Appeal of

GAVOSTO ASSOCIATES, INC.

Under Contract No. 415045-95-B-0353
PSBCA Nos. 4058, 4131 4144 and 4333

APPEARANCE FOR APPELLANT:
John J. P. Krol, Esq.
210 Raymond Street
Rockville Centre, NY 11570-2544

APPEARANCES FOR RESPONDENT:
Margaret E. Harper, Esq.
Charles J. Dudek, Esq.
Windsor Law Office
United States Postal Service
8 Griffin Road North
Windsor, CT 06006-0170

OPINION OF THE BOARD

            These appeals address thirty-five claims Appellant, Gavosto Associates, Inc., has asserted against Respondent, United States Postal Service, arising out of Appellant’s construction of a truck wash facility under a contract with the Postal Service.  The total amount claimed by Appellant is approximately $430,000.  Appellant seeks interest on the amounts claimed and on amounts allowed by Respondent in unilateral modifications.  The appeals also address claims totaling $13,781 that Respondent has asserted against Appellant for alleged performance deficiencies.

            A hearing was held, and the parties have submitted briefs in support of their positions.  Both entitlement and quantum are at issue except as noted below.

FINDINGS OF FACT

Background

            1.  On August 7, 1995, Respondent issued solicitation number 415046-95-A-0595, seeking offers by August 30, 1995, for the construction of a truck wash facility at Respondent’s Mid-Island Processing and Distribution Center (“P&DC”) in Melville, New York (Appeal File, Tab (“AF”) 1, Cover Page).

            2.  The project entailed construction of a masonry block building on the premises of the P&DC to house a truck wash system and a vehicle maintenance facility.  The building was to include a restroom and a separate equipment room for electrical and mechanical equipment, and the project included site work with road restoration.  The wash facility was aligned on a north-south axis with the vehicles entering the north end and exiting the south after being washed.  (AF 1).

            3.  The Solicitation allowed 150 days for completion of the project and estimated the price for the work to be between $550,000 and $600,000 (AF 1, Cover Page (ii)).

            4.  Appellant was awarded the contract on October 11, 1995, at a total contract price of $801,200 (Transcript of Hearing, Page (“Tr.”) 30; AF 1, Contract (p. 1)).

            5.  The following parties had roles in administering the contract:  (1) The Construction Management Representative, also known as the contracting officer’s representative, was the firm of Parsons Brinkerhoff Construction Services, Inc. (“PBCS”), which was responsible for the day-to-day administration of the contract for the Postal Service.  Acting for Parsons Brinkerhoff at the beginning of the contract was Mary O’Halloran.  On May 10, 1996, Charles Carramanna replaced Ms. O’Halloran.  Parsons Brinkerhoff also assigned a field engineer, Fred Mohrmann, to perform inspections of the work; and, (2) The project architect/engineer responsible for the design and for approval of shop drawing submittals was Holzmacher, McLendon & Murrell, P.C. (“H2M”), which was represented by Steven Hearl.  (Tr. 583-584, 988-990, 1069, 1071, 1075-1076; Respondent’s Exhibit (“RX”) 41; Appellant’s Supplemental Appeal File (“SAF”) 84).

            6.  Notice to proceed was issued on October 31, 1995, making the contract completion date March 31, 1996, 150 days after issuance of the Notice to Proceed (Tr. 34; AF 3; Stipulation (“Stip.”) 1).

            7.  Respondent accepted the building on an “as is” basis on January 31, 1997 (Stip. 11).

            8.  During the course of the project, Appellant submitted more than 40 change order requests related to the project (See AF 38).  The parties resolved a number of the change order requests, but many were not settled, and those form the bases for these appeals.

Causes of Action 1 and 2,^[1] Withheld Funds, Interest Only Claims^[2]

            9.  At the time Appellant filed its Complaint in PSBCA No. 4058 on March 6, 1997, Respondent held $3,075 due Appellant for providing training and as-built drawings and $47,812.48 as the final payment Respondent conceded was due under the contract, and Appellant included a demand for those amounts as causes of action 1 and 2, respectively (Complaint, ¶¶ 6-10).

            10.  Respondent did not dispute that Appellant’s performance warranted payment of the amounts claimed in causes of action 1 and 2, but it withheld the payments to secure claims it at that time asserted against Appellant for liquidated damages and corrective work (RX 1 (p. 6)).

            11.  In a January 19, 1999 final decision, the contracting officer withdrew Respondent’s liquidated damages claim and substantially reduced the amount withheld for corrective work, releasing to Appellant the amounts claimed under causes of action 1 and 2 plus Contract Disputes Act interest on both amounts from March 10, 1997, until the date of payment (Stip. 12; RX 230).

            12.  The contract’s Claims and Disputes clause defined a claim as

“a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain. . . . However, . . . [a] voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a claim under the Act.”

The Claims and Disputes clause required Respondent to pay interest on valid claims from the date the contracting officer received the claim (properly certified if required) until paid.  (AF 1, Contract Clause H.3, CLAIMS AND DISPUTES (Clause B-9) (June 1988)).

DECISION Causes of Action 1 and 2

            Respondent has conceded Appellant is entitled to interest on the released amounts from March 10, 1997, and has paid that interest to Appellant.  Appellant claims interest from January 10, 1997, but as it has provided no evidence that it submitted a claim on that date or on any date before March 10, 1997, it has not established entitlement to interest in addition to that paid by Respondent.  The claims of causes of action 1 and 2, insofar as they seek interest beyond that already paid by Respondent are denied.

Causes of Action 3-6, 8, 29, Interest Only Claims

            13.  The first submission to Respondent of the change order requests (claims) underlying causes of action 3-6, 8 and 29 occurred on November 14, 1996, when they were hand-delivered to the contracting officer’s representative (AF 5-8, 10, 42, 49; RX 220; SAF 251).

            14.  Each change order request was in writing and stated a sum certain that Appellant demanded as a matter of right under the contract (AF 5-8, 10, 42).

            15.  Respondent has paid the following amounts: $3,257.65 for C/A 3 (AF 5); $1,131 for C/A 4 (AF 6), $1,802.71 for C/A 5 (AF 7); $1,167.99 for C/A 6 (AF 8); $6,468.95 for C/A 8 (AF 10); and $386 for C/A 29 (AF 42), and Appellant has agreed to accept those amounts in satisfaction of the claims, except interest (AX 344; RX 2, 230).  The only issue remaining in these causes of action is the amount of interest that Appellant is entitled to recover.  (Stip. 12, 14, 24).

DECISION Causes of Action 3-6, 8, 29

            Respondent argues that Appellant’s change order requests are not claims that would begin the running of interest under the Contract Disputes Act.  First, Respondent points out that the change order requests were not submitted to the contracting officer.  However, each was submitted in writing to the contracting officer’s representative (Findings 13, 14).  Appellant reasonably expected that each would be considered by the contracting officer, and, eventually, each was considered by the contracting officer, who authorized payments as set forth above (Finding 15).  That the change order requests were not submitted by Appellant directly to the contracting officer does not mean that they were not claims.  See J. Leonard Spodek, PSBCA No. 4289, 99-1 BCA ¶ 30,204 and cases cited therein.

            Additionally, each change order request sought payment of a sum certain as a matter of right under the contract, thus meeting the contract’s definition of a claim (Finding 12).  See AAA Engineering & Drafting, Inc., ASBCA Nos. 47940, 48575, 99-2 BCA ¶ 30,443; J.S. Alberici Constr. Co. & Martin K. Eby Constr. Co. (Joint Venture), ENG BCA No. 6179, 97-1 BCA ¶ 28,639, aff’d on recon., 97-1 BCA ¶ 28,919, aff’d 153 F.3d 1381 (Fed. Cir. 1998).

            Respondent argues that because there were so many change order requests on the project (over 40 (Finding 8)) Appellant’s claims resulting from the changes are routine requests for payment.  As, according to Respondent, they were not in dispute when submitted, they are not claims on which interest may be paid under the Claims and Disputes clause (Finding 12).  For claims other than routine requests for payment, of course, there is no longer a requirement that they be in dispute when submitted for them to be considered claims under the Contract Disputes Act.  Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995).

            As pointed out in Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995), a request for an equitable adjustment is anything but a routine request for payment.  See also AAA Engineering & Drafting, Inc., ASBCA Nos. 47940, 48575, 99-2 BCA ¶ 30,443; J.S. Alberici Constr. Co. & Martin K. Eby Constr. Co. (Joint Venture), ENG BCA No. 6179, 97-1 BCA ¶ 28,639 at 143,009-143,011, aff’d on recon., 97-1 BCA ¶ 28,919, aff’d 153 F.3d 1381 (Fed. Cir. 1998).  That there may have been so many of such occurrences that their handling became part of a routine does not convert these non-routine change order requests to routine requests for payment.  See James M. Ellett Constr. Co. v. United States, 93 F.3d 1537 (Fed. Cir. 1996).  Nor is there a requirement that the contractor specifically request a contracting officer’s final decision, see Reflectone, Inc. v. Dalton, 60 F.3d 1572 (Fed. Cir. 1995); Sabbia Corp., VABCA Nos. 5557, 5857, 99-2 BCA ¶ 30,394 at 150,251, recon. denied, 99-2 BCA ¶ 30,463.

            Appellant claimed interest from various dates in October and November 1996 for these claims, but it did not demonstrate that the claims were submitted any earlier than November 14, 1996.  Accordingly, on each of the claims at issue in these causes of action, Appellant is entitled to Contract Disputes Act interest on the amounts identified above (Finding 15) from November 14, 1996 (Finding 13), until paid, less a credit for interest, if any, already paid by Respondent.

Cause of Action 7, Additional Truck Wash Equipment

            16.  The Solicitation contained drawings and specifications for the building as well as plans and specifications for a vehicle wash system manufactured by Ross & White that Respondent contemplated would be installed in the building.  However, the specifications permitted offerors to propose vehicle wash systems of other manufacturers for consideration as an approved equal to the Ross & White system.  (AF 1, Specification 11142-2.01; RX 47, Dwg. M.3; Tr. 231).

            17.  The Solicitation authorized Respondent to accept a proposal offering an “equal” system if the offer clearly identified the “equal” system and the Postal Service determined the proposed substitute contained all of the essential characteristics of the Ross & White system.  Further,

“[u]nless the offeror clearly indicates in the proposal that the proposal is for an equal product, the proposal will be considered as offering a brand-name product referenced in the solicitation.”  (AF 1, Solicitation Section K.5, BRAND NAME OR EQUAL (Provision 2-4) (February 1992)).

            18.  Appellant submitted its proposal on or about August 29, 1995, without identifying any “or equal” wash system, even though Appellant’s vice president, Mr. Gavosto, had contacted a number of different wash equipment suppliers, including N/S Corporation of California, when reviewing the Solicitation (Tr. 30, 232; SAF 89).

            19.  The contract was awarded to Appellant on October 11, 1995 (Finding 4), and Respondent’s and Appellant’s representatives met for a pre-construction meeting on October 31, 1995 (RX 41).  At or shortly after that meeting, Appellant indicated it intended to offer a system manufactured by N/S Corporation in lieu of the Ross & White system specified (Tr. 601, 611; Appellant’s Exhibit (“AX”) 343; RX 5, 49; SAF 89).

            20.  The system Appellant proposed was a composite of several N/S standard systems.  Over the next few months, Appellant submitted information, layouts and specifications of the N/S system it proposed, which Respondent’s project architect, Mr. Hearl, reviewed.  Mr. Hearl returned the submittals promptly (generally within 10 days of receipt) with his comments and requirements and requests for further information.  (AX 343; RX 5, 6, 7, 8, 9, 10, 11, 12, 56, 57, 69, 79-82, 86, 91, 98, 102, 109; SAF 55, 59, 64, 84, 187, 199, 202, 223; Stip. 4, 5, 6).

            21.  In the course of reviewing the N/S system, Respondent’s officials visited a nearby facility with an N/S vehicle wash system and an N/S plant in California.  Based on what they learned on those visits and on other information received during the review of the N/S system, they decided they wanted certain optional equipment that had not been included in the Ross & White system specified.  The most significant addition was a quadrajet spinner arch that provided enhanced washing capabilities.  (RX 11; SAF 72).

            22.  On February 29, 1996, Respondent approved Appellant’s substitution of the N/S vehicle wash system equipment for the Ross & White system, but Respondent’s officials were still considering the optional equipment (Tr. 1090-1091; AF 1, Specification 11142-2.01; RX 116; SAF 182).

            23.  Thereafter, Respondent identified the optional equipment it desired (RX 11, 86), and on March 20, 1996, Appellant gave Respondent a written quote of $88,079.91 for providing and installing the selected optional equipment, which was listed in detail in the quotation.  A note at the end of the quotation provided,

“there are additional changes indirectly or directly related to the installation of the optional equipment.  Such as foundation modification “no-fault” defaults on axel [sic] counting, swipe card integration[,] enlargement of trough drainage and related piping which have not been either redesigned or approved.  It is suggested that they could be covered by a contingency of not to exceed $10,000.  Extension of time requested is concurrent with weather.  But be advised that a 10 week window is required to fabricate[,] deliver, install and train from when, H2M, USPS, and PBCS approve shop drawings and change orders."  (Tr. 319; SAF 72, 174, 181).

            24.  In contract modification 02, signed by Appellant’s president on October 29, 1996, and by the contracting officer on December 6, 1996, the parties agreed to payment of $88,079.91 for the optional wash equipment, but did not provide for an extension of the time to perform.  Appellant had requested a time extension by attaching to the version of modification 02 that it signed an October 29, 1996 letter in which it requested time extensions for certain of the changed work shown on the modification (AF 12, 13).  However, the contracting officer refused to incorporate the letter into the modification, and the extensions Appellant requested in the October 29 letter did not become part of modification 02.  The modification included the following language:

“The contractor agrees that the compensation provided by this modification constitutes full and complete satisfaction for all direct costs, indirect costs[,] applicable interest, impact and delay costs, and additional contract completion time (beyond that specified herein) which either has been or will be incurred in performing all work described by this modification.”  (AF 16).

            25.  On November 14, 1996, Appellant submitted change order request 9A (cause of action 7) claiming $15,731.20, which included claims for a number of items (discussed below) it contended were extras relating to the additional optional wash equipment selected by Respondent (AF 9, 49; AX 326 (pp. 38-57); RX 220; SAF 251).

Mud Sump (C/A 7)

            26.  The original design of the wash facility included a cast-in-place, concrete box-like structure (mud sump) in the floor of the wash facility to collect the water and dirt running off the vehicles as they were washed.  The mud sump was to be topped with drainage grates.  (Tr. 595-596, 793-794; RX 47, Dwgs. S.1 and S.2, Detail 7).  The mud sump Appellant actually installed was cast-in-place, as specified, and was slightly smaller than specified.  It was topped with a grate that Appellant painted, even though the specifications did not require that the grate be painted.  (Tr. 301-305, 594-598, 792-795).

            27.  Appellant filed a claim for its cost of casting the mud sump in place, adding custom grilles and painting the grilles (AF 9; AX 326 (pp. 38-57)), which the contracting officer denied (AF 9; RX 1 (p. 2)).

Swipe Island (C/A 7)

            28.  The original plans had shown only a key-operated entry system outside of the truck wash.  Respondent’s officials determined they wanted a “swipe island” built at the entry to allow the vehicle drivers to enter the wash facility using the swipe cards they used for entry to the P&DC premises.  Respondent directed Appellant to install the swipe island.  Appellant installed the island as directed, although the swipe island was never used with the swipe cards before Appellant left the project.  (Tr. 306-307; AX 303; SAF 85).

            29.  Adding a swipe island to the project was an extra that increased Appellant’s costs of using its own forces by $975.44.  The contracting officer recognized it as an extra and agreed to pay that amount (Tr. 306-307, 598, 1000-1003; AF 9; AX 303, 326 (pp. 38-57)).

            30.  The contract’s Equitable Adjustments clause allowed the addition of a maximum of 10% profit and 10% overhead to equitable adjustments allowed Appellant for work performed by its own forces, and the contracting officer routinely did so in the changes he approved.  The clause also allowed Appellant a maximum commission of 10% on extra work performed by its subcontractors, and the contracting officer allowed recovery in that amount in the changes he approved where subcontractors were used.  (AF 1, Clause F.2, EQUITABLE ADJUSTMENTS (CONSTRUCTION) (Clause FB-271) (August 1988); e.g. AF 9).

Wall-Mounted Track Assembly (C/A 7)

            31.  The wash system specified in the solicitation and the N/S system supplied included two, high-pressure, hand-held spray wands for manual cleaning of vehicles before they entered the automated portion of the wash system.  The contract called for a wall-mounted track assembly on both interior walls at the north end of the wash bay for suspending the hose as the operator using the wands moved up and down the length of the vehicle being pre-washed.  (Tr. 279, 307-313, 599-600, 795-796; AF 1, Specification 11142-2.02 B.11; RX 47, Dwg. M.3, Vehicle Wash Equipment Plan).

            32.  The contract required Appellant to submit shop drawings for the vehicle wash system to Respondent’s architect for review.  Shop drawings were to be submitted sufficiently in advance of construction requirements to allow Respondent 10 days for review.  Appellant was obligated to point out on the shop drawings it submitted any variations from the contract requirements, and the contract specifically provided that Respondent’s approval of shop drawings did not signify any agreement to departures from the contract requirements that might have been included in the shop drawings.  (AF 1, Clause C.6, SHOP DRAWINGS, COORDINATION DRAWINGS, AND SCHEDULES (Clause 11-20) (October 1987); Specification Sections 01040, 11142-1.04).

            33.  In his reviews of Appellant’s submittals and resubmittals of the N/S system, Mr. Hearl repeatedly noted Appellant’s omission of the required overhead tracks for the spray wand hoses (RX 10, 11 (p. 3)).  However, Appellant’s final submittal, to which Mr. Hearl gave his official approval, did not include wall-mounted tracks and did not point out that the tracks had been omitted (RX 13).

            34.  Appellant installed a track system for the spray wand hoses (Tr. 307-313; AX 334, 326 (pp. 38-57); RX 23, 24; SAF 161), and submitted a claim for its costs of doing so (AF 9).  The contracting officer denied the claim (Tr. 1001; RX 1 (p. 2)).

Controller Software (C/A 7)

            35.  Respondent asked Appellant to supply the N/S software for the programmable controller, which was a part of the wash system, but there is no evidence in the record that Appellant did so (Tr. 601-602).  Appellant filed a claim for its alleged costs of supplying such software (AF 9; AX 326 (p. 38-57)).

Control Panel (C/A 7)

            36.  Appellant supplied a control panel for the swipe card reader, which was an extra to the contract, at a cost of $856 for work performed by a subcontractor.  Appellant included a claim for this item in change order request 9A.  (Tr. 602, 1000-1003, 1165-1167; AF 9).

Extra Selector Buttons (C/A 7)

            37.  The contract required Appellant to install a selector panel for the operator of the wash to select the proper wash cycle for the type of vehicle presented (RX 47, Dwg. M.3).  At Respondent’s direction, Appellant’s subcontractor added two extra buttons, “LLV” and “Help”, which were extras to the contract, at a cost of $412 each plus $50 for wiring each, for a total of $924 (Tr. 602-603, 796-797; RX 1 (pp. 44)).

            38.  Appellant included a claim for addition of the extra buttons in change order request 9A (AF 9).

Clarifier Tank Wiring (C/A 7)

            39.  The original plans included a reclaim sump for recovery of used wash water (RX 47, Dwg. M.3).  However, in conjunction with accepting the N/S system, Respondent requested the addition of a three-tank clarifier that provided a more effective method of reclaiming the water used in the wash (Tr. 771-772).

            40.  Respondent agreed to pay for the clarifier (AF 12; SAF 181), but in pricing the optional equipment, Appellant did not realize that because of certain electronic controls in the clarifier system, additional wiring would be necessary.  Appellant did not include the additional wiring in the price it quoted for the clarifier, although the quotation did note that there could be about $10,000 in costs associated with all of the optional wash equipment, including the clarifier, due to unforeseen circumstances (Finding 23).  (Tr. 301; SAF 174, 181).

            41.  Appellant was eventually paid for the clarifier, but not for the extra wiring done by its electrical subcontractor at a cost of $880 for labor and $158 for materials (AF 9).  Appellant filed a claim for the wiring costs (AF 9), which the contracting officer denied (Tr. 1002; RX 1 (p .2)).

Clarifier Tank Access Covers (C/A 7)

            42.  Respondent required the addition of three access covers for the clarifier tanks made out of high-strength aluminum with a non-slip diamond plate configuration on the surface (Tr. 311).  Appellant installed them and was paid for their cost but filed a claim for the labor cost it incurred installing them, $269.84 (Tr. 311; AF 9; AX 326 (p. 39)).  Respondent agrees that Appellant is entitled to be paid for the installation (Tr. 612-613; AF 9).

Sludge Cart Overflow Piping (C/A 7)

            43.  The contract specified a moveable sludge cart for removal of solid waste from the water reclaim system (Tr. 313, 614; RX 47, Dwg. M.3, Recycling System Schematic).  The plans identified overflow piping for the sludge cart that would allow liquid overflow to run back to the reclaim sump pit (RX 47, Dwg. M.3, Recycling System Schematic).

            44.  Appellant filed a claim for installation of overflow piping for the sludge cart (AF 9), which the contracting officer denied (Tr. 1003; RX 1 (p. 2)).

Total Quantum – Cause of Action 7

            45.  Of the total claim of $15,731.20 for the Additional Truck Wash Equipment, Respondent allowed $1,896.27 and three days time extension in unilateral modification 04 (AX 345; RX 3).  At issue in C/A 7 is the remaining $13,834.93 plus interest thereon plus interest on the $1,896.27 previously allowed by Respondent (AF 9; Stip. 13).

DECISION Cause of Action 7

            Casting the mud sump in place with drainage grates (grille covers) and providing overflow piping for the sludge cart were required by the contract (Findings 26, 43).  Appellant is not entitled to additional compensation for installing these items.  Providing tracks for the high-pressure hoses was also required by the contract and was not a Postal Service-ordered change (Finding 31).  Mr. Hearl’s approval of a submittal that did not show the wall-mounted tracks (Finding 33) did not delete the requirement from the contract.  Appellant did not point out the shop drawings’ variation from the specifications and plans requiring a wall-mounted track and thus the omission was not an approved change to the express contract requirements.  See Ralph Larsen & Son, Inc., PSBCA No. 2164, 89-1 BCA ¶ 21,228.  Therefore, Appellant is also not entitled to additional compensation for this item.

            Adding the swipe island at a cost of $975.44 and installing the access covers at $269.84 (Findings 29, 42) are recoverable extras because they were not originally required by the contract and were added at the request of Respondent.  In addition to the direct cost of these items, Appellant is entitled to recover 10% for overhead and 10% for profit under the Equitable Adjustments clause as this work was done by its own forces (Finding 30).  Supplying a control panel for the swipe reader at a subcontractor cost of $856 and adding two extra buttons to the selector panel at a subcontractor cost of $924 (Findings 36, 37) were also recoverable extras.  Appellant’s claim regarding the selector panel was for $6,792.  However, this was for the entire selector panel, which was an item required by the contract (Finding 37).  Appellant is only entitled to recover the additional costs resulting from Respondent’s change to the contract adding two more buttons to the contract-required selector panel.  Appellant is entitled to recover the amounts it paid its subcontractors for the swipe reader and extra buttons plus a 10% commission on the total as also allowed by the Equitable Adjustments clause (Finding 30).

            The subcontractor cost of $1,083 for wiring the controls for the clarifier (Finding 40) is also recoverable.  Although the form used for modification 02 authorizing the extra equipment (including the clarifier) contains release language (Finding 24), the scope of the work covered by the modification is by no means clear.  The modification simply states the amount from Appellant’s base estimate for the optional equipment (Findings 23, 24) without listing the work covered or addressing Appellant’s note to the estimate that there will be additional costs associated with the installation.  As the equipment and effort described in the detailed quotation (Finding 23) do not include the additional wiring (Finding 40), the modification apparently incorporates only the quoted work.  Accordingly, we do not find the release language of the modification to be a bar to Appellant’s recovery of its subcontractor’s cost plus Appellant’s 10% commission for the wiring for the clarifier.

            Appellant has not demonstrated that it ever furnished the N/S controller software it included in its claim (Finding 35), and that claim is therefore denied.

            In conclusion, Appellant is entitled to a total recovery of $4,656.09 for cause of action 7.  This includes $975.44 for the swipe island and $269.84 for the cost to install the clarifier tank access covers plus 10% profit and 10% overhead on those two amounts.  It also includes subcontractor costs of $856 for the swipe reader, $924 for the extra selector buttons and $1,083 for the clarifier wiring plus a 10% commission on the subcontractor costs.  Appellant is entitled to Contract Disputes Act interest from November 14, 1996 (Finding 25), until paid.  Respondent is entitled to a credit for the amount allowed and paid to date on this cause of action 7 and an appropriate credit for any interest Respondent paid on the amount previously allowed.^[3]

Cause of Action 8 (See C/A 3, above)

Cause of Action 9, Interest Only

            46.  Respondent directed Appellant to change the route of the wash facility toilet septic line from that shown on the plans.  On June 17, 1996, Appellant submitted its change order request for the work to the contracting officer’s representative as a fixed-price change order request in the amount of $3,853.36 (AF 11, 14).  Respondent subsequently advised Appellant to perform the work on a time-and-materials basis, and, on July 31, 1996, Appellant submitted a revision to the change order request seeking $5,156.50 on a time-and-materials basis (AF 14; AX 326 (pp. 65-71)).

            47.  In contract modification 02, dated December 6, 1996, Respondent granted Appellant the original $3,853.36 (AF 16).

            48.  In his January 19, 1999 final decision, the contracting officer awarded Appellant the $1,303.14 that had been excluded from the claim in modification 02, plus Contract Disputes Act interest on the $1,303.14 from March 10, 1997 (RX 230).

DECISION Cause of Action 9

            Only interest is at issue in this claim.  Appellant is entitled to Contract Disputes Act interest on $5,156.50 from June 17, 1996, less a credit for interest, if any, already paid by Respondent.  Appellant is permitted to change the calculation of his claim after submission to the contracting officer without voiding the effect of the initial claim submission to start interest running so long as the operative facts on which the claim is based remain the same.  See Youngdale & Sons Constr. Co. v. United States, 27 Fed. Cl. 516, 563 (1993); Southwest Marine, Inc., ASBCA No. 33208, 88-3 BCA ¶ 20,982 at 106,020.  Although the method of calculation changed and the amount for the extra work increased, the original June 17, 1996 change order request was for the same work actually performed by Appellant.  That the change order request was prospective and that the costs were not incurred until later does not limit Appellant’s recovery of interest.  Interest under the Contract Disputes Act begins to run when the claim is received by Respondent, regardless of when the costs were actually incurred.  See Servidone Constr. Corp. v. United States, 931 F.2d 860, 862 (Fed. Cir. 1991); Betty and Eddie Jackson, PSBCA No. 3624, 96-1 BCA ¶ 27,994, recon. denied, 96-2 BCA ¶ 28,456, aff’d in part and rev’d in part, 152 F.3d 941 (1998)(Table).

            Accordingly, Appellant is entitled to interest on the total amount allowed, $5,156.50, from June 17, 1996, less any interest already paid by Respondent.

Cause of Action 10, Revised Gas Service

            49.  The new building was to be heated by gas-fired heaters (RX 47, Dwgs. M.1, P.1), with the natural gas service originally planned to enter the vehicle wash building at its northeast corner (Tr. 80, 453, 807, 1103; RX 47, Dwg. P.1).

            50.  However, on November 21, 1995, Respondent advised Appellant that the gas would enter the building at the southwest corner from the service at the main building, sharing the trench shown on the original plans for bringing the electrical service from the main P&DC building to the wash building (Tr.  80-98; 807-808; AX 339A; RX 47 (Dwg. C.1), 48 (Dwg. C.1), 73, 77, 83, 90, 187; SAF 65, 217).

            51.  The parties agreed that the gas line installation work would be done on a time-and-materials basis (Tr. 1005, 1008; RX 181, 185, 186, 196; SAF 160).

            52.  To accommodate the gas line in the same trench with the electrical service and to maintain the separation between the lines required by the local utility, the trench had to be deeper and wider than Appellant anticipated for the electrical service alone (Tr. 90-92, 108-109, 807-810, 1005; AF 17; AX 285, 287, 318, 319; RX 4 (p. 181),129, 181; SAF 160).

            53.  Respondent was responsible under the contract for identifying the location of existing utilities in the areas where Appellant would be required to excavate, and before excavation commenced for the trench for the gas and electric, Respondent provided Appellant with a sketch purporting to show the locations of existing underground utilities (Tr. 58-66, 483-485; SAF 57, 76, 96, 99).

            54.  During excavation of the trench, Appellant encountered existing conduit and piping providing service from the P&DC building to an existing gas fueling island as well as a buried lightning protection grid at the existing building, none of which was identified by Respondent’s utility markout.  Appellant damaged some of the lines when it encountered them, requiring it to incur the expense of repairing them, and the presence of these obstructions increased its costs of performance by requiring measures to avoid or protect the lines.  (Tr. 100-103, 110-112, 810, 819-821, 1005; AX 285, 287, 318, 319; RX 4 (pp. 123-125, 128)).

            55.  On November 14, 1996, Appellant submitted change order request 14A claiming $19,032.27 as its increased costs of performing the gas service installation on a time-and-materials basis (AF 17, 49; RX 220; SAF 251).  It calculated its claim by first estimating and giving Respondent a credit for Appellant’s cost to cut and remove paving, dig the trench, install the electric service and cover and repave—the work originally required by the contract.  Then, Appellant claimed, on a time-and-materials basis, all of the trenching costs and the costs of its electrical subcontractor as well as those of the plumbing subcontractor who did the gas installation.  (AF 17).

            56.  In calculating Respondent’s credit for saw cutting, Appellant valued the work at $472.50, but it included $1,964.60 for saw cutting in its claim, even though Appellant failed to show that there was any difference in the amount of saw cutting required (AF 17).

            57.  Respondent did not take the credit proposed by Appellant for the electrical work and, instead, addressed the additional gas work separately.  The contracting officer allowed nothing for saw cutting pavement (concluding that such was already required under the contract for construction of the trench for the electrical service), allowed the full amount claimed for repair of undisclosed underground utilities, a modest amount for removal of additional concrete and excavation because the trench would have been somewhat larger to accommodate both gas and electrical service, the cost of 3 days use of a back hoe and operator at $800 per day, labor to perform the work at the rates Appellant claimed but using the actual (lower) number of hours shown in certified payrolls Appellant had previously submitted, the cost for a plumber to return to test and purge the gas line and for all materials included in the claim plus markups.  (Tr. 1003-1008, 1169-1171; RX 1 (pp. 61-71)).  Respondent concluded that Appellant was entitled to $9,491.22 for this change order request, and that amount plus an unrequested time extension of four days was allowed in unilateral modification 04 (AX 345; RX 3).

            58.  In his final decision of November 17, 1997 (RX 1), the contracting officer denied the remaining portion of Appellant’s claim.

DECISION Cause of Action 10

            Appellant calculated its change order request by assuming that the entire trenching, electrical and gas work was to be addressed on a time-and-materials basis, but the agreement for a time-and-materials calculation applied only to the gas installation (Finding 51).  Appellant has not shown that the agreement extended to the entire trenching project and the electrical work as well, and it is entitled only to the extra costs (on a time-and-materials basis) incurred to install the gas line in the same trench.

            The contracting officer’s calculation of the additional costs (Finding 57) is reasonable.  Respondent allowed for the time and materials to install the gas line, to repair the utilities encountered, and for accomplishing the larger trench required for accommodating the gas line.  The contracting officer did not allow the costs of Appellant’s electrician to install the electric line or the costs to prepare the trench, costs which Appellant would have incurred regardless of the gas line change.   Appellant has not shown entitlement to any amount greater than allowed by Respondent.

            This claim is denied, except Appellant is entitled to interest on the amount allowed by Respondent from November 14, 1996 (Finding 55), until paid, less any amount previously paid by Respondent for interest.

Cause of Action 11, Restroom Heaters

            59.  Contract drawing E.2 identified a “1 KW EUH” (1000-watt electric unit heater) to be installed in the wash facility’s restroom (Tr. 218-219, 615-618; RX 47, Dwg. E.2, Toilet/Locker Room Plan).

            60.  The contract specifications instructed that Appellant, “Provide electric heaters in locations, sizes, capacities as shown on the drawings,” and specifically identified the “unit heaters” as “QMARK Cat. No. CWH-3208 or approved equal.”  (AF 1, Specifications 16881-1.01A, -2.01A).  The QMARK CWH-3208 heater is a 2000-watt heater (Tr. 504, 615-618; RX 192).

            61.  The contract establishes an order of precedence providing, “In case of difference between drawings and specifications, the specifications will govern.”  (AF 1, Section G.15, SPECIFICATIONS AND DRAWINGS (Clause 11-18) (October 1987)).

            62.  Respondent required Appellant to install a 2000-watt heater, and Appellant submitted a claim (change order request 19) on November 14, 1996, for the difference between the cost of a 2000-watt heater and the cost of a 1000-watt heater (Tr. 218-219; AF 18, 49; AX 326 (pp. 91-94); RX 220; SAF 251).

            63.  The contracting officer denied the claim (Tr. 1008-1009; RX 1 (pp. 2, 72-75)).

DECISION Cause of Action 11

            Respondent argues that under the Specifications and Drawings clause’s order of precedence (Finding 61), the specification requiring installation of the 2000-watt CWH-3208 heater or its equivalent prevails over the designation of the heater in the drawings as a 1000-watt heater.  However, the instructions in the specifications provided that Appellant was to install electric heaters of the size and capacity shown on the drawings (Finding 60).  Therefore, to the extent there was an ambiguity, it was the result of conflicting provisions in the specifications.  Despite the conflict, however, to prevail on its claim, Appellant must show that it relied on its interpretation that a 1000-watt heater was called for when it was preparing its offer.  See John W. Bradbary, PSBCA No. 3126, 93-2 BCA ¶ 25,563; Skip Kirchdorfer, Inc., ASBCA Nos. 40515, 43619, 00-1 ¶ 30,622 at 151,169 citing Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1430-31 (Fed. Cir. 1990).  Appellant has not asserted and the record does not reflect any pre-offer reliance on the drawing’s indication that a 1000-watt heater was required.

            Because Appellant has failed to demonstrate that it relied on the interpretation of the heater requirement that it now urges, the claim of cause of action 11 is denied.

Cause of Action 12, Irrigation System Repair

            64.  The truck wash facility and the new roadway associated with it were to be located partially in a landscaped area that had an existing irrigation system with underground piping.  The contract required Appellant to remove the existing irrigation system where it conflicted with the project and to install new piping and sprinkler heads along the new curb and the east side of the building.  (Tr. 116; RX 48, Dwg. C.1, Partial Site Plan Note).

            65.  The existing irrigation system covered a much larger area than that directly affected by construction of the truck wash building.  After completion of the contract work on the irrigation system, Appellant’s efforts to test the system failed because many of the sprinkler heads beyond the construction area had been damaged by others prior to this project, and the system would not maintain pressure.  (Tr. 115-118).

            66.  Appellant failed to bring this difficulty to the attention of the contracting officer or the COR, but Mr. Gavosto advised a maintenance manager at the P&DC, Mr. Weider, of the difficulty pressure-testing the sprinkler system.  Mr. Weider directed Appellant to repair what was necessary to restore the entire system.  (Tr. 115-118).

            67.  Appellant’s subcontractor repaired the system, including repairing some existing lines, cleaning and re-installing some existing heads, replacing sprinkler heads that were beyond repair and installing new lines to provide adequate coverage of the area.  The cost of Appellant’s repair and restoration work to the irrigation system was $1,252.22.  (Tr. 115-118; AX 326 (pp. 95-99); RX 1 (pp. 76-81); SAF 263).

            68.  Appellant submitted its claim for the cost of the irrigation system work to the contracting officer’s representative on November 14, 1996, and the contracting officer denied it in his final decision of November 17, 1997 (AF 19, 49; AX 326 (pp. 95-99); RX 1 (pp. 2, 76-81), 220; SAF 251).

            69.  Mr. Weider was not a contracting officer under this contract and was not authorized by Respondent to act for the contracting officer, to change the requirements of the contract or to commit Respondent to pay for additional work under the contract (Tr. 31-34, 1081-1083; AF 1, General Provision G.6, USE OF PREMISES, section b; RX 41, 233).  Appellant’s principals were aware of these limitations, and at the pre-construction meeting they had been advised to ignore requests from postal employees at the facility:  “These requests (oral or written), if not issued by the Contracting Officer, shall be ignored by the contractor.”  (Tr. 33-35; RX 41, Section IV).

DECISION Cause of Action 12

            The contract requirement to install new piping and heads along the curb and the east side of the new building did not include a requirement to restore or repair the existing system not disturbed by the construction.  There was no contract requirement that Appellant pressure-test the entire irrigation system.  Without ascertaining whether the contracting officer desired this extra-contractual restoration to be performed, Appellant accepted the direction of Mr. Weider, who had no authority to order a change.  In performing the work directed by Mr. Weider, Appellant disregarded the admonitions in the contract and by Respondent’s officials that Appellant deal only with the contracting officer or his authorized representative regarding work under the contract.  Appellant knew that Respondent did not intend to be bound under its contract by commitments made by Mr. Weider (Finding 69), and the law fully supports Respondent’s refusal to pay for the unauthorized work.  See Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947); Trauma Service Group v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997); Jared Paul Carlson d/b/a The Roasted Coffee Bean, PSBCA No. 4006, 98-2 BCA ¶ 29,847 at n. 4.

            The claim of cause of action 12 is denied.

Cause of Action 13, Electrician’s Remobilization

            70.  It was Appellant’s responsibility to install the gas piping for the wash facility heaters from the P&DC building to the wash facility, but Respondent was obligated to make the gas service available at the connection to the main building.  It accomplished this through a contract with another contractor to install piping within the main building, and the gas service was made available on November 12, 1996.  (Tr. 220-223, 478-480, 501-503; RX 4 (pp. 173-182); SAF 108).

            71.  Appellant’s electrical subcontractor had completed the electrical wiring except for the wiring to the heaters sometime in October.  Having no further work to do on the project until the final wiring for the gas-fired heaters could be done, Appellant’s electrical subcontractor left the project before the end of October.  (Tr. 220-223, 478-480).

            72.  When Respondent made the gas service available on November 12, 1996 (Tr. 98; SAF 239), Appellant’s electrician returned to the job site to do the final electrical connections for the heaters (Tr. 226-228).

            73.  On November 14, 1996 (AF 49, RX 220; SAF 251), Appellant filed a claim for $968 for the electrician’s remobilization to the job.  The claim consisted of the electrical subcontractor’s claimed costs reflected on an undated estimate that read, in full, “Remobilization Start Up Gas Heaters, 2 men 16 hrs. @$55.00, Total $880” plus Appellant’s 10% markup.  The electrician’s estimate provided no description of the work performed.  (AF 20; AX 326 (pp. 125-126); RX 1 (pp. 82-83)).

            74.  The contracting officer denied the claim, concluding that the claim had been insufficiently documented and that the work was performed without a need for remobilization (RX 1 (pp. 82-83)).

DECISION Cause of Action 13

            Appellant has not pointed to any contract provision that required Respondent to provide the gas service to the wash facility by a date earlier than November 12, 1996, or to any commitment by Respondent to do so.  It has not demonstrated that Respondent took an unreasonable period of time to provide the gas service.  Therefore, Appellant has not shown that Respondent breached any duty to provide the gas service at an earlier date.  Accordingly, there is no basis for liability based on the date Respondent provided the gas service.

            Additionally, Appellant has not demonstrated that its electrical subcontractor incurred costs associated with remobilizing as opposed to performance of the contract-required work—wiring of the heaters.  The electrician did not testify at the hearing, and the estimate does not identify the nature of the work performed.  Therefore, even if providing the gas service on November 12 could have entitled Appellant to remobilization costs, it has not shown that any were incurred.

            The claim of cause of action 13 is denied.

Cause of Action 14, Relocation of High-Pressure Pumps

            75.  The Ross & White system specified in the solicitation called for a high-pressure pre-wash system, including high-pressure pre-wash wands near the entrance to the wash and two pumps in the equipment room (See Findings 31-34, above) (Tr. 618-619; AF 1, Specification 11142-2.02 B.1; RX 47, Dwg. M.3).

            76.  The N/S system offered as a substitute by Appellant and eventually accepted by Respondent included only one high-pressure pump, which was to be installed in the equipment room.  As Respondent added optional equipment to the wash system, the equipment room layout became overcrowded, and Respondent decided to move the point of installation of the pump from the equipment room to the northwest corner of the wash bay, near the high-pressure wands.  (Tr. 620-622).

            77.  Through its review of Appellant’s and N/S’s submittals, Respondent directed Appellant to install the pump at the northwest corner of the wash bay (Tr. 315; RX 14, 15; SAF 78, 175, 230).

            78.  Installing the high-pressure pump in the northwest corner of the wash bay required different piping and more electrical wiring and conduit than would have been required had it been installed in the equipment room.  The extra cost to Appellant’s electrical subcontractor was $250.  (Tr. 315-316, 620-622; AF 21; AX 334; RX 4 (p. 194); SAF 96 (p. 3)).

            79.  On November 14, 1996, Appellant submitted change order request 28, claiming the cost of its electrical subcontractor to relocate wiring associated with the high-pressure pump and the cost of its plumber to comply with the pump manufacturer’s recommendations to use extra-heavy pipe and fittings (AF 21; AX 326 (pp. 131-133)).

            80.  The contracting officer denied the claim (Tr. 1009-1010; RX 1 (pp. 84-86)).

DECISION Cause of Action 14

            Appellant argues that it is entitled to recover its costs associated with Respondent’s direction that the high-pressure pump be located at the northwest corner of the wash facility instead of in the equipment room.

            The claimed plumbing costs have not been shown to have any relationship to the change of the location of the high-pressure pump.  Rather, the plumbing subcontractor’s invoice (Finding 79) states that the costs were incurred to comply with the pump manufacturer’s requirements for installation.  No connection has been shown between these requirements of the manufacturer and changing the location of the pump, and this part of the claim is not a recoverable extra.

            Additional wiring (material and labor) was required to serve the new location of the pump, and Appellant has demonstrated that the extra electrical work resulting from changing the location of the pump cost $250 (Finding 78).  Respondent argues that it should receive a credit because only one of the two pumps specified was installed.  However, although the specifications for the Ross & White system in the solicitation mention two high-pressure pumps, all of the submittals relating to the N/S system, including the submittal accepted by Respondent on February 29, 1996, when it approved the system, showed one pump.  Therefore, the deletion of one of the original pumps resulted from Respondent’s acceptance of the N/S system and did not entitle Respondent to a credit associated with changing the location of the one pump approved in the N/S system.

            Accordingly, Appellant may recover $275 ($250 plus its 10% commission), plus interest from November 14, 1996.  The claim of cause of action 14 is sustained to that extent and is otherwise denied.

Cause of Action 15, California Trip^[4]

            81.  With a view toward speeding up finalization of the shop drawings, Mr. Gavosto made a trip to the N/S plant in California March 25 through 27, 1996.  Three Postal Service employees also went with him and attended meetings with N/S.  (RX 107, 148; SAF 76, 172, 185, 190).

            82.  Before Mr. Gavosto made the trip, he requested and obtained the approval of the then-contracting officer.  Mr. Gavosto was assured by the contracting officer that Respondent would pay for the trip as an extra to the contract.  (Tr. 255-257, 426; AX 326 (pp. 134, 142)).

            83.  The reasonable costs incurred by Appellant for Mr. Gavosto’s trip were $1,004.37 (AF 22).

            84.  Appellant submitted its claim for the cost of the trip on November 14, 1996 (AF 22, 49; RX 220; SAF 251), and the contracting officer denied it (RX 1).

DECISION Cause of Action 15, California Trip

            Respondent’s contracting officer authorized Mr. Gavosto’s trip to California and agreed to pay for it.  Respondent has offered no evidence disputing that authorization and commitment to pay, and, therefore, Appellant is entitled to recover its reasonable cost, $1,004.37, from Respondent, plus interest from November 14, 1996, until paid.

Cause of Action 16, Interest on Late Payment for Optional Equipment

            85.  Appellant’s March 7, 1996 quote of $88,079.91 for the optional equipment and its installation (Finding 23) included a price of $62,527 for the equipment to be purchased from N/S (Tr. 319; SAF 174, 181).

            86.  Appellant and Respondent expected that authorization and payment for the purchase of the optional equipment would be through a modification to the contract (SAF 84).

            87.  Appellant made only the following payments to N/S for the wash equipment:  August 9, 1996--$10,000, September 6, 1996--$75,000 and November 7, 1996--$49,584.50 (Tr. 490; RX 43).

            88.  Contract modification 02 included authorization of an adjustment of $88,079.91 for the optional equipment, which included the sum attributable to the purchase of the N/S equipment and installation.  The modification was executed by Appellant’s president on October 29, 1996.  (AF 15, 16; SAF 254).

            89.  Appellant filed a claim for interest on the $88,079.91 for the period from May 10, 1996, to October 22, 1996, which the contracting officer denied (Tr. 328, 487, 1010-1011; AF 27; RX 1 (p. 105); Stip. 17).

DECISION Cause of Action 16

            Appellant claims interest from May 10, 1996, the date when it claims to have advised Respondent that it made an oral commitment to N/S for the additional wash equipment, to October 22, 1996.^[5]  However, it has not shown that it incurred any interest costs related to the optional equipment.  No payments were made to N/S until well after the May 10, 1996 date (Finding 87), and Appellant has stated no basis for obtaining interest from the earlier date.  Additionally, as the payments made to N/S (Finding 87) are not identified to the basic equipment or optional equipment, it is not possible to determine when Appellant paid for the optional equipment.

            Finally, Appellant executed modification 02 on October 29, 1996, after the period for which it claims interest concluded.  That modification includes language acknowledging that the amount authorized in the modification constituted full satisfaction of interest costs incurred in supplying and installing the optional wash equipment (Finding 24).

            This claim is denied.

Cause of Action 17, See Delay Section Below

Cause of Action 18, Soap Changeover

            90.  The contract did not specify the type of soap to be used in the wash system or require Appellant to provide any soap (Tr. 332, 784), but the wash system manufacturer, N/S, recommended use of a soap called Radi-aze (Tr. 333; RX 1 (p. 116), 191).

            91.  At Respondent’s request, on November 12, 1996, Appellant provided to Respondent two pails of Radi-aze for testing of the wash system (SAF 239, 261).  Appellant’s cost of each pail was $70 (RX 1 (p. 117)).

            92.  When representatives of N/S came to the site to test and fine-tune the wash system in early December 1996, they discovered that a milder detergent had been installed, a detergent they considered too mild to clean the vehicles effectively.  They bled the mild detergent from the system and put in Radi-aze.  However, they were immediately instructed by Respondent to remove the Radi-aze and put the mild detergent back in.  This required them to expend additional time of four hours for which Appellant was billed by N/S a total of $216.  (RX 1 (p. 116)).

            93.  On January 7, 1997, Appellant submitted a claim (change order request 35) in the amount of $622.60 for the extra time spent by the N/S representatives and for the cost of five pails of Radi-aze plus Appellant’s 10% commission (AF 28; AX 326 (pp. 155-157), 345; SAF 227).

            94.  Respondent conceded that Appellant was entitled to recover for the N/S technician’s time and allowed recovery of $237.60 (extra technician time of $216 plus 10% commission).  The $385 difference between that amount and the amount of the claim remains at issue in this cause of action.  (RX 1, 3; Stip. 18).

DECISION Cause of Action 18

            Of the disputed part of the claim, Appellant has demonstrated that at Respondent’s request it delivered two pails of Radi-aze soap that the contract did not require it to provide (Findings 90, 91).  It is entitled to recover the cost of the soap, $140 (Finding 91), plus its commission of 10% for a total additional recovery of $154 on this claim.  There was no evidence that Appellant supplied an additional three pails of Radi-aze to Respondent, and N/S did not include in its claim any charge for the Radi-aze it added to the system in December as part of its final adjustment.

            Appellant is also entitled to Contract Disputes Act interest on the full amount of its recovery, $391.60 (the $237.60 granted by the contracting officer plus the $154 allowed above) from January 7, 1997 (Finding 93), until the amounts are paid, less a credit to Respondent for any interest paid to date.  The part of the claim for the cost of three additional pails of soap was not proven and is denied.

Cause of Action 19, Re-excavation for Water Hook-up

            95.  The contract contemplated that water for the wash facility would be supplied by a new 2-inch line running from an existing 12-inch water main at the southern edge of the site, about 290 feet from the wash building, to enter the facility at its southeast corner (Tr. 119; RX 48, Dwgs. C.1, P.1).

            96.  By November 30, 1995, Appellant had excavated the trench and installed the 2” line from the existing water main to the building (SAF 57, 84).  However, due to a dispute between Respondent and the local water district, Appellant was not permitted to complete the connection to the permanent water supply.  (Tr. 1201-1209, 1218; SAF 123, 128, 154, 221, 250, 253, 255).^[6]

            97.  Respondent directed Appellant to close up the trench, allowing only that a pit could remain at the connection points to the main and to the building to allow for connection when the water was provided, and Appellant did so (Tr. 137-138; SAF 84, 87).

            98.  Appellant was finally permitted to make the final water connection on or about December 30, 1996 (SAF 250).  By that time, the edges of the pit at the point of connection to the water main had eroded over the long period that it had been left open, and Appellant had to re-excavate it before the connection could be made (Tr. 137-138, 1022-1023).

            99.  To do so, Appellant had to return a small backhoe-equipped vehicle, a “Bobcat,” to the site.  The Bobcat, which Appellant owned, had been removed from the site when other excavation work had been completed.  (AX 326 (p. 161)).

            100.  On January 7, 1997, Appellant submitted a claim (change order request 37) in the amount of $4,250.57 for its claimed cost of towing the Bobcat to and from the site, the cost of the operator and a laborer and plumbing costs (which included the cost of performing the tie-in and installation of a water meter inside the building) (AF 29; AX 326 (pp. 160-165); RX 1 (pp. 119-123); SAF 227).

            101.  Connecting the water, installing the water meter and backfilling the hole were required by the contract.  However, Respondent conceded that Appellant incurred additional reasonable costs of $1,478.50 associated with remobilizing and performing the permanent water connection as described below.  The direct costs totaled $841.44, which was the sum of the cost of transporting the Bobcat to and from the site ($170); the wage cost of the Bobcat operator, 8 hours at $42.89 per hour ($343.12); the cost of a laborer, 8 hours at $33.73 per hour ($269.84); and the cost of the use of Appellant’s Bobcat, 8 hours at $7.31 per hour ($58.48).^[7]  Adding Appellant’s permitted overhead and profit markups (Finding 30) brings the total to $1,018.14.  The plumber’s remobilization costs, according to the contracting officer, were no more than two men at four hours each at $45.49 per hour for a total of $363.92 plus the plumber’s markup of 15%, bringing the cost to $418.51.  Adding Appellant’s 10% commission (Finding 30) to the plumber’s charge brings the cost for the plumbing work to $460.36.  (RX 1 (pp. 55, 119, 123); Tr. 1025-1026, 1178-1180).

            102.  The contracting officer conceded entitlement and allowed recovery of $1,478.50 (RX 1, Stip. 19).

DECISION Cause of Action 19

            Appellant has not demonstrated entitlement to any amount in excess of what was allowed by the contracting officer.  The contracting officer allowed recovery of costs associated with performing the work at a later time such as the remobilization and re-excavation costs, and Appellant has not shown that a greater recovery is warranted.  The contracting officer’s rejection of Appellant’s claimed costs for work that Appellant was required to perform under the contract, such as the tie-in itself and installation of the water meter, was reasonable.

            Appellant argues that the rate the contracting officer allowed for use of Appellant’s Bobcat is too low, and Appellant proposes using the local rental rate for such equipment.  However, Appellant used its own Bobcat, which has a lower cost.  See U.A. Anderson Constr. Co., ASBCA No. 48087, 99-1 BCA ¶ 30,347 at 150,084, recon. denied, 99-2 BCA ¶ 30,565.  Using standard estimating schedules, the contracting officer reasonably found the applicable rate to be $7.31 per hour.  Appellant offered no evidence that it incurred a cost in excess of that allowed by the contracting officer for the operation of the Bobcat.

            Additionally, the contracting officer used rates of pay for the plumber’s employees, for the Bobcat operator and for the laborer that had been reported by Appellant in payroll records that it had previously certified and submitted to Respondent.  Those rates are reasonable, and Appellant has not supported the higher labor rates included in its claim.  Appellant’s plumbing subcontractor’s invoice does not separate its cost of performing contract work from its remobilization costs.  The contracting officer’s allowance of a total of eight man-hours for remobilization appears reasonable, and Appellant has not offered evidence to support greater remobilization costs.  Appellant did not contradict the contracting officer’s figures for the labor rates or the time necessary for the work or provide any rationale for the figures included in its claim.

            Appellant is entitled to interest on the amount allowed by the contracting officer from January 7, 1997 (Finding 100), until the amount was paid, less a credit for interest, if any, already paid.  The claim of cause of action 19 is otherwise denied.

Cause of Action 20, Bond Premium Increase

            103.  The contract required Appellant to provide Miller Act payment and performance bonds (AF 1, Solicitation Provisions K.7, PERFORMANCE BOND REQUIREMENTS (Provision 7-2) (October 1987) and K.8, PAYMENT BOND REQUIREMENTS (Provision 7-3) (October 1987)).

            104.  Appellant was billed by its surety for providing the bonds based on the dollar value of the contract.  Therefore, as the contract price was increased by equitable adjustments, Appellant’s bonding costs increased.  (Tr. 363-368).

            105.  Bilateral modification 01 increased the contract price by $16,028.36.  The modification was entered into on Respondent’s printed form that included language expressing Appellant’s agreement that the

“compensation provided by this modification constitutes full and complete satisfaction for all direct costs, indirect costs . . . which has been or will be incurred in performing all work described by this modification.”  (RX 227).

            106.  However, on the modification as signed by both parties, Appellant had added after this provision the handwritten note, “See attached letter dated 6/10/96 regarding additional bond premiums.”  (RX 227).

            107.  The June 10, 1996 letter referred to in the modification was from Appellant’s vice president, Mr. Gavosto, to the COR that advised that Appellant’s bonding costs would be increased as the contract price was increased by changes but that Appellant could not ascertain the amount until the end of the project.  The letter asked how Respondent wished to handle those expected additional bond premiums.  (SAF 135).

            108.  Bilateral modification 02 to the contract, increased the contract price by $112,842.36 to $930,070.79 as of December 6, 1996.  Modification 02 contained the same standard release language as in modification 01 (Finding 105) but did not include the reference to the June 10, 1996 letter or any other mention of bond costs.  (AF 15, 16).

            109.  The Equitable Adjustment clause of the contract provided that any overhead costs allowed as part of an equitable adjustment for changed work will be considered to include the cost of bonds (AF 1, Paragraph F.2, EQUITABLE ADJUSTMENTS (CONSTRUCTION) (Clause FB-271) (August 1988)).

            110.  In January 1997, Appellant’s bonding company imposed an additional bond premium of $3,454 based on the new value of the contract, $930,070.79 (Finding 108).  The invoice from the bonding company does not bear a date, although it must have been issued after the December 6, 1996 modification 02 which established the new contract price identified in the invoice.  (AX 326 (p. 167)).

            111.  On January 7, 1997, Appellant submitted a claim (change order request 38) for the additional bond premium (AF 30; AX 326 (pp. 166-167); SAF 227).

            112.  The contracting officer denied this claim because Appellant had “failed to deliver proof (i.e. copy of bill from Bonding Co.).”  (RX 1 (p.3); see Stip. 20).

DECISION Cause of Action 20

            Respondent argues that pursuant to the Equitable Adjustments clause (Finding 109), any amount for additional bonding costs is necessarily included in the overhead allowances of modifications 01 and 02.  However, by incorporating the June 10, 1996 letter into modification 01 (Findings 106, 107), the parties agreed that bonding cost increases would be resolved at a later time.  Modification 02 does not include the same specific reference, but Respondent has not demonstrated that the parties had withdrawn from their understanding expressed in modification 01 that additional bond costs would be addressed later.  Additionally, in his final decision, the contracting officer’s only expressed objection to the claim was that it was not adequately supported.  Appellant has now supported the claim with the bonding company’s invoice (Finding 110).

            Accordingly, Appellant is entitled to recover its increased bonding costs of $3,454, plus Contract Disputes Act interest thereon from January 7, 1997 (Finding 111), until the amount is paid.

Cause of Action 21, See Delay Section Below

Cause of Action 22, Surveyor’s Fee

            113.  The new wash facility was to be constructed in a paved drive/maneuvering area at the P&DC.  The contract required Appellant to remove existing paving to accommodate the construction and to install new concrete paving around the wash facility.  (RX 48, Dwg. C.1, Partial Site Plan).

            114.  After Appellant installed the new concrete paving, ponding of water occurred where the new paving met the old.^[8] (Tr. 141-142, 624, 773; RX 4 (p. 184)).

            115.  Respondent determined that the ponding was an unacceptable safety hazard and directed Appellant to replace the concrete it had installed.  Appellant resisted, contending that the ponding resulted from a design defect.  (Tr. 624-625; RX 194; SAF 103).

            116.  In the course of their discussions regarding the ponding, Respondent asked Appellant to provide a survey of the area of the ponding to demonstrate that its work was in compliance with the requirements of the contract (Tr. 625, 1029-1030; SAF 109).

            117.  On November 1, 1996, Appellant submitted some survey information based on measurements Mr. Gavosto had done (Tr. 142, 625; RX 207; SAF 109).  Respondent found Appellant’s information insufficient, and had its architect-engineer, Mr. Hearl, perform additional survey work, which was provided to Respondent on November 18, 1996 (Tr. 626, 1030; AF 34; RX 211; SAF 218).  Mr. Hearl’s report, which concluded that Appellant was at fault for the ponding problem, was provided to Appellant in December 1996 (Tr. 143-144, 627; RX 33; SAF 218, 241).

            118.  After receiving Mr. Hearl’s report placing responsibility for the ponding on Appellant, Mr. Gavosto complained to the COR.  The COR told him that to convince the COR that Appellant’s concrete work was in compliance with the contract—contrary to the architect’s view that the installation was deficient—Appellant would have to prove that its position was correct.  (Tr. 144).

            119.  In late December 1996, Appellant engaged a surveyor to assess the cause of the ponding.  The surveyor reviewed the plans and Mr. Hearl’s report and visited the site on December 30, 1996, to take his own elevations and measurements.  He presented his findings in a January 11, 1997 letter to Appellant, concluding that the ponding resulted from deficiencies in the plans (Tr. 144-146; AF 36; SAF 113).  For this work, the surveyor charged Appellant $750 (AF 35).  On January 13, 1997, Appellant provided a copy of the surveyor’s report to the contracting officer’s representative (SAF 247).

            120.  Throughout their discussions, Respondent continued to insist that the ponding problem resulted from Appellant’s faulty installation of the concrete and to demand that Appellant remove the concrete and replace it (Tr. 1031; SAF 114, 241, 242).  Appellant continued to contend the ponding resulted from design deficiencies (AF 37; RX 226; SAF 114, 274).

            121.  On January 15, 1997, Appellant submitted a claim in the amount of $1,050 for the surveyor’s bill ($750) plus Mr. Gavosto’s time (unexplained in the record) for four hours at $75 per hour (Tr. 147; AF 35; AX 326 (pp. 171-172)).

            122.  The contracting officer denied Appellant’s claim for $1050 because he considered that the surveying work, when finally done, was unnecessary (Tr. 633, 1031; RX 1 (pp. 138-141)).

            123.  The contract’s Changes clause authorized the contracting officer to change the required performance by a formal written change order, but also recognized that changes may be ordered constructively if the work is changed by any other written or oral order of the contracting officer, including directions, instructions, interpretations or determinations (AF 1, Contract Clause G.18, CHANGES (CONSTRUCTION) (Clause 11-26) (October 1987)).

            124.  The contract’s Inspection and Acceptance clause authorized Respondent to examine completed work and required Appellant to replace work found not to meet the requirements of the contract.  However, in the event such examination revealed that the completed work met contract requirements, Appellant would be entitled to an adjustment for the services provided for the inspection and repair of damage caused by the inspection.  (AF 1, Contract Clause E.1, INSPECTION AND ACCEPTANCE—CONSTRUCTION (Clause 11-11) (October 1987)).

DECISION Cause of Action 22

            Appellant argues that the contract did not require it to engage a surveyor to analyze the ponding issue but that it did so at Respondent’s direction.  According to Appellant, this constitutes a compensable constructive change.  Respondent concedes that the COR requested Appellant to perform a survey of the concrete south of the wash facility (Findings 116, 117) but argues that by the time Appellant supplied the surveyor’s report, it was no longer needed, Mr. Hearl having in the meantime provided his survey results.

            In this case, while the COR requested Appellant to perform its own survey, we need not determine whether this urging constituted a constructive change.  The Inspection and Acceptance clause authorized Respondent to examine completed work but entitled Appellant to an equitable adjustment for the services provided for the inspection and any replacement of the work if the work turned out to be in conformance with the contract requirements (Finding 124).  See The Little Susitna Co., PSBCA No. 1576, 88-1 BCA ¶ 20,240.  As will be discussed more fully below in the section titled Ponding, Appellant’s concrete installation met the contract requirements.  Therefore, Appellant is entitled to recover its costs of the survey under the Inspection and Acceptance clause.

            Appellant may recover the $750 it paid to the surveyor, plus interest from January 15, 1997.  However, Appellant has not shown the basis for the four hours of labor claimed for Mr. Gavosto’s time, and, accordingly, that part of the claim is denied.

Cause of Action 23, Electrical Subcontractor’s Acceleration

            125.  In a June 26, 1996 letter, the contracting officer’s representative accepted an extended contract completion date of August 31, 1996, as proposed by Appellant, and advised Appellant that Respondent was looking forward to the “fresh start” regarding the schedule.  He reminded Appellant, however, that liquidated damages would be enforced beyond the newly established completion date of August 31, 1996.  (Tr. 993-997; AF 22; AX 326 (p. 141); RX  157, 174; SAF 76, 81, 87, 90, 96, 100, 152, 170; Stip. 9, 10).

            126.  On July 23, 1996, N/S advised Appellant that the Programmable Logic Controller (“PLC”) control panel, a crucial element of the wash system, would not be completed before August 28 (SAF 269, 277, 279).

            127.  In mid-August 1996, Appellant directed its electrical subcontractor to begin accelerating his work to finish the wiring for the PLC control panel.  The electrical subcontractor agreed to do so and agreed to keep records of the effort committed.  (Tr. 339-340)

            128.  On August 28, 1996, Appellant advised Respondent that it could not finish on August 31, 1996, as expected because of delays caused by Respondent (RX 193; SAF 156).  Indeed, on August 31, 1996 there remained substantial work to perform (RX 194).

            129.  On September 19, 1996, Appellant requested an extension to the contract completion date due to Respondent’s delays in approving the PLC controller, supplying permanent water to the facility and approving shop drawings, and because of the underground obstructions encountered and changes to the gas and electric service.  The letter detailed the bases for the request for an extension, but it did not mention an acceleration of the electrical subcontractor’s effort.  (Tr. 358; SAF 154).

            130.  Appellant’s May 28, 1996 schedule reflecting the August 31, 1996 completion date shows the final electrical work taking about 37 days, from about July 2 to August 8, 1996 (SAF 170).  The schedule Appellant submitted on September 19, 1996, shows completion of the electrical work (“PLC wiring” and “Electric”) to take from about August 23 through October 4, 1996, a period of 42 days (SAF 154).

            131.  In January 1997, Appellant submitted change order request 42 for the costs of its electrical subcontractor’s acceleration (AF 38; RX 1 (p. 141)).  The claim, for $32,865.65, was supported solely by a January 2, 1997 “Accelerated Labor Invoice” from Appellant’s electrical subcontractor that identified its overtime rate as $71.77 per hour and listed dates from August 19 through September 21, 1996, with entries in the following form:

“8/19/96          MONDAY       3 men 3 hours            $645.93
 8/20/96          TUESDAY      3 men 3 hours            $645.93

*    *    *

9/21/96           SATURDAY   3 men 8 hours            $1,722.48”
(AF 38).

            132.  Respondent’s progress inspection reports reflect that electrical work was being performed well beyond the September 21, 1996 end of the claimed acceleration.  There is no mention of acceleration or any other extraordinary effort noted by the inspector who prepared the reports.  (RX 4 (pp. 114-170)).  The minutes of the weekly project meetings reflect that installation of electrical wiring was continuing from August well into October, but there is no mention of acceleration (SAF 101-114).

            133.  The contracting officer denied the claim, because Appellant had failed to provide a schedule analysis to support the acceleration claim (RX 1).

DECISION Cause of Action 23

            To establish entitlement to an adjustment for a constructive acceleration, Appellant must show that Respondent failed to grant an extension of time to complete performance requested by Appellant notwithstanding Respondent’s knowledge that an excusable delay existed and that Respondent expressly or impliedly ordered Appellant to adhere to the existing schedule.  Additionally, Appellant must show that it took reasonable steps to accelerate that resulted in increased costs.  See Hemphill Contracting Co., ENG BCA Nos. 5698, 5776, 5840, 94-1 BCA ¶ 26,491 at 131,853; Allen L. Bender, Inc., PSBCA Nos. 2322, 2324, 2325, 2476, 91-2 BCA ¶ 23,828.  It is Appellant’s burden to prove the existence of all of the elements necessary for a compensable acceleration.  See Allen L. Bender, Inc., PSBCA Nos. 2322, 2324, 2325, 2476, 91-2 BCA ¶ 23,828.  Appellant has not met that burden.

            First, Appellant had not requested an extension of time to complete the project.  Its last proposed schedule had been that accepted by Respondent on June 26, 1996, as the basis for Appellant’s “fresh start” on the project, establishing August 31, 1996, as the completion date (Finding 125).  Despite Appellant’s awareness that the project would not be completed by that date (see e.g. Finding 126), it was not until August 28 that it advised Respondent that it would not meet the established contract completion date (Finding 128).  Even on that date it did not request a specific extension of time.  The time extension request was not submitted until September 19, 1996 (Finding 129), just two days before the end of the claimed acceleration period.  Thus, Appellant’s acceleration claim fails for failure to establish that it had requested an extension of time that Respondent denied.

            Additionally, if Appellant accelerated as an independent effort to make up for delays, such acceleration costs would not be compensable.  See Earth Tech Industries, Ltd., ASBCA No. 46450, 99-1 BCA ¶ 30,341 at 150,044; Solar Foam Insulation, ASBCA No. 46278, 94-1 BCA ¶ 26,288 at 130,775.

            Finally, Appellant’s evidence of acceleration is insufficient to support its acceleration claim.  Appellant did not present evidence to establish a “base line” showing the level of effort it would have expended but for the claimed delay.  Absent this showing, it is not possible to confirm the extent to which the effort required of the electrical subcontractor exceeded its original plan.  See Hemphill Contracting Co., ENG BCA Nos. 5698, 5776, 5840, 94-1 BCA ¶ 26,491 at 131,854; Plandel, Inc., HUD BCA Nos. 92-7171-C1, 92-G-7478-C3, 93-3 BCA ¶ 26,103 at 129,767-768.  Also, Appellant has not offered credible evidence to support the claimed acceleration.  The electrical subcontractor did not testify at the hearing and no contemporaneous records of the work, of either Appellant or the subcontractor, were offered to support the claim, even though Appellant kept daily logs of work at the site and the electrical subcontractor committed to keep records of the acceleration effort (Finding 127).

            The only “evidence” of the acceleration effort is the electrical subcontractor’s invoice dated January 2, 1997, more than three months after the alleged acceleration occurred, and Mr. Gavosto’s hearsay testimony at the hearing regarding how the electrical subcontractor prepared it.  In his letter of August 28, 1996, advising of the reasons why the August 31, 1996 completion date would not be met and in his letter of September 19, 1996, requesting an extension of time (Finding 129), in which Mr. Gavosto goes into great detail about the delays Appellant had encountered, he makes no mention of his electrical subcontractor accelerating its work.  This even though both letters were written in the midst of such claimed accelerated work.  The absence of mention of any extraordinary effort on the part of the electrical subcontractor in the only available contemporaneous records of the project (Finding 131) also raises doubts about the acceleration claim.  On this record, Appellant has not demonstrated by a preponderance of the evidence that it incurred additional costs due to an acceleration of its electrical subcontractor.  See DANAC, Inc., ASBCA No. 33394, 97-2 BCA ¶ 29,184 at 145,153, recon. denied, 98-1 BCA ¶ 29,454; Park Constr. Co., ENG BCA No. 6113, 95‑2 BCA ¶ 27,777 at 138,528-529; Hemphill Contracting Co., ENG BCA Nos. 5698, 5776, 5840, 94-1 BCA ¶ 26,491 at 131,853.

            This claim is denied.

Cause of Action 24, Liquidated Damages

            134.  In November 1997, Respondent asserted entitlement to liquidated damages in the amount of $82,800 for the late finish of the project (RX 1).  However, in a January 19, 1999 final decision, the contracting officer withdrew Respondent’s claim, concluding that there existed concurrent delays for the period in question.  It paid Appellant the amount Respondent had previously withheld from contract payments otherwise due plus Contract Disputes Act interest from March 10, 1997.  (RX 230; Stip. 21).

DECISION Cause of Action 24

            This claim having been withdrawn by Respondent and interest having been paid on the amount previously withheld, this cause of action is dismissed.  Appellant has not shown that a claim for final payment or release of the withheld funds was filed any earlier than the March 10, 1997 date conceded by Respondent as the start of the interest period.

Cause of Action 25, See Delay Section Below

Cause of Action 26, Failure to Release Bonds

            135.  As of the time of the hearing, Appellant had been unable to get bonding since performing on this truck wash project, and this lack of bonding had prevented Appellant from bidding on projects it would like to perform.  Appellant believed its inability to obtain bonding was the result of the disputes arising from its performance of this contract.  In the years since performing the truck wash contract, Appellant had lower annual revenue than it had prior to performing it.  (Tr. 374-379, 389-397; AX 356).

            136.  On February 7, 1997, Appellant filed a claim for the profits on the revenues it claims to have lost due to its inability to obtain bonds and bid on projects requiring them (Tr. 385; AF 24).  At the time it submitted its claim, it asserted lost revenues of $25,546.  However, according to Appellant, it continued to lose revenues because of its lack of bonds and, accordingly, its claim continued to grow (Tr. 371).  At the hearing, it was determined that the Board would address only entitlement regarding this claim (Tr. 385-389).

            137.  The contracting officer denied Appellant’s claim for profits on lost revenues (RX 1).

DECISION Cause of Action 26

            Appellant has not shown that its inability to obtain bonding was due to any improper conduct on Respondent’s part on this project.  Moreover, the damages Appellant seeks—lost business opportunities unrelated to this contract—are, as a matter of law, too remote and speculative to be recoverable in this proceeding.  See Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741, 744 (1980); AFTT, Inc., PSBCA No. 3717, 97-1 BCA ¶ 29,057 citing Ramsey et al. v. United States, 121 Ct. Cl. 426, 101 F. Supp. 353 (1951), cert. denied, 343 U.S. 977 (1952); D.E.W. & D.E. Wurzbach, A Joint Venture, ASBCA No. 50796, 98-1 BCA ¶ 29,385 at 146,056; Land Movers, Inc. and O.S. Johnson—Dirt contractor (JV), ENG BCA No. 5656, 91-1 BCA ¶ 23,317 at 116,932.  Therefore, even if Appellant had shown that its inability to obtain bonding was due to Respondent’s conduct on this project, it could not recover profits on lost business revenues.  See Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741, 744 (1980).

            Accordingly, this claim is denied.

Cause of Action 27, Interference with Subcontractor

            138.  During the project, Appellant terminated one of its subcontractors, Docks & Doors, Inc., and refused to pay all or part of the subcontract price (Tr. 398-399).

            139.  A representative of the subcontractor complained to the COR about Appellant’s refusal to pay, and in a discussion without a representative of Appellant present, the COR provided the subcontractor with the name and telephone number of the bonding company that had issued Appellant’s Miller Act payment bond (Tr. 405, 1121-1122; SAF 262).

            140.  Appellant’s bonding company denied a claim filed by the subcontractor, and the subcontractor sued Appellant in State court (Tr. 406-408).

            141.  On February 7, 1997, Appellant filed a claim based on tortious interference with its subcontract in the amount of $7,500 (eventually reduced to $5,440.75) for the costs Appellant incurred to settle the subcontractor’s claim, for attorney fees related to defending the claim and for the cost of the time spent by two of Appellant’s employees in resisting the subcontractor’s claim (Tr. 406-409; AF 25; AX 361).

            142.  The contracting officer denied the claim (AF 26; RX 1).

DECISION Cause of Action 27

            Respondent argues that there is no contractual basis for this claim and that insofar as the claim sounds in tort, it is beyond the jurisdiction of the Board.  Appellant counters that the claim arises out of a contractual obligation and, thus, is within the jurisdiction of the Board.  However, Appellant has pointed to no contractual obligation breached by Respondent when it told Appellant’s subcontractor the identity of Appellant’s Miller Act surety.  The contract did not require that Appellant be represented at the contracting officer’s representative’s discussion with the subcontractor.  The information disclosed is not privileged or confidential, and, in fact, the Miller Act requires that such information be made available to subcontractors.  See 40 U.S.C. §270c.

            This claim is denied.^[9]

Cause of Action 28, Exterior Door Switches

            143.  The contract required Appellant to install exterior, keyed switches, one to operate each of the four vehicle-access doors (Tr. 223-226, 496-501, 862-863, 926; RX 47, Dwgs. E.2, E.3, Electrical Legend, Garage Door Opener – Schematic).

            144.  At Respondent’s direction, Appellant installed switches matching those in the adjacent P&DC building that were more expensive than the switches specified in Appellant’s contract.  Their installation also required cutting a larger hole in the masonry block than would have been required for those specified.  (Tr. 223-226, 863).

            145.  Installation of the keyed switches had not commenced when the change was directed (Tr. 863-864; RX 4 (p. 189); contra Tr. 224).

            146.  The new switches cost $135 each, and only three of them were installed.  The cost for each of the four, specified switches that were not installed was $12.50, making the switches installed $355 more costly.  Appellant’s standard markup of 10% overhead and 10% profit applied to the $355 increases the figure $74.55 to $429.55.  (Tr. 926-927; AF 41; AX 326 (pp. 108-111); RX 1 (pp. 147-151)).

            147.  On November 14, 1996, Appellant submitted a claim in the amount of $1,174.64 for the increased cost of installing the larger switches (Tr. 224-226; AF 41, 49; RX 220; SAF 251).  The claim included an invoice from Appellant’s electrical subcontractor identifying material and labor charges to, as stated at the beginning of the invoice, “Cut in 3 key switches in block and install pipes and wires to door openers” (AF 41).  The contracting officer allowed $308.15, leaving $866.49 in dispute (AX 345; RX 3; Stip. 23).

DECISION Cause of Action 28

            Only quantum is at issue in this claim.  Appellant has shown that it is entitled to recover the difference between its cost for the installed switches and the cost of the specified switches plus its profit and overhead.  It has failed to show entitlement to any greater amounts.

            Appellant asserted that its electrical subcontractor’s costs were associated with chipping larger holes in the masonry and changing the location of the switches.  However, the testimony of Respondent’s site inspector and his contemporaneous inspection report persuaded us that the holes for the switches had not been cut before the change in switches was made (Finding 145).  This is corroborated by the electrical subcontractor’s invoice which makes no mention of recutting or relocating the holes for the switches.  Additionally, the notation on the invoice (Finding 147) reflects that the electrical subcontractor’s effort was work required by the contract and not associated with “moving” switches or recutting holes in masonry.  Although there may have been some expense related to cutting a somewhat larger hole for the larger switches, Appellant has provided no evidence from which the Board could determine the extra labor cost.

            Accordingly, Appellant is entitled to recover an additional $121.40 on this claim (Findings 146, 147) plus interest from November 14, 1996, on the total of $429.55 until paid, less any interest already paid by Respondent.

Cause of Action 29, See C/A 3, above

Cause of Action 30, Plumbing Remobilization

            148.  Appellant’s plumbing subcontractor had completed the piping for the gas-fired heaters, but not the final tie-in, before October 25, 1996 (AF 43) and left the project, having no further work to do until the gas service was supplied by Respondent (Tr. 226-228).

            149.  Respondent provided the gas service on November 12, 1996 (Tr. 98; SAF 239), and Appellant’s plumber returned to the job site thereafter to do the final tie-in (Tr. 226-228; see Finding 70).

            150.  On November 14, 1996 (AF 49, RX 220; SAF 251), Appellant filed a claim for $2,592.13, which represented his plumber’s October 25, 1996 estimate of the cost to perform the final tie-in for both the gas service and water service (including purging and flushing of both systems to accommodate startup) plus Appellant’s 10% markup.  The estimate does not separate costs for performing final tie-in work for the gas heaters and water service—contract work—from costs, if any, associated with remobilizing to the site.   (AF 43; AX 326 (pp. 123-124)).

            151.  The contracting officer denied the claim, concluding that part of the claim overlapped another claim Appellant had submitted for final water tie-in (cause of action 19) and that the remainder of the claim was for work the plumber would have had to perform anyway.  (Tr. 1026-1027; RX 1 (pp. 157-158)).

DECISION Cause of Action 30

            As discussed in conjunction with cause of action 13, above, Appellant has pointed to no contract provision or other commitment that required Respondent to provide the gas service to the wash facility by a date earlier than November 12, 1996.  Absent an obligation to provide the service earlier, Appellant has not shown that Respondent breached any duty that would entitle Appellant to recover costs associated with the date the service was provided.

            Additionally, although Appellant styled this as a remobilization claim, it has identified no specific costs related to remobilization.  The plumbing subcontractor’s estimate reflects only the number of labor hours to perform all of the work mentioned (Finding 150).  There is no separate breakout or identification of specific remobilization costs and no separation of the costs allowed in cause of action 19 for the water connection.  As there is no basis for concluding that the work identified by the plumbing subcontractor related to remobilization as opposed to contract work, there is no basis for an award to Appellant.  Therefore, even if providing the gas service on November 12,1996, could have entitled Appellant to remobilization costs, it has not shown that any were incurred.

            The claim of cause of action 30 is denied.

Cause of Action 31, Change of Electrical Receptacles

            152.  The specifications called for 20-amp electrical switches and listed acceptable products, including Hubbell series 1201 switches, which are 15-amp switches (Tr. 228-230; 867-868; AF 1, Specification 16140-2.01 A; AF 44; AX 326 (p. 148); RX 4 (p. 168)).

            153.  Appellant installed eight of the specified Hubbell series 1201 switches, but when Respondent discovered that they were 15-amp switches, it required Appellant to remove them and install 20-amp switches (Tr. 228-230; 868).

            154.  The cost of the eight, 20-amp switches was $140 (RX 1 (p. 163)), and a reasonable time for changing out the eight switches was 2 hours (Tr. 873-874) at Appellant’s subcontractor’s rate for electrical work of $55 per hour (RX 1 (p. 163)).  Adding Appellant’s standard markup of 10% on subcontractor extra work (AF 44) brings the total cost of replacing the 15-amp switches with 20-amp switches to $275.

            155.  On November 14, 1996, Appellant submitted a claim for $895.40 related to the switches, which it revised to $550 and resubmitted on January 10, 1997 (AF 44, 49; AX 326 (p. 148); RX 220; SAF 251).  Appellant claimed four hours of labor, totaling $220, and materials of $280 plus a 10% markup.  Respondent conceded Appellant was entitled to an equitable adjustment, but allowed only $191.40 (RX 1 (pp. 159-163); Stip. 26).

DECISION Cause of Action 31

            Respondent has conceded entitlement on this claim (Finding 155) and disputes only the amount of the claim and the interest calculation.  Appellant claims interest from January 10, 1997 (Appellant’s Brief p. 34).  Appellant has demonstrated entitlement to an equitable adjustment in the amount of $275 (Finding 154).^[10]

            Appellant is entitled to recover an additional $83.60 over the amount already allowed by Respondent plus Contract Disputes Act interest on the total of $275 from January 10, 1997, until the full amount has been paid.  Respondent is entitled to a credit for any interest already paid on this claim.

Cause of Action 32, Dumpster Charge

            156.  During the course of construction, Appellant hired the use of trash dumpsters for the removal of construction debris and waste (Tr. 162-163; AF 45; AX 326 (pp. 151-153)).

            157.  On one Monday morning, upon arriving at the site, Appellant’s employees discovered that Respondent’s employees over the weekend had filled 95% of one of the dumpsters with shrink-wrap and cardboard waste from Respondent’s mail processing operation.  The remaining 5% of the container was taken up with Appellant’s trash.  (Tr. 162-163; AF 45; AX 336, 338).

            158.  Appellant paid its trash hauler $375 for removal of the dumpster (AF 45; AX 326 (pp. 151-153)).

            159.  On November 14, 1996, Appellant submitted a claim to the COR for payment of the full dumpster fee (AF 45, 49; RX 220; SAF 251).  Respondent paid approximately one-half of the dumpster fee, $185, leaving $190 in dispute (AX 344; RX 2, 226; SAF 114).  The contracting officer denied the remainder of Appellant’s claim (RX 1).

DECISION Cause of Action 32

            Without permission, Respondent used 95% of one of Appellant’s dumpsters (Finding 157).  Respondent does not deny liability, but argues that it only filled one-half of the dumpster.  We have credited Mr. Gavosto’s testimony and photographs on this issue, and find that Appellant is entitled to recover a total of $356.25, which is 95% of the fee for emptying the dumpster.  This results in an additional award of $171.25 over that allowed by Respondent plus Contract Disputes Act interest from November 14, 1996, until paid.  Respondent is entitled to a credit for interest, if any, previously paid.

Cause of Action 33, Interest on Bridge Loans

            160.  During the period March through August 1996, Appellant’s president provided $155,000 of her personal funds to Appellant to finance change order work then being performed by Appellant and to cover overhead being incurred (Tr. 544-549; AF 15, 16; RX 227).

            161.  There was no agreement between Appellant and its president that Appellant would pay interest on the funds so provided.  Appellant never paid any interest on the funds and never repaid the $155,000.  (Tr. 560-565).  There was no evidence that Appellant owes any interest related to these advances.

            162.  On February 18, 1997, Appellant filed a claim for interest in the amount of $13,981.95 on “bridge” loans, namely the $155,000 in funds provided by its president as described above (AF 46, 51).

            163.  The contracting officer denied the claim (RX 1; Stip. 28).

DECISION Cause of Action 33

            As part of an equitable adjustment for changed work the Board may allow recovery of the extra interest expenses incurred on borrowings solely to finance the changed work, e.g. Automation Fabricators & Engineering Co., PSBCA No. 2701, 90-3 BCA ¶ 22,943.  However, Appellant has not shown its entitlement to recover interest on the funds advanced by its president because it has failed to show that it paid or is liable for any interest expense on those funds.  See Lorentz Bruun Co., GSBCA Nos. 8504, 8505, 88-2 BCA ¶ 20,719 at 104,700.

            Accordingly, this claim is denied.

Cause of Action 34, Delayed Pay Requisitions

            164.  The contract’s Payment clause committed Respondent to make progress payments monthly, or at more frequent intervals as determined by the contracting officer (AF 1, Contract Clause F.1, PAYMENT (CONSTRUCTION) (Clause 11-10) (August 1988)).

            165.  On this project, the process for submitting progress payment requests was for Appellant to prepare a schedule of values for completed work and a draft requisition form and submit them to Mr. Hearl of H2M.  A day or two later, the draft pay request package would be returned with any marks or changes, and Appellant would then prepare a formal request for progress payment and submit it directly to the contracting officer.  (Tr. 568-571; 1172-1178; RX 41 (pp. 4-5)).

            166.  When the contract was awarded, the contracting officer was located at Respondent’s Facilities Service Office in Philadelphia (RX 1).  Formal progress payment requests were to be submitted to that office, and Appellant sent the first six pay requisitions there (Tr. 551, 571; RX 64).

            167.  Effective July 15, 1996, responsibility for the project was transferred to Respondent’s New York Metro Facilities Service Office in Hoboken, New Jersey (RX 232).

            168.  Appellant prepared pay request 7 in final form in the amount of $298,026.02 and sent it to the contracting officer at the address of the Philadelphia Facilities Service Office on August 7, 1996, by Express Mail.  Appellant had not received notice by August 7, 1996, that pay requests should be sent to the New York Metro Facilities Service Office instead of to Philadelphia.  (Tr. 550-551, 553, 571; RX 234; SAF 103).

            169.  The Philadelphia office had been closed by then, and mail received there was being boxed up and shipped to the Hoboken office (Tr. 552-553).  The Hoboken office eventually received pay requisition 7, and a payment check in the amount of $298,026.02, dated August 30, 1996, was sent to Appellant on that date (Tr. 553; RX 234).

            170.  Under the contract’s Prompt Payment clause, Respondent was required to make progress payments within 14 days after receipt of the payment request.  Payment was considered to have been made on the day the check was dated.  If payment was not made within the 14 days, Appellant was entitled to a daily interest penalty on the amount of the approved pay request at the rate established for interest under the Contract Disputes Act from the 15^th day after receipt of the invoice until paid.  (AF 1, Contract Clause F.3, PROMPT PAYMENT FOR CONSTRUCTION CONTRACTS (Clause FB-272) (March 1989)).

            171.  At a project meeting on September 11, 1996, Appellant submitted draft pay request 8 to Mr. Hearl (Tr. 569; SAF 106).  However, Mr. Hearl did not return the pay request in the customary one or two days.  In a September 18, 1996 letter, the contracting officer’s representative repeated earlier requests that Appellant submit an updated schedule and advised that no further progress payments would be made until the schedule was supplied.  (Tr. 570, 1046, 1177; RX 196; SAF 154, 267).

            172.  At the project meetings on September 18, 26 and October 3, 1996, Appellant inquired about the processing of its progress payment requisition and was reminded by Respondent’s representative that no further progress payments would be processed until the schedule was submitted (Tr. 555, 558; SAF 107, 108, 109).

            173.  In mid-October, the marked-up version of draft progress payment request 8 was returned to Appellant, and Appellant filed its formal progress payment requisition in the amount of $195,960.02 with the contracting officer on October 16, 1996 (Tr. 555, 571; RX 235).

            174.  A payment check in the amount of $195,960.02, dated November 1, 1996, was sent to Appellant on that date (RX 235).

            175.  On February 18, 1997, Appellant submitted a claim for interest in the amount of $3,032.53.  This amount represented the sum of interest at 9% for the claimed delays in payment—thirteen days late payment of pay requisition 7 resulting in a claim of $955.37 and 43 days late payment of pay requisition 8, for a claim of $2,077.16.  (Tr. 549-559; AF 47, 51).

            176.  The contracting officer denied the claim (RX 1; Stip. 28).

DECISION Cause of Action 34

            Assuming pay requisition 7 was delivered to Respondent in the one day provided by Respondent’s Express Mail service standard, Respondent received pay requisition 7 on August 8, 1996 (Finding 168).  To avoid imposition of the Prompt Payment Act interest penalty, Respondent would have had to issue the check no later than August 22, 1996.  Issuance of the check on August 30, 1996, entitled Appellant to eight days of interest under the contract’s Prompt Payment clause at the rate prescribed for the Contract Disputes Act (Finding 170).

            Under the procedures established for handling progress payment requisitions, Appellant’s draft of pay request 8, submitted to the architect-engineer on September 11, 1996, should have been marked-up and returned to Appellant no later than September 13, 1996, allowing for formal submission by Appellant on that date (Finding 165).  Respondent was required by the contract to make progress payments (Finding 164), and it has identified no contract provision or other authority permitting it to delay processing progress payment requisitions that it does not dispute in order to enforce unrelated obligations of Appellant under the contract.  Accordingly, Respondent breached its duty under the contract’s Payment clause when it failed to permit Appellant to finalize the pay request.

            While Prompt Payment Act interest commences only upon submission of a proper invoice, Young Enterprises of Georgia, Inc. v. General Services Administration, GSBCA Nos. 14437, 14603, 00-2 BCA ¶ 31,148 at 153,867, we look to that Act for purposes of determining the damages suffered by Appellant.  Had it not been for Respondent’s breach of its contractual duties in finalizing pay requisition 8, the request would have been submitted on September 13, 1996 (Findings 165, 171, 172).  Then, given that payment did not occur until November 1, 1996, 49 days later, Appellant would have been entitled to Prompt Payment Act interest for the late payment.  Eliminating the 14 days allowed Respondent for making payment under the Prompt Payment clause would have resulted in a total of 35 days subject to the Prompt Payment clause interest penalty.  Appellant’s damage due to Respondent’s breach is the equivalent of the 35 days of interest it would have recovered had it been allowed to submit its invoice.

            Appellant is entitled to recover Prompt Payment Act interest for a total of eight days on the amount of pay request 7 and for the equivalent of 35 days of Prompt Payment Act interest on the amount of pay request 8 at the rate established under the Contract Disputes Act for the period in question.  This calculation is remanded to the parties.

            Appellant is also entitled to interest under the Contract Disputes Act on the Prompt Payment Act interest amount (pay request 7) and the damages (pay request 8) calculated above from the date its claim was submitted, February 18, 1997 (Finding 175), until the total amount is paid.  See Marine Constr. & Dredging, Inc., ASBCA Nos. 38412 et al., 95-1 BCA ¶ 27,286 at 136,012, recon. denied, 95-2 BCA ¶ 27,699; Hettich and Company GmbH, ASBCA No. 38781, 93-1 BCA ¶ 25,442 at 126,698; Columbia Engineering Corp., IBCA Nos. 2351 & 2352, 88-2 BCA ¶ 20,595.

Cause of Action 35, Excessive Soil Testing

            177.  A grassy area adjacent to the new truck wash facility was disturbed by the construction activities, and Appellant was required under the contract to restore it (Tr. 163-166; AF 1, Contract Clause G.10, PROTECTION OF EXISTING VEGETATION, STRUCTURES, UTILITIES, AND IMPROVEMENTS (Clause 11-13) (October 1987)).

            178.  To restore the area, Appellant stripped the topsoil and stockpiled it to one side for reuse.  Then, Appellant regraded the area.  (Tr. 163-166).

            179.  The Landscape Grading section of the contract specifications required that topsoil have a “minimum 2.75% organic content, free of stones, lumps, roots or similar objects larger than 2 inches, pH of not less than 5.8 or more than 6.5.”  (AF 1, Specification 02921-2.01).  However, the only contract requirements specifying testing of soil related to compaction testing of fill (AF 1, Specification 01070-1.07) and a requirement that Appellant “verify fill material to be reused is acceptable.” (02921-3.01 A).

            180.  The specifications provided that tests as specified in the specifications and as required by the COR were to be paid for by Appellant (AF 1, Specification 01070-1.06A).

            181.  Over Appellant’s objections, the project architect/engineer, Mr. Hearl, required Appellant to have the stockpiled topsoil tested by a soils engineering firm before he would allow its reuse (Tr. 163-166).

            182.  Under protest, Appellant took samples of the topsoil and had them tested by a professional soils testing company.  Appellant paid the company $150 for its services and incurred labor expense of $600 to obtain the appropriate containers from the lab, collect the samples and deliver them to the testing lab.  The soil was found to meet the requirements of the specification, and when replaced in the disturbed area and seeded, it supported acceptable grass growth.  (Tr. 163-166, 505-508).

            183.  The contracting officer received Appellant’s $750 claim for excessive soil testing (change order request 40A) on February 22, 1997.  The claim did not seek a markup.  (Tr. 505-508; AF 48, 50, 51).

            184.  The contracting officer denied Appellant’s claim for the costs of testing the topsoil, concluding that the soil testing was required by the contract (AF 48, 50, 51; AX 326 (pp. 173-175); RX 1 (pp. 5, 167-171); Stip. 28).

DECISION Cause of Action 35

            Appellant argues that the topsoil it intended to use was the same topsoil that had been in the grassy area before and supported grass, and that there was no reason to test it.  Appellant contends its position is confirmed by the eventual judgment by the soils testing firm that the soil met the specification requirements.  Respondent argues that the contract required Appellant to test the soil at its own expense to verify that it met the specification requirements.

            Although Appellant was responsible for assuring that the topsoil met the requirements of the specifications, the contract did not require Appellant to perform testing of the topsoil before it would be permitted to install it.  Respondent directs the Board’s attention to specification requirements that Appellant “verify” that fill meets the requirements of the contract (Finding 179), but it has not identified any provision that required Appellant to test the topsoil before installing it or authorized Respondent to stop Appellant from performing its installation work until it did so.  See H & S Corp., ASBCA No. 31660, 89-2 BCA ¶ 21,866 at 109,983.

            The Inspection and Acceptance clause provided Respondent with ample remedies in the event the topsoil was found not to meet the specifications.  Respondent could have tested the soil after installation and imposed the costs of any remediation on Appellant if the soil failed to meet the contract requirements.  Where, as here, the soil was found to meet the contract requirements, Appellant would not have been responsible for those costs.  See H & S Corp., ASBCA No. 31660, 89-2 BCA ¶ 21,866; The Little Susitna Co., PSBCA No. 1576, 88-1 BCA ¶ 20,240.

            As the required testing was beyond the scope of Appellant’s contract, it is entitled to compensation for the reasonable costs of doing so.  See Modern Constr., Inc., ASBCA No. 24218, 81-1 BCA ¶ 14,832.  Appellant may recover $750 (Findings 182, 183) plus Contract Disputes Act interest on that amount commencing February 22, 1997, until paid.

            The claim of cause of action 35 is sustained.

Release of Withheld Funds

            185.  In his final decision of November 17, 1997, the contracting officer asserted claims against Appellant in the amount of $68,775 for correction of defective work and $82,800 for liquidated damages (RX 1 (p. 6)).

            186.  In a January 19, 1999 final decision amending certain portions of the November 17, 1997 decision, the contracting officer withdrew Respondent’s liquidated damages claim, reduced the amount withheld for corrective work to $17,269.54, and agreed to pay Appellant the contract balance plus Contract Disputes Act interest on that amount from March 10, 1997, until paid (RX 230).

            187.  The $17,269.54 withholding for corrective work included $3,488 for the cost of installing certain bollards Respondent contended had been required by the contract but which Appellant had not installed.  However, during the hearing, Respondent agreed to eliminate the bollards from its claim and to pay $3,488 to Appellant with interest from March 10, 1997, until paid.  (Tr. 880-883; RX 32).

            188.  Appellant reserved its right to seek interest in a greater amount (Tr. 880-883), and it seeks interest under the Prompt Payment Act on the withheld amount for a period of 15 days.^[11]  (Tr. 880-883; Appellant’s Brief p. 30).

DECISION Release of Withheld Funds

            Appellant has not shown that it submitted a claim for the withheld funds any earlier than March 10, 1997, the date used by Respondent in calculating the interest it awarded to Appellant (Finding 187).  Accordingly, Appellant has not shown any basis for recovery of additional interest under either the Prompt Payment Act or the Contract Disputes Act.  Accordingly, Appellant is entitled to interest on $3,488 from March 10, 1997, until paid, as conceded by Respondent.  Respondent is entitled to credit for any payments already made on the claim and interest according to its agreement at the hearing.

            The claim is sustained to that extent and is otherwise denied.

Respondent’s Claim for Correction of Ponding

            189.  The new wash facility was to be constructed in a paved drive/maneuvering area at the P&DC.  After the contract was awarded, Appellant discovered that the intended location of the building violated local set-back requirements.  As a result, Respondent moved the location of the proposed building to the south by at least ten feet and provided new plans to Appellant.  (Tr. 39, 698, 703-706; RX  48 (Dwg. C.1, Partial Site Plan), 54, 55; SAF 122, 197).

            190.  The contract required Appellant to remove existing paving to accommodate the construction and to install new concrete paving around the wash facility (RX 48, Dwg. C.1, Partial Site Plan).

            191.  Washed vehicles were to exit the building to the south, in the vicinity of an existing fueling island (RX 48, Dwg. C.1, Partial Site Plan).

            192.  By means of an existing elevation contour line marked “104” the plans depicted the elevation of a large section of the existing concrete that was to abut the new concrete (RX 48, Dwg. C.1, Partial Site Plan).

            193.  The floor of the truck wash facility was to be at 104.25 feet elevation, and the plans showed a new V-shaped “104” contour for the new paving south of the wash that was intended to depict an east-to-west drainage flow across a portion of the new concrete at the exit of the truck wash (Tr. 628-629, 631; RX 48, Dwg. C.1, Partial Site Plan).

            194.  The plans required that the new concrete be at the same elevation as the existing where the two met (Tr. 700; RX 48, Dwg. C.1, Concrete Pavement Detail).  However, the elevation of the existing slab was not 104 feet, as shown on the drawings, but rather 103.52 feet.  Additionally, the existing slab sloped downward slightly from south to north and from west to east, making the edge of the existing slab at 103.52 elevation the low point on the remaining concrete in the immediate area.  (AF 34; RX 48, Dwg. C.1, Partial Site Plan; RX 4 (p. 184)).

            195.  As installed by Appellant in August 1996, the new concrete slab at the wash exit had a slight east-to-west downward slope but also sloped slightly downward to the south and west so that it would meet the existing slab (Tr. 632; AF 34; RX 4 (p. 184)).

            196.  Because the new slab sloped downward going west and south toward its junction with the existing slab and because the existing slab sloped downward going east and north toward the same point, water from the vehicles leaving the wash ponded on the existing slab in the area of the low point of 103.52 feet elevation (Tr. 141-146, 624, 773; AF 36; RX 4 (p. 184); SAF 247).

            197.  Respondent determined that the ponding was an unacceptable safety hazard and directed Appellant to replace the new concrete it had placed, contending the ponding was the result of Appellant’s faulty installation of the paving.  Appellant refused, contending that the ponding resulted from a design defect.  (Tr. 624-625, 1031; AF 37; RX 194, 226; SAF 103, 114, 241, 242; 274).

            198.  In April of 1998, Respondent corrected the ponding problem through a work order issued to an Indefinite Quantity Construction (“IQC”) contractor.  Instead of replacing the paving, Respondent took the path it considered most economical and installed a pre-cast catch basin with a drainage grate at the low spot and installed a drain pipe from the catch basin to a dry well in a grassy area adjacent to the building.  (Tr. 1058-1062; RX 32, 33).

            199.  The total amount of the IQC work order was $17,269.54, but that amount included work to install bollards (see Release of Withheld Funds, above) and to install an electrical manhole as well as correction of the ponding.  The record does not separately establish the cost of the drain.  (RX 32, 33).

DECISION Correction of Ponding

            As the claimant in this part of the appeal, it is Respondent’s burden to establish by a preponderance of the evidence that it is entitled to recover its cost of correcting the ponding problem.  See Sub-Haulers Interstate Serv., PSBCA No. 4327, 00-1 BCA ¶ 30,767.

            Appellant argues that the ponding was the result of a design deficiency, and we agree.  The drawing of the existing conditions erroneously reflected that the elevation of the existing paving was 104 feet, an elevation that would have met the new concrete at the design elevation and created the drainage Respondent contemplated (Finding 193).  However, the existing paving was about six inches lower than the design level of the new paving, and ponding at the low point was inevitable (Findings 194-196).

            There has been no showing that the conflict was an obvious error that Appellant should have noticed and brought to the attention of Respondent before submitting its offer.  At the time Appellant was reviewing the drawings and the site to prepare its offer, it was contemplated that the building (and the abutting new paving) would be farther north than it ended up (Finding 189).  Appellant would have had no reason to examine the elevations at the location where the ponding problem eventually occurred, because it was not contemplated as an intersection of new and old paving when offers were submitted.

            If Appellant knew before installing the paving that following Respondent’s plans and specifications would produce the unacceptable ponding, it would have been incumbent upon Appellant to bring that fact to the attention of Respondent before proceeding.  See Allied Contractors, Inc. v. United States, 180 Ct. Cl. 1057, 381 F.2d 995, 1000 (1967); Kinetic Builders, Inc., ASBCA No. 51012, 98-2 BCA ¶ 29,899 at 148,004, aff’d, in part, modified, in part, 99-2 BCA ¶ 30,450, aff’d Kinetic Builders, Inc. v. Peters, 226 F.3d 1307 (Fed. Cir. 2000); Corbetta Constr. Co. of Illinois, PSBCA Nos. 817 & 818, 82-2 BCA ¶ 15,805 at 78,278.  However, Respondent has not shown that the defect in the plans was so glaring that Appellant knew or should have known before installing the paving that following those plans would not produce an acceptable result.  Additionally, it has not been shown that Appellant’s method of installing the new paving, which the plans (Finding 194) and common sense required to meet the existing pavement at the existing elevation, was unreasonable.

            Respondent is not entitled to recover its cost of installing the drain system to alleviate the ponding on the pavement south of the truck wash facility.

            This part of the appeal is sustained.

Respondent’s Claim for Installation of Electrical Manhole

            200.  The contract required Appellant to install a 2’ x 2’ x 2’ covered electrical service manhole in the paving immediately south of the truck wash facility.  Although the new 3” conduit bringing electrical service to the building was to pass through the manhole, spare conduits also terminated there, and the main purpose of the manhole was to permit addition of electrical circuits in the future as needed.  (Tr. 635-638, 772-775, 797-798, 852-857, 902-904, 920-924, 957; RX 47, Dwg. E.2, Floor Plan).

            201.  Despite being repeatedly directed to do so by the COR, Appellant never installed the manhole (Tr. 526-529, 1051-1056; AF 49; RX 220, 223; SAF 242, 251), because Mr. Gavosto had been told by Mr. Bratta, a maintenance manager at the P&DC, that Mr. Bratta did not want manholes in the yard where the trucks would run over them (Tr. 148-156, 539-542; SAF 108).  In November 1996, Appellant offered Respondent a credit of $932 in lieu of installing the electric manhole (AX 326 (p. 149)).

            202.  Mr. Bratta was not a contracting officer under this contract and was not authorized by Respondent to act for the contracting officer, to change the requirements of the contract or to commit Respondent to pay for additional work under the contract (Tr. 31-34, 1081-1083; AF 1, Contract Clause G.6, USE OF PREMISES (Clause 11-8) (October 1987), section b; RX 41, 233).  Appellant’s principals, including Mr. Gavosto, were aware of these limitations, and at the pre-construction meeting they had been directed to ignore requests from postal employees at the facility (Tr. 33-35; RX 41, Section IV).

            203.  The contracting officer never authorized Appellant to omit the electrical manhole (Tr. 980-981, 1051-1056).

            204.  The electrical manhole was eventually installed by Respondent’s contractor in April of 1998.  Paving had been completed and the truck wash was in use by the time Respondent contracted for the installation.  To minimize expense and disruption, the manhole was installed in a grassy area adjacent to the building instead of its originally-specified location in the driveway.  (Tr. 952-953, 1130-1135, 1155, 1184-1185; AF 31; RX 32, 214).

            205.  The contracting officer asserted Respondent’s claim for the cost of installing the electric manhole.  The total amount of the claim was $17,269.54, but that amount included the cost of work to install bollards (Release of Withheld Funds, above) and to correct the ponding (Correction of Ponding, above).  The record does not separately establish the cost of the manhole.  (RX 32, 33).

DECISION Installation of Electrical Manhole

            Installation of the electrical manhole was required by the contract (Finding 200), and the requirement was never varied by anyone with contracting officer authority (Findings 201-203).  In fact, those who Appellant knew to be authorized to speak for the contracting officer repeatedly directed Appellant to install the manhole (Finding 201).  Appellant’s refusal to follow the authorized instructions based on the preferences of Mr. Bratta was unwarranted.  Mr. Bratta had no authority to change the contract, and Appellant knew it (Finding 202).  Therefore, any reliance on Mr. Bratta’s views regarding the manhole was improper and does not relieve Appellant from its obligation to comply with the contract or pay Respondent the cost of performing the work it refused to do.  See Standard Coating Service, Inc., ASBCA Nos. 48611, 49201, 00-1 BCA ¶ 30,725 at 151,777-778.  Accordingly, Respondent is entitled to a credit for Appellant’s failure to install the electrical manhole.  See ADCO Constr., Inc., PSBCA Nos. 2355, 2465, 2480, 90-3 BCA ¶ 22,944.

            However, Respondent has failed to establish the amount it is entitled to recover for the omission of the electric manhole.  The evidence of the corrective work does not separate any costs for the installation of the manhole from the costs for the bollards and the ponding drain, and it is not possible from Respondent’s evidence to assign an exact value to the manhole.  The only evidence of the value of the credit due Respondent is in Appellant’s offer of a $932 credit in lieu of installing the manhole (Finding 201).  That being the only specific evidence of the manhole costs, Respondent is entitled to recover a credit of $932 on its claim for the electric manhole.  See David Sahagian, PSBCA Nos. 3385, 3416, 94-2 BCA ¶ 26,688; Golden West Builders, PSBCA No. 3378, 93-3 BCA ¶ 26,195.

            The appeal of this claim is sustained, except it is denied as to the credit of $932 which is allowed Respondent.

Causes of Action 15, 17, 21, 25, Delay Claims

            206.  The contract’s Suspensions and Delays clause authorized payment of an adjustment to Appellant in the event Respondent delayed its performance:

“a.  If the performance of all or any part of the work of this contract is suspended, delayed, or interrupted by—

            1.  An order or act of the contracting officer in administering this contract; or

            2.  By a failure of the contracting officer to act within the time specified in this contract—or within a reasonable time if not specified—an adjustment will be made for any increase in the cost of performance of this contract caused by the delay or interruption (including the costs incurred during any suspension or interruption).  An adjustment will also be made in the delivery or performance dates and any other contractual term or condition affected by the suspension, delay, or interruption.  However, no adjustment may be made under this clause for any delay or interruption to the extent that performance would have been delayed or interrupted by any other cause, including the fault or negligence of the contractor, or for which an adjustment is provided or excluded under any other term or condition of this contract.”  (AF 1, Contract Paragraph C.2, SUSPENSIONS AND DELAYS (Clause B-16) (October 1987)).

            207.  In unilateral modifications 03 and 04, both issued May 20, 1997, the contracting officer granted Appellant an equitable adjustment for certain changed work identified in Appellant’s change order requests and granted time extensions associated with the changed work totaling fourteen days—four days in modification 03 and ten days in modification 04 (RX 2, 3).

Weather

            208.  The contract provided for an uncompensated extension of time to complete the project for delays caused by unusually severe weather (AF 1, Clause C.3, EXCUSABLE DELAYS (Clause B-19) (October 1987)).

            209.  During the winter of 1995-1996, Appellant’s performance of the project was hampered by cold weather conditions and snow (Tr. 442-446; AX 304-311, 355; SAF 118, 178; RX 72).

            210.  On March 17, 1996, Appellant submitted a weather delay claim for 77 days, identifying every day from December 15, 1995, through March 3, 1996, as a weather-delay day (AF 22; SAF 178, 179).

            211.  Respondent prepared modification 01 adding certain work to the project and increasing the contract price by $16,028.36 and sent it to Appellant on May 7, 1996.  As drafted, the modification included a 60-day extension of time, bringing the contract completion date to May 31, 1996.  Although the modification contained no specific mention of weather delay, the parties understood and intended that the 60-day time extension was for weather delays, in response to Appellant’s 77-day extension request.  (Tr. 979-980; AF 4, 22, 49; RX 220, 227, 231; SAF 65, 80, 81, 90,135, 163, 251).

Approval of N/S Wash System

            212.  From November 1995 through early 1996, Appellant submitted information, layouts and specifications of the N/S wash system it proposed to substitute for the Ross & White system specified.  Respondent’s project architect, Mr. Hearl, reviewed the information submitted, returning the submittals with his comments, requirements and requests for further information promptly after he received the submittals from Appellant.  (AX 343; RX 5-12, 56, 57, 69, 79-82, 86, 91, 98, 102, 109; SAF 55, 59, 64, 187, 199, 202, 223; Stip. 4, 5, 6).

            213.  On February 29, 1996, Respondent approved Appellant’s substitution of the N/S vehicle wash system equipment for the Ross & White system, but even after that approval, the contract required Appellant to submit detailed information (shop drawings, catalog cuts, etc.) regarding the system and its various elements to allow Respondent to confirm that it met the requirements of the contract.  (Tr. 1090-1091; AF 1, Specification 11142-2.01; RX 116; SAF 182).

            214.  The parties recognized that a time extension might be necessary due to the time involved in approving and finalizing the N/S system and the sequence of operations as well as the finalization of the optional equipment to be added to the order.  On May 21, 1996, the COR asked Appellant to prepare a new schedule taking these factors into account.  (RX 157; SAF 90).

            215.  On or before June 5, 1996, Appellant submitted a revised construction schedule which showed final completion of the project on August 31, 1996 (RX 174; SAF 87, 90).  This schedule incorporated the extension of time the parties considered for delays incurred in the approval of the system and optional equipment (Tr. 991-998; SAF 135).

            216.  By letter dated June 26, 1996, the contracting officer’s representative accepted Appellant’s schedule and its August 31, 1996 completion date (AF 22; SAF 152).

            217.  Appellant still had not executed proposed modification 01, which, as drafted by Respondent, showed the completion date to be May 31, 1996, after including the allowed weather extension (Finding 211).  Before signing the modification on or about July 1, 1996, Appellant’s president, in handwriting, incorporated the contracting officer’s representative’s June 26, 1996 letter (Finding 216; SAF 152, 163) accepting the August 31, 1996 final completion date proposed by Appellant (RX 227).  The contracting officer executed modification 01 as marked up by Appellant, accepting incorporation of the June 26, 1996 letter, thereby formally extending the contract completion date to August 31, 1996.  (Tr. 998-999; RX 227).

            218.  Modification 01, as executed by the parties, contained Respondent’s standard release language:

“The Contractor hereby agrees that the compensation provided by this modification constitutes full and complete satisfaction for all direct costs, indirect costs, applicable interest, impact and delay costs and additional contract completion time which has been or will be incurred in performing all work described by this modification.”  (RX 227).

            219.  When Appellant executed modification 01 on July 1, 1996 (Finding 217), the submittals for the Programmable Logic Controller (see Findings 126, 127), which was critical to the completion of the wash system, had not yet been approved.  Appellant submitted the shop drawings for the PLC on July 2, 1996, and Mr. Hearl accepted the PLC submittal on July 18, 1996.  (Tr. 656-658, 799-802; RX 7, 21).

            220.  The vehicle wash equipment was delivered and installation was proceeding as of August 5, 1996 (SAF 101), but the project was not substantially complete by August 31, 1996 (RX 194; SAF 105).

            221.  The contract required Appellant, after the wash system was installed, to provide the services of the wash equipment manufacturer’s field technician for the purpose of system checkout, initial startup and certification, and to provide instruction on operation and maintenance of the wash equipment to Respondent’s employees (RX 1, Contract Specifications 11142-1.05 and 1.06).

            222.  Final wash system checkout, adjusting and instruction on its operation were provided by an N/S field technician supervisor on December 3 and 4, 1996, and the system was fully operational and useable at that time (SAF 126, 137, 138, 141, 150, 256, 257).

Permanent Water

            223.  In November 1995, Appellant applied to the local water district for a permanent water connection and was advised that a $10,000 capitalization fee would be required before the district would grant Appellant permission to connect to the 12-inch main (SAF 56, 57).  Payment of such a fee was Respondent’s responsibility, but Respondent initially refused to make the payment, insisting that the district had no authority to impose such a fee on the Postal Service (SAF 57, 87, 106).

            224.  Respondent eventually paid the fee in December 1996 (Tr. 122-123, 450-452; SAF 104, 105, 112,  129, 130, 132, 142, 255, 260), but the lack of a permanent water connection prevented Appellant from finishing the project until December 30, 1996, when the connection was finally permitted (Tr. 1201-1209, 1218; SAF 123, 128, 154, 221, 250, 253, 255).

            225.  However, supply of temporary water via a hydrant, allowed by two temporary water permits obtained by Appellant (AX 302; SAF 105, 107, 108, 112, 268), permitted Appellant to do all things required under the contract dependent on the water supply, including completing and testing the vehicle wash system (Tr. 451-452, 676-678, 755-759, 762-763, 815, 1201-1209, 1218; RX 199; SAF 156, 166).

            226.  Respondent’s failure to provide permanent water to the site delayed Appellant’s final completion of the project to December 30, 1996, because it was not until that date that Appellant could complete this last task required by the contract (Tr. 470-472).

            227.  The wash facility was accepted by Respondent on an “as is” basis on January 31, 1997 (SAF 246; Stip. 11).

            228.  Appellant’s extended home office overhead claim, which includes causes of action 15, 17 and 21, was first submitted on November 14, 1996, in the amount of $38,747.10 for a total delay of 70 days occurring between November 13, 1995, and September 17, 1996 (AF 22).  The claim was increased and a combined claim of $171,355.44 was submitted on or about January 22, 1997 (AF 32) and certified on February 7, 1997 (AF 23) for a delay totaling 214 days occurring between October 31, 1995, and December 31, 1996 (AF 32).^[12]

DECISION Causes of Action 15, 17, 21, 25

            Appellant has claimed unabsorbed home office overhead under the Suspensions and Delays clause of the contract for delays it claims to have incurred until the project was completed on December 30, 1996.  It contends that all delays were the fault of Respondent and were therefore compensable.  It uses the Eichleay formula for calculating its damages.

            Respondent has conceded that it delayed Appellant’s conclusion of the project until December 30, 1996, when Appellant was finally able to connect to the permanent water supply.  However, it claims that the entire period of delay was concurrent with delays that either were noncompensable or were Appellant’s fault.  Different considerations apply to different periods within the total delay period claimed by Appellant, so the discussion below will address each segment of the delay period.

Weather

            In modification 01, the parties agreed to a 60-day, non-compensable extension of time, from March 31, 1996, to May 31, 1996, due to the weather (Findings 211, 217), and Appellant is bound by that agreement.  See The Swain Co., PSBCA No. 2726, 91-1 BCA ¶ 23,446.  An extension of time due to unusually severe weather is not an extension entitling Appellant to an equitable adjustment under the contract—only a time extension.  See ADCO Constr., Inc., PSBCA Nos. 2355, 2465, 2480, 90-3 BCA ¶ 22,944.  The contract’s Suspensions and Delays clause (Finding 206), specifically precludes an equitable adjustment for a delay occurring during a period when performance would have been delayed or interrupted by any other cause recognized under the contract, including weather.  See Ventas de Equipo, S.A., ENG BCA Nos. PCC-135, PCC-148, PCC-150,       PCC-151, 00-1 BCA ¶ 30,913 at 152,548; White Buffalo Constr., Inc., AGBCA Nos. 90-133-1, 90-178-1, 93-3 BCA ¶ 26,236 at 130,537.  Therefore, for the period March 31, 1996, through May 31, 1996, Appellant is not entitled to recover an equitable adjustment or extended overhead for delay of performance.

Approval of N/S Wash System

            Although every detail of their agreement is not spelled out in modification 01, the negotiations of the parties leading up to execution of the modification, the incorporation of the contracting officer’s representative’s June 26, 1996 letter and the modification itself establish that the modification addressed Appellant’s entitlement to a time extension related to the approvals of the wash equipment and selection of optional equipment by Respondent (Findings 214-217).  Appellant expressed its agreement to the modification—with inclusion of the June 26, 1996 letter establishing the August 31, 1996 completion date—on July 1, 1996, after the wash equipment had been approved (Finding 22) and the optional equipment had been selected (Findings 22, 23).  Appellant was aware that the PLC had not been approved as of July 1, 1996 (Finding 219), yet agreed to the new schedule.  Appellant has argued that the time taken by Mr. Hearl to review the PLC submittal was unreasonable, but the evidence in the record does not show that the 16-day review period was unreasonable.  In any event, modification 02, which adds the optional wash equipment to the contract, was not executed by Appellant until October 29, 1996 (Finding 24), well after any delays due to the approval of the wash system, including the PLC, would have been known.  Although modification 02 allowed additional compensation, it did not provide for any extension of time.

            Modifications 01 and 02 included Respondent’s standard release language, in which Appellant agreed that the compensation provided under the modifications constituted full and complete satisfaction for all direct and indirect costs, as well as impact and delay costs and additional contract completion time (Findings 24, 218).  Thus, an accord and satisfaction exists which precludes entitlement to compensation for the period between March 31 and August 31, 1996.  See Thomas & Sons, Inc., ASBCA No. 51874, 01-1 BCA ¶ 31,166 at 153,947; The Swain Co., PSBCA No. 2726, 91-1 BCA ¶ 23,446 citing Brock & Blevins Co. v. United States, 170 Ct. Cl. 52, 343 F.2d 951 (1965); The Stephens Associates, PSBCA No. 970, 83-1 BCA ¶ 16,233.

Permanent Water Service and Other Delays

            Appellant has alleged other causes of delay it attributes to Respondent, including delays related to utility services, interference by Respondent’s officials, and delays stemming from defective drawings which delayed the overall completion of the project.  Many of those have been discussed above, but Appellant continues to assert a cumulative effect from all of the delays that affected its ability to complete the work.  However, to show entitlement to Eichleay damages, Appellant must demonstrate (1) that due to delays of indefinite duration caused by Respondent, Appellant was required to standby, and (2) that while and because of standing by, Appellant was unable to take on other work.  See Sauer Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed. Cir. 2000); Melka Marine, Inc. v. United States, 187 F.3d 1370, 1376 (Fed. Cir. 1999), cert. denied, 529 U.S. 1053 (2000).  Appellant has the burden to prove that the delaying events were critical to contract completion.  See Skip Kirchdorfer, Inc., ASBCA No. 40516, 00-1 BCA ¶ 30,625 at 151,181.

            The evidence Appellant presented was insufficient to establish that any activities on the critical path to overall contract completion were delayed solely by actions of the Postal Service.^[13]   No critical path analysis was offered to support Appellant’s delay claims, and the few schedules prepared during contract performance were no help in identifying alleged delays and impacts.  Without contemporaneous records or other persuasive evidence, the Board cannot determine the incidence of any delaying actions and the impact, if any, on project completion.

            Furthermore, Appellant has not proven its allegations that Respondent’s review of the information submitted to demonstrate N/S was a qualified alternate supplier and the subsequent submittals regarding the wash equipment delayed its performance during that period or beyond.  First, some delay to the approval process derived from Appellant’s timing of the request to substitute N/S for the specified supplier, Ross & White.  The solicitation contemplated that requests for substitution of an equal product for that specified would be submitted with the proposal (Finding 17).  Appellant had discussed the project with N/S before offers were due (Finding 18), yet did not follow the instructions of the solicitation and submit N/S as an alternate supplier with its proposal.  Instead, it was not until the pre-construction conference on October 31, 1995, at the earliest, that Respondent was advised that Appellant expected to offer a supplier of the equipment other than Ross & White (Finding 19).  Appellant assumed the risk that there would be a reasonable time involved in reviewing the alternate supplier of the major, critical element of the project.

            Additionally, the only contemporaneous record of the submittals, Mr. Hearl’s submittal logs, shows that Mr. Hearl reviewed promptly the information and submittals Appellant presented (Finding 20).  Appellant suggests that Mr. Hearl’s comments and requests for more information and clarification of the submittals and required changes to the plans were unnecessary and were only required because Mr. Hearl did not understand the vehicle wash system, but that has not been shown to be true.  Appellant has not persuaded the Board that Mr. Hearl’s conduct during the review process was flawed or that he refused to approve submittals that warranted approval.  See Joseph Penner, GSBCA No. 4647, 80-2 BCA ¶ 14,604 at 72,015-72,016.

            Respondent has conceded that it delayed project completion until December 30, 1996, by failing to provide access to a permanent water hookup (Finding 226), but it contends that delays of Appellant’s making were concurrent with the entire period of this water connection delay.  We disagree.  The wash system was finally tested and fully useable by Respondent on December 4, 1996 (Finding 222), but Respondent contends that the project was not substantially complete because Appellant never installed the electric manhole or corrected the ponding.  However, as discussed above, Appellant was not responsible for the ponding on the pavement to the south of the wash, and, while it is true that the manhole was not installed, the purpose of the manhole was for use in installing future electrical service to the vehicle wash building.  The manhole’s absence did not interfere with the intended use of the wash facility at the end of 1996.  Respondent has not shown the existence of other conditions of Appellant’s making that interfered with Respondent’s intended use of the facility,^[14] and as the facility was then capable of being used for its intended purpose, it was substantially complete, except for the permanent water connection.  See Thoen v. United States, 765 F.2d 1110 (Fed. Cir. 1985); Kinetic Builders, Inc., ASBCA Nos. 51012, 51611, 99-2 BCA ¶ 30,450, aff’d Kinetic Builders, Inc. v. Peters, 226 F.3d 1307 (Fed. Cir. 2000);

            However, even though Respondent was solely responsible for delays from December 4 to December 30, 1996, Appellant has not shown its entitlement to recover unabsorbed home office overhead for that period.  The delay in providing the permanent water connection did not cause Appellant to be on standby or make it impractical for Appellant to take on other work.  See Melka Marine, Inc. v. United States, 187 F.3d 1370 (Fed. Cir. 1999), cert. denied, 529 U.S. 1053 (2000).  After the final testing of the system on December 4, 1996, there is no evidence Appellant maintained a presence on the site or was performing any further work on the project.  The parties were arguing about whether Appellant would install the electric manhole and correct the ponding, but Appellant refused to perform that work.  Accordingly, there is no evidence that Appellant was on standby or that, if it was on standby, it could not, due to the delay in the availability of the permanent water, have obtained other work during this period of delay.  Accordingly, Appellant’s claim for extended home office overhead under causes of action 15, 17, and 21 is denied.

            Following completion of the project, Respondent unilaterally granted a total of 14 days of time extension for changes to the work required by Respondent (Finding 207).  By directing additional work and granting associated time extensions, Respondent recognized that it delayed the overall project to that extent.  This circumstance creates a rebuttable presumption that Respondent is responsible for those delays and that Appellant is entitled to compensation.  See Gottfried Corp., ASBCA No. 51041, 98-2 BCA ¶ 30,063 at 148,760; J.R. Roberts Corp., DOT BCA No. 2499, 98-1 BCA ¶ 29,680 at 147,011 and cases cited.  Respondent has not offered evidence to rebut the presumption or shown that those conceded delays were concurrent with Appellant-caused or excusable delays or that Appellant waived its entitlement to its damages for that period of time.  See Gottfried Corp., ASBCA No. 51041, 98-2 BCA ¶ 30,063 at 148,760.

            Appellant is entitled to its delay damages for those 14 days.  The Board is considering only entitlement on claims for extended overhead, and, accordingly, calculation of the amount of damages for the 14 days is remanded to the parties.  Appellant is entitled to interest on the amount of delay damages so calculated from November 14, 1996, until paid.

CONCLUSION

            The appeals are granted in part and denied in part, as follows.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
David I. Brochstein
Administrative Judge
Vice Chairman

[1] Appellant identified each of its claims as a separate cause of action (“C/A”) in its Complaint, and the parties and the Board have used that reference for the claims throughout these proceedings.

[2] The parties have resolved the claims underlying causes of action 1-6, 8, 9 and 29, and the only disagreement is over calculation of the interest to which Appellant is entitled on each of those claims.  Accordingly, there is no need to discuss the substance of the underlying claims in any detail.

[3] Respondent has raised a number of defenses to imposition of interest that have been considered in regard to cause of action 3, above.  Those defenses will not be addressed here or in every claim where interest is at issue.

[4] Cause of action 15 also asserts a claim for delay damages.  The delay aspect of the cause of action is considered below in the Delays section.

[5] The significance of October 22, 1996 as the cutoff date for its interest claim is not explained in the record.

[6] The dispute between Respondent and the water district and its impact on the project are discussed in more detail in the Delays section, below, at Findings 224-228.

[7] To determine the hourly cost of the Bobcat, the contracting officer’s representative referred to a publication of the United States Corps of Engineers that reflects standard costs to a contractor for the use of various types of owned equipment.  The rate shown for Bobcats like Appellant’s was $7.31 per hour.  (Tr. 1025; RX 1 (p. 55)).

[8]  The circumstances of this problem are spelled out in more detail below in the section addressing Respondent’s claim for the cost of remedying the ponding.

[9] Insofar as the claim is asserted as a tort independent of any contractual duty, Respondent is correct that the claim would be beyond the Board’s jurisdiction.  See Rodney Trevett, PSBCA Nos. 4255, 4452, 01-1 BCA ¶ 31, 236; HK Contractors, Inc., DOT BCA No. 2766, 96-1 BCA ¶ 28,175; Sonny’s Enterprises, GSBCA No. 10290, 90-2 BCA ¶ 22,740.

[10]  Respondent has not argued that there was a value to the removed 15-amp switches that should entitle it to a credit against the cost of removing them and installing the 20-amp switches.

[11]  The basis for Appellant’s calculation of fifteen days is unexplained.

[12]  Cause of action 15 was Appellant’s first calculation of its damages arising from Respondent’s alleged delay of 70 days related to the optional wash equipment and approvals (Tr. 422-423; AX 326 (p. 137)).  Appellant’s accountant subsequently recalculated the damages for the same 70 days of delay to be higher by $16,299.37, and that difference was claimed in cause of action 17 (Tr. 427, 432; AX 326 (p. 147)).  Cause of action 21 involved a recalculation of the number of days of delay claimed, increasing that figure to 214 days, which includes the 70 days at issue in causes of action 15 and 17 (Tr. 431; AX 326 (p. 170)).  Thus, the $171,355.44 of cause of action 21 represents the total delay damages at issue in these appeals.  Cause of action 25 is the claim for weather-related delays (see Finding 210).

[13]  Because Respondent provided temporary water adequate for completion of the wash facility (Finding 224), Appellant has not shown that the delay in a permanent water connection delayed its completion of the vehicle wash system itself.

[14]  That the conditions Respondent complained of were not corrected until April of 1998 (Findings 198, 199, 204, 205) also supports the conclusion that they did not interfere with Respondent’s use of the facility for its intended purpose.

[15] In all claims allowing interest, Respondent is entitled to a credit for any interest amounts previously paid on the claims.