______________________________________________ GRANTED: April 25, 1995 _____________________________________________ GSBCA 11676 P. J. DICK INCORPORATED, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John T. Flynn and Thomas J. Kelleher, Jr., of Smith, Currie & Hancock, Atlanta, GA, counsel for Appellant. Sharon A. Roach, Gerald L. Schrader, Martin A. Hom, Robert C. Smith, and M. Leah Wright, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and NEILL. BORWICK, Board Judge. Background This appeal, submitted on the record, involves a contract for the renovation of certain floors of the United States Courthouse and Post Office, Pittsburgh, PA, a thirteen-story building. The contractor/appellant is P. J. Dick Incorporated (P. J. Dick). Respondent is the General Services Administration (GSA). P. J. Dick seeks $3,973.01 for Ferry Electric s (P. J. Dick s electrical subcontractor) overtime labor costs of a standby electrician during core drilling. Ferry Electric fur- nished services of the overtime electrician at GSA s request. GSA maintains that P. J. Dick has been paid its costs in settle- ment of request for proposal (RFP) thirty-six. We disagree; the settlement of RFP thirty-six related to costs incurred by P. J. Dick s mechanical subcontractor, A.R. Scalise, and Ferry Electric s cost for work on a unit heater. Correspondence from P. J. Dick and Ferry Electric referencing RFP thirty-six in connection with the overtime electrician does not change the scope of that RFP as negotiated. We thus grant the appeal. Findings of Fact GSA s instructions to P. J. Dick for alleviating noisy work 1. On August 31, 1989, the contracting officer, relying on the use of premises clause of the contract[Foot1], instructed P. J. Dick to direct A.R. Scalise to stop hanging duct work in its usual manner, because the noise was bothering employees of the Depart- ment of Housing and Urban Development (HUD), the tenant agency. Appeal File, Exhibit 320. 2. After receiving complaints about the delays from A.R. Scalise, Appeal File, Exhibit 324, P. J. Dick advised GSA that it considered the direction to work outside of normal working hours a change for which P. J. Dick would seek an equitable adjustment. Id., Exhibit 326.[Foot 2] P. J. Dick also advised GSA that it would comply with GSA directives, but requested advice on what hours of work would be acceptable to GSA. Id., Exhibit 325. 3. The contracting officer then advised P. J. Dick that "noise which is so loud that it makes it impossible to hear the tele- phone ring or carry on a conversation" was an "unreasonable interruption" under the use of premises clause. Appellant s Supplemental Appeal File, Vol. 1, Exhibit 7.[Foot 3] He also advised that HUD could not tolerate heavy noise between 7:00 a.m. and 5:00 p.m. Id. ____________________ 1 That clause provided that if the premises were occupied during construction, the contractor and its subcontractors were to "perform the work required . . . in such a manner as not to unreasonably interrupt or interfere with the conduct of Govern- ment business." Appeal File, GSBCA 11676, Exhibit 1 at GSAR 552.236-75. 2 P. J. Dick maintained that it was in compliance with Occupa- tional Safety and Health Administration noise standards; it considered any work in compliance with those standards acceptable under the use of premises clause. Appeal File, GSBCA 11676, Exhibit 326. 3 Appellant submitted two supplemental appeal files for this docket: (1) one consisting of exhibits one through twelve, and (2) one consisting of exhibits one and two, with Tabs "A" through "T" attached to exhibit two. We designate the former as "Appel- lant s Supplemental Appeal File, Vol. 1" and the latter as "Appellant s Supplemental Appeal File, Vol. 2." The requirement for a standby electrician during core drilling for plumbing ____________________ 4. The contract required a portion of the plumbing work to be performed in the post office area during the second shift (night shift) hours. Appellant s Supplemental Appeal File, Vol. 2, Exhibit 1, 3 (affidavit of Mr. Robert J. Salvatora, P. J. Dick s Project Coordinator (Sept. 22, 1993)). When the plumbing contractor, Sherry & O Leary, began core drilling the postal area for pipe penetrations, uncharted electrical conduits were discov- ered embedded in the concrete slab. Id., 4. 5. GSA had no information concerning the embedded and unknown conduits; GSA s resident engineer requested that P. J. Dick provide an electrician on standby status so that if the uncharted conduit were damaged, it could be repaired before the next morning, when the Postal Service began its regular daytime shift. To minimize costs, Ferry Electric agreed to put an electrician on the night shift, but performing original contract work. Appeal File, Vol. 2, Exhibit 1, 5, 7, 9. P. J. Dick sought the cost of foreman wages, shift differential, and labor and materials to make the repairs. Id., 10. Request for proposal thirty-six 6. On June 23, 1989, GSA issued request for proposal thirty-six (also designated AC 63) which provided for additional hot water heating for the post office area, fourth floor judge s chamber, elevator lobbies, and stairwells. Appeal File, Exhibit 66. GSA deleted installation of certain pipe and insulation as shown on contract drawings and added work as quoted below: Add - pipe, insulation, valves, 2 row radiation, cabi- net unit heaters, floor channeling, cutting and patch- ing, coordination, radiator demolition and a new pump impeller designed for the additional flow[.] Id. Ferry Electric s submission for evening shift work for core drilling of plumbers 7. On March 5, 1990, Ferry Electric wrote P. J. Dick: Attached are our cost breakdowns for the evening shift work relating to RFPs #36 and #7. Due to the core drilling work being performed by the plumbers, it was necessary for electricians to be available to make repairs to any embedded conduits damaged by the core drilling. These costs are not reflected in any RFP prices previously quoted. Appeal File, Exhibit 331. Ferry Electric quoted premium time labor of $2,611.01, which, with added markups for overhead, profit, business tax, and bond, totaled $3,543.79.[Foot 4] Id. 8. Ferry Electric thought that the standby electrician related to RFPs thirty-six and seven, even though those RFPs were not related to the problem of embedded conduits in the concrete slab. Appellant s Supplemental Appeal File, Vol. 1, Exhibit 2, 6 (affidavit of Mr. Timothy J. Enright, Ferry Electric s Project Manager (Sept. 24, 1993)). The requirement for a standby elec- trician was never assigned to a separate RFP, and Ferry Electric never submitted a quotation for the work covered by RFP seven. Affidavit of Mr. Timothy J. Enright, 3, 5 (Nov. 24 1993)(Un- numbered Attachment to Appellant s Reply Brief.) 9. On April 11, 1990, P. J. Dick submitted its quotation, designated quotation ninety-three, for night shift work, includ- ing the $3,543.79 for direct work "due to RFP #36 and #7," plus mark-ups. Appeal File, GSBCA 11676, Exhibit 333. On December 4, 1991, P. J. Dick submitted an amended claim which retained the same elements, but adjusted the insurance and bond costs. Id., Exhibit 335. Negotiation and settlement of RFP thirty-six 10. On October 11, 1989, Ferry Electric submitted its quotation of $4,067.40 for RFP thirty-six. Appellant s Reply Brief, Exhibit A. Ferry Electric wrote: "PLEASE NOTE: The work involved for the unit heater in the Post Office area is figured at evening rates (time and one half wages). The work involved for the unit heaters on the 4th floor is figured at 1990 estimated wage rates." Id. 11. On November 5, 1991, P. J. Dick submitted to GSA its quota- tion 47R2 of $115,225 for performing RFP thirty-six. The break- down attached mentioned specifically Ferry Electric s cost of $4,067 for work on the unit heater. Respondent s Post-Hearing Brief, Exhibit 2. P. J. Dick stated the quotation was "for the extra work detailed in the attached Ferry Electric quotation dated October 11, 1989 and further stated in the A.R. Scalise quotation dated November 5, 1991." Id. 12. There is a dispute of fact whether the quoted figure of $4,067 was for work on the unit heaters or the cost of a standby electrician for core drilling. Based on the documents contempo- ____________________ 4 With P. J. Dick s markup, the total is $3,973.01 as follows: Ferry Electric Overtime $3,543.79 P. J. Dick Commission 10.00% $354.38 $3,898.17 P. J. Dick B & O Tax 1.92% $74.84 $3,973.01 ____________________ raneous with contract performance, we find as fact that the $4,067 was for work on the unit heaters. Findings 10, 11. 13. On November 26, 1991, GSA issued unilateral[Foot 5] modification AOE3 which provided: "this modification constitutes definiti- zation of PDL [Price To Be Determined Later] modifications AC63 and AC 82.[Foot 6] Except herein as modified, the definitization of modification AOE3 hereby created, includes all the terms and provisions of change order 36 and constitutes full agreement of the parties with respect to said change order." Respondent s Post-Hearing Brief, Exhibit 2. Events resulting in appeal 14. On October 14, 1991, P. J. Dick requested a contracting officer s decision on its quotation ninety-three as it had not heard from respondent regarding its claimed costs for the standby electrician. Appeal File, Exhibit 334. On December 4, 1991, P. J. Dick restated its claim for Ferry Electric for $3,543.79. Id., Exhibit 335. By letter of October 13, 1992, the contracting officer denied the claim: The amount of $3,973.01 for Ferry Electric s premium time for work done under RFP #36 and #7 is denied. Ferry had already proposed a cost for work performed under RFP #36, and that RFP was settled at a firm fixed price. Additionally, the work proposed in RFP #7 was required to be performed, under the base contract, after hours. Ferry s costs for RFP #7 should have been part of their base bid to P. J. Dick. Respondent s Post-Hearing Brief, Exhibit 3. This appeal fol- lowed. ____________________ 5 In its post-hearing brief, GSA explains that the modification was issued unilaterally because P. J. Dick objected to the lack of allowance for a time extension and delay costs. Respondent s Post-Hearing Brief at 7. The inference is that both parties considered the modification full payment for items of direct cost within the scope of the modification. P. J. Dick does not contest the explanation or the inference. 6 AC 82 increased the price to be determined later funding of the change to $106,800 from $60,000. GSA did not alter the scope of the change. ____________________ Discussion Respondent does not dispute that the overtime premium for Ferry Electric s standby electrician was a change; it maintains that the matter was settled in the definitization of RFP thirty- six; furthermore, says respondent, since appellant was paid $4,067 under modification AOE3, the amount paid covered Ferry Electric s total request for both RFPs 36 and 7. Respondent s Post-Hearing Brief at 9.[Foot 7] Resolution of this appeal turns on whether Ferry Electric s costs for a standby electrician were included in the scope of the settlement of RFP thirty-six. An essential ingredient for a settlement is a meeting of the minds. SER Jobs for Progress, Inc. v. United States, 759 F.2d 1, 4 (Fed. Cir. 1985). Thus the question before the Board is whether the parties intended to include the cost of the standby electrician for core drilling within the settlement. Service Engineering Co., ASBCA 40274, 93-1 BCA 25,520, at 127,124, recon. granted on other grounds, 93-2 BCA 25,885, aff d sub nom. United States v. Service Engineering Co., Nos. C-93-2591- VRW, C-94-0271-VRW 1994 WL 519501 (N.D. Cal. Sept. 15, 1994) (appeal under district court s maritime jurisdiction, 41 U.S.C. 603 (1988)). The parties did not so intend. P. J. Dick was precise about the scope of the change: "for the extra work detailed in the attached Ferry Electric quotation dated October 11, 1989 and further stated in the A.R. Scalise quotation dated November 5, 1991." Finding 4. The work detailed in Ferry Electric s quotation of October 11 was for unit heaters, not for a standby electrician during core drilling. Finding 12. P. J. Dick did not include the cost of the standby electrician in its quotation 47R2 that was settled in modification AOE3. Findings 8, 11. The contracting officer could not have misunderstood that,in issuing modification thirty-six he was only settling P. J. Dick s quotation 47R2; he had before him P. J. Dick s earlier and separate request for a contracting officer s decision on P. J. Dick s quotation ninety-three for the cost of the standby elec- trician. Findings 9, 14. Both Ferry Electric and P. J. Dick referenced RFPs thirty-six and seven in connection with the standby electrician only because GSA had not assigned a specific RFP to the requirement. Finding 8. ____________________ 7 We assume respondent has abandoned the contracting officer s position that the cost of the standby electrician was part of P. J. Dick s pre-existing contractual duty. In any event, we are not referred to a contractual provision requiring P. J. Dick to furnish a standby electrician on an overtime basis. If the contracting officer meant that duty was found in RFP seven, we have found as fact that RFP seven did not include the cost of the standby electrician, Finding 8. Decision The appeal is GRANTED. P. J. Dick is awarded $3,973.01, plus interest as allowed by the Contract Disputes Act of 1978. _________________________ ANTHONY S. BORWICK Board Judge _________________________ _________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge