated and resubmitted the drawings on or about June 11, 1987. Respondent's Supplemental Appeal File, Exhibit 146; Transcript at 22-23. The resubmitted drawings were returned on or about June 26, 1987, stamped "Revise And Resubmit. Fabrication May NOT Proceed. Revisions Shall Be Made And Submitted for Further Checking." Id.; Transcript 23-24,29. Elrich questioned VVKR as to why the drawing was returned, and VVKR responded by letter dated, July 24, 1987, that all information pertaining to the elevator was supposed to be submitted in a single package. Respondent's Supplemental Appeal File, Exhibit 111; Transcript at 30. Elrich contends that when VVKR returned the original submittal, it did not say it wanted one complete elevator package. Transcript at 30. During this time period, the Government, VVKR, and Elrich, were also engaged in negotiations with regard to change order number seventeen/cost estimate twenty-nine (CO17/CE29). Specifically CE29 involved a GSA request for proposal, dated July 2, 1987, to change the elevator cab control panel to include inter alia bevelled edging. Respondent's Supplemental Appeal File, Exhibit 35; Transcript at 85. By letter dated August 17, 1987, Elcon enclosed a letter, dated August 10, 1987, which it had received from G.A.L. Manufacturing Corporation (G.A.L.), the elevator manufacturer, advising against the use of the bevel. Id. By letter dated August 27, 1987, Elrich submitted its cost breakdown for CE29 in the amount of $4,372 to GSA. Id. On September 29, 1987, CO17 was settled for $1,147. Id. The bevelled edge feature was eliminated from the change order. Id.; Transcript at 30-32, 166. No extension of time was awarded in conjunction with CO17. Id. Appellant claims it was delayed from June 1987 through September 1987 while the Government considered this change. Appellant's Posthearing Brief at 16. Amendment One to the contract provides, in relevant part: Item 4: Section 02051: Add paragraph B as follows: Prior to the start of any construction work in Alternate 1 within the building, all new elevator parts and machinery must be stored in a bonded warehouse off site. The contractor shall notify the contracting officer when the entire replacement elevator package is stored and schedule an inspection at the storage site by the contracting officer. . . Appeal File, Exhibit 2 at 2. The last item to arrive at the warehouse was the elevator cab. Transcript 91. The cab was delivered by the manufacturer to Elcon's warehouse on March 2, 1988. Appeal File, Exhibit 6 at 2. By letter dated March 24, 1988, Elrich advised GSA that all the elevator components were at Elcon's warehouse. Id. at 1. Demolition began soon thereafter, and the installation of the elevator was complete in October 1988. Transcript at 32, 76, 91-92. The Walnut Veneer Pursuant to section 14201-6.1 of the specifications, samples of the walnut veneer had to be submitted to the contracting officer for approval. Appeal File, Exhibit 1. Specifically, section 14201-6.1 states: the Contractor shall submit to the Contracting Officer for approval, samples. . . of all finishes, car floor, carpet and the like as specified or required in connection with the cars, operating and signal fixtures, and hoistway entrances and doors. Id. at 14201-8. Section 06400-1.03(C) of the specifications required the submission of samples for, among other things, "solid wood with or for transparent finish" and "plywood or veneer with or for transparent finish." Respondent's Supplemental Appeal File, Exhibit 17 at 06400-3. Section 06400- 2.01(D) of the specifications, "BASIC MATERIALS AND FABRICATION METHODS," provides: D. Interior Wood for Transparent Finish: 1. Solid Wood: American Black Walnut [Plain Sawn][foot #] 4 2. Plywood: and particle board with American Black Walnut veneer. Id. at 06400-5. Item 8 of Amendment One added the following to the specifications: Para. G. Panelwork: (At elevator cab interior) 14201: 1.) Style and Rail Paneling-Raised Panel: ----------- FOOTNOTE BEGINS --------- [foot #] 4 The language "Plain Sawn" was added by Amendment One to the specifications. Appeal File, Exhibit 2 at 3. ----------- FOOTNOTE ENDS ----------- A.) AWI Quality Grade: Premium. B.) Panels shall be 3/4 in. thick with wood core. C.) Face Veneer: American Black Walnut-plain sawn Appeal File, Exhibit 2 at 3. On or about November 4, 1987, G.A.L., the manufacturer of the elevator, sent a submittal for the walnut veneer (along with a sample) to Elcon. Respondent's Supplemental Appeal File, Exhibit 125; Transcript at 64. The submittal for approval of the walnut veneer was the last item submitted, and its approval was necessary before the elevator could be manufactured. Transcript at 64-65. A GSA construction engineer (and previous employee of Elcon, appellant's elevator contractor), testified that according to industry standards the submittal for the walnut veneer should have been submitted by Elcon "no later than six weeks after they signed the contract with Elrich or notice to proceed was issued." Transcript at 60, 78. Because the walnut veneer was not a standard item, G.A.L. had to make the samples before sending them to Elcon. Transcript at 65. Elcon submitted the sample it received from G.A.L. to the Government sometime between mid- November or the first part of December 1987, a little over one year after the notice to proceed was issued, but within approximately thirty days after it received the submittal from G.A.L. Id. at 66, 141. The Government approved the sample on January 28, 1988. Respondent's Supplemental Appeal File, Exhibit 125; Id. at 68-69, 140. GSA's construction engineer testified that the elevator cab did not arrive on the job site along with all of the other elevator components, but was several months late because the walnut veneer submittal had not been submitted by Elcon on time. Transcript at 92-95. Manufacturing of the cab could not begin until the walnut veneer submittal had been approved. Id. at 95. The cab was the last item to arrive. Id. This delayed installation because according to Amendment One all components had to be stored and inspected prior to installation. Id. at 96-97. The GSA construction engineer testified that any delay regarding bevelled control panel would not affect the manufacture of the cab with walnut veneer, "so long as [it] didn't add buttons or [it] didn't make the push-button panel larger, which this bevel wouldn't, or smaller, as the case may be, it wouldn't cause any delay to the cab as long as the cutout hole remains the same." Id. at 90. The GSA project engineer also testified that whether the panel was ultimately bevelled, or not, would not affect the manufacture of the elevator cab, itself. Id. at 170- 71. Damages Claimed Appellant's claim of $94,513 was derived "using the subcontractor's prices, their extended overhead claim, and Elrich's overhead claim. [The] total figure for Elrich was arrived at on Elrich's part using 7-1/2 percent as a daily overhead expense." Appeal File, Exhibit 11; Transcript at 37. Appellant's president, in response to Respondent's Interrogatories Series II, represented that he determined the daily overhead rate for purposes of its claim by [a]verag[ing] G & A [General and Administrative] expenses divided by average income per financial statements for 1986, 1987, & 1988, less bonuses, profit sharing plan and miscellaneous items Appellant considered unreasonable[,] [t]he average overhead rate computed to 7.5 percent . . . not 14.8 percent . . . calculated using the Eichleay formula.[[foot #] 5] Supplemental Appeal File, Exhibit 144. Additionally, the total claim includes a markup for Elrich for $4,799, Elrich's G&A (extended overhead) for $40,790, and a bond for $936.00.[foot #] 6 Appeal File, Exhibit 11; Transcript at 38. Elrich's president testified that he thought the subcontractors calculated their extended overhead figures by using the Eichleay formula. Transcript at 38-39. The respective claims of the subcontractors due to the alleged 119-day delay are as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 5 The Eichleay formula is: Contract billings X total overhead for = overhead __________________ allocable total billings for contract period to the contract contract period Allocable overhead = daily contract overhead __________________ days of performance Daily contract overhead X days delay = amount recoverable Capital Elec. Co. v. United States, 729 F.2d 743, 747 (Fed. Cir. ___________________________________ 1984). [foot #] 6 Elrich's extended overhead was figured by taking 7-1/2% of the contract price of $2.5 million and dividing that amount by the 547 days Elrich estimated it would take to perform the contract work for a daily rate of $342.77. Appeal File, Exhibit 11; Transcript at 38. The daily rate was multiplied by 119 days of delay for a total of $40,790. Id. ___ ----------- FOOTNOTE ENDS ----------- J.R. Hughes, Inc. - $17,558 United Sheet Metal, Inc. - $4,540 Anglo-American Associates, Inc.- $3,740 Ennis Electric Company, Inc. - $16,295. Appeal File, Exhibits 7-10; Transcript at 37. Discussion Appellant claims it is entitled to $94,513 in damages for costs incurred due to Government delays which caused it to complete its contract work 119 days beyond its originally anticipated completion date. Appellant bears the burden of proving its claim as to both entitlement and quantum.[foot #] 7 Freeman-Darling, Inc., GSBCA 7112, 89-2 BCA 21,882, at 110,099. Appellant claims that it was precluded from completing the contract work by its estimated early completion date of April 19, 1988, due to Government-imposed phasing of the contract work, change orders, and the Government's delinquent approval of appellant's elevator submittals.[foot #] 8 The 119 days of delay claimed represents the number of days between appellant's estimated early completion date of April 19, 1988, to August 16, 1988, the actual date of substantial completion. Nowhere in the record is there an indication as to how the 119 days of delay are either derived or distributed among the various factors which appellant claims caused the delay. In cases where a contractor asserts that it would have met a completion date earlier in time than the completion date specified in the contract, it is the contractor's burden to show that it would have finished on the earlier date, absent Government delays. Wickham Contracting Co., Inc. v. General Services Administration, GSBCA 8675 (April 29, 1992), slip op. at 3. A contractor must establish its reasonable intent to perform the contract on a feasible and attainable accelerated schedule, and this intent must be supported by the course of the contractor's actions during contract performance that would have led to such early completion absent unreasonable Government- ----------- FOOTNOTE BEGINS --------- [foot #] 7 Appellant urges the Board, upon finding entitlement, that if it finds the evidence proffered on the issue of quantum unpersuasive, to treat this appeal as bifurcated and return the issue of quantum to the contracting officer for negotiation. Appellant's Posthearing Brief at 21. We need not reach this request. [foot #] 8 In its original claim dated August 17, 1989, appellant did not expressly mention delinquent approval of elevator submittals, stating only: "The delays included asbestos removal, pipe insulation and dividing the project into three phases." Appeal File, Exhibit 12. ----------- FOOTNOTE ENDS ----------- caused delays. Frazier-Fleming Co., ASBCA 34537, 91-1 BCA 23,378, at 117,287 (1990); VEC Inc., ASBCA 35988, 90-3 BCA 23,204; see also Sierra Blanca Inc., ASBCA 30943, et al., 91-2 BCA 23990; Sierra Blanca Inc., ASBCA 32161, et al., 90-2 BCA 22,846; Green Builders, Inc., ASBCA 35518, 88-2 BCA 20,734; Owen L. Schwam Construction Co., Inc., ASBCA 22407, 79-2 BCA 13,919. Thus, the contractor must prove that, but for Government-caused delays, it possessed both the intent and the ability to finish the contract work by its estimated early completion date. This case fails for lack of proof. Here, appellant has proffered its bid sheet, an original incomplete CPM dated December 1, 1986, which only covered the basement, and a schedule dated March 7, 1988, created after the fact to show that completion would have been April 19, 1988, but for the phasing. Appeal File, Exhibits 2, 5, 148; Transcript at 9, 43-48, 99. Appellant's bid sheet may constitute some evidence that it intended to complete the job within eighteen months of commencement, but is not evidence that appellant possessed the ability, as well. The incomplete preliminary CPM which did not provide for relocation of personnel does not help appellant. Nor can the March 7, 1988, schedule reflecting how the job would have gone, developed after most of the work was finished, by itself prove appellant's ability to finish early. See Frazier-Fleming, 91-1 BCA at 117,287 (early completion progress chart which was submitted to contracting officer after completion of the project was interpreted by the Board to "represent a hypothetical and after the fact projection only;" feasibility of plan must be established by evidentiary record).[foot #] 9 Additionally, appellant contends: [t]he reasonableness of [its] estimated 18-month performance period is verified by the fact that the Respondent itself acknowledged that it delayed the work a total of 142 days (Modifications 1, 7, 16 . . .). If the 142 days are backed off of the actual substantial completion of August 15, 1988, it means that Appellant would have reached substantial completion by March 26, almost one full month before its planned April 18 completion date but for those three changes. The Appellant's actual performance on the project, ----------- FOOTNOTE BEGINS --------- [foot #] 9 Appellant has also proffered its timely performance on previous contracts as support for its ability to complete on time in this case. Appellant's Posthearing Brief at 22-23; Transcript at 104. However, an offer of proof regarding past performance on earlier contracts to show a contractor's capability to perform on the contract schedule in issue is inadequate. Frazier-Fleming, 91-1 BCA at 117,288. _______________ ----------- FOOTNOTE ENDS ----------- therefore, fully corroborates the reasonableness of Appellant's planned performance period. Appellant's Posthearing Brief at 9. Contrary to what appellant asserts, the record is devoid of an admission by the Government that it delayed appellant's work. Moreover, "[a] contractor cannot rely on the length of a time extension to measure time- related delay costs; actual delay must be proved." Groves-Black (A Joint Venture), ENG BCA 4557, 85-3 BCA 18,398, at 92,285; see also Pathman Construction Co. v. United States, 227 Ct. Cl. 670, 674 (1981) ("the full extended performance period does not automatically become the time upon which delay costs . . . are to be computed"); Tri-Messine Construction Co., Inc., GSBCA 5165, 82-1 BCA 15,735, at 77,849. In Pathman Construction Co., the Court of Claims stated that while time extensions are binding on the issue of non-assessment of liquidated damages, "the fact that the contracting officer agreed to these time extensions for that particular purpose does not mean that he or she meant to concede actual delay for the purposes of damages. . . ." 227 Ct. Cl. at 675. Appellant does not appear to pursue seriously its allegation that change orders caused it compensable delay, except to suggest that the delays allowed in Modifications 1 and 7 were the result of Government-imposed phasing. Appellant's Posthearing Brief at 13-15. Appellant has claimed that, but for the phasing of the contract work, it would have completed work on the contract by its estimated early completion date. Appellant contends that while phasing was required by the contract, the Government "usurped [a]ppellant's scheduling responsibility and prevented [it] from exercising its right to decide for itself how it would work in and around the occupied spaces while maintaining its 18- month schedule." Appellant's Posthearing Brief at 10. We disagree. Appellant failed to meet the schedule submission requirements in the contract and FAR 52.236-15. The only complete schedule submitted by appellant, months after it was due, failed to account for relocation of personnel. Appellant claims that the Government had "the burden of proving that its phasing requirements represented the only way to perform the work consistent with the need to minimize disruption." Id. We decline to shift the burden of proof since the contract expressly required appellant to "phase [its] operations so that the court could function in an uninterruptible manner;" appellant never offered an alternative to GSA's suggested method of phasing, and it was appellant's responsibility to accommodate building occupants. See generally Equitable Life Assurance Society of the United States, GSBCA 7699-R, 87-2 BCA 19,733, at 99,899 (claim as to change and the burden of proof lay with the contractor); Baltimore Contractors, Inc., GSBCA 3791, 77-1 BCA 12,234, at 58,922 n.9 (1976) ("The burden of proof for alleged contract changes and extra work rests with [a]ppellant."). The contract clearly specifies that the contractor was responsible for scheduling the relocation of personnel as required to accomplish its work and that "relocation shall be planned to move complete related operational groups of staff to an area of equal size." Supplemental Appeal File, Exhibit 17 at 01010-9 (emphasis added). Appellant has not shown that it could have met its early completion date while complying with this provision of the specifications. In fact, appellant did not realize the number of personnel to be moved due to its failure to make a thorough inspection of the work area as was required by the contract. A contractor assumes the risk of submitting a bid without informing itself of the circumstances of a job, and may not benefit by its failure to determine existing conditions. Trans-Atlantic Industries, Inc., GSBCA 10803, et al., 91-3 24,320, 121,530-31. We find that appellant's failure to anticipate that approximately thirty-five people would have to be relocated at once was a result of its inadequate site inspection. The Delay Allegedly Caused by the Government's Alleged Delinquent Approval of Elevator Submittals Additionally, appellant appears to be claiming it was delayed by the Government in two instances with regard to work involving the elevator. First, appellant alleges that the Government was delinquent in approving the elevator submittal for the bevelled control panel. Second, appellant claims that it was delayed when the Government took approximately two months to approve the submittal for the walnut veneer paneling. According to appellant, it was delayed from June 1987 through September 1987 while the Government considered a change from a non-bevelled control panel to a bevel-edged panel (C017/CE29). Appellant's Posthearing Brief at 16; Transcript at 30-31. Appellant claims it was delayed because "[t]he contract required all of the new elevator components to be stored on site before Appellant could take the existing elevator out of service and begin modifications to the shaft necessary to accept the new elevator," and that until the bevelled control panel was fabricated and delivered to the site, elevator installation could not begin. Id. at 15-16. However, the evidence of record indicates that the Government's consideration of the control panel did not, in fact, delay installation of the elevator; the last item to arrive was the cab and the bevelled panel deliberations had no impact on this, since the cab would have simply left a cut-out for the panel regardless of whether it was bevelled. Appellant's claim that the Government's failure to approve the veneer sample submittal until January 28, 1988, caused it delay also misses the mark. Elcon failed to deliver the walnut veneer submittal to the Government for approval until approximately late November 1987-early December 1987. The walnut veneer sample should have been submitted within six weeks after the notice to proceed was issued. Instead, the walnut veneer sample was submitted to the Government a little over one year after the notice to proceed was issued. Appeal File, Exhibit 4. Under the circumstances, the two months or so the Government took to approve the sample do not appear to be unreasonable. There is nothing in the record to suggest that, had Elcon submitted its submittal on time, a two-month review by the Government would have resulted in any delay. As the Board recognized in Active Fire Sprinkler Corp., GSBCA 5461, 85-1 BCA 17,868, 89,484 (citations omitted): "All of this adds up to concurrent, intertwined Government and contractor-caused delay. Since there is no clear evidence by which we can apportion the delay and the expense attributable to each party, appellant cannot recover damages for delay." See also Freeman Darling, 89-2 BCA at 110,100; Weaver-Bailey Contractors v. United States, 19 Cl. Ct. 474, 476 (Cl. Ct. 1990), recon. denied, 20 Cl. Ct. 158 (1990) ("Only if the delay was caused solely by the government will the contractor be entitled to both an extension of time within which to perform, and recovery of excess costs associated with the delay."). Appellant has failed to show that it would have substantially completed its contract obligations by its early completion date of April 19, 1988, absent Government delays. Accordingly, appellant cannot prevail. Wickham Contracting Co., Inc. v. General Services Administration, GSBCA 8675 (April 29, 1992), slip op. at 3. Having found no entitlement, we need not address quantum. Decision The appeal is DENIED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge