______________________________________________ DENIED: October 11, 1995 _____________________________________________ GSBCA 12133 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, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and NEILL. BORWICK, Board Judge. This appeal involves a contract for the renovation of certain floors of the United States Courthouse and Post Office, Pittsburgh, Pennsylvania, a thirteen-story building. The contractor and appellant is P.J. Dick Incorporated (P.J. Dick). The respondent is the General Services Administration (GSA). On behalf of its electrical subcontractor, Ferry Electric Company (Ferry Electric), P.J. Dick seeks $2,011.29 as the equitable adjustment for contract work for installation of controls and electric circuitry for an automatic rolling filter associated with fan S-3, which was performed between July 31 and August 2, 1991. This matter was submitted on the record, pursuant to Rule 11. We conclude that the parties had earlier settled the price of that work when they agreed to bi-lateral modifications AC69 and AC77 in January and February of 1990; those modifications included the work (new controls, new filters and the rewiring of fans E-3 and S-3) for which P.J. Dick seeks additional compensation in this appeal. In other words, the work performed was covered by bi-lateral modifications AC69 and AC77. P.J. Dick is not entitled to more and the appeal is denied. Findings of Fact On June 8, 1989, GSA issued Request For Proposal (RFP) 29 to P.J. Dick. The RFP added and deleted work as follows: 1. ADD - Remove the variable inlet vanes from the 14 existing fans which are to be reused. 2. DEDUCT - Do not remove the existing fans S-3 & E-3 and associated ductwork from the basement as presently called for. 3. ADD - Retain and refurbish fans S-3 & E-3. This work is to include: 1. 700 lbs of sheet metal for damaged duct replacement 2. (4) flexible connections 3. (2) fire dampers 4. New controls 5. New belts, filters, fan painting, greasing and adjustments. Appeal File, GSBCA 11645 & 11646, Exhibit 72. P.J. Dick provided a quote of $31,018.87, including commission, for its various subcontractors to perform that work, including the portion to be performed by Ferry Electric Company (Ferry Electric). Appeal File, GSBCA 11645 & 11646, Exhibit 72, Respondent's Post-Hearing Brief, Exhibit 1. P.J. Dick stated that "our scope for this additional quotation is limited to that work which is specifically cited in the enclosed back-up information." Ferry Electric's portion of the quotation was $3,012.70, which included: Disconnect and remove two existing starters. Install two new 480V starters furnished by others. Install one new duct detector furnished by others. Furnish and install fire alarm addressable contact device for duct detector. Install one new thermostat furnished by others. Furnish and install all related wiring. Respondent's Post-Hearing Brief, Exhibit 1. On January 11, 1990, GSA and P.J. Dick settled the price for this RFP at $28,258, and the contract was modified accordingly through contract modification AC69. In the "items accepted" block of the modification, was written "1 thru 3." Appeal File, GSBCA 11645 & 11646, Exhibit 72. On July 10, 1989, GSA issued RFP 41, item three of which added the following work to the contract: "Re-feed basement fans E-3 and S-3. Provide starter, disconnects are under the H & V contract. See drawing 9-E-30." Appeal File, GSBCA 11645 & 11646, Exhibit 44. Drawing 9-E-30 shows a plan for rewiring electrical circuits, but does not show filter controls, the filter itself, or an electrical circuit to the filter. Appellant's Supplemental Appeal File, Exhibit B. P.J. Dick quoted $33,456.41 to perform RFP 41; P.J. Dick's quotation for item three was $2,250.52, which included Ferry Electric's quotation of $2,013.59 plus markups and commission. Respondent's Post-Hearing Brief, Exhibit 2. On October 27, 1989, GSA issued unilateral contract modification AC41, which directed P.J. Dick to proceed with the work at a price to be determined later, but not to exceed $25,400. Appeal File, GSBCA 11645 & 11646, Exhibit 44. On February 1, 1990, GSA issued a bi-lateral modification (contract modification AC77) which definitized the price for the work, including item three, at $26,500. Respondent's Post-Hearing Brief, Exhibit 3. By request for information of June 4, 1991, Ferry Electric advised P.J. Dick: RFPs #41 and #29 both address the refurbishing of fans S-3 and E-3. There is no information given on the new control system for these fans. This needs to be addressed in order for these fans to operate properly. The existing low voltage control system is no longer in operation. . . . . Also, an automatic rolling filter was added to fan S-3. This rolling filter needs an electric circuit. Due to the status of these overlapping RFP's (change orders have been issued), any changes should be addressed in a new RFP. Appellant's Supplemental Appeal File, GSBCA 12133, Exhibit E. By letter of July 11, 1991, in response to that request for information, GSA consulting electrical engineers told GSA's consulting architect that Ferry Electric was to provide a new branch circuit from electrical closet B-30 in the basement, extending to the filter location. Ferry Electric was also to provide a motor sentinel switch at the filter location and to provide final connections as required. Appeal File, GSBCA 12133, Exhibit 320. GSA's consulting architect sent a copy of the consulting engineer's letter to P.J. Dick. The consulting architect's cover letter stated: "The following letter from Carl J. Long and Associates dated July 11, 1991, relating to RFPs #29 and #41, provides a description of work to be done under Fair and Equitable Adjustment #7." Appellant's Supplemental Appeal File, GSBCA 12133, Exhibit G. "Fair and Equitable Adjustment" referred to a process instituted by GSA in May or June of 1991, to minimize the administrative delays associated with the traditional contract modification process. Payment was to be made based on supported actual costs incurred. P.J. Dick and its subcontractors understood that if actual labor costs were verified and supported, prompt payment would be made. Appellant's Supplemental Appeal File, GSBCA 12133, Exhibit 1 (Affidavit of Dale R. Lostetter, P.J. Dick Project Manager (Lostetter Affidavit) (Sept. 23, 1993) 3.) Between July 31 and August 2, 1991, Ferry Electric installed supports, conduit fittings, and junction boxes for the feed to the rolling filter controller for the S-3 fan system. Ferry Electric also: (1) installed the motor sentinel switch, (2) pulled wire and (3) hooked up the filter control system, at a quoted cost of $1,794. Appeal File, GSBCA 12133, Exhibit 321. On August 20, 1991, P.J. Dick submitted quotation 248 for fair and equitable adjustment seven in the amount of $4,540, which included Ferry Electric's quotation of $1,794 for the labor and materials to install the wiring and controls. Appeal File, GSBCA 12133, Exhibit 322. P.J. Dick's claim for this extra amounts to $2,011.29, which is comprised of Ferry Electric's cost of $1,794 plus P.J. Dick's commission of 10 percent and insurance, bond and business and occupation tax of 1.92 percent. Lostetter Affidavit 13. By letter of December 4, 1992, P.J. Dick requested a decision of the contracting officer on this matter. Respondent's Post-Hearing Brief, Exhibit 4. The contracting officer did not issue a decision on P.J. Dick's claim, and the matter was appealed on a deemed denied basis.[foot #] 1 Discussion P.J. Dick argues that "Ferry [Electric] clearly performed additional work which corrected deficiencies in previously issued RFPs, and this additional work was recognized by both [GSA's] architect and electrical engineer as an extra." Appellant's Post-Hearing Brief at 5. GSA argues that the "work [installation of the filters and controls] appellant claims as an extra is actually contained in the two RFPs which were previously settled and paid." Respondent's Post-Hearing Brief at 6. Assuming that the work was in addition to the work specified in the RFPs, GSA maintains that ----------- FOOTNOTE BEGINS --------- [foot #] 1 41 U.S.C. 605(c)(5) (1988). ----------- FOOTNOTE ENDS ----------- the work was at the direction of the architect, not the contracting officer, and that "no one from the architect engineer had the authority to guarantee payment on behalf of the Government." Id. at 7. Generally, when a change order is accepted without protest, it is considered a final agreement as to the equitable adjustment and time extension stated therein and a bar to any further claim by the contractor. Jordan & Nobles Construction Co., GSBCA 8349, 91-1 BCA 23,659, at 118,514. It is also true, however, that where there is ambiguity in the meaning of the modification, agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible to determine its scope. See 102 Construction Inc., ASBCA 45223, 93-3 BCA 26,067, at 129,572. There is no ambiguity here. The writing "1 thru 3" in the "items accepted" block of the contract modification AC69 referenced all of the deletions and additions in the change order including item three's sub-items of "new controls" and "new . . . filters" for the refurbishment of fans S-3 and E-3. The meaning of AC77 is also clear--to provide all the electrical rewiring necessary to make fans S-3 and E-3 operational. The work for which P.J. Dick seeks additional compensation is for controls and electric rewiring, both of which were covered by bi- lateral modifications AC69 and AC77. P.J. Dick may have acted hastily in settling AC69 and AC77 in January and February of 1990, respectively, before difficulties in implementing these changes became apparent on June 4, 1991, when Ferry Electric advised P.J. Dick of problems with the description of work in the RFPs. Ferry Electric needed information on the control system and a wiring plan for installation of an extra electrical circuit for the automatic rolling filter that had previously been added at the location of fan S-3. Any haste on P.J. Dick's part does not entitle it to more money for work which was included in settled change orders. The architect's advice to P.J. Dick to install the branch circuit and motor sentinel switch "to be done under fair and equitable adjustment #7" did not amount to the issuance of a new change; it interprets the scope of work of the existing change orders. The architect's advice cannot undo P.J. Dick's previous agreements with GSA under modifications AC69 and AC77. Decision The appeal is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: ____________________________ _________________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge