__________________________ DENIED: October 28, 1994 __________________________ GSBCA 11057 TLC ENGINEERING AND CONSTRUCTION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Joseph Debro, President of TLC Engineering and Construction, Oakland, CA, appearing for Appellant. Marie N. Adamson and M. Leah Wright, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, WILLIAMS, and GOODMAN. WILLIAMS, Board Judge. In this appeal, TLC Engineering and Construction (TLC) seeks $1,209,617 for extra work it claims to have performed under an asbestos abatement contract with the General Services Administration (GSA). Appellant contends that it performed extra work beyond that specified in the contract, that the specifications and drawings were defective, and that it encountered a differing site condition in that the removal of asbestos from above the ceiling was far more difficult than it had anticipated. TLC filed five discrete claims in the amounts of $132,715.11, $277,550.88, $7,556, $471,135, and $1,000,000, all of which relate to the same alleged extra work.[foot #] 1 The contracting officer addressed the ----------- FOOTNOTE BEGINS --------- [foot #] 1 These amounts when totalled do not equal the amount claimed here, as appellant changed the amount it claimed as the job progressed and during the course of these proceedings. ----------- FOOTNOTE ENDS ----------- five claims in a single final decision which is the subject of this appeal. For the reasons stated below, the appeal is denied. Findings of Fact The Contract On November 21, 1989, GSA awarded contract number GS-09P-90-NPC-0001 to TLC for the removal of asbestos containing material (ACM) and related work at the Federal Building in Los Angeles, California. The contract required TLC to remove and encapsulate[foot #] 2 ACM which consisted predominately of sprayed-on fireproofing above the ceiling. The contract required that all asbestos removal work be done on the weekends, but permitted the contractor to work around the clock. Appeal File, Exhibit 1. Section 01090, Definitions and Standards, in part 1.01A states that "[a] substantial amount of specification language consists of definitions for terms found in other contract documents, including drawings. (Drawings must be recognized as diagrammatic in nature and not completely descriptive of requirements indicated thereon)." Appeal File, Exhibit 1. The contract in several places provided that in case of a difference between drawings and specifications, the specifications would govern. Id. Section 01090, Definitions and Standards, in part 1.03 states that [i]n every instance, the quality level or quantity shown or specified is intended to be the minimum for the work to be performed or provided. Except as otherwise specifically indicated, the actual work may either comply exactly with that minimum (within specified tolerances), or may exceed that minimum within reasonable limits. In complying with requirements, indicated numeric values are either minimums or maximums as noted or as appropriate for context of requirements. Appeal File, Exhibit 1. The contract contained the following scope of work for asbestos abatement: ----------- FOOTNOTE BEGINS --------- [foot #] 2 Encapsulation involves spraying on a glue- like substance, after the asbestos is removed, to "lock down" any invisible debris. Transcript at 270. ----------- FOOTNOTE ENDS ----------- 1. PROJECT BACKGROUND 1.01 GENERAL: The following scope of work identifies the approximate quantities and the areas of the Asbestos Containing Material (ACM) to be removed and encapsulated. The Asbestos Abatement Contractor shall carefully inspect all areas affected by the work of this contract to arrive at their own estimate of ACM to be removed, and determine the site conditions (such as heights and relative accessibility of pipes, "prepping" requirements, access routes to outside of building, etc.). 1.02 EXISTING CONDITIONS: A new high rise federal office building will be constructed adjacent to the existing Los Angeles federal building. The chiller and boiler plants for the new building, and the building automation system which includes some modifications of existing building's environmental controls will also be located within the existing federal building. The purpose of this contract is to provide an asbestos free environment in the areas of connection between the new and the existing federal building. Refer to the attached marked drawings for clarification of the new connections. 2. SUMMARY OF WORK: 2.01 General: Work of this project consists of removal and encapsulation of Asbestos Containing Material (ACM) and replacement of miscellaneous ceiling materials in certain areas. 2.02 Unit Pricing: The contractor shall submit, as part of his bid, a unit price amount for removal and encapsulation of additional Asbestos Containing Material as subsequently determined. 2.03 Asbestos Abatement: Upon GSA approval of the abatement scope submitted by the contractor, remove and encapsulate the ACM from the contaminated areas. Appeal File, Exhibit 1, Appendix C. The scope of work went on to delineate the approximate square footage of abatement and encapsulation in various areas of the building including the sub-basement up through the eighth floor. In the specifications, the square footage of areas to be abated totaled 32,130 square feet. Appeal File, Exhibit 1. The dispute in this case concerns the abatement in the corridors and miscellaneous spaces. Id.; Transcript at 22. The scope of work regarding that area provides: 3. ASBESTOS ABATEMENT & ENCAPSULATION . . . . C. Corridors & Misc. Spaces: 1. Remove the ceilings and the sprayed- on fireproofing above the ceilings within 2 feet on either side of the area where the electrical wiring and conduits will be installed. Refer to the attached marked drawings. Approximate Quantity: 17000 SF 2. Encapsulate the open edges of the fireproofing as required. 3. Install new plaster ceilings to restore the ceilings removed and paint to match the adjacent surfaces. Appeal File, Exhibit 1, Appendix C. The scope of work also contained the following paragraph: 4. MISCELLANEOUS 4.01 Attachments: Space floor plans and marked drawings of the existing areas affected by the work of the new federal building are attached. a. The purpose of the marked drawings is to clarify the scope of work only. These drawings are not to be used as design drawings. Id. The solicitation was accompanied by thirty-four pages of drawings. Appeal File, Exhibit 1; Respondent's Exhibit 40; Transcript at 23. The drawings were space planning drawings which only depicted flat surface areas and did not include vertical surfaces. Appeal File, Exhibit 1; Transcript at 260. After contract award, appellant determined that the drawings showed that there were not 17,000 square feet to be abated in the corridors and miscellaneous spaces, but rather an area closer to 30,000 square feet. Transcript at 36. Specifically, appellant measured the drawings and calculated that the corridors and miscellaneous spaces to be abated were 6,042.86 total linear feet. Id. at 27-32; Appellant's Exhibits 8, 9.[foot #] 3 Both the Government's construction manager and TLC interpreted the specifications and drawings to require a five-foot clean path, which when multiplied by the 6,042.86 linear feet yields a total area of a bit more than 30,000 square feet. Transcript at 37, 41. The contract contained FAR 52.236-2, Differing Site Conditions, which provided in pertinent part: SITE CONDITIONS 24. FAR 52.236-2--DIFFERING SITE CONDITIONS (APR 1984) (a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. (b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly. Appeal File, Exhibit 1 at 11-12. The contract also contained FAR 52.236-3, Site Investigation and Conditions Affecting the Work, which provided in pertinent part: (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, including but not limited to (1) conditions bearing upon transportation, disposal, handling, and storage of materials; . . . and (5) the character of equipment and facilities needed ----------- FOOTNOTE BEGINS --------- [foot #] 3 The parties agree that areas to be abated were depicted in the drawings as cross-hatched areas. ----------- FOOTNOTE ENDS ----------- preliminary to and during work performance. 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, including all exploratory work done by the Government, as well as from the drawings and specifications made a part of this contract. Any failure of the contractor to take the actions described and acknowledged in this paragraph will not relieve the contractor 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. (b) The Government assumes no responsibility for any conclusions or interpretations made by the contractor based on the information made available by the Government. Nor does the Government assume responsibility for any understanding reached or representation made concerning conditions which can affect the work by any of its officers or agents before the execution of this contract, unless that understanding or representation is expressly stated in this contract. Appeal File, Exhibit 1 at 12. The contract also included General Services Administration Acquisition Regulation 552.236-76, MEASUREMENTS, which provided: All dimensions shown of existing work and all dimensions required for work that is to connect with work now in place, shall be verified by the contractor by actual measurement of the existing work. Any discrepancies between the contract requirements and the existing conditions shall be referred to the Contracting Officer before any work affected thereby has been performed. Appeal File, Exhibit 1 at 12. The Pre-Bid Walk Through TLC's president[foot #] 4 went on the pre-bid walk through. Transcript at 232-33. TLC's estimator, who prepared ----------- FOOTNOTE BEGINS --------- [foot #] 4 We are referring to TLC's current president as of the hearing. TLC's current president was an unpaid consultant to TLC at the time of bidding, and he was involved in the preparation of TLC's bid. Transcript at 231-32. ----------- FOOTNOTE ENDS ----------- TLC's bid, may or may not have gone on the walk through. Id. TLC's representative(s) at the walk through did not take any measurements. Id. at 234. TLC's president claims that TLC was not given access to all areas required to be abated. Id. TLC's Bid Respondent's expert in asbestos abatement monitoring and surveying opined that generally, in bidding on this type of abatement job, contractors do not do field measurements of vertical areas above the ceiling to determine the actual square footage of areas to be abated. Transcript at 261. Rather, contractors "spot check" a few areas or examine the structural drawings to develop a multiplier to apply to the horizontal surface area.[foot #] 5 Id. The expert explained: You can bid . . . a project based on the floor area with a multiplier. Or you can get the structural drawings and calculate each one to calculate the actual. Again, both measurements -- you can't interchange them, they're definitely apples and oranges, because they are different. But the way these drawings were prepared, in my opinion it's very obvious that this is a flat area because the drawings provided are just simple space- planning drawings. They're not -- they don't include the structural beam. So given this information, to properly prepare your bid you would have to look at these drawings, calculate the horizontal area, you could as a bidder assume that you're going to know the multiplier above, or you could do two other things. You could go to the site if you're allowed and go above the ceiling and calculate some actual measurements. But it's typically not done to go through the entire project and to measure every beam in the field. It's typically not the way companies that I'm familiar with prepare their bid. They may spot-check a few areas and develop a multiplier, or they may request documents from the building that show the structural members above the ceiling and, again, they can calculate their bid. Id. at 260-61. TLC's president testified that TLC's bid, a unit price of $35 per square foot and a total price of $899,995, was based on ----------- FOOTNOTE BEGINS --------- [foot #] 5 Respondent's expert in asbestos abatement and monitoring testified that "every high rise building that I've been into does have surfaces above [the ceiling] so you'd know that there would be some vertical surfaces . . . ." Transcript at 328. ----------- FOOTNOTE ENDS ----------- the Means Estimating Guide, which contained generally prevailing prices for various types of construction work. Transcript at 236.[foot #] 6 TLC's former estimator who prepared TLC's bid did not testify at the hearing, and TLC's president did not know whether the estimator added a multiplier to the square footage on the floor plans to account for the vertical surfaces and ducts above the ceilings. Id. at 132-33, 136-37, 181. TLC proffered no evidence on whether its bid included a multiplier. TLC's estimate sheet for its bid suggests that TLC did not use a multiplier. Respondent's Exhibit 2; Transcript at 385-89. In estimating labor, TLC listed the square footage of areas set forth in the specification, and estimated the number of days the work would take by dividing the total square-foot area in the specifications by the estimated number of square feet which could be completed per day. Respondent's Exhibit 2. At the time TLC bid, the specifications and the drawings indicated different quantities of asbestos to be removed -- the specifications indicated a total of some 32,130 square feet, and the drawings, when scaled, a total of some 46,300 square feet. Appeal File, Exhibit 1. At the time of bid, TLC did not realize that the drawings and specifications contradicted each other. Transcript at 153-54; Appellant's Reply Brief at 6, 21. TLC did not seek clarification of this discrepancy prior to bidding. Id. TLC did not look above the ceiling or review the as-built drawings prior to bidding. Transcript at 180, 235. GSA's building manager had custody of the as-built drawings, and he maintained them in his office at 300 N. Los Angeles St. Transcript at 372-73. He made the drawings available to agencies, contractors, and prospective bidders and never refused to make them available. Id. at 373. TLC did not request the as- built drawings until after contract award. Id. at 235. TLC's Performance On February 15, 1990, GSA issued TLC's notice to proceed requiring that work be completed within 120 days of receipt of the notice. Appeal File, Exhibit 2. Soon after performance began, the Government's on-site inspector began to take measurements because he observed that less asbestos was being abated than was required by the ----------- FOOTNOTE BEGINS --------- [foot #] 6 GSA's written estimate for this job was $957,564. Appellant's Exhibit 20. This estimate indicated that a 14,000 square-foot suspended ceiling system would be demolished and restored. Id. ___ ----------- FOOTNOTE ENDS ----------- specifications.[foot #] 7 He said: "I went into the containment area where they had just taken the containment down but had not put the ceiling back in and the area was very jagged and didn't look like the same width all the way down the passageway." Transcript at 194. The abated area should have been the same size down the passageway because the intent of the contract was to allow the contractor on the new, adjoining building to run conduit to the existing building for the air conditioning system and to allow that contractor to work in an asbestos-free area. Id. at 210-11. GSA's on-site inspector measured abated areas of the deck, the surface of beams, and the corrugated steel with a tape measure to within a half inch. Transcript at 186, 192, 195. He measured approximately 25-30% of the entire area to be abated. Id. at 212. For the areas he measured, he concluded that the width of the abatement was not 5 feet as it was supposed to be. Rather, the width varied from 2 feet to 3 feet to 4 feet, unless it was accessible to 5 feet. Id. at 211. GSA's on-site inspector provided these measurements to the contracting officer's representative. Id. at 214. The on-site inspector also observed areas which TLC had abated where "there was obvious loose asbestos laying around on top of vents and beams when they finished . . . ." Id. at 188. He also observed a situation where TLC had left contaminated containment material above the ceiling. He reported these incidents to the contracting officer. Id. at 197-98; Respondent's Exhibits 11, 12. A former TLC employee also testified that TLC only abated a strip two-three feet wide down the corridors, instead of a five- foot wide strip. Transcript at 344. In his opinion none of the areas which TLC worked on were thoroughly abated. Id. at 344-45. This former TLC employee has worked in the construction industry for 22 years and in asbestos abatement for 7 years and has been involved in approximately 100 asbestos abatement projects since 1986. Id. at 332-33. He further testified that on this job there was nothing unusual about the thickness of the asbestos or the ducts above the ceiling. Id. at 341. He stated: A It's typical of other places that I worked at. The thickness of the asbestos has to do with how high of a fire rating that you need on it. You know, certain materials have certain fire rating. Some of them might be three-eighths of an inch thick. Other materials might be three-quarters of an inch thick. I ----------- FOOTNOTE BEGINS --------- [foot #] 7 The on-site inspector testified that he was not charged with measuring the area abated; he was supposed to see that each weekend the containment came down, that the ceiling was back in place, and that the area was cleaned and ready for occupancy by Monday morning. Transcript at 187, 215. The containment was a plastic enclosure above the ceiling enclosing the area in which the abatement work took place. Id. at 197. ___ ----------- FOOTNOTE ENDS ----------- don't know what the fire rating or the material requirements were for that job, but it wasn't unusual, no. Q . . . . Was there anything unusual about the ducts or the conduits above the ceiling? A In what way? Q In the amount or complexity? A No. Actually, it was a pretty easy building to work on. There [were] a couple of areas that had a lot of ducts in them. Like the first one we did that one time, the bankruptcy place. It had ducts up there. There was nothing unusual about them. Several of the areas, let's say 35, 45 percent of the areas, there was hardly anything at all. Q Okay. A As far as ducts, I've worked in several high rises, and done several high-rise jobs. As far as the amount of ducts, there's nothing unusual about that at all. And like I said, in a little over a third of the areas, there was, you know, one duct, maybe six by six, or ten by ten or whatever it was, it was a small duct. Id. at 342-43. CADD Support Survey In late February 1990, TLC "became concerned about what seemed to be an apparent discrepancy between the actual measurements in the field and the measurements and dimensions . . . in the plans and specs at bid time." Transcript at 21. Therefore, on March 5, 1990, TLC contracted with CADD Support (CADD), a civil engineering firm, requesting that CADD survey the abatement areas delineated under the contract and drawings. Appeal File, Exhibit 25; Transcript at 52-53, 63. CADD's licensed civil engineer measured the floor areas between March 10 and 20, 1990. Appellant's Exhibit 6; Transcript at 59, 71. On April 10, 1990, CADD issued a report containing the measurements for all areas to be abated. The report concluded that there was a total floor area of 46,300 square feet to be abated. Id. These measurements did not include the vertical areas above the ceiling. Transcript at 60, 63. They included the first floor lobby plus the corridors and miscellaneous spaces from the sub- basement through the eighth floor. Id. at 61.[foot #] 8 The corridors and miscellaneous spaces ----------- FOOTNOTE BEGINS --------- [foot #] 8 Appellant is not claiming that any additional abatement was done in the first floor lobby. Transcript at 76. ----------- FOOTNOTE ENDS ----------- -- excluding the first floor lobby -- totalled approximately 30,000 square feet. Id. at 57. CADD's calculations were based on abating a five-foot wide path. Id. CADD did not measure actual abatement. Id. at 269. TLC's Request for a Change Order By letter dated April 23, 1990, based on the CADD report, TLC advised GSA that there were actually 46,300 square feet to be abated -- some 15,300 square feet more than the contract specifications indicated. Appeal File, Exhibit 8; see Transcript at 76. TLC proposed a change order for additional work requesting a total of $718,790.98 for increased asbestos abatement above the ceiling ($535,349.50) and installation of additional ceiling tile ($183,441.48). Appeal File, Exhibit 8; Appellant's Exhibit 27. By letter dated April 30, 1990, the contracting officer's representative advised TLC that GSA would independently investigate this contention. Appeal File, Exhibit 9. GSA further questioned why, if these contentions were correct, TLC as a bidder did not discover and question a fifty- percent deviation in total area at the time of the pre-bid site inspection. Id. GSA's Changed Requirements On May 3, 1990, GSA and the contractor on the new, adjoining federal building met and reviewed the amount of work remaining to be performed; they discussed numerous areas which no longer would require abatement as well as certain areas which would require additional abatement in the existing building. Appellant's Exhibit 10. The project manager on the new building in a letter dated May 7, 1990, to GSA stated: The combination of deleting the electrical closets to fan room power runs, the reduction of clean paths from five feet to two feet wide and the elimination of clean paths for temperature sensor conduits should significantly reduce the asbestos abatement required. [GSA's project manager on the adjoining building] understands that GSA may be looking at other alternatives for reducing the cost of abatement. Id. at 3. In an internal memorandum dated May 20, 1990, GSA's construction engineer discussed TLC's proposed change orders. Appellant's Exhibit 11. The construction engineer reported he had advised GSA's on-site inspector to begin verifying actual abatement quantities in order to compare with the contractor's alleged quantities. Id. at 3. The construction engineer further indicated that as of that date, i.e., May 20, 1990, the on-site inspector had inspected only 15% of the ceiling area. At that time, the on-site inspector concluded that TLC was correct in stating that the actual abatement area exceeded 31,000 square feet, but not to the extent claimed. Id. at 4. He estimated that it was more in the area of 4,000 to 8,000 square feet additional.[foot #] 9 Further, on the basis of only a 15% inspection, he could not quantify the actual overrun of the ceiling area. The Modification Deleting Work After evaluating the integration of the new building with the existing building, GSA determined that some of the originally required work was no longer necessary,[foot #] 10 and some small additional work related to the tie-in of the two buildings was. Transcript at 425. On June 6, 1990, the contracting officer, the contracting officer's technical representative, and TLC met and agreed on a reduction of work. Id. at 426. TLC agreed with these changes. Id. As a result, GSA issued modification PC02 reducing the contract amount. Id.; Appeal File, Exhibit 11. Under this modification, the contracting officer ordered all remaining work in the sub-basement stopped, and identified areas of the second floor through the eighth floor which were to remain unabated. Respondent's Exhibit 38; Appeal File, Exhibits 11, 19; Transcript at 424, 439-55. TLC was told to cease all further work on certain areas which were marked on the drawings. Transcript at 425; Respondent's Exhibit 38. Modification PC02 reduced the contract amount by $301,920. Transcript at 428. However, additional work had been completed by the contractor, prior to the issuance of modification PC02. The estimate used in arriving at the $301,920 was based on information that had been obtained a couple of weeks earlier. Id. at 425-28. Therefore, the contract was again modified to reduce the contract by a lesser amount -- $189,000 instead of $301,920 -- to compensate appellant for work performed between the time of the estimate and ----------- FOOTNOTE BEGINS --------- [foot #] 9 At the hearing, GSA's construction engineer testified that this statement in the May 20 memorandum was incorrect. Transcript at 496. He explained: . . . afterwards as I went through the case and looked at everything and further information, further measurements, further discussions became available, I found that, you know, this was just purely an opinion, that's it. Id. ___ [foot #] 10 This was because lines did not need to be run in certain areas in the existing building. Transcript at 441-42. ----------- FOOTNOTE ENDS ----------- the modification. Id. at 430-31; Appeal File, Exhibit 21.[foot #] 11 TLC's First Claim On June 15, 1990, TLC submitted a claim to the contracting officer in the amount of $132,715.11 alleging that because of defective specifications, there was a discrepancy between areas in the specifications for asbestos abatement and ceiling tile reinstallation and the actual areas. Appeal File, Exhibit 12. Specifically, TLC claimed that while the contract specifications indicated an area of 31,000 square feet for asbestos abatement in the first floor lobby, corridors, and miscellaneous spaces, its independent engineer measured the total area for asbestos abatement and certified it to be 46,295.70 square feet. Id. Further, while the specifications indicated an area of 31,000 square feet for ceiling tile reinstallation, TLC's engineer measured the total area for ceiling tile reinstallation as 54,761.85 square feet. Id. The $132,715.11 represented the difference between TLC's "schedule of prices" for abating the additional 17,000 square feet ($327,509) and the Government authorized invoices as of May 29, 1990 ($194,793.89). Id. TLC's Completion of the Project On August 15, 1990, TLC submitted invoice number 6 accompanied by a construction progress report prepared by appellant which states that the total value of the work completed was $710,065.64, approximately 79% of the original contract price of $899,995. Appeal File, Exhibit 19. The Government submitted additional marked drawings which reflect the reduced scope of work. Respondent's Exhibit 40. These drawings depict by green color coding the reduced areas which were actually abated by TLC as of August 15, 1990. Id.; Transcript at 499-500. These drawings indicated that 79% of the original work had actually been performed. Transcript at 500-01. However, after the Government finally accepted the job, GSA learned that less than 79% had been completed. As GSA's contracting officer's representative testified: Final acceptance did occur . . . for 79 percent, and that 79 percent, of course, was on the basis of area ratios, measurements. But as we found out afterward, that would have been okay if there were 5 feet width of all the abatement done through. What we found out [was] that not all the [places] they have done [were] the 5 feet width. Some places they had gone down as ----------- FOOTNOTE BEGINS --------- [foot #] 11 On September 17, 1990, GSA issued modification PC05 decreasing funds in the amount of $189,929.36 from the contract amount of $899,995 for a new contract amount of $710,065.64. Appeal File, Exhibit 21. ----------- FOOTNOTE ENDS ----------- much as 2 feet, there in various documents . . . even within the green markings on the drawings. Id. at 500. At the hearing, TLC's president admitted that parts of TLC's scope of work "were cut back . . . including the corridors and miscellaneous spaces." Transcript at 43. GSA determined the reduced amount of work was substantially complete on August 15, 1990. Transcript at 113. Final acceptance occurred on September 5, 1990. Id. at 498. As of final acceptance, GSA determined that 79% of the originally required asbestos abatement had been done. Respondent's Exhibit 24; Transcript at 500. The contract price as of that time was $710,065.64. Respondent's Exhibit 24. However, subsequently, GSA learned that not even 79% had been completely abated. Transcript at 113, 501. Appellant claims that as of final acceptance, it had completed 46,000 square feet of abatement. Id. at 116. Appellant submitted a summary of completed abatement work as of September 6, 1990, which indicated that it had completed 44,461 square feet of abatement and 30,871 square feet of repair. Appellant's Exhibit 17. Appellant claimed that the figures in this document were derived from its notes of its former estimator, who was not at the hearing. Transcript at 403. Appellant received $710,065.64 for the project. After substantial completion of what was believed to be 79% of the original contract, the Government reduced the contract price by $189,929.36 on September 17, 1990. Appeal File, Exhibit 21. Appellant has not provided any documentation evidencing 100% completion of the original scope of work. Appeal File, Exhibit 19. TLC's Second Claim On September 6, 1990, TLC submitted a claim to the contracting officer requesting $277,550.88, representing what it claimed was the balance of the full contract value. Appellant complained that the contract drawings should not have been used for computing the area for asbestos removal because the drawings were created for space planning, which uses a different method for computing floor space. Appeal File, Exhibit 16. TLC's Third Claim On September 6, 1990, TLC submitted a claim for $7,556, asserting that the contracting officer had directed TLC to proceed with work outside the scope of the contract. TLC alleged that it had been directed to remove asbestos containing pipe lagging in the sub-basement and to remove asbestos fireproofing on a structural steel beam in the basement. Appeal File, Exhibit 17. Respondent's Expert's Verification of Abatement By letter dated September 18, 1990, GSA advised TLC that it was hiring an independent contractor to measure the work TLC completed to enable the contracting officer to make a decision on TLC's claims. Appeal File, Exhibit 22. TLC objected to this independent measurement by letter dated September 19, 1990, as being unnecessary and likely to cause delay. Id. GSA retained Cape Environmental Management, Inc. (CEMI) to measure all the areas actually abated by TLC within the scope of work, including change orders. Appeal File, Exhibit 25. CEMI was also asked to assess the adequacy of the contract documents for defining the scope of work. Appeal File, Exhibit 25; Transcript at 256-60. From November 20, 1990, through December 5, 1990, CEMI accessed the areas above the ceilings and measured every area that was actually abated with a tape measure. Transcript at 257; Appeal File, Exhibit 25 at 1. CEMI also referenced the structural drawings. Transcript at 258. In measuring the amount of work performed, CEMI gave TLC credit for all areas scraped regardless of quality. Id. at 257. CEMI produced two measurements describing areas abated. Appeal File, Exhibit 25 at 9. First, CEMI measured the "contact area," or the actual area abated, as 35,300 square feet; this included the vertical areas of the corrugated deck and beams above the ceilings. Second, as an alternative method of describing the area abated, CEMI determined the total surface area abated, which did not include vertical measurements, to be approximately 17,300 square feet. Id. The report explained: The method of defining abatement by describing the projected floor square footage and letting the contractor determine the appropriate multiplier to calculate the actual surface area to be scraped is an adequate design method for abatement provided structural drawings are available and no unusual unknown circumstances exist. By referencing the drawings and then field verifying the existing conditions and the areas actually abated, CEMI measured/calculated the project floor areas abated and the actual scraped surface areas. To calculate the actual scraped surface area, all surface areas of the beams and the vertical surfaces of the decking must also be included. On this basis, the total surface area scraped was measured to be approximately 35,500 square feet. Based on the above, the multiplier to obtain the actual surface area to be scraped extrapolated from the floor square footage would be 2.04 (example: 17,300 square feet of floor area multiplied by 2.04 equals 35,300 square feet of surface area abated). Appeal File, Exhibit 25 at 5. CEMI further concluded that TLC had installed only 26,000 square feet of new ceiling tile, based upon observing that in some areas the old ceiling was still in place. Appeal File, Exhibit 25 at 4. The expert described what CEMI's field workers observed: [W]hat we found when we got into the field is that a lot of the work that's shown and highlighted [on the drawings] wasn't actually done. We went above the ceiling. Very few places we actually found a five-foot strip. A lot of our places, a strip was only two feet wide or three feet wide. Some places they didn't do anything, and there's actually some areas on these drawings where there wasn't even a new ceiling in place. The whole area is shaded on the drawings, that the old ceiling was in place which indicates that they couldn't have done any work above the ceiling at all. Transcript at 263. Because CEMI workers observed debris that wasn't abated in numerous places, they took "wipe samples" of the debris, which were subsequently analyzed and found to contain asbestos. Id. at 259. CEMI also observed that "the conditions above the ceiling were not unusual and were 'reasonably ascertainable' by examination of the record drawings, available at the site which described the existing mechanical, electrical, structural, and architectural systems." Appeal File, Exhibit 25 at 2-3. Respondent's expert concluded that the specifications which indicated 32,130 square feet of horizontal area were not intended to indicate the total "contact" area to include the vertical areas and corrugated areas above the ceiling. Rather, the specifications simply indicated floor space, and a multiplier should have been applied to calculate the actual area of abatement. Appeal File, Exhibit 25 at 5; Transcript at 281. Using its calculation of the horizontal area abated, i.e., 17,300 square feet, CEMI concluded that approximately 60% of the work in the specifications had been completed. Transcript at 281. The expert testified: I guess to continue though, that some areas though were questionable as far as how complete they actually were. And the other problem was because of the ducts that were present. The five foot strip wasn't installed down the length of a corridor, thereby in our opinion making it impossible to install any electrical or conduit above the ceiling. So, although 60% was done, because there were areas that weren't done, I guess the intent of the project was to install some . . . kind of cabling or conduit above the ceiling which really couldn't be completed in a lot of areas. Id. at 281-82. TLC's Fourth and Fifth Claims On September 13, 1990, appellant filed its fourth claim, seeking $471,135 for work it alleged was done "above and beyond the scope of the original contract." TLC again cited the space planning drawings as a basis for its claim, along with the alleged discrepancies in area, and argued that these discrepancies resulted in a differing site condition. TLC further alleged that the contracting officers had failed in their duty to investigate the alleged differing site condition and caused TLC to suffer duress. Appeal File, Exhibit 18. On October 3, 1990, TLC submitted a claim of $1,000,000 for "grievous interference," asserting that Government representatives repeatedly violated TLC's rights under the Federal Acquisition Regulation, and forced TLC to go through a protracted claims process. TLC alleged that the $1,000,000 figure was a result of borrowing money at exorbitant rates, hiring lawyers to defend TLC in civil courts, and hiring consultants to respond to the Government. Appeal File, Exhibit 24. The Final Decision On January 10, 1991, the contracting officer issued a final decision on all five claims. The contracting officer denied appellant's first claim for $132,715.11, stating that $710,065.64 had been paid to TLC to date. Regarding appellant's claim for $277,550.88 due to "illegal original drawings," the contracting officer stated that the actual completed abatement area was less than appellant actually bid, so TLC was not due any additional money. Regarding TLC's claim for $7,556 for work in the basement and sub-basement that appellant contends was outside the scope of the contract, the contracting officer determined that the work was completed and the price for that work would be negotiated. The contracting officer informed appellant that the remainder of its claims were based on a tort theory and that he, therefore, could not address them. Appeal File, Exhibit 27. Discussion Appellant has advanced several theories in support of its contention that it is entitled to an equitable adjustment of $1,209,617. First, appellant claims there was a constructive change in the contract requirements and that it actually abated more asbestos than was referenced in the specifications. Second, appellant contends that it is entitled to additional compensation because the area above the ceiling constituted a differing site condition. Third, appellant contends that it should recover additional monies because there was a discrepancy between the specifications and the drawings. All of appellant's contentions fail for lack of proof. Constructive Change Appellant bears the burden of proving its claim for additional compensation based upon an alleged constructive change. Computer Based Systems, Inc. v. Department of Commerce, GSBCA 10668-COM, 92-2 BCA 24,783, at 123,633. Here, appellant claims that it should be compensated for extra work beyond that in the specifications for asbestos abatement and replacement of ceiling tile. Appellant's claim of constructive change fails because appellant did not interpret the specifications in a reasonable manner and did not prove that it performed extra work. Appellant's theory of entitlement is based on its erroneous assumption that the 32,130 square-foot area of abatement required by the specifications was not simply horizontal floor space but rather constituted the actual "contact area," and included vertical space. The limited evidence of record reflects that appellant's bid was based on the square footage in the specifications without a multiplier. Appellant's bidding method contravenes standard industry practice as it fails to take into account the vertical and corrugated surfaces above the ceilings. The evidence is uncontroverted that describing areas to be abated in terms of floor space measured by square footage is standard in the industry. Reasonable bidders examine the structural or as- built drawings to ascertain the nature of the ducts, piping, and surfaces above the ceiling to add an appropriate multiplier to formulate their bids. Appellant simply failed to do this. Thus, appellant's interpretation that the specifications required it to abate a "contact" area or actual area of only 32,130 square feet failed to account for above-ceiling vertical surfaces and was unreasonable. Appellant should have applied a multiplier to the 32,130 square feet to calculate the contact area required to be abated, but did not.[foot #] 12 Appellant further argues that it actually abated an area of 46,300 square feet of asbestos and replaced 30,871 square feet of ceiling tile. There is, however, no credible evidence in the record to support these contentions. Appellant did not proffer measurements of areas actually abated or ceiling tiles replaced. It appears that appellant contends that it abated 46,300 square feet of asbestos because an independent civil engineer in March 1990 field measured the areas depicted in the drawings to be abated as 46,300 square feet. However accurate appellant's field measurements of the drawings may be, they are not probative of the areas actually abated. These March 1990 field measurements ----------- FOOTNOTE BEGINS --------- [foot #] 12 Respondent's expert in asbestos abatement and monitoring derived a multiplier of 2.04 based upon the actual measurement of the contact area and the floor area. ----------- FOOTNOTE ENDS ----------- reflect the square footage in the drawings before the contract was modified to eliminate portions of the work. Therefore, it is an inaccurate figure and does not support any recovery. More importantly, measurements based solely upon scaled drawings and not upon observing the completed abatement do not prove what the contractor actually did. Appellant relies upon the GSA written estimate to argue that only 14,000 square feet of ceiling tiles were to be replaced and claims that it actually replaced 30,871 square feet. The ceiling tile to be replaced was 32,130 square feet according to the specifications, and the only credible evidence is that appellant replaced 26,000 square feet -- less than required. The record shows that TLC's scope of work was reduced under modification PC02. TLC is not entitled to be compensated for work eliminated from the contract which it did not perform. The Government is entitled, when it deletes required work from a contract, to impose a deductive change, decreasing the contract price to reflect the reduced cost to perform the work. Pacific Architects and Engineers, Inc. v. United States, 491 F.2d 734 (Ct. Cl. 1974); Plaza Maya Ltd. Partnership, GSBCA 9086, 91-1 BCA 23,425, at 117,500; Porshia Alexander of America, GSBCA 9604, 91-1 BCA 23,657, at 118,482. Here, as a result of GSA's determination that portions of the work were no longer needed, contract modification PC02 was issued, reducing the scope of work by $301,920. Prior to issuance of the amendment, however, appellant performed additional work that would have been deleted from the scope of work by modification PC02. In order to compensate appellant for the work performed, GSA issued modification PC05, which ultimately established a new contract price of $710,065.64 and established the value of the deleted work as $189,929.36. Appellant relies upon the GSA site inspector's assertion in a May 1990 memorandum that it appeared that more asbestos was required to be abated than was indicated in the specifications and the drawings. Again, subsequent to that point in time GSA modified the contract, deleting portions of the work. Thus, that statement in May cannot, as appellant asserts, be deemed an admission by GSA that TLC performed more work than the contract required or even as much work as the contract required. Furthermore, as of May 1990, GSA's on-site inspector had only looked at part of the work, so the statement does not address appellant's total performance -- which was not substantially complete until August 1990. The preponderance of the evidence suggests that, at the most, appellant performed 79% of the work originally required. Respondent's expert asserts that it was only 60%. No credible evidence indicates that 100% of the original contract work was done. The most credible evidence of the quantity of TLC's abatement is the actual measurement taken by CEMI in November- December 1990. CEMI measured both the floor space of the abated area and the actual "contact" area of TLC's entire scope of work, including change orders. CEMI determined that TLC abated a floor space of 17,300 square feet -- approximately 60% of the quantity in the original specifications -- and less than the quantity for which TLC was paid -- 79% of the original specifications.[foot #] 13 Further, CEMI observed and measured the replaced ceiling tile and calculated that to be 26,000 square feet. Thus, the record indicates that appellant performed less work than was required by the contract, even as reduced in scope by modifications PC02 and PC05. Differing Site Condition The differing site condition clause establishes two categories of compensable conditions: Category I (site conditions which differ materially from those indicated in the contract) and Category II (conditions which are unknown and unusual and differ materially from those generally encountered in the type of work being procured). Appellant appears to be claiming a Category I differing site condition. Appellant's Posthearing Brief, Section C. Our appellate authority has recognized that: "Success on a Type I differing site conditions claim turns on the contractor's ability to demonstrate that the conditions 'indicated' in the contract differs materially from those it encounters during performance. P. J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984) (citations omitted). "The Government is not liable for a Type I differing site conditions claim unless the contract documents contain an affirmative representation of the subsurface site conditions. Where there is no such contract indication, an equitable adjustment under the 'differing site conditions' clause is not available." Shumate Constructors, Inc., VABCA 2772, 90-3 BCA 22,946, at 115,193 (citations omitted). In the instant case, neither the specifications nor the drawings in any way addressed the nature of the asbestos to be removed above the ceiling. Thus, recovery for a Category I site condition is unavailable. Even if we were to construe appellant's differing site condition claim as a Category II claim, appellant does not prevail. In order to establish a Category II condition, appellant would have to demonstrate that the nature of the asbestos was unknown and unusual and that it differed materially from that ordinarily encountered and generally recognized in asbestos abatement jobs. The Imbus Roofing Co., GSBCA 10430, 91-2 BCA 23,820, at 119,348. The weight of the evidence suggests that there was nothing whatsoever unusual about either the nature of the asbestos or of the duct work, or pipes or corrugated material above the ceiling. We credit the testimony of a former employee of TLC and respondent's expert, both of whom ----------- FOOTNOTE BEGINS --------- [foot #] 13 While floor space is a simpler description, the same is true of contact area. ----------- FOOTNOTE ENDS ----------- observed the conditions and testified to this effect. Transcript at 341-42; Appellant's Exhibit 25 at 3. Defective Specifications and Drawings Appellant's claim based upon defective specifications and drawings also fails. This is not a case in which a change in a specification or an increase in the cost of performance was required due to faulty specifications or drawings. See, e.g., Hol-Gar Manufacturing Corp. v. United States, 360 F.2d 634, 638 (Ct. Cl. 1966). Appellant cannot point to any increase in its cost or work due to either the failure of the specifications to expressly mention that there would be ducts and pipes and corrugated surfaces above the ceiling or due to the discrepancy between the drawings and the specifications. The fact that the drawings if scaled would have shown a floor area to be abated of 46,300 square feet is an interesting irrelevancy in this case -- a discrepancy from the square footage in the specifications which appellant never noticed prior to bidding, but now attempts to seize upon in an effort to recover additional monies. There is no evidence whatsoever to suggest that appellant was misled by this discrepancy or in any way relied upon the drawings when bidding. Decision The appeal is DENIED.[foot #] 14 ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 14 In his final decision, the contracting officer did not deny appellant's third claim for $7,556. Rather, he recognized that TLC had completed the work at issue and said this item could be negotiated. The Board's decision in this appeal does not preclude such negotiations or prevent respondent from paying appellant for this work.