Appeal of
G & M EASTERN CONTRACTING, INC.
Under Contract No. 339986-92-B-0267
PSBCA No. 3685

APPEARANCE FOR APPELLANT:
George Sariotis, Vice President

APPEARANCE FOR RESPONDENT:
Linda S. Stewart, Esq.

OPINION OF THE BOARD

            Appellant, G & M Eastern Contracting, Inc., has timely filed an appeal from a Contracting Officer's decison denying in its entirety Appellant's claim in the amount of $35,869.69, representing additional costs incurred in allegedly performing repointing work associated with the masonry restoration and cleaning beyond its contract requirements.  The appeal is being processed under the Board's Accelerated Procedure (39 C.F.R. §955.36).  The parties have elected to have the appeal submitted on the record in accordance with 39 C.F.R. §955.12.  Both parties have filed briefs.

FINDINGS OF FACT

            1.  On October 16, 1992, Appellant was awarded contract no. 339986-92-B-0267 to perform certain exterior building upgrade work at the Rutherford, New Jersey Main Post Office.  The total contract amount was $158,000.  Contract completion date was scheduled for approximately 180 days thereafter (Appeal File, Tabs A-2, 3, 4 ("AF-A-2, 3, 4")).

            2.  The contract contained the standard Postal Service fixed price construction provisions including the "Changes" (Oct. 1987) clause and "Claims and Disputes" (June 1988) Clause.  The Contract also contained a "Specifications and Drawings" (Oct. 1987) clause which stated in pertinent part:

"a.  The contractor must keep, at the site, copies of the drawings and specifications and must at all times give the contracting officer access to them.  Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, is of like effect as if shown or mentioned in both.  In case of difference between drawings and specifications, the specifications will govern."  (AF-D)

            3.  In regard to the masonry restoration and cleaning portion of the project the contract specifications described the work to be performed in section 04500, part 1.02:

"A.  Description of Work:

. . . Masonry restoration includes the following:

a.  Repairing damaged masonry

b.  Cleaning exposed masonry surfaces

c.  Repointing mortar joints." (AF-E)

            4.  Part 1.04 of section 04500 of the specification states in pertinent part:

"Quality Assurance:

*     *     *

B.  Field Construction Mock-Ups:

*     *     *

2.  Repointing:  Prepare 2 separate sample areas of approximately 3' high by 6' wide for each type of repointing required, on [sic] for demonstrating methods and quality of workmanship expected in removal of mortar from joints and the other for demonstrating quality of materials and workmanship expected in pointing mortar joints."  (Id.)

            5.  Part 1.08 of section 04500 of the specification states:

"Sequencing and scheduling:

A.  Perform masonry restoration work in the following sequence:

*     *     *

4.  Rake-out existing mortar from joints indicated to be repointed.

5.  Repoint existing mortar joints of masonry indicated to be restored."  (Id.)

            6.  Part 3.02 of section 04500 of the specifications states:

"Repointing Existing Masonry:

A.  Joint Raking:

1.  Rake out mortar from joints to depths equal to 2-1/2 time their widths but not less than 1/2" nor less than that required to expose sound, un-weathered mortar.

2.  Remove mortar from masonry surfaces within raked-out joints to provide reveals with square backs and to expose masonry for contact with pointing mortar.  Brush, vacuum or flush joints to remove dirt and loose debris.

3.  Do not spall edges of masonry or widen joints.  Replace any masonry units which become damaged.

a.  Cut out old mortar by hand with chisel and mallet, unless otherwise indicated.

B.  Joint Pointing:

1.  Rinse masonry joint surfaces with water to remove any dust and mortar particles.  Time application of rinsing so that, at time of pointing, excess water has evaporated or run off, and joint surfaces are damp but free of standing water.

2.  Apply first layer of pointing mortar to areas where existing mortar was removed to depths greater than surrounding areas.  Apply in layers not greater than 1/4" until a uniform depth is formed.  Compact each layer thoroughly and allow to become thumbprint-hard before applying next layer.

3.  After joints have been filled to a uniform depth, place remaining pointing mortar in 3 layers with each of first and second layers filling approximately 2/5 of joint depth and third layer the remaining 1/5.  Full compact each layer and allow to become thumbprint hard before applying next layer.  Where existing bricks have rounded edges recess final layer slightly from face.  Take care not to spread mortar over edges onto exposed masonry surfaces, or to featheredge mortar. ..." (Id.).

            7.  Contract drawing A-4, "Elevations" contains certain notes under the "Materials Keying" section:

"04200 - Unit Masonry

A.  Existing Terra Cotta Coping

B.  Existing Brick Veneer

04500 - Masonry Restoration and Cleaning

A.  Existing Mortar Joint To Be Raked Out And Pointed. Typ. Along Entire Parapet.  See Detail 1/A-3

.     .     .

E.  Repoint Mortar Joints In Brick Veneer Throughout.

F.  Repoint Mortar Joints In Terra Cotta Coping Stones, Sills, Watertable And Trim, Match Pigment In False Joints, Typical Throughout."  (AF-F).

            8.  Drawing A-4 contains six elevations which show the existence of the building's existing terra cotta coping, the existing brick veneer and the parapet (id.).

            9.  On April 12, 1993, Respondent's Architect representative visited the work site and observed that Appellant was performing the masonry repointing work utilizing a method called "mask and grout."  The mask and grout method involved rinsing the joints of debris, taping the brick surfaces, slurrying the wall surface with grout, and removing the tape from the brick, thus leaving a thin coat of grout (1/8 inch) over the existing mortar joints (AF-B-12; Declaration of Michael Elkin, para. 5, 6).

            10.  The method of repointing required by part 3.02 of section 04500 of the contract specifications entails first raking out the mortar joints and thereafter pointing the raked-out joints (Elkin Declaration, para. 6).

            11.  Appellant ceased the mask and grout method on April 12, 1993, at Respondent's direction, and after discussions between the parties Respondent's Architect at the direction of the Contracting Officer on April 26, 1993, instructed Appellant to perform all repointing work in accordance with part 3.02 of section 04500 of the specifications (id., para. 9; Declaration of Tom Toy, para. 9).

            12.  On February 14, 1994, Appellant submitted a claim to Respondent in the amount of $35,869.69, representing the difference in cost between mask and grout type repointing and the method required by Respondent under section 04500 of the specifications.  By final decision dated July 24, 1994, the Contracting Officer denied the claim in its entirety (AF-C-3, B-3).  This appeal followed.

DECISION

            It is Appellant's position that its contract provided for two types of joint repointing processes - (1) rake-out and point and (2) mask and grout.  Appellant contends that the use of the rake-out and point process was required only for the building's parapet and that the contract permitted the use of the mask and grout method on the building's brick veneer and terra cotta coping.  Appellant

thus argues that Respondent's direction to rake-out and point the veneer and coping constituted a compensable change in the contract requirements.

            In support of its position Appellant relies upon Part 1.04 B of the specifications (Finding of Fact (FOF) No. 4, supra) and the notes on contract drawing A-4 (FOF No. 7).  Appellant further argues that the specifications were incomplete in failing to advise Appellant that it was required to conform to historic preservation requirements.

            Respondent contends that the contract specifications described only one method of joint repointing - the rake-out and point method and that the contract drawings clearly showed all areas to be repointed by such method.  These areas encompassed the building's parapet, brick veneer and terra cotta coping.  We agree with Respondent.

            Part 1.08 of the specifications (FOF No. 5) described the masonry restoration work sequence as first raking out existing mortar from joints, and second repointing existing mortar joints.  Part 3.02 (FOF No. 6) explicitly and in detail explained the repointing process -- rake-out and then point.  There is no mention in the specifications of the mask and grout process advocated by Appellant.

            The specifications do not show the specific areas to be repointed.  Thus one must look to the contract drawings for such information.  For, as provided in the contract's "Specifications and Drawings" clause "[a]nything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, is of like effect as if shown or mentioned in both."

            The "Materials Keying" section of contract drawing A-4 (FOF 7) identifies those areas to be repointed -- the parapet, brick veneer and terra cotta coping. The six elevations on the drawing show the location of such areas.  The drawing is not ambiguous.  Its contents provide no basis for a conclusion that the mask and grout method of repointing is permissible.  None of Appellant's arguments to the contrary are persuasive.

            Appellant argues that part 1.04 B of the specifications contemplated two types of joint repointing since two separate field construction mock-ups for repointing are required.  The argument has no merit.  One of the sample areas was to demonstrate the rake-out process and the other was to demonstrate the subsequent pointing process.  Appellant also argues that the use of the term "raked-out" in reference to the parapet area in the "materials keying" section of drawing A-4, and the exclusion of such term in reference to the veneer and coping areas, allows the use of the mask and grout method in the latter areas.  The argument has no merit, for as previously stated, the specifications provided for only the use of the rake-out and point process and there is nothing contained in the drawings which would allow any other method.

            In regard to Appellant's argument that the specifications were defective in omitting any reference to historic preservation requirements there is no evidence in the record as to such requirements or to the applicability of any such requirements to the Rutherford, New Jersey project.  In any event the contract requirements for masonry repointing are clear and evident.

            In summary, the contract required Appellant to utilize the rake-out and point method of repointing the facility's masonry joints.  Appellant's contentions to the contrary are not accepted.  Its appeal is denied.

James D. Finn, Jr.
Administrative Judge
Vice Chairman

I concur:
James A. Cohen
Administrative Judge
Chairman