GRANTED: December 4, 1995 GSBCA 13233 WALK, HAYDEL & ASSOCIATES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Frank H. Walk, Jr., New Orleans, LA, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and WILLIAMS. DANIELS, Board Judge. The General Services Administration (GSA), asserting that Walk, Haydel & Associates (Walk, Haydel) did not satisfactorily perform under a delivery order for construction quality manager (CQM) services, claims that Walk, Haydel owes it $52,785.29. The contractor appeals the contracting officer's decision which makes this claim. The parties have presented the case for decision on the basis of a written record, and have asked that we limit our current ruling to the matter of entitlement. We find that GSA has not met its burden of showing entitlement to any of the money claimed. We therefore grant the appeal, concluding proceedings in this case. Findings of Fact 1. On April 17, 1989, GSA awarded to Walk, Haydel a contract for the performance of CQM services for projects each of which had estimated construction costs of less than $10 million, and was located in one of twelve named States. Respondent's Supplemental Appeal File, Exhibit 2 at 2Y, 5. GSA could order work under this contract by issuing to Walk, Haydel delivery orders for the provision of supplies or services specified by the agency. Id. at 42, 44-45. On May 10, 1990, GSA issued a delivery order for CQM construction phase services for fire safety improvements to the Fritz G. Lanham Federal Building in Fort Worth, Texas. Appeal File, Exhibit 2 at 26-49. 2. Under this delivery order, Walk, Haydel was to inspect work performed by the construction contractor, Grinnell Fire Protection Systems Company (Grinnell), for conformity with requirements of the construction contract. Walk, Haydel was also to advise GSA and Grinnell of observed variances from the construction contract. Appeal File, Exhibit 2 at 39. As amended, the delivery order additionally required Walk, Haydel to have a fire safety engineer inspect construction at four different stages of completion. In conjunction with a quality construction superintendent (QCS) -- Walk, Haydel's "key on-site representative" -- the fire safety engineer was on each occasion to "inspect installation progress of the system and provide a report of the inspection noting any corrections necessary, deficiencies, deviations from contract documents." Id. at 14, 35. 3. The parties direct our attention to two clauses in the contract between GSA and Walk, Haydel which they believe are relevant to this dispute. One clause establishes parameters of Walk, Haydel's liability: The CQM will not be deemed to have failed to meet its contractual undertakings and will not be held responsible for: . . . . Defective completion of construction, provided that the CQM exercised all due diligence, utilizing competent personnel within authorized limitations, to make reasonably certain that construction was performed in conformity with applicable construction contract plans and specifications. Respondent's Supplemental Appeal File, Exhibit 2 at 16-17. 4. The second contract clause speaks to Walk, Haydel's responsibility in the event of failure to perform satisfactorily: If any service does not conform with contract requirements, the Government may require the Contractor to perform the service again in conformity with contract requirements, at no increase in contract amount. When defects in services cannot be corrected by re- performance, the Government may . . . reduce the contract price to reflect the reduced value of the services performed. If the Contractor fails to promptly perform the services again, or to take necessary action to ensure future performance conforms with contract requirements, the Government may . . . by contract or otherwise, perform the services and charge the Contractor for any cost incurred by the Government that is directly related to the performance of such service. Respondent's Supplemental Appeal File, Exhibit 2 at 41. 5. Grinnell's work was originally required to be substantially complete by July 18, 1991, and Walk, Haydel's duties under the delivery order were to end at that time. Appeal File, Exhibit 2 at 24. GSA twice modified its delivery order to the CQM to extend the time during which the company would provide services -- first by a month and later by 21 more days. Id. at 3, 5. Thus Walk, Haydel's contractual responsibility as to the fire safety improvements project ended in September, 1991. 6. Walk, Haydel's QCS was on the job no later than the summer of 1990, inspecting Grinnell's work and reporting perceived deficiencies in it. Appellant's Supplemental Appeal File, Exhibits 1-6. In early June, 1991, the QCS sent GSA an inspection report which stated: "The contractor's work on required remedial work is progressing in an unsatisfactory manner. The CQM recommends suspension of any further payments until the correction of this remedial work." Appeal File, Exhibit 38 at 5. The QCS provided a detailed punch list of more than three hundred defects and omissions in Grinnell's work, and the contracting officer forwarded it to the construction contractor. Id., Exhibits 37, 39; Appellant's Supplemental Appeal File, Exhibits 60A, 60B at 1-10. 7. A month later, Grinnell told Walk, Haydel that it had corrected all but five of the identified items. Appellant's Supplemental Appeal File, Exhibit 60B at 11-12. The QCS reinspected the work at the end of July and concluded, however, that 85 items "indicate non-compliance." Id., Exhibit 60C. On August 15, he asked Grinnell to correct these items (as well as 22 others), after which time another inspection would occur. Id., Exhibit 60D. 8. Walk, Haydel's QCS continued to monitor Grinnell's work through mid-September, noting that some punch list items had been completed but that others remained undone. Appellant's Supplemental Appeal File, Exhibits 61, 68. 9. Meanwhile, as construction progressed, Walk, Haydel's fire safety engineer was periodically conducting inspections of Grinnell's work and reporting to GSA and Grinnell deficiencies in those efforts. Appellant's Supplemental File, Exhibits 55A, 55B, 55C, 58. The inspection of July 2, 1991, revealed that the "fire alarm panel was not determined to be functioning properly and will require re-inspection upon completion of flaws in the system by the contractor." Id., Exhibit 58 at 1. 10. On September 16 and 17, 1991, an acceptance test of the fire alarm system was conducted by Walk, Haydel's QCS and fire safety engineer; a GSA building management official; and representatives of Grinnell and one of its subcontractors. Appeal File, Exhibit 58 at 1. 11. A meeting was held on September 18, the day after the acceptance test, between GSA and Grinnell representatives; no Walk, Haydel personnel were present. At that meeting, according to GSA's contracting officer's representative (COR), "[t]he alarm was deemed acceptable and project substantially complete." GSA also directed Grinnell to phase out the old alarm system, beginning on September 23 and ending three days later. The discussion did not address defects and omissions in Grinnell's work. Appellant's Supplemental Appeal File, Exhibit 37A at 2. 12. Walk, Haydel submitted a written report of the September 16-17 inspection. The report is dated September 24 and appears to have been sent to GSA on September 26. Appeal File, Exhibit 58 at 2-6. Walk, Haydel concluded that the system would be ready "to provide beneficial use with the correction of the identified problems." Id. at 3. The CQM noted the following problems or deviations from contract specifications: (a) Programming errors occurred in the software of the alarm control panel. (b) Alarm annunciation appliances did not function properly -- the volume of the speakers was generally lower than required. (c) Voice messages were not appropriate to the floor on which they were provided. (d) Smoke detectors other than duct detectors initiated the same functions as manual fire alarm stations. (e) Functions were initiated far more slowly than required. (f) The sound system did not meet specified requirements. (g) Only three amplifiers, instead of the five required, were provided for different communication zones. (h) The printer was not contained within the control console. (i) The fire alarm control panel could not put any or all fire alarm zones in alarm condition. (j) A self-test feature was not provided. (k) Typed or printed operator instructions were not provided. Id. at 3-6. Because of the existence of these problems, Walk, Haydel recommended that GSA keep the old system on line for several weeks while testing the new system. The CQM suggested that this would allow time for correction of the identified problems and for additional problems in the new system to surface. Id. at 3. 13. On September 27, after GSA's COR received Walk, Haydel's September 24 report, he told the agency's contracting officer that based on the acceptance test and the report, Grinnell's work "ha[s] been established as 'Substantially Complete'." Appeal File, Exhibit 58 at 1. The COR stated that the "old system [has been] phased out this week as the new system has come on line." Id. The contracting officer then formally established September 17 as the date of substantial completion of Grinnell's work. Id., Exhibit 59.[foot #] 1 14. After September 17, GSA's COR assumed the duties of the CQM. Appellant's Supplemental Appeal File, Exhibits 37A-45. In this capacity, he determined, by the week of October 4, that the old fire alarm system was being removed and that all items noted in the Walk, Haydel September 24 report had been corrected or approved as deviations from contract requirements. Id., Exhibit 38 at 2. 15. Throughout the fall of 1991 and winter of 1991-92, however, GSA noted malfunctions of the fire alarm system and Grinnell made efforts to correct the problems. See, e.g., Respondent's Supplemental Appeal File, Exhibits 9-11, 16 at 2, 18-20, 22, 23; Appellant's Supplemental Appeal File, Exhibits 39- 45. On February 14, 1992, for example, GSA complained to Grinnell: The installed system has suffered from daily false messages and false alarms that have caused repeated evacuation of the building. The problems with the system [have] forced us to tag the system as nonoperational and take it off line . . . . As you are aware, the original fire alarm system was disconnected by your company once you believed that the new system was ready for operation. We believe that these problems have put the Government in the position of not having a functional fire protection system in the building. Appeal File, Exhibit 62. ----------- FOOTNOTE BEGINS --------- [foot #] 1 In January, 1993, the contracting officer alleged: "The report given to GSA stated that 'Generally, the system appeared ready to provide beneficial service with the correction of the identified D&O problems.' This statement caused GSA to issue substantial completion to the General Contractor." Appeal File, Exhibit 70 at 1. ----------- FOOTNOTE ENDS ----------- 16. A final inspection was scheduled for March 2 and 3, 1992, but it had to be postponed because Grinnell was still performing remedial work. Appellant's Supplemental File, Exhibit 26 at 2. On April 9, a GSA employee made a two-hour review of the fire safety improvements project and compiled a list of deficiencies he had found in the work. Id., Exhibit 50. Walk, Haydel contended that many of the identified problems resulted from remedial work which Grinnell had performed since the date of Walk, Haydel's last involvement in the project. Id., Exhibit 26 at 2. The COR agreed that since "September 16 and 17, 1991, the contractor has done much remedial work on the system to repair reoccurring problems, some of these items could indeed have been reworked since the original inspections." Respondent's Supplemental Appeal File, Exhibit 27A at 5. The COR said that Grinnell's rework had included "interior circuit boards, wiring, etc., within the panel boxes," and that ceilings (to which alarm devices had been attached) and doors (to electrical rooms) had been replaced during this time. Id.; Appellant's Supplemental Appeal File, Exhibit 51. Another GSA official noted that new software had been installed in the system. Respondent's Supplemental Appeal File, Exhibit 30. Grinnell itself stated that it had recently removed some alarm devices and had not finished replacing them. Id., Exhibit 27 at 1. 17. GSA engaged Collins-Soter Engineering, Inc., mechanical and electrical consultants, to perform a "prefinal construction inspection of the new fire alarm system" from May 18 through 22, 1992. Collins-Soter made this inspection and prepared a list of deficiencies, which it forwarded to GSA on June 16, 1992. Appellant's Supplemental Appeal File, Exhibit 59. 18. One of the deficiencies identified by Collins-Soter, pertaining to connections of wires within junction boxes, is noted in the consultant's report as occurring on virtually every floor of the building. Appellant's Supplemental Appeal File, Exhibit 59 at 7-18, 20. The alleged errors in construction are based on a misunderstanding of contract requirements and industry standards. Id., Exhibit 62. 19. Some of the deficiencies identified by Collins-Soter were the result of remedial work performed by Grinnell after Walk, Haydel's CQM services ended. Among them: (a) The consultant found that the main fire alarm control panel had numerous problems; the internal software and computer boards in this panel were replaced in February 1992. Appellant's Supplemental Appeal File, Exhibits 47-49, 59 at 2; Respondent's Supplemental Appeal File, Exhibit 30. (b) Collins-Soter cited the panel boxes on the fifth and fourteenth floors as failing to meet contract requirements and industry standards; these had been replaced around the first of the year. Id., Exhibits 44 at 2, 59 at 6, 15. (c) The consultant determined that demolition of the old system was not complete; demolition did not begin until after Walk, Haydel had left. Appeal File, Exhibit 58 at 1; Appellant's Supplemental Appeal File, Exhibit 59 at 5-6. 20. Other items on Collins-Soter's list could also have been the result of remedial work performed after Walk, Haydel left the project. For example, the consultant noted that much "wiring is contrary to specifications" and that some speakers were "improperly fastened to the ceiling." Appellant's Supplemental Appeal File, Exhibit 59 at 2, 3, 6-11, 13. Rewiring and ceiling replacement were among the work identified by the COR as having been done since Walk, Haydel's tenure ended. Finding 16. 21. Still other items on the list were problems that had been noted by Walk, Haydel before that firm's CQM services ended. The following are examples of such items: (a) The Collins-Soter report states: "Parts of the audio system are not functioning properly . . . . Incorrect message was given at the basement floor level [and] first floor message was unintelligible, faint and distorted." Appellant's Supplemental Appeal File, Exhibit 59 at 2. The Walk, Haydel September 24, 1991, report noted these items as deviations from project plans and specifications. Appeal File, Exhibit 58 at 3. (b) Collins-Soter found that "[t]here is no easily discernable 'emergency all call' control to address the entire PA system, or to completely evacuate the building, except by pushing the 'Drill All Call Button'." Appellant's Supplemental Appeal File, Exhibit 59 at 2. Walk, Haydel had documented that "[t]he Fire Alarm Control Panel did not appear to have the capability of placing any or all fire alarm zones in any alarm condition by simulating the activation of an alarm initiating device in any particular zone." Appeal File, Exhibit 58 at 4. (c) Collins-Soter noted that instructions for operators of the system were not posted. Appellant's Supplemental Appeal File, Exhibit 59 at 2. Walk, Haydel had pointed out the same deficiency. Appeal File, Exhibit 58 at 4. (d) Collins-Soter cited numerous failures by Grinnell to identify various elements of the electrical elements of the fire alarm system. Appellant's Supplemental Appeal File, Exhibit 59 at 2-3, 7-20. Walk, Haydel had told Grinnell that "[e]lectrical identification, nameplates, wire and cable markers, wire identification ha[d] not been completed." Appeal File, Exhibit 64 at 2. 22. On May 15, 1992, a GSA employee made a video tape of the interior portions of the Lanham Building, purporting to show problems in the construction of the fire safety improvements project. Respondent's Supplemental Appeal File, Exhibit 106. According to affidavits by the individuals who served as QCSs for Walk, Haydel while that firm was the CQM for the project, the video tape did not represent the condition of the site on September 17, 1991, when Walk Haydel's responsibilities ended. Instead, it showed that a significant number of changes had been made between that date and the date of the video tape. Appellant's Supplemental Appeal File, Exhibit 37. GSA has also included in the record photographs taken of the site by an engineer with Collins-Soter. Appeal File, Exhibit 84. The photographs were taken during the summer of 1992. Appeal File, Exhibit 43; Respondent's Supplemental Appeal File, Exhibit 53. There is no evidence linking these pictures to Walk, Haydel's work as CQM. 23. GSA did not authorize final payment to Grinnell for its work on the fire safety improvements project until January 25, 1994. Respondent's Supplemental Appeal File, Exhibit 52. 24. On June 21, 1994, GSA's contracting officer wrote to Walk, Haydel: "$52,785.29 is being retained on the above project. This amount is being held as an offset against the amount by which the Government was damaged as a result of your firm's failure to discharge your obligation under your contract." Appeal File, Exhibit 71 at 1. Both in this letter and in a subsequent one dated September 21, 1994, the contracting officer maintained that Walk, Haydel had advised GSA that the project was substantially complete on September 17, 1991; that GSA and its consultants (presumably including Collins-Soter) had subsequently discovered numerous and substantial problems which Walk, Haydel had not identified; that the deficiencies did not result from modifications made after September 1991; and that Walk, Haydel's failure to perform a complete review had resulted in considerable delay and additional expense in finishing the project, and had exposed Government employees to safety concerns and hazards in the interim. Id. at 2; Respondent's Supplemental Appeal File, Exhibit 43 at 1. 25. On January 9, 1995, the contracting officer issued a decision making a claim for the amount previously mentioned, $52,785.29. In addition to reiterating her previous arguments, she contended that the amounts previously paid to Walk, Haydel for CQM services on the fire safety project included sums "for services that were not provided to the Government which in turn caused increased costs and the government paying for the same services twice." She also maintained that because Walk, Haydel did not fulfill its requirements under the contract, "[c]onsultants had to be engaged to perform a review of the project and to redo much of the work your firm was to have inspected." Appeal File, Exhibit 81 at 1. 26. When asked to itemize the costs encompassed in the claim, agency counsel listed $19,285.29 in money paid to a consultant for construction inspections conducted after Walk, Haydel's responsibilities had ended and $80,047.90 in salaries of GSA employees who devoted time to supervision of the project after September 15, 1991, for a total of $99,333.19. Counsel agreed to limit the agency's claim to $52,785.29, however. Respondent's Supplemental Appeal File, Exhibit 110; see also id., Exhibit 109. Discussion When the Government makes a claim for moneys owed under a contract, it bears the burden of proving, by a preponderance of the evidence, that it is entitled to the funds it seeks. Thermodyn Contractors, Inc. v. General Services Administration, GSBCA 12510, 94-3 BCA 27,071, at 134,909 (liquidated damages); Vistacon Inc. v. General Services Administration, GSBCA 12580, 94-2 BCA 26,887, at 133,837-38 (recovery under warranty or guarantee clause); Recording for the Blind, Inc. v. Department of Education, GSBCA 12391-ED, 94-2 BCA 26,820, at 133,381 (adjustments pursuant to audit report); Auto Skate Co., GSBCA 10510, 91-3 BCA 24,260, at 121,292 (citing Cascade Pacific International v. United States, 773 F.2d 287, 293-94 (Fed. Cir. 1985)) (excess reprocurement costs after contract terminated for default); P.A.L. Systems Co., GSBCA 10858, 91-3 BCA 24,259, at 121,288 (adjustments resulting from defective pricing); Singleton Contracting Corp., GSBCA 8546, 90-2 BCA 22,879, at 114,910 (citing Nager Electric Co. v. United States, 442 F.2d 936, 946 (Ct. Cl. 1971)) (downward equitable adjustment in price due to deletion of some contract work). In this case, GSA has claimed that its CQM contractor, Walk, Haydel, owes it $52,785.29. Finding 25. Why the agency believes that it is entitled to this money is difficult to ascertain. The brief filed in this case advances three different theories. The "legal argument" portion of GSA's brief begins: "Put into its most simple terms, the Government's position is concisely stated as: 'not wanting to be in a position of paying for a service which it did not receive or which was delivered in a grossly negligent manner.'" Respondent's Brief at 14. In support of this position, GSA contends that Walk, Haydel's services "were ineffective and were conferring no benefit upon the Government despite being paid for by the Government." Id. at 2. Other statements along this line are "The Government . . . did not receive the full benefit of the services for which it contracted with the CQM to provide," and "Failure to perform by appellant resulted in the Government spending money for service it did not receive." Id. at 3, 8. Apparently in conclusion to this position, the brief says, "The terms of contract . . . expressly state[]: 'When defects in services cannot be corrected by re-performance, the Government may . . . reduce the contract price to reflect the reduced value of the services performed.['] This is precisely the action which the Government has taken." Id. at 9. A second argument is that "[i]t would be improper to continue to employ the appellant and pay taxpayer funds to a CQM contractor who is failing to discharge its duties under its contract." Respondent's Brief at 2. "As appellant did not provide the service it contracted to provide to the Government during the course of installing this work, the Government declined to extend its contract so appellant could continue to provide ineffectual service at taxpayer expense for an even longer period of time." Id. at 6-7. The Government's third view of the claim is the one on which the contracting officer based her earliest determinations that Walk, Haydel owed the agency money: GSA declared the project substantially complete long before it really was. That conclusion was based on incorrect advice from Walk, Haydel. The agency had to devote its own employees' time to further inspections of construction, and had to hire consultants to assist in this work. Walk, Haydel should be held responsible for these costly repercussions of its faulty advice. Respondent's Brief at 5-6. "The Government had to secure these services from other parties at additional expense and with much loss of time and disruption of this agency's and other agencies' missions." Id. at 8. The contract, the brief notes, "provides that the Government may . . . by contract or otherwise, perform the services and charge the contractor for any costs incurred by the Government that [are] directly related to the performance of such service." Id. at 9. The first two of these theories do not square with the agency's actions. As to the first perspective, GSA's claim is not to recover from Walk, Haydel money it paid that firm for services the agency believes were inadequately performed. The contract does state, as GSA says, that under certain circumstances, "the Government may . . . reduce the contract price to reflect the reduced value of the services performed." Finding 4. That is not what the agency has done here, however. The itemization of the claim lists only costs of services performed by others as a consequence of the alleged poor performance. Finding 26. The contracting officer uses the term "offset" in her correspondence. Finding 24. What she is attempting to offset is not any money paid to Walk, Haydel under the delivery order for CQM services at the Lanham Building fire safety improvements project, however. The use of the term indicates only that GSA is withholding the claimed amount from money which it owes to Walk, Haydel as a consequence of the firm's having done acceptable work under other delivery orders which were issued pursuant to the underlying contract. The agency's second argument is also misplaced. The delivery order in question expired in September, 1991. Finding 5. The contractor has never contended that it was entitled to extensions of the delivery order. Nor could it -- the issuance of these orders is by contract within the complete control of GSA. Finding 1. GSA's decision to secure CQM services on the Lanham Building fire safety improvements project, after September, 1991, from sources other than Walk, Haydel is not at issue in this case. Thus, the agency's motives for making this decision are not relevant. GSA's third theory -- that Walk, Haydel is obligated to pay for those later CQM services because they would not have been necessary but for Walk, Haydel's poor work and bad advice -- is the only one which corresponds to the contents of the claim itself. The contract states that to demonstrate Walk, Haydel's responsibility for costs of completing construction, GSA must show that the defects of construction being remedied were caused, at least in part, by Walk, Haydel's failure to exercise due diligence (within authorized limitations) to make reasonably certain that the construction was performed in conformity with applicable construction contract plans and specifications. Finding 3. The contract separately requires that if the Government is to "perform the services and charge the Contractor for any cost incurred by the Government that is directly related to the performance of such service," GSA must prove that (a) a service Walk, Haydel performed "[did] not conform with contract requirements," and (b) "the Contractor fail[ed] to promptly perform the services again, or to take necessary action to ensure future performance conforms with contract requirements." Finding 4. GSA has not met its burden of proving any of these things. The agency has placed in the documentary record letters and affidavits written years after the occurrence of the events recounted here. Appeal File, Exhibits 69-71, 77; Respondent's Supplemental Appeal File, Exhibits 43, 111, 112. These exhibits contain sweeping, conclusive statements that Walk, Haydel, in the course of its CQM services, did not spot fundamentally unsound construction work performed by Grinnell. These statements are not supported by the many documents which were generated at the time the events took place. Because of the contemporaneous and detailed nature of these documents, we place far greater weight on them. These documents paint a picture of a CQM contractor which was performing its job in the way envisioned by the contract and delivery order, up to the date on which its duties ended. Findings 6-9. The documents show further that on the last date when Walk, Haydel was on the job, it conducted -- jointly with GSA -- an acceptance test of the construction contractor's work. Finding 10. Immediately after the test, GSA, without waiting for Walk, Haydel's report, pronounced the project substantially complete and directed that the old alarm system be removed forthwith. Finding 11. The report actually itemizes eleven deficiencies in the project, says nothing whatsoever about substantial completion (it merely counsels that Grinnell's work will be useful once the deficiencies are corrected), and urges that the old system be kept in place while the new one is tested further. Finding 12. After the agency received the report, it persisted in its own conclusions and asserted that it had reached them based on Walk, Haydel's advice. Finding 13. We can find in the record no justification for this determination (or for the later contention that the old system was removed by choice of Grinnell, rather than GSA, Finding 15). To the contrary, we find that GSA's determination was all its own, and was actually in contravention of the advice it received from Walk, Haydel. The unfortunate consequences which followed were the result of the agency's mistakes, not anything the CQM contractor did or said. After Walk, Haydel's work was over, GSA found that the fire alarm system did not work properly. Findings 15, 16. The deficiencies found by an independent consultant eight months later do not show that Walk, Haydel failed to exercise due diligence or perform in accordance with contract requirements, however. Instead, they show that the consultant misunderstood one of the construction contract's requirements; some of the deficiencies were the result of remedial work performed by Grinnell after Walk, Haydel's last inspection, and others might have been; and several of the problems had been noted by Walk, Haydel and apparently never corrected.[foot #] 2 Findings 17-21. We hold, on the basis of the record presented by the parties, that there is no cause for concluding that Walk, Haydel's CQM services were less than satisfactory. Additionally, we hold that there is no evidence that Walk, Haydel was ever offered an opportunity "to perform the services again, or to take necessary action to ensure future performance conforms with contract requirements." Thus, GSA has not shown that the other contractual prerequisite for recovery is present, either. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Shortly after Walk, Haydel's work was over, GSA determined that the deficiencies identified by the CQM had been corrected or approved as deviations from contract requirements. Finding 14. Because GSA later agreed with Collins-Soter's conclusion that some of those deficiencies were present eight months later, one of the following statements must be true: GSA's earlier determination was incorrect; GSA should not have approved deviations from contract requirements; or the determination was correct, but Grinnell's efforts to perform remedial work reestablished the same deficiencies which had been present when the acceptance test in which Walk, Haydel was involved took place. ----------- FOOTNOTE ENDS ----------- Decision We hold that GSA's claim has not been justified. The appeal is therefore GRANTED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ __________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge