Appeal of

M.E.S., INC.
Under Contract No. 332495-98-B-0307

PSBCA No. 4462

APPEARANCE FOR APPELLANT:
Timothy A. Sullivan, Esq.
Starfield & Payne, P.C.

APPEARANCE FOR RESPONDENT
Barbara H. Frazier, Esq.
St. Louis Law Department
United States Postal Service

OPINION OF THE BOARD

            Appellant, M.E.S., Inc., has appealed the default termination of its contract to construct a post office for Respondent, United States Postal Service, in Riverhead, New York.  Before the contract completion date, Respondent terminated the contract for Appellant’s failure to make progress.  Appellant concedes it would not have completed the contract by the completion date established in the contract but contends that it was entitled to a substantial extension of the performance period because it encountered delays that were caused by Respondent or were otherwise excusable.  According to Appellant, if the contract completion date had been extended to account for these delays, it could have completed the project within the appropriately-extended contract construction period.  Appellant argues that termination under these circumstances was an abuse of the contracting officer’s discretion.  A hearing was held in New York City,[1] and the parties submitted post-hearing briefs.

FINDINGS OF FACT

            1.  On July 20, 1998, Respondent issued a solicitation for a fixed-price contract for construction of a new main post office in Riverhead, New York.  The work included clearing the wooded site, constructing a 22,393 square foot, one-story, steel-framed structure with a brick veneer, paving and landscaping.  The solicitation package included a full-sized set of blue-line plans and technical specifications for the project.  Offers were due August 7, 1998.  (Transcript of Hearing, Pages (“Tr.”) 327, 540; Appeal File, Tabs (“AF”) 705, 712 (photographs 67-79), 746 (Sections B.2, Attachments to Statement of Work/Specifications (Clause B-31)(June 1988) and I, List of Attachments, and Specification 01110-1 (“Summary of Work”)), 747, 748)[2]; Proposed Joint Findings of Fact (“Stip.”) 2, 10).

            2.  A pre-proposal conference was held at the site on July 27, 1998.  A representative of Appellant attended the conference and viewed the site from the perimeter sidewalk.  He was afforded the opportunity to enter the site for inspection purposes but chose not to because the site was heavily wooded.  (Tr. 109-110, 181, 183, 540; AF 25, 705, 746 (J.2, Preproposal Conference (Provision 4-8)(January 1997))).  Attendees were advised orally (confirmed in the meeting minutes, which were subsequently circulated to the attendees) that Respondent intended to start construction by September (Tr. 183; AF 25).

            3.  The solicitation cautioned potential bidders that it was their responsibility to ascertain the nature of the work and local conditions that could affect the cost of the work, and that Respondent would not be responsible for any representations or clarifications regarding such conditions made by its employees unless the solicitation was amended (AF 746 (G.8, Conditions Affecting the Work (Clause B-41)(January 1997), and J.2, Preproposal Conference (Provision 4-8)(January 1997))).

            4.  Appellant’s was the low offer.  Respondent notified Appellant by letter dated August 11, 1998, that its proposal was being considered for award, asked it to submit bonds and evidence of insurance, and reminded Appellant that, as provided in the solicitation, a Notice to Proceed (“NTP”) with construction would be issued at a pre-construction meeting to be scheduled after award.  (AF 28, 29, 746 (K.22, Postaward Orientation Conference (Provision OA-5) Alternate I (March 1989), Specification 01310-1.7)).

            5.  Appellant submitted its bonds on August 31, 1998, and Respondent awarded it the contract on September 9, 1998, at a price of $3,954,000.  The award letter directed Appellant to bring to the preconstruction meeting a proposed construction progress chart.  In a September 15 fax, Respondent notified Appellant that the preconstruction conference would be held on October 6, 1998, a date acceptable to Appellant.  (Tr. 841; AF 41, 43, 44, 746 (C.4, Notice to Proceed and Commencement, Prosecution and Completion of Work (Clause B‑34)(January 1997)); Appellant’s Supplement to the Appeal File, Tab (“AS”) –3; Stip. 7).

            6.  Respondent issued the Notice to Proceed at the October 6, 1998 preconstruction meeting (Tr. 410).  The contract required completion within 300 days after issuance of the NTP, thus establishing the date for completion of the project as August 2, 1999 (AF 43, 53).  At the meeting, Appellant submitted a schedule of values and a construction progress schedule reflecting start of the earliest tasks (site clearing and submittals) on October 13, 1998, and completion of the project by August 2, 1999.  The schedule established October 22 as the date installation of concrete foundations was to begin and allowed 30 days for completion of foundations, although Appellant had actually anticipated six weeks for foundation work.  (Tr. 689, 874; AF 52, 465, 720).

Survey

            7.  Respondent had surveyed the site in 1997.  The surveyor prepared a boundary and topographic map showing the boundaries of the site, its contours, and the location of a number of physical features, including the presence of a large number of trees, many with diameters in excess of 12 inches.  (Tr. 16-17, 226; AF 719; Stip. 1).

            8.  Respondent’s architect, URS Greiner Woodward Clyde (“URS”), used Respondent’s survey map to prepare the plans for the project.  The survey depicted a benchmark as the top of a concrete monument found at the southwest corner of the site.  URS used that benchmark as the reference point to locate the building on the site and to establish the construction elevations on the contract drawings.  (Tr. 225-226; AF 719).

            9.  The contract required Respondent to establish “such general reference points as will enable [Appellant] to proceed with the work.”  (AF 746 (G.18, Survey Monuments and Bench Marks (Clause B-53)(January 1997))).

            10.  Appellant was required to engage a surveyor to stake the building location, and to do so, Appellant’s surveyor had to work from the same benchmark used by URS.  However, URS did not identify the benchmark on the contract drawings, and Respondent did not include the boundary and topographic map in the solicitation.  (Tr. 176-179, 226, 493-494, 595, 660-662; AF 637, 746, 747 (Drawing C1.01)).

            11.  On September 16, 1998, and again on October 14, 1998, Appellant asked URS for a copy of the land survey for the site, but did not mention any problem with locating the benchmark (AF 47, 62; AS-5).  URS sent Appellant a copy of the survey on October 23, 1998 (Tr. 186-187, 595; AF 73).

            12.  Appellant received the survey on October 26, 1998, and, on the same day, sent a copy to the surveyor with whom it was negotiating for the required survey work.  Appellant concluded a contract with the surveyor on or about October 30, 1998, and the surveyor proceeded to lay out the site on November 2, 1998.  (Tr. 595-596, 637, 656-657, 662-664; AF 64, 76, 89, 179, 702, 736 (p. 62)).

Site Clearing

            13.  Appellant included 4 days in its schedule for site clearing, showing completion by October 16, 1998, but site clearing actually took about 20 days, concluding on Friday, October 30, 1998.  The number of large trees on the site was one reason site clearing took longer than Appellant had expected, but equipment breakdowns by the tree removal subcontractor also caused delays.  (Tr. 655, 659-660; AF 87, 89, 703 (2), 720).

Reproducible Plans

            14.  On August 25, 1998, Appellant asked URS for a set of Mylar prints or electronic copies of the plans so that it could reproduce blueprints for its subcontractors (Tr. 113-114; AF 34).  On August 31, URS declined, noting that it had not been advised that Appellant had been awarded the contract and that while it would provide the general contractor with reproducible “vellums”, it would not provide Mylar or electronic plans (AF 36; AS-1).

            15.  On September 15, 1998, after contract award, Appellant repeated its request to URS for a set of reproducible plans needed to make copies to distribute to prospective subcontractors, stating that “vellums” would be fine and asking that the request be expedited (AF 45).  On September 29, 1998, URS sent Appellant a set of reproducible plans.  (Tr. 184-185, 188, 665-672, 870; AF 50, 55 (items 13, 16)).

Foundation Submittals

            16.  The contract required Appellant to submit shop drawings for approval by URS.  Appellant was to submit shop drawings sufficiently in advance of construction to permit at least 10 calendar days (excluding time for delivery to and from the architect) for checking and appropriate action.  (Tr. 102-103; AF 42, 746 (C.6, Shop Drawings, Coordination Drawings, and Schedules (Clause B‑56)(January 1997), Specification 01330-1.3 F and 01330-1.8 A); Stip. 12).

            17.  Appellant’s contract with its site and concrete subcontractor required the subcontractor to prepare the required foundation and reinforcing steel (“rebar”) shop drawings within two weeks of Appellant’s October 16, 1998 award of the subcontract (AF 65, 66 (Article 10), 89).  Approved foundation drawings were required before concrete could be poured for the footings and foundations, but the subcontractor did not provide the foundation drawings to Appellant until on or about November 18, 1998 (AF 89, 742 (P07)), and this delayed Appellant’s progress on the job (Tr. 903-905; AF 87, 736 (p. 80)).

            18.  Appellant sent the foundation and reinforcing steel (rebar) shop drawings to URS on November 18, 1998, at the earliest, and they were received by URS on November 24, 1998 (Tr. 673, 677-678; AF 183, 270, 742 (P07)).  URS and its structural engineer reviewed them and sent them back on or about December 4, 1998 (AF 270), marking on the drawings that they were to be revised and resubmitted.  The required “revisions” included design changes to the contract work, such as changes to the elevations of a number of footings (Tr. 568-574; 678-679).  Appellant received the marked-up drawings on December 8, 1998 (Tr. 568, 742).

            19.  Appellant made the revisions and changes and sent the shop drawings back to URS, which received them on December 17, 1998.  The drawings were returned (apparently mailed) to Appellant “approved as noted” on December 23, 1998 (AF 270) and received by Appellant on December 28, 1998 (AF 742 (P09, date stamp); see Tr. 680).

            20.  Approved foundation shop drawings were not needed for excavation (Tr. 494, 673), and Appellant went ahead with excavation and preparing forms for foundation work notwithstanding the lack of approved drawings.  By November 25, substantial excavation had been done and form work was partially in place for foundations and footings in preparation for placing reinforcing steel.  (Tr. 679-680; AF 112, 125).

            21.  The lack of approved “rebar” submittals prevented any significant work on the site from November 30 through December 16.  On December 16, however, Appellant’s concrete subcontractor brought “approved” reinforcing steel (rebar) drawings to the site, and Appellant proceeded that day to place reinforcing steel and resumed other work on the site thereafter.[3]  (Tr. 680-681; AF 125, 703, 704, 731 (pp. 2-19, 28-31); AS-11).  Other than the period from November 30 through December 16, 1998, there were no periods of complete work stoppage on the project, except for occasional weather-related stoppages and occasions when Appellant’s subcontractors failed to show up when expected (AF 731).

Defective Plans

            22.  The drawings Respondent issued for the project (AF 747, 748) omitted a number of details and dimensions and contained conflicts that required correction by URS.  Revised structural drawings (S1.01) were issued on December 11, 1998 (AF 137, 146, 704 (12)), but they also contained conflicts and omissions (AF 163).  In this appeal, Appellant has claimed specific quantities (days) of delay for eight alleged plan deficiencies (App. Exh. 2), but the plans contained other dimensional conflicts and omissions that Appellant claims interfered with its work but for which Appellant has not assigned any specific number of days of delay.  (Tr. 191-195, 543-594, 599-602, 616, 728, 785, 924-927, 943-944; AF 122, 131, 203, 382, 383, 434, 454, 525; AS-64).

            23.  The plan errors, omissions and conflicts affected the locations of foundations, columns, walls, etc., and prevented Appellant from locating and pouring the footings that were to support these structures until the deficiencies were resolved (Tr. 556).  Accordingly, Appellant’s schedule for pouring footings and foundations was disrupted.  More and smaller concrete pours than anticipated were required to perform the foundation work, making Appellant’s work less efficient than planned.  (Tr. 688-693, 701-702, 711-713; AF 737 (pp. 28-32); AS-64).  However, while waiting for clarifications or corrections, Appellant’s work on the project did not stop entirely.  Appellant proceeded with concrete and other work on the project, leaving the affected areas until Respondent provided the needed instructions.  (AF 731, 737).

            24.  The plan errors, omissions and conflicts also affected fabrication of the steel, which was the critical path work to follow installation of foundations (Tr. 693, 753).  Steel was fabricated and ready for delivery in early March 1999 (Tr. 317; AF 298, 328, 332, 350, 363, 478).  Installation of structural steel commenced on April 13, 1999 (AF 731 (pp. 191-193)).

Unsuitable Material

            25.  Respondent included with the specification package in the solicitation a Soils and Foundation Investigation Report (“Soils Report”) reflecting the results of an investigation of the site conducted in April of 1998 by Respondent’s soils consultant.  The consultant evaluated the site by digging a number of test pits and drilling one boring hole.  Except for reporting leaf litter and topsoil in the top foot of soil, the Report did not reveal the presence of material that would be unsuitable for footings, foundations and the slab, except at one location, which reflected roots and household trash to a depth of about 5 feet.  (Tr. 174-175, 244, 237, 240, 955; AF 10, 746 (Specification 02300-1.6 and Soils and Foundation Investigation Report)).

            26.  The contract required Appellant to remove all unsuitable soil from excavations for footings, foundations and slabs (Tr. 774; AF 746 (Specifications 01450-1.6 A; 02315-3.3 B.1.b., B.4., D.4.)), and afforded Appellant an extension of time for delays caused by the discovery of subsurface or latent physical conditions at the site differing materially from those indicated in the contract (AF 746 (G.2, Differing Site Conditions (Clause B-32)(January 1997))).

            27.  In late January 1999, and on a number of occasions thereafter in February and March 1999, Appellant encountered organic material in the subgrade that was unsuitable to support footings and foundation walls.  Each time Appellant brought the circumstances to Respondent’s attention, Respondent’s construction manager promptly verified the condition and authorized removal of the pocket of unsuitable material, and Respondent directed necessary adjustments to the depth of the footings and the addition of piers or supporting concrete walls.  Nevertheless, concrete and forming work in the particular areas of unsuitable material were delayed.  (Tr. 294-297, 345-346, 618, 754-759, 780-784; AF 247, 251, 252, 253, 264-267, 276, 289, 290, 704 (39, 43, 46, 52), 731; AS-11, -30, -31).

            28.  On February 15, 1999, Appellant’s soils consultant advised that additional unsuitable material in the subgrade in the building footprint would not support the intended on-grade slab (AF 281).  Appellant brought this concern to Respondent’s attention and asked for direction no later than February 17 (AF 284).  By letter dated March 18, 1999, and delivered to Appellant at a March 23 job-site meeting, Respondent directed Appellant to remove the unsuitable soil under the entire slab (AF 351, 380, 730 (p. 167), 731; AS-11).  By that time, however, Appellant had poured the interior footings, so excavation of the unsuitable material within the building footprint had to be accomplished in confined space interspersed with installed interior footings.  This work was less efficient and more time-consuming than it would have been had the advice to remove it been given earlier.  The removal and fill work was completed on April 12, 1999.  Actual removal of the unsuitable material within the building footprint took 7 days.  (Tr. 318, 785-790, 916; AF 281, 284, 285, 286, 295, 296, 326, 336, 362, 415, 426, 523, 526, 577, 640, 704 (49, 51), 731).

Weather

            29.  Between mid-December 1998 and early-March 1999, Appellant did not work on a number of days (as many as 22) because of weather conditions (Tr. 353; AF 170, 174, 175, 207, 220, 259, 288, 301, 377, 465, 704 (25, 26, 27, 47), 731; AS‑11).

Brick Delivery

            30.  The contract’s Materials and Workmanship clause permitted substitution of products for those identified in the specifications by brand name if the contracting officer determined that the products were equal (AF 746 (G.20, Materials and Workmanship (Clause B-63)(January 1997), K.15, Brand Name or Equal (Provision 2-8)(January 1997)); Stip. 4; see AF 55 (item 5)).

            31.  Appellant had not obtained prices on the “brand name” brick named in the specification before submitting its offer but obtained a price quote on October 19, 1998 (Tr. 857; AF 746 (Specification 04210-2.1.B)).  The expected delivery time for brick orders placed in October was 10-12 weeks.  On November 9, Appellant’s supplier urged Appellant to place its brick order because supply was tight and the delay could be even longer than 12 weeks if Appellant waited.  (AF 67, 91; AS-8).  According to Appellant’s original construction progress schedule (October 6, 1998), brick and block work was to commence on or about January 14, 1999 (AF 580, 720).

            32.  In November 1998, Appellant suggested to URS that it intended to substitute for the contract-specified brick because of its high price.  On November 16, 1998, URS advised Appellant that no substitutions for the brick would be permitted and to order the specified brick.  (AF 102, 107).

            33.  Over the next two months, Appellant requested repeatedly that it be permitted to substitute for the brick and contested the right of Respondent to refuse substitution.  Respondent responded each time that no substitution would be permitted.  (AF 106, 107, 113, 117, 126, 132, 162, 164, 168, 224, 227, 596, 724).

            34.  The specific brick Appellant proposed as a substitute was not equal to the specified brick (Tr. 144; AF 132, 731 (p. 58); AS-11; contra AF 120, 164).

            35.  Appellant ordered the specified brick on January 27, 1999 (AF 236, 724).  The estimated delivery date when the order was placed was the end of June 1999 (AF 258, 262, 263).  In March, the supplier advised Appellant that delivery of the brick would be delayed until the end of July, 1999 (AF 361, 495).  On Appellant’s revised construction schedule of May 17, 1999, Appellant reflected the brick delivery date as August 2, 1999 (AF 580, 588, 723).

            36.  The contract’s Claims and Disputes clause required Appellant to proceed diligently with performance of the contract while any claim or request for relief was pending and to comply with any decision of the contracting officer (AF 746 (H.3, Claims and Disputes (Clause B-9)(January 1997))).

Progress on the Project

            37.  Respondent was permitted under the contract to terminate the contract for default if Appellant failed to make progress, so as to endanger performance of the contract.  Prior to terminating for this reason, the contract required the contracting officer to notify Appellant in writing of the failure and afford Appellant at least ten days to cure the specified failure.  (AF 746 (H.6, Termination for Default (Clause B-13)(January 1997))).

            38.  The contract did not require a critical path network analysis for project management, but it required that Appellant submit construction progress charts reflecting the expected completion of discrete tasks during the performance of the work.  The contract provided,

“b.  If in the opinion of the contracting officer the work actually in place falls behind that scheduled, the supplier [Appellant] must take such action as necessary to improve progress.  The contracting officer may require the supplier to submit a revised chart demonstrating its progress and proposed plan to make up lag in scheduled progress and ensure completion of work within the contract time.  If the contracting officer finds the proposed plan unacceptable, the supplier may be required to submit a new plan.  If a satisfactory plan is not agreed upon, the contracting officer may require the supplier to increase the work force, the construction plan and equipment, or the number of work shifts, without additional cost to the Postal Service.

c.  Failure of the supplier to comply with these requirements will be considered grounds for determination by the contracting officer that the supplier is failing to prosecute the work with such diligence as will ensure its completion within the time specified.”

(AF 746 (C.9, Construction Progress Chart (Clause B‑59)(January 1997))).

            39.  The contract provided that Appellant would not be terminated for failure to make progress in the prosecution of the work if the failure arose out of causes, including unusually severe weather, beyond Appellant’s control and without Appellant’s fault or negligence.  Suspensions or delays caused by the contracting officer entitled Appellant to an extension of time to perform.  (AF 746 (C.2, Suspensions and Delays (Clause B-16)(January 1997), C.3, Excusable Delays (Clause B-19)(January 1997))).

            40.  As of the end of 1998, Appellant was at least 60 days behind the schedule it submitted in October 1998 (AF 703 (5); AS-19).  At a progress meeting on January 7, 1999, Appellant submitted a revised progress schedule that showed the project finish date as November 3, 1999, three months beyond the contract completion date.  Appellant attributed the schedule lag to defective drawings and cold weather.  The January 7 schedule showed that installation of structural steel was to commence on March 15, 1999.  (AF 183, 722).

            41.  By letter dated January 26, 1999, the contracting officer noted that Appellant was behind schedule and directed Appellant to advise of action it would take to overcome the lag in progress and complete all the work by August 5, 1999 (AF 233).[4]

            42.  Appellant responded on February 4, stating that all the delays were Respondent’s fault or excusable.  It attributed the delays to Respondent’s defective plans, URS’s delays in correcting plan deficiencies, weather, and the discovery of unsuitable material in the subgrade.  (AF 254).

            43.  In February 1999, the contracting officer obtained from URS and from Respondent’s on-site construction manager analyses of the project delays.  Both reports blamed Appellant for most of the delays.  However, the report of the construction manager recognized that some small amount of delay probably resulted from plan deficiencies.  (AF 270, 287).

            44.  By letter of March 2, 1999 (designated in its caption to be a show cause letter), the contracting officer directed Appellant to show cause why it should not be declared in default for its failure to make progress.  The contracting officer noted that Appellant was not making sufficient progress to complete the project by the contract completion date of August 5, 1999.  The contracting officer required a response by March 12 and directed Appellant to include an explanation of delays and to make any request for an extension to the contract completion date.  (AF 315).

            45.  On March 10, Appellant responded, attaching 96 pages of copies of correspondence and other documents and reiterating its position that all of the delays were Respondent’s fault because of defective and incomplete drawings, unsuitable soil, delays in availability of the specified brick, and URS’s failure to coordinate the project with local utilities.  Appellant did not identify any particular number of days of overall project delays it associated with any of the alleged causes of delay, except to note 22 days lost due to weather, but concluded that it was “incumbent upon the USPS to extend the time needed to complete the work . . .”  (AF 358).

            46.  On March 26, the contracting officer again urged Appellant to get back on schedule to complete the project by August 5, 1999, and directed Appellant to submit a revised progress chart (AF 397).

            47.  After evaluating the project record (correspondence, schedules, submittal records), Respondent’s construction manager advised the contracting officer on April 22, 1999, that the project was behind schedule mainly due to Appellant’s failures.  He noted that the concrete work, identified in Appellant’s initial (October 6, 1998) schedule (Finding 6) as taking 30 days actually took 82 days.  He concluded that granting Appellant a two-month extension of the performance period could be justified, largely based on weather and what he calculated to be a fourteen-day delay resulting from the discovery of unsuitable material.  (Tr. 350-351, 415-416; AF 465).

            48.  On April 22, 1999, the contracting officer formally rejected Appellant’s January revised construction schedule (Finding 40) and directed Appellant to submit a revised construction progress chart to show how Appellant would finish by the contract completion date.  In his April 22 letter, the contracting officer advised Appellant that it “must take every action necessary to meet the contract completion date including increasing the work force or increase [sic] the number of shifts to meet an acceptable date at no additionally [sic] cost to the U.S. Postal Service.”  (AF 463, 466).

            49.  On May 17, 1999, Appellant submitted a revised schedule and advised Respondent that the project was six months behind schedule.  Appellant attributed the schedule delay to a combination of the design defects in foundations and structural steel, discovery and removal of unsuitable subgrade materials and unavailability of the specified brick.  Appellant noted, however, that it believed it could make up two months of lag, and its schedule showed a completion date of November 30, 1999, four months beyond the contract completion date.  (Tr. 825-826; AF 580, 588, 723).  The May 17 schedule reflected that foundation work had taken 100 days as opposed to the 30 days shown in Appellant’s original schedule (Finding 6) (AF 723).

            50.  In a May 19, 1999 letter to Appellant, the contracting officer rejected Appellant’s May 17 progress schedule, telling Appellant that he disagreed with Appellant’s assertions that the delays were caused by Respondent and its consultants, and that he did not consider the rejected schedule to be a valid effort by Appellant to achieve the contract completion date (AF 590).

            51.  On June 1, Appellant responded to the contracting officer’s May 19 letter, reiterating its view that all of the delays on the project were due to Respondent’s and its consultants' conduct, including additional work, corrective work due to design errors and delays in brick delivery.  Appellant contended its schedule represented accurately the time necessary to perform the project.  (AF 619).

            52.  By final decision dated June 2, 1999, the contracting officer terminated the contract for default.  The basis for the termination was Appellant’s failure to make up the lag in the scheduled progress and failure to assure completion of the work within the time established in the contact.  (Tr. 408; AF 625).

53.  On August 16, 1999, Appellant appealed the termination (AF 679).

Evidence of Delay Claim

            54.  At the hearing, Appellant presented a detailed claim to an extension of the contract completion date, presenting its calculation of the extension through its Exhibit 2, “Delay Analysis Summary,” and the testimony of its president, who prepared the exhibit.  In the Delay Analysis Summary, for each alleged delaying event, Appellant identifies the number of days of delay to the particular task affected (Tr. 682-794; App. Exh. 2).  The Exhibit charts against a calendar each of the delayed tasks and nets out days where they overlap.  Using this chart, Appellant identifies delays for which it claims entitlement to a time extension totaling 167 days (of the approximately 240 days elapsed from NTP to the termination).  (Tr. 791-795; App. Exh. 2).

DECISION

Respondent contends that Appellant failed to prosecute the work of the Riverhead project in a timely manner, that completion of the contract within the time allowed was endangered and that the termination was justified.  Appellant argues that the termination was an abuse of the contracting officer’s discretion because in deciding to terminate the contract he failed to take into account the delays to the project that would have entitled Appellant to a significant time extension.

In May 1999, Appellant projected completion of the project six months beyond the contract’s August 2, 1999 completion date.  It advised that it could perhaps make up two months of the projected delay and offered a schedule showing a completion date of November 30, 1999, four months beyond the contract completion date.  (Finding 49).  Although it is Appellant’s burden to prove that there were excusable delays that entitled it to an extension of time within which it could have completed the project, see Thomas & Sons, Inc., ASBCA No. 51874, 01-1 BCA ¶ 31,166, citing Michigan Joint Sealing, Inc., ASBCA No. 41477, 93-3 BCA ¶ 26,011 at 129,325-326, aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table), Appellant did little at that time to demonstrate to the contracting officer that it was entitled to an extension of sufficient duration such that the adjusted contract completion date should be November 30, 1999.  Appellant never provided information or analysis that would show how the claimed delaying events impacted its overall contract performance, and it never formally requested a time extension despite the contracting officer’s request that it do so (Findings 44, 45), instead insisting that it was “incumbent upon USPS to extend the time needed to complete the work.”  (Finding 45).

Nevertheless, Respondent knew Appellant claimed substantial excusable and postal-caused delay, that plan discrepancies had caused changes to the foundation work and that Appellant had unexpectedly encountered unsuitable soil that disrupted its work.  Further, Respondent’s consultant had reviewed the circumstances and in February 1999 advised that some delay likely resulted from plan deficiencies and in April 1999 advised that a two-month delay could be justified (Findings 43, 47).  Even when it was evident that Appellant would not complete on time, instead of addressing the possible causes of delay, the contracting officer continued to demand that Appellant produce schedules showing completion by August 5, 1999, the original contract completion date.  Appellant argues that under these circumstances, the contracting officer did not fulfill his duty to consider all of the relevant circumstances before imposing the drastic sanction of terminating the contract for default and, thus, abused his discretion.  See D.W. Sandau Dredging, ENG BCA No. 5812, 96-1 BCA ¶ 28,064 at 140,163, aff’d on recon., 96-2 BCA ¶ 28,300; Hewitt Contracting Co., ENG BCA Nos. 3790, et al., 79-2 BCA ¶ 14,016 at 68,835.

However, we need not address whether the contracting officer should have done more to analyze the factors that would justify termination.  Respondent’s decision to terminate the contract for Appellant’s failure to make progress will be upheld if it was reasonable for Respondent to conclude that Appellant would have been unable to complete the project by a proper completion date, as appropriately extended based on the evidence presented to the Board.  See Empire Energy Management Systems, Inc. v. Roche, 362 F.3d 1343, 1357 (Fed. Cir. 2004); Danzig v. AEC Corp., 224 F.3d 1333, 1336 (Fed. Cir. 2000), cert. denied, 532 U.S. 995 (2001).

Respondent challenges the Delay Analysis Summary, arguing that it is not a critical path analysis of project delay and that the failure to present a critical path analysis is fatal to Appellant’s claim.  Appellant correctly points out that the contract did not require it to prepare a critical path analysis for contract management and scheduling purposes (Finding 38), but that does not excuse Appellant from proving its entitlement to a time extension by showing that actions of Respondent delayed overall project completion.  See Lamb Engineering & Constr. Co., EBCA No. C-9304172, 97-2 BCA ¶ 29,207 at 145,345, recon. denied, 98-1 BCA ¶ 29,359.  Appellant must show that the delaying events were critical to and impacted overall contract completion, see Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000); Skip Kirchdorfer, Inc., ASBCA No. 40516, 00-1 BCA ¶ 30,625 at 151,181; Morganti Nat’l, Inc. v. United States, 49 Fed. Cl. 110, 132 (2001), and its Delay Analysis Summary does not make the required showing.

            The Delay Analysis Summary did not demonstrate that any of the alleged delaying events had an impact on the eventual completion date of the project.  For example, in presenting its claims for design defects affecting its foundation work, Appellant demonstrated, through its Exhibit 2 and the testimony supporting it, that individual plan defects had a delaying effect on particular tasks, e.g. installation of a footing, wall, column, etc.  (Finding 23).  However, while installation of a particular footing might have been delayed, other foundation and other project work was continuing (Finding 23).

            To warrant a contract time extension, delay to a particular task must have done more than simply inconvenience Appellant by requiring it to shuffle the order of the tasks to be performed; it must impact overall progress on the contract.  Aptus Co. v. United States, 61 Fed. Cl. 638, 660, recon. denied, 62 Fed. Cl. 808 (2004), aff’d, 2005 U.S. App. LEXIS 16230 (Fed. Cir. August 4, 2005); Essential Constr. Co. and Himount Constructors Ltd., Joint Venture, ASBCA No. 18706, 89-2 BCA ¶ 21,632 at 108,834.  In none of the events portrayed in Appellant’s Exhibit 2 does Appellant demonstrate that delaying work on a particular task had a day-for-day effect or any quantifiable effect on overall project completion.  See Essential Constr. Co. and Himount Constructors Ltd., Joint Venture, ASBCA No. 18706, 89-2 BCA ¶ 21,632 at 108,834.  Appellant’s Exhibit 2 did not prove entitlement to a time extension because it did not connect any of the delays Appellant experienced to specific, identifiable delay to overall project completion.

            Notwithstanding Appellant’s failure to persuade the Board of its entitlement to a time extension, we have reviewed the record of this proceeding to determine whether Appellant encountered excusable delays justifying an extension of the contract completion date.  We address the claims in the order Appellant listed them in its Exhibit 2 and identify them by the line item numbers assigned in that Exhibit.

Delay in Issuing Notice to Proceed (Item 1)

            Appellant argues that when preparing its proposal it expected that construction would begin in September and that it would have progressed sufficiently by December that inclement winter weather would not have affected its concrete work.  Because Respondent did not issue the NTP until October 6, 1998, Appellant claims to have lost one month of good weather to complete the concrete work.  Appellant argues it is entitled to an extension for the 22 days when it did not work at the site because of bad weather from late December 1998 through March 1999 (Finding 29).

Appellant has not shown that the time taken to award the contract, schedule the preconstruction conference and issue the NTP was excessive or unwarranted.  See DeMatteo Constr. Co., PSBCA No. 187, 76-2 BCA ¶ 12,172, recon. denied, 77‑1 BCA ¶ 12,485, aff’d, 220 Ct. Cl. 579, 600 F.2d 1384 (1979).  Furthermore, although there was mention at the preproposal site visit that Respondent intended to start the project in September (Finding 2), such a starting date was never made part of the contract (Finding 3) or shown to constitute a binding commitment.  Finally, as pointed out by Respondent, when preparing its October 6, 1998 construction schedule (Finding 6), Appellant knew the date the NTP would be issued, and, without complaint, either accounted for or should have accounted for any weather conditions that might be expected during the construction period shown on the schedule.

Accordingly, Appellant has not shown entitlement to an extension due to the timing of issuance of the NTP.

Delay in Site Clearing (Item 2)

Appellant alleges its site work subcontractor took longer than anticipated to clear the site because it contained more large trees than expected.  The boundary and topographic drawing prepared by Respondent’s surveyor, which was not given to Appellant before its offer was due, recorded the presence of many large trees (Findings 7, 10).  Appellant argues that Respondent’s failure to disclose this superior knowledge entitles it to an extension of 15 days for the extra time necessary to remove the larger trees.

First, delays in clearing the site were shown to have been caused, at least in part, by breakdowns to the equipment of the subcontractor performing the site clearing (Finding 13).  Additionally, Appellant’s representative visited the site before offers were submitted, and the treed condition was plainly visible (Findings 1, 2).  Appellant’s representative could have ventured into the interior of the site to assess the number and size of the trees but chose not to (Finding 2).  Where the relevant information was readily discoverable by Appellant through a site visit, Respondent was under no duty to volunteer the same information as recorded on the boundary and topographic drawing.  See H. N. Bailey & Associates v. United States, 196 Ct. Cl. 166, 449 F.2d 376, 382-383 (1971); HK Systems, Inc., PSBCA No. 3712, 97-2 BCA ¶ 29,079 at 144,761; RQ Constr., Inc., ASBCA No. 52376, 01-2 BCA ¶ 31,627 at 156,249, aff’d, 53 Fed. Appx. 935 (2003).

Appellant has not demonstrated entitlement to an extension of time based on the number and size of the trees on the site.

Delay in Providing Reproducible Drawings (Item 3)

Appellant asserts that it intended to submit foundation shop drawings at the preconstruction meeting but could not do so because it was not provided reproducible plans sufficiently in advance of that date and that it was delayed thereby.  Appellant says that it had marked up the plans it used for preparing its offer and sent out its other copies to subcontractors for their proposals.  Appellant calculates the alleged delay to be 32 days, from October 22, 1998, when, according to its original schedule, it intended to commence foundation work, to November 22, when it alleges the foundation shop drawings would have been returned had Respondent acted promptly in their review.

Appellant has not demonstrated that Respondent’s delivery of the reproducible drawings at the end of September was a violation of a contractual duty.  Before the contract was awarded on September 9, there was no contractual duty to provide reproducible drawings.  Further, we are not persuaded that providing the drawings within two weeks of Appellant’s September 15 request (Finding 15) was unreasonable.  Additionally, Appellant’s subcontractor was to prepare the foundation submittals and, under the October 16, 1998 subcontract between Appellant and the subcontractor, the subcontractor had no obligation to do so until the end of October.  The subcontractor did not supply the drawings until November 18, 1998.  (Finding 17).  Finally, as discussed above, when preparing its October 6, 1998 schedule (Finding 6), Appellant knew when it had received the reproducible drawings, and its schedule presumably incorporated that fact and any impact their actual receipt might have had on its schedule.

Accordingly, Appellant has not shown entitlement to a time extension based on the timing of Respondent’s provision of reproducible drawings.

Delay in Providing the Site Survey (Item 4)

            Appellant argues that the start of excavation and concrete work was delayed from October 22, the date its original schedule reflected for the start of concrete work, to November 2, 1998, when its surveyor laid out the work, because Respondent had not provided a copy of the survey in a timely manner.  The location of the benchmark identified on the survey was needed before Appellant could begin laying out the building outline (Findings 10-12).  However, the survey was given to Appellant before Appellant finalized its contract with its surveyor on October 30 (Findings 11, 12), and as site clearing was not completed until at least Friday, October 30 (Finding 13), Appellant did not demonstrate that it would have performed the survey work before Monday, November 2.  Additionally, Appellant never notified Respondent that it was having a problem locating the benchmark (Finding 11).

Accordingly, Appellant is not entitled to a time extension based on delivery of the survey.

Delay in Approval of Foundation Shop Drawings (Item 5)

Appellant contends that Respondent delayed its performance by 37 days by not reviewing the foundation and rebar shop drawings within the time contemplated by the contract and by improperly rejecting the first submission in order to make design changes to the foundations.  Appellant calculates this delay as being from November 23, when Appellant contends the shop drawings should have been approved by the architect after ten days for review, and ending December 29, the day after Appellant contends it received the approved drawings.  However, the contract’s shop drawing provisions excluded transit time to and from the architect from the ten days allowed for their review (Finding 16).  Accordingly, the relevant times in assessing reasonable turn-around times are when URS received the shop drawings and when it sent them back to Appellant.  Here, the shop drawings were not received by URS until November 24, and allowing ten days for review would put the return date at December 4, which is the date URS sent them back the first time (Finding 18).  Therefore, no delay in their initial review has been shown.

However, the initial rejection of the drawings was based, at least in part, on URS’s desire to make changes to the foundation design (Finding 18), a ground that would entitle Appellant to recover delay caused by the additional review.  Appellant’s president testified that the lack of approved foundation shop drawings prevented placement of rebar until December 29, 1998, and that placement of rebar was a critical path delay.  Although the record confirmed that the foundation shop drawings were not finally approved until December 23 (Finding 19), it has not been persuasively shown that the lack of those drawings was holding up the project until that date.  Appellant’s daily job logs show that the project was brought to a virtual standstill from November 30 through December 16 by the lack of approved “rebar” drawings (Finding 21).  However, on December 16 work resumed and progressed thereafter (Finding 21).  In the face of these facts, we reject Appellant’s president’s testimony that foundation work was delayed until December 29 by lack of rebar approvals.  The record supports a maximum project delay caused by Respondent’s handling of these shop drawings of 8 calendar days (December 8 (when the drawings were received by Appellant the first time (Finding 18)) through December 16).[5]

Defective Plans (Items 6-13)

In late November 1998 and throughout the course of performance, Appellant discovered and brought to the attention of URS a number of conflicts, defects and omissions in the drawings it was provided (Findings 22, 23).  Appellant claims that these plan discrepancies delayed the project but unhelpfully measures the individual delays by the time required to obtain correct design information from Respondent, rather than by identifying any delays to the critical path foundation work or to the overall project progress. 

            The Board has reviewed the foundation progress, and agrees that Respondent’s changes and corrections to the foundation plans disrupted the orderly installation of the foundations and introduced inefficiencies in Appellant’s intended schedule for pouring the concrete (Finding 23).  We are persuaded that the overall project was delayed as a result, but there is insufficient evidence in the record from which the Board can make its own calculation of a specific number of days of project delay resulting from plan deficiencies.  Were we to apply a jury verdict approach, we could allow no more than the 52 days difference noted by Respondent’s construction manager between the 30 days included in Appellant’s initial schedule for such work and the 82 days it actually took Appellant to complete the concrete work (Finding 47).

Discovery of Unsuitable Soil (Items 14-18)

            Appellant claims the unsuitable material under the building footprint (Findings 27, 28) was a condition differing from the indications in the solicitation and that it is entitled to a 69-day time extension as a result.  A reasonable assumption from the soils report included in the solicitation was that unsuitable materials would not be encountered in the building footprint, and Respondent’s construction manager and the contracting officer agreed that the discovery of the material in question was an unexpected event considering the Soils Report.

            However, Appellant’s claim of a 69-day delay because of the discovery of unsuitable soil is undercut by its own schedules.  The schedule Appellant submitted on January 7, 1999, before any of the unsuitable soil conditions were discovered (Findings 27, 40), showed that Appellant intended to begin installation of structural steel—the critical path work to follow the foundations—on March 15, 1999 (Findings 24, 40).  Structural steel installation actually commenced on April 13, 1999, 29 days after the date scheduled (Finding 24).  Thus, addressing unsuitable soil could have had a maximum possible impact on overall project completion of the 29 days by which the start of steel installation was delayed (Finding 24).  Also, any delay resulting from the discovery of unsuitable soil occurred entirely within the previously-discussed maximum possible 52-day delay regarding the foundations work, and would not justify a separate, additional time extension.

Refusal to Permit Substitution of Brick

Appellant complains that Respondent’s improper refusal to allow it to substitute for the specified brick was a material breach and delayed Appellant’s performance of the contract.  No specific number of days of overall project delay is alleged, and this item was not addressed in Appellant’s Exhibit 2.  For two reasons, we find that Respondent was not responsible for any project delay resulting from a delay in ordering the brick.  First, the proposed brick was not equal to that specified (Finding 34), so rejection of the substitution was reasonable.  See Southern Playground, Inc., ASBCA Nos. 43797, 43798, 02-1 BCA ¶ 31,853.

Second, Respondent promptly, consistently and repeatedly told Appellant that it would not permit substitution for the brick (Findings 32, 33).  Even if Respondent was legally incorrect in its refusal, Appellant’s delay in ordering the specified brick was not justified, as the contract’s Claims and Disputes clause (Finding 36) required Appellant to proceed diligently with performance, including ordering the specified brick in time to incorporate it into the building according to the schedule, notwithstanding the existence of a dispute regarding the issue.  See Essex Electro Engineers, Inc., ASBCA No. 49915, 02-1 BCA ¶ 31,714 at 156,699; Benju Corp., ASBCA No. 43648 et al., 97-2 BCA ¶ 29,274 at 145,654-655, aff’d, Benju Corp. v. Peters, 178 F.3d 1312 (Fed. Cir. 1999) (Table); Nicholas Nova Constr. Co., PSBCA No. 1206, 85-1 BCA ¶ 17,846.

Thus, any delays associated with delivery of the brick were not excusable.

Progress Payments

Appellant complains of late progress payments but does not indicate how any late payments delayed its progress and entitled it to an extension.  Our review did not result in finding any project delays resulting from late progress payments.  See Mowtron Industries, Inc., PSBCA No. 1743, 88-3 BCA ¶ 20,834.

Waiver of Right to Terminate

Appellant argues that the contracting officer waived Respondent’s right to terminate by allowing Appellant to continue performance and by expressing his intention to have Appellant complete the contract.  Given the contracting officer’s repeated insistence that Appellant demonstrate how it intended to complete the project by early August 1999, his issuance of a show cause notice and his repeated rejection of schedules showing any later completion date (Findings 41, 44, 46, 48, 50), Appellant could not reasonably have believed that the contracting officer had extended the time for Appellant’s performance or had waived Respondent’s right to terminate if Appellant did not complete the project by early August.

Moreover, urging Appellant to accelerate its work (Finding 48) and stating an intention to continue to have Appellant complete the work, occurring as they did well before the contract completion date, did not constitute a waiver of the August 2, 1999 completion date.  See Empire Energy Management Systems, Inc. v. Roche, 362 F.3d 1343, 1355 (Fed. Cir. 2004).  Accordingly, Appellant has not demonstrated that Respondent waived its right to terminate the contract for Appellant’s failure to make progress.

Disparate Treatment

            Appellant argues that it received harsher treatment than another contractor building a project for Respondent not far from Riverhead.  The same representatives for Respondent administered both projects, and Appellant argues that the other contractor was given time extensions for correction of plans, differing site conditions and weather and was not terminated even though behind schedule.  Appellant argues it was an abuse of discretion for the contracting officer to treat it differently.

Whether another contractor was allowed extensions and was not terminated even though it was also behind schedule has no bearing, in and of itself, on whether the contracting officer abused his discretion in denying similar relief to Appellant.  See Patricia J. Stevens, PSBCA No. 3272, 94-1 BCA ¶ 26,419, recon. denied, 94-2 BCA ¶ 26,951; Pascal Redfern, PSBCA No. 1512, 87-1 BCA ¶ 19,646 at 99,461, recon. denied, 87-3 BCA ¶ 19,983.  Moreover, Appellant did not demonstrate that the circumstances of the two projects and contractors were sufficiently similar that any conclusions could be drawn regarding their treatment.

Conclusion

            While we do not doubt that Appellant’s progress was delayed to some degree, Appellant has not presented evidence that demonstrates that it was entitled to an extension of a given length within which it could have completed the project or that would allow the Board to so determine.  Our review of the record found support for a possible maximum extension to the time to complete the project of 60 days (8 days for URS’s delay in providing the rebar drawings plus the 52-day maximum delay resulting from discrepancies in the drawings affecting the foundations).  Additionally, the 52-day delay completely overlapped the maximum 29 day delay due to unsuitable soil.  Even using Appellant’s May 17, 1999 schedule showing that 100 days had been necessary for foundation installation (Finding 49)—i.e. 70 days beyond the planned 30-day period—the maximum possible extension Appellant would be entitled to would be only 78 days.  These maximum figures would establish an extension that would still leave Appellant more than a month short of timely completion even under its most optimistic schedule.

            Therefore, regardless of the contracting officer’s narrow focus on the August 5, 1999 unextended completion date, there existed at the time a reasonable basis for terminating the contract.  We may rely on the existence of that reasonable basis for termination even if the contracting officer did not.  See Kelso v. Kirk Bros. Mech. Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994; Arthur Napier, PSBCA Nos. 3044, 3140, 94-2 BCA ¶ 26,695.  Consequently, given the circumstances of this project up to the termination we find that the termination of the contract for Appellant’s failure to make progress was reasonable.

The appeal is denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman Vice Chairman

I concur:
David I. Brochstein
Administrative Judge
Vice Chairman

[1] Administrative Judge William K. Mahn, who has since retired, conducted the hearing.

[2] Tab 746 of the Appeal File is the Solicitation package for the project.  References to that tab are to the provisions of the solicitation, contract and specifications included therein.

[3]  It is not clear from the record just what these “approved” drawings were, but they were found sufficient by Appellant’s project manager to restart the project and begin placing the reinforcing steel (AF 731 (pp. 16-17)).

[4]  Although the contract completion date was August 2, 1999, the contracting officer used the date of August 5, 1999, when demanding progress by Appellant.

[5]  Appellant also claimed generally that URS took too long to review submittals and respond to Appellant’s requests for clarification.  Appellant has failed to assert or demonstrate that delayed or slow approvals or clarifications caused specific, actual delay to completion of the project and our review of the record has failed to develop identifiable, excusable project delays resulting from the submittal review process.