JODY BUILDERS CORPORATION

Under Contract No. 232098-02-B-0108

PSBCA Nos. 5047 and 5178

APPEARANCE FOR APPELLANT
Peter L. Agovino, Esq.

APPEARANCES FOR RESPONDENT
Ruth L. Gottlieb, Esq.
Alfred J. Zwettler, Esq.

OPINION OF THE BOARD

            Respondent, United States Postal Service, awarded Appellant, Jody Builders Corporation, a contract to construct a post office in Bushkill, Pennsylvania.  The project was not finished by the completion date set forth in the contract, and two months later Respondent terminated the contract for default.  Appellant appealed the termination, claiming that it was entitled to a time extension due to Respondent-caused delays, adverse weather, and differing site conditions, and that it could have completed the project by the appropriately extended completion date (PSBCA No. 5047).  Appellant submitted its own claim for its costs of performing contract work and extra work and for termination damages.  The contracting officer denied Appellant’s claim, and Appellant appealed (PSBCA No. 5178).

            A hearing was held in New York City, and the parties filed post-hearing and reply briefs.  Only entitlement is at issue.  (Hearing Transcript, page (“Tr.”) 6).

FINDINGS OF FACT

            1.  On September 9, 2002, Respondent awarded Appellant a $965,735 contract to construct a postal facility on a wooded 3.39 acre site in Bushkill, Pennsylvania.  The work included furnishing all labor, materials, equipment, permits, fees, and services required for the construction.  (Appeal File, Tab (“AF”) 1, 132; Stipulation (“Stip.”) 1).

            2.  Appellant was required to complete the entire project within 240 days after its receipt of Notice to Proceed (AF 132, Contract Clause C.4, Notice to Proceed and Commencement, Prosecution and Completion of Work (Clause B‑34) (January 1997)).

            3.  The contract required that Appellant complete all work in a skillful and workmanlike manner (AF 132, Contract Clause G.20, Materials and Workmanship (Clause B-63) (January 1997), subsection d).  The contract’s Inspection and Acceptance clause required Appellant to replace any material or correct any workmanship found by Respondent not to conform to the contract requirements.  It authorized Respondent to replace rejected material or correct rejected workmanship at Appellant’s expense if Appellant did not promptly do so.  (AF 132, Contract Clause E.1, Inspection and Acceptance (Clause B-33) (January 1997), subsections b, c).

            4.  The contract authorized Respondent to terminate the contract by written notice of default if Appellant failed to “[c]omplete the requirements of this contract within the time specified in the contract or any extension.”  Respondent could also terminate the contract for Appellant’s failure to perform any of the other provisions of the contract, provided Respondent had first given Appellant notice of the failure of performance and at least 10 days to cure the failure.  (AF 132, Contract Clause H.6, Termination for Default (Clause B-13) (January 1997)).

            5.  The Termination for Default clause also provided,

“If, after termination, it is determined that the supplier [Appellant] was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for convenience.”

(AF 132, Contract Clause H.6, Termination for Default (Clause B-13) (January 1997)).

            6.  The contract’s Excusable Delays clause provided that Appellant would not be in default because of its failure to perform in accordance with the contract’s terms “if the failure arises out of causes beyond the control and without the fault or negligence of [Appellant].”  Listed excusable causes included acts of the Postal Service in its contractual capacity and unusually severe weather.  (AF 132, Contract Clause C.3, Excusable Delays (Clause B-19) (January 1997)).

            7.  Under the contract’s Permits and Responsibilities clause, Appellant was

“responsible, without additional expense to the Postal Service, for obtaining any necessary licenses and permits, and for complying with any applicable federal, state and municipal laws, codes and regulations in connection with the prosecution of the work.”

(AF 132, Contract Clause G.13, Permits and Responsibilities (Construction) (Clause B-47) (January 1997)).

Job Progress

            8.  At a September 17, 2002 pre-construction meeting, Respondent issued Notice to Proceed effective September 18, making May 16, 2003, the contract completion date.  Also at this meeting, Appellant was reminded that it was “required to properly install all soil erosion and sedimentation control measures prior to the start of earth excavation.”  (AF 3, 7; Stip. 1, 2; Tr. 35, 196, 263).

            9.  On October 18, Appellant submitted a schedule showing the planned activities for the project.  This initial construction schedule showed job mobilization to take from mid-September until about October 30; on-site construction (site clearing) to begin the week of October 21; work to continue through the winter months; substantial completion in mid-April; and project completion on May 16, 2003.  (SAF N[1]).

            10.  Respondent’s architect reviewed Appellant’s construction schedule and found insufficient detail and problems in logic, sequencing, and buildability.  He directed Appellant to revise and resubmit it.  The architect concluded, however, that starting on-site construction on October 21 would have allowed sufficient time for completion of the project by May 16, 2003.  (AF 16, 17, 20; SAF W; Tr. 149).

            11.  Applicable law required design and installation of temporary erosion and sedimentation controls at construction sites to prevent soil and sediment from being washed or carried from the site during construction activities and entering area storm drains or watercourses.  The controls included installation of silt or filter fence to trap silt and sediment from water runoff, and construction of temporary rock driveways to prevent trucks from tracking dirt from the site onto the highway.  (AF 133 (Drawing C2.3); Tr. 64-65, 88, 625).

            12.  A plan approved by local authorities was required before construction could begin.  Respondent had taken responsibility for, and tasked its contract architect with, preparation, submission and obtaining approval of an Erosion and Sedimentation Plan (“E&S Plan”).  The architect, on Respondent’s behalf, had prepared and submitted a proposed E&S Plan to the approving authority, the Pike County Conservation District (“PCCD”), at or about the time the solicitation was issued.  (Tr. 71-74, 124-125, 127, 129, 130, 144-145, 199-201; SAF E, P, R; Respondent’s Exhibit (“Resp. Exh.”) 32; Appellant’s Exhibit (“App. Exh.”) 133).

            13.  The solicitation and resulting contract between Appellant and Respondent included Drawings C1.3, Erosion and Sedimentation Control Plan dated July 15, 2002, and C2.3, Site Details, of the same date, reflecting the soil and erosion control requirements.  However, the E&S Plan and Site Details in the solicitation had not received PCCD approval by the time the solicitation was issued or when the contract was awarded to Appellant.  (Tr. 71-74, 125, 130, 201; App. Exh. 133; AF 133).  The solicitation package did not reflect that the E&S Plan and accompanying Site Details had not been approved, even though Respondent was aware that the Plan was still being considered by PCCD.  When issuing the solicitation, the contracting officer knew it would be a significant period before the Plan would be approved.  (Tr. 132, 145, 219; App. Exh. 133; AF 133).

            14.  Until the PCCD approved the Erosion and Sedimentation Plan, Appellant could not perform activities that would disturb the soil.  For example, it could not clear and grub the site as required by the contract.  Appellant could not uproot underbrush, bring heavy equipment on the site, excavate or fill, fell and remove trees with heavy equipment, or pull tree stumps before the E&S Plan was approved.  (Tr. 43-44, 84, 221, 224, 228, 397; AF 27, 36; App. Exh. 133, Drawing C2.3).

            15.  In the experience of Respondent’s project manager and contract architect, contractors could often arrange with conservation districts to perform some work on a site before finalization of an E&S Plan (Tr. 83, 152-152, 301, 303, 315).  They did not contact the PCCD to see if such arrangements could be made for the Bushkill project (Tr. 83, 153-154, 398-399), and there is no evidence they advised Appellant of this possibility.

            16.  Appellant’s on-site superintendent began cutting trees with a chain saw on Thursday, October 24, 2002.  This was the first construction activity at the site.  He cut trees on October 24 and 25, but on Monday, October 28, an official of the PCCD told him to stop.  (SAF J (p. 3), L (pp. 298-339); Stip. 6; Tr. 150, 152, 183, 286; see SAF L (p. 149)).

            17.  At an October 29, 2002 construction conference held between Appellant’s and Respondent’s representatives, Appellant advised that it had been stopped from cutting trees by a local official (AF 20; Tr. 151, 284-285).  Respondent’s architect reminded Appellant that all erosion and sedimentation control measures were to be installed prior to the start of any earthwork and advised Appellant that his office would provide Appellant with the final E&S Plan when PCCD approved it (AF 20).

            18.  After the meeting, Appellant’s project manager spoke to a representative of the PCCD, and on November 1, Appellant received PCCD permission to cut trees (SAF L (p. 294)).  Appellant’s Project Manager advised the architect in a November 8 fax,

“After our meeting I consulted with . . .  the Pike County Conservation District, and received the following clarification with respect to the permit for site clearing.  As long as soil is not disturbed, we are permitted to fell trees and clear underbrush.  Jody Builders is not required to file any permits.  Approval of the architect’s Erosion and Sedimentation plan will provide the requisite permission to proceed with the site work.  With this understanding, we resumed the cutting of trees in anticipation of the E&S plan approval.”

(AF 25, 43; SAF F).  In a November 15 follow-up fax, he advised the architect that, in fact, underbrush was not being removed, as doing so would disturb the soil (AF 27).

            19.  The tree cutting work stoppage prevented all work at the site for five days, from October 28 through November 1.  On November 2, Appellant resumed cutting trees and continued through November 20, 2002.  (SAF L (pp. 274-294)).

            20.  After requiring some revisions by Respondent’s architect, the PCCD approved the E&S Plan on November 15, and sent copies of the approval notice to the architect, Respondent, and Appellant.  PCCD approval of the E&S Plan did not result in issuance of a formal permit, but it authorized performance of earthwork on the site.  (AF 25, 26, 30; SAF E, BB; Stip. 11; Tr. 76-80, 83, 154).

            21.  On November 15, Appellant submitted a revised schedule to the architect, which reflected the May 16, 2003 project completion.  The “Cut Trees” entry on the schedule—which item encompassed cutting and removing the trees from the site with heavy equipment, clearing the underbrush, removing stumps, and scraping and stockpiling topsoil (Tr. 159, 465-468, 584; see AF 67)—was shown to occur from November 4 through 18.  Footing installation was on the critical path of the project, and the schedule showed concrete forms and footings to be installed from about December 12 through 28, 2002.  (AF 30; SAF F, O, HH; Stip. 10; Tr. 355, 577).  The revised schedule, although tight, could have been accomplished provided adequate measures were implemented to perform concrete and masonry work in expected cold winter weather.  (Stip. 3; Tr. 36-37, 588).

            22.  Respondent’s architect issued revised plans and details dated November 16, specifying the approved Erosion and Sedimentation controls and sent copies to Appellant on November 20, 2002.  The revised plans specifically required Appellant to meet with PCCD representatives before commencing work that disturbed the soil.  Appellant contacted PCCD and scheduled a meeting for November 25, 2002.  (AF 30, 31; SAF S, CC, DD, EE; Tr. 11, 80, 151, 475-476).

            23.  No work was done on the site between November 21 and November 25, 2002, a Monday, when Appellant’s superintendent and project manager met with a PCCD representative at the site (SAF L (pp. 268-273); Tr. 475).

            24.  On November 27, Appellant’s  site clearing and earthwork subcontractor, Schulman Construction, began chipping limbs and removing stumps and rocks.  While Appellant had been permitted to cut trees before, without use of heavy equipment simultaneously to load and remove the trees in an orderly fashion, Appellant’s work was inefficient and slow (Tr. 616).  Because Appellant could not bring heavy equipment on the site, the tree cutting part of the clearing and grubbing that should have taken 4 days took Appellant about 25: October 24 and 25, and November 2 through 25, resulting in loss of productivity amounting to 21 days of delay.  (SAF I (p. 60); L (p. 267); Stip. 18; Tr. 305, 375, 584, 603, 607).

            25.  Schulman worked steadily, cutting and removing trees, chipping branches and excavating rocks and stumps, and installing the erosion and sedimentation controls through December 20, except for December 10, 14, 16, and 17 when icy conditions and/or rain prevented work.  On December 11, Schulman began grading and leveling.  (SAF L (pp. 222 – 267)).

            26.  By December 18, tree removal was 90% complete and stump and rock removal were continuing.  Appellant began receiving fill at the site on December 23 and aggregate on December 24, and spreading and grading proceeded.  (AF 45; SAF L (pp. 215-216, 222-236)).

            27.  The Bushkill site is located in the Pocono Mountains, where winter weather is very harsh, with freezing temperatures, snow and rain and wet or frozen ground conditions to be expected.  However, construction work could have continued through the winter on this project provided Appellant could finish earthwork sufficient to install the building footings before the ground became unworkable.  The work to follow the footings could be performed in inclement weather.  (Tr. 37, 149, 316, 479-480, 627; See SAF J, K).

            28.  Winter weather began in earnest on December 27, 2002 (AF 47).  Other than a delivery of aggregate on January 10 (AF 59; SAF L (p. 187)), no further earthwork was done on the site until February 6, 2003, due to, at various times, substantial snow, saturated ground and frozen ground (AF 56; SAF L (pp. 158-200)).

            29.  On February 7, 2003, Schulman returned to scrape ice from the site and spread aggregate (SAF L (p. 156)).  Schulman worked over the next several days, receiving deliveries of aggregate and fill and spreading fill and compacting (SAF L (pp. 149-153)), until work was stopped from February 15 to 18 by 4 to 5 inches of snow and frozen ground (SAF L (pp. 145 -148)).  Due to snow, rain and frozen ground, little work was done on the site during the rest of February other than site layout, some grading, and deliveries of fill (SAF L (pp. 134-144)).

            30.  On February 17, 2003, Appellant submitted a request for a 60-day time extension.  The reasons given were what Appellant characterized as Respondent’s hasty award of the contract, a long mobilization because Appellant was busy with other work at the time of award, delay because “[e]arth disturbance was not permitted until after the Pike County Conservation Department meeting of 11/25/02,” and unusually severe weather that required suspension of on-site work from December 27, 2002, through February 6, 2003.  As of the date of the extension request, Appellant’s most recent schedule showed substantial completion of the project in mid-July.  (AF 74-77; SAF JJ; Tr. 204).

            31.  The contracting officer rejected the extension request on February 20, pointing out that the slow mobilization was Appellant’s fault and that severe weather was to be expected in the Poconos at the time of the project (AF 78; Tr. 204).  In a March 13, 2003 letter, the contracting officer indicated that Respondent would consider a request for weather delay, but told Appellant that it had the burden of proving by official weather reports that the weather was unusually severe and delayed completion of the project (AF 84).

            32.  In March, Appellant continued grading, trenching, and stockpiling topsoil (SAF L (pp. 126, 129)).  Its work was intermittently stopped (for at least 15 workdays) by frozen ground, snow, rain and muddy conditions (SAF L (pp. 103-133)).

            33.  Appellant included with its March 2003 pay request a schedule that showed completion of the project on July 21, 2003.  Respondent’s project manager rejected the schedule, pointing out that the completion date was May 16, 2003, and that Respondent had granted no time extensions.  (AF 88).

            34.  On April 2, 2003, Appellant’s subcontractor excavated for the footings (SAF L (p. 100)).  The footings were poured on April 4, and the concrete piers were installed on April 10 (AF 95; SAF L (pp. 91, 97-98)).

            35.  In its schedule submitted on April 11, 2003, Appellant showed project completion by the end of July 2003 (AF 101; SAF AA (pp. 5-9)).

            36.  On or about May 21, 2003, Appellant submitted another request for a time extension, this time for 150 calendar days, and for additional compensation.  The request was accompanied by extensive official weather data, Appellant’s analysis, and summaries comparing the number of adverse weather days expected based on 5-year weather data to the number Appellant experienced in the winter of 2002-2003.  Appellant also listed the types of project cost increases it claimed to have suffered due to the delays—e.g. loss of productivity due to bad weather and restrictions on site clearing, additional work required because of weather conditions, general conditions and overhead over the extended performance period—but did not put dollar figures to them, saying instead that quantification of those claims would be submitted under separate cover.  (SAF J).

            37.  At a June 5 site meeting, Respondent’s project manager orally rejected Appellant’s request for a time extension as incomplete.  He advised Appellant that it must provide costs for the damages it described in its May 21 claim and resubmit it.  (AF 118).

            38.  On June 20, 2003, Appellant submitted a request for a 60-day extension of time due to what it characterized as unusually severe weather from October 2002 through March 2003.  The request was for a time extension only and was supported by a summary of the temperature, precipitation, and snow covering statistics for the past winter.  The request noted that Appellant had already submitted claims related to project delays it encountered and that if it were granted extensions under those requests that this purely weather delay would be subsumed in relief granted for the same periods.  (SAF OO).  On June 24, Respondent acknowledged receipt and promised to get back to Appellant shortly (SAF PP).

            39.  On June 25, Respondent’s project manager formally rejected Appellant’s May 21 request for a time extension and for damages (see Finding 36).  He had reviewed the request and concluded that Appellant could be entitled to an extension of up to two weeks, but rejected the request because, in his view, (1) the proposal was not complete, (2) Appellant had not identified the costs it claimed, (3) the time requested was excessive and not justified, and (4) the backup for the request was inadequate.  (SAF QQ; Tr. 432-433).

            40.  On June 30, 2003, the contracting officer issued a Show Cause Notice, citing Appellant’s inability to perform according to the specifications, failure to comply with the schedules, and apparent inability to complete the project in a timely manner.  He stated that Respondent was considering a default termination and offered Appellant an opportunity to submit, within 10 days, information showing that Appellant’s failure to perform timely arose from causes beyond its control and without its fault or negligence.  He asked for a detailed, documented explanation of any delays, including dates and causes for each day of delay, and asked for copies of all schedules, material orders, and subcontracts.  (AF 124; Stip. 36; Tr. 101, 210, 380-381).

            41.  On July 13, 2003, Appellant responded to the Show Cause Notice.  As causes of delay, Appellant pointed to extreme winter weather and late approval of the Erosion and Sedimentation Plan, excessive rainfall during April through June, and delay caused by a manufacturer’s shortage of structural cold formed metal framing.  Appellant advised that it would be submitting documentation to substantiate the delays.  (AF 129; Tr. 504).

            42.  On July 16, Appellant submitted a pay request and included an updated construction schedule that showed the project completion date as approximately September 8, 2003.  Respondent’s architect approved the pay request on July 18.  (Resp. Exh. 30).

            43.  On July 17, the contracting officer ordered Appellant to stop work on the project (AF 130; SAF L (p. 6)).  On July 18, he terminated the contract for default citing Appellant’s failure to meet contract schedules, failure to provide the requested documentation, and failure to explain what the contracting officer considered to be misinformation Appellant had provided during the course of contract performance (AF 131; Stip. 37; Tr. 217, 385).  Appellant’s timely appeal of the default termination was docketed as PSBCA No. 5047.         

Workmanship

            44.  Before the contract was terminated, a number of construction deficiencies attributable to Appellant were noted and brought to Appellant’s attention.  The concrete slab was cracked at the vestibule, structural steel had not been cleaned and prime painted, and perforated PVC risers on the downspouts had to be replaced with non-perforated risers (AF 118, 125).  Certain structural headers were undersized, and piers for the exterior entranceways and some columns were mislocated and a number of the entranceway columns had been fabricated too short.  Supports for the interior corners of the walls were missing.  Trusses were inadequately braced.  (Tr. 99, 107; Resp. Exh. 54, 55).

            45.  Appellant’s surveyor had incorrectly marked the location of the septic system, and, as a result, Appellant’s earthmoving equipment disturbed the septic area shown on the plans, rendering it unusable as the septic absorption field.  (AF 13, 31, 36, 82, 90, 108, 114, 129; SAF I (pp. 49-50), L (pp. 5, 115, 117, 135); Stip. 5, 33; Tr. 59-61, 297-300, 558-559).

            46.  Appellant corrected some of the unacceptable work before the contract was terminated.  Appellant added braces in the trusses, and its welder corrected the too-short columns by welding an extension to them.  But many of the other deficiencies were corrected by the contractor that finished the project after Appellant’s termination.  (AF 118, 125, 129; Tr. 99, 101-102, 109, 114, 504-505; Resp. Exh. 21; SAF L (p. 21)).

            47.  After the termination, Respondent’s architect found a number of additional construction deficiencies attributable to Appellant.  These included some walls and window openings in the wrong locations, inadequate truss bracing, and the wrong dimensions of faceplates on the roof fascia.  Sanitary and water lines installed by Appellant under the building slab were supposed to have been pressure tested prior to backfilling, but Appellant never supplied a certification of testing.  Sanitary piping within the building failed a pressure test performed by the replacement contractor on or about December 1, 2003 (Resp. Exh. 46) and had to be replaced, requiring removal of sections of the concrete floor.  Rainwater conductors were mislocated.  Certain conduits were of the wrong size.  (Tr. 100, 107, 112, 116; Resp. Exh. 39, 50, 54, 55).

Appellant’s Claims

            48.  On May 7, 2004, Appellant submitted a certified claim for $825,825 consisting of the following:

            a.  $291,468 for the difference between the value of contract and extra work Appellant allegedly completed and the amount Respondent paid Appellant.

            b.  $194,357 for increased costs of performance allegedly caused by Respondent’s suspension, delay and interruption of Appellant’s work.

            c.  $340,000 for payments made by Appellant to its surety for completion of the contract work after the termination.  (App. Exh. WW).

            49.  By final decision dated July 15, 2004, the contracting officer denied the claim (App. Exh. XX).  Appellant’s timely appeal of that denial was docketed as PSBCA No. 5178.

DECISION

Termination for Default

            It is Respondent’s burden to show that the termination was warranted by Appellant’s failure to complete the work required by the contract “within the time specified in the contract and any extension” (Finding 3).  See Conquest Constr., Inc., PSBCA No. 2350, 90-1 BCA ¶ 22,605 at 113,432; The Four Roses Painting Co., PSBCA No. 1013, 83-1 BCA ¶ 16,541.  The record establishes that the contract completion date was May 16, 2003, and the contract remained uncompleted some two months later on July 18, 2003, when Respondent terminated Appellant’s right to continue performance (Findings 8, 43).  Therefore, Respondent has shown that the termination was justified by Appellant’s failure to substantially complete the project by the contract completion date.  See R.L. Noffsinger, PSBCA No. 1204, 84-3 BCA ¶ 17,558; Mark Smith Constr. Co., ASBCA Nos. 25058, 25328, 81-2 BCA ¶ 15,306 at 75,792; David Boland, Inc., VABCA Nos. 5858, et al., 01-2 BCA ¶ 31,578 at 155,948.

            It then becomes Appellant’s burden to show by a preponderance of the evidence that its failure to complete was due to excusable causes beyond its control and without its fault.  See The Four Roses Painting Co., PSBCA No. 1013, 83-1 BCA ¶ 16,541; Mark Smith Constr. Co., ASBCA Nos. 25058, 25328, 81-2 BCA ¶ 15,306 at 75,792.  Appellant argues that it was excusably delayed by Respondent’s failure to obtain timely approval of the Erosion and Sedimentation Plan and by the severe winter weather it encountered after December 28, 2002.

Delay Related to Approval of Erosion and Sedimentation Plan

            According to Appellant, Respondent delayed its work by failing to provide an approved E&S Plan until after November 15, 2002, and this delay pushed the project into the severe winter weather when critical earthwork and installation of footings could not be performed.  Appellant claims quantified delays totaling about five months and argues that if granted the extensions to the contract completion date warranted by these Respondent-caused circumstances, Appellant would have completed the project on time.

            Respondent argues that it is responsible for none of the delay stemming from the process for obtaining approval of the E&S Plan.  Obtaining an approved E&S Plan, according to Respondent, was Appellant’s responsibility under the contract’s Permits and Responsibilities clause, and Appellant, therefore, is responsible for delays relating to the Plan’s approval.  We disagree.  Regardless of the inclusion of the Permits and Responsibilities clause in the contract (Finding 7), Respondent took responsibility for obtaining approval of the required E&S Plan (Finding 12).  Respondent, through its architect, made the original submissions to the PCCD, revised the Plan as directed by PCCD, and eventually obtained final approval for the Plan on November 15, 2002, and provided the revised, final Plan to Appellant thereafter (Findings 12, 13, 20, 22).

            Respondent had no expectation that Appellant would participate in any way in the preparation, submission and obtaining approval of the Plan.  The solicitation did not reflect that the E&S Plan was not approved, and Appellant had no reason to know that it could not proceed with the work set forth in the contract according to its schedule.  The contracting officer was aware that the E&S Plan in the solicitation was not approved and that it would be some time until approval would occur, yet Respondent did not so advise Appellant (Finding 13).  Under these circumstances, the Permits and Responsibilities clause did not place on Appellant the risk that the PCCD approval process would delay the project.  See Marine Constr. & Dredging, Inc., ASBCA Nos. 38412, et al., 95-1 BCA ¶ 27,286 at 135,955 (finding 73), 136,007; The Leonard Pevar Co., PSBCA Nos. 219, 257, 77-2 BCA ¶ 12,690 at 61,581; Century Concrete Serv., Inc., ASBCA No. 48137, 97-1 BCA ¶ 28,889 at 144,053.

            Respondent argues that the absence of an approved E&S Plan did not delay work on the site.  In the experience of Respondent’s project manager and architect, conservation districts often let contractors commence work on the site before an E&S plan was finally approved (Finding 15).  Respondent suggests that if asked by Appellant, the architect would have interceded with PCCD to ascertain what work could begin on the site.  However, Respondent did nothing to apprise Appellant of this possibility and did nothing to inquire on its own with PCCD, even though it knew Appellant’s site work was being held up.  (Findings 15-17).  In view of the specific instruction Appellant received directly from PCCD on November 1 regarding what limited work it could perform at Bushkill (Finding 18), we give no weight to the opinion of Respondent’s project manager and architect that Appellant might have been able to do more work while awaiting approval of the E&S Plan.

            Respondent also argues that it was not necessary for Appellant to wait until it could hold a meeting with PCCD to begin construction activity that would disturb the soil.  Thus, according to Respondent, Appellant could have begun earth-disturbing activities as early as November 15, after it received word that the PCCD had approved Respondent’s E&S Plan (Finding 20).  However, the E&S Plan and the narrative information prepared and issued by Respondent’s architect specifically notified Appellant that a meeting with PCCD was required before earth-disturbing activities could begin (Finding 22).  Respondent’s specific inclusion of the requirement in Appellant’s contract that it meet with PCCD before beginning earthwork bound Appellant to do so.

            Respondent’s failure to meet the responsibility it assumed to provide an approved E&S Plan delayed the project as follows:  Appellant was delayed 5 days, from October 28, 2002, when its work on the site was completely stopped, through November 1, when it received approval to resume cutting trees (Findings 16, 18, 19).  Additionally, Appellant experienced lost productivity during the period from November 2 through November 25 because it could not employ heavy equipment to remove the trees in an orderly and efficient manner or perform other clearing work.  Appellant lost 21 calendar days due to this lost productivity (Finding 24).  Thus, Respondent’s delay in providing an approved E&S Plan delayed the project by a total of 26 days.

Respondent’s delay regarding the E&S Plan, as described above, had further effects on Appellant’s progress.  The parties agree that installation of the footings before severe winter weather began was crucial to Appellant being able to continue work during the winter as planned, i.e., that installation of footings was on the critical path (Finding 21).  Succeeding work on the foundation and building could not proceed without installation of the footings (Finding 27).  Due to Respondent’s delay in providing an approved E&S Plan, the two months, from October 21 to December 21, that Appellant had scheduled for completion of required tree removal, site clearing, earthwork and installation of footings was reduced to one month.  This period proved to be inadequate, and the footings were not installed before the earthwork portion of the project was stopped by adverse winter weather on December 28 (Findings 27, 28).  No work was possible during January, and while earthwork continued in fits and starts after February 6, Appellant was hampered by snow, rain, muddy conditions, and frozen ground (Findings 28, 29, 32).  It was not until April 4, 2003, that Appellant could install the footings (Finding 34).

Respondent argues that severe weather was expected during the winter construction period in the Poconos and that no extension is justified because the weather conditions were not unforeseen.  However, it was Respondent’s delay in providing an approved E&S Plan that prevented completion of the critical path task of installing footings before the onset of weather conditions that virtually shut down the project over the winter months.  Consequently, Appellant is entitled to an extension of time from December 28, 2002, to April 4, 2003, when the footings were installed, a period of 98 calendar days.  See Ventas de Equipo, S.A., ENG BCA Nos. PCC-135, et al., 00‑1 BCA ¶ 30,913 at 152,548; Bechtel Environmental, Inc., ENG BCA Nos 6137, 6166, 97-1 BCA ¶ 28,640 at 143,032.  Appellant is entitled to an extension of the contract performance period amounting to 26 days for delay experienced before December 28 due to Respondent’s delay in providing an approved E&S Plan plus 98 days of delay experienced between December 28, 2002, and April 4, 2003.[2]  This extension makes the adjusted contract completion date September 17, 2003, and it is in light of that completion date that we evaluate the reasonableness of the contracting officer’s termination of the contract.

            When deciding to terminate Appellant’s contract, the contracting officer gave no consideration to a finish date later than the contract date of May 16, 2003, notwithstanding Appellant’s submission of three requests for a time extension, one of which was accompanied by detailed supporting information (Findings 30, 36, 38).  At the time of termination, July 18, 2003, Appellant’s schedule projected substantial completion on or about September 8, 2003 (Finding 42).  Appellant’s scheduling expert testified at the hearing and projected Appellant’s finish by the middle of September.  However, we give little weight to his conclusion because he merely adopted Appellant’s schedule for the work remaining after the termination without independently assessing whether Appellant could meet the schedule.

              The only evidence Respondent offered regarding the time Appellant would need to complete the project was the architect’s remark at the hearing that at the time of the termination about four or five months of work, including corrective work, remained for a quality contractor, but for Appellant it “probably would have been in excess of that.”  The architect’s “best guess” was that Appellant had completed 40 percent of the work.  (Tr. 96).  The basis for his opinion was not stated, and Respondent presented no analysis of Appellant’s schedules or any schedule analysis of its own that would establish the length of time Appellant would have required to finish the project.

            Appellant argued that it would have corrected any workmanship deficiencies in the course of completing the project by mid-September.  When given notice and an opportunity to do so, Appellant corrected some of the deficiencies pointed out to it before the termination (Findings 44-46), and Appellant says that it intended to correct the remaining deficiencies (and others that might be discovered) over what it expected would be the ordinary course of its work in completing the project.  Appellant argues that the deficient work claimed by Respondent was minor corrective work that Appellant could have accomplished in a matter of days if given the opportunity.

            The record contains sparse and conflicting evidence regarding how long it would have taken Appellant to correct the construction deficiencies and complete the project.  Neither party presented CPM or other schedule analysis to persuade the Board to accept its assessment of the time for Appellant to complete the project.  The record does not reflect the time taken by the replacement contractor to complete the terminated construction activities.  It was Respondent’s burden to demonstrate by a preponderance of the evidence that there was no reasonable likelihood that Appellant could have completed the project, including correction of workmanship deficiencies, by the contract completion date, as extended, of September 17, 2003, see Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); H.P. Connor & Co., PSBCA No. 1358, 92-1 BCA ¶ 24,741; Hillerbrand Constr., Inc., ASBCA No. 45853, 95-1 BCA ¶ 27,464 at 136,842; Corban Indus., Inc., VABCA Nos. 2181, 2559T, 88-3 BCA ¶ 20,843 at 105,425, and it has not met that burden in this case.  Accordingly, Respondent has failed to demonstrate that the termination for default should be upheld.  See Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); D.W. Sandau Dredging, ENG BCA No. 5812, 96-1 BCA ¶ 28,064 at 140,163, aff’d on recon., 96-2 BCA ¶ 28,300.[3]

            Accordingly, the termination is converted to one for Respondent’s convenience (Finding 5).

Appellant’s Claims

            Appellant’s claims seek payment for all work performed and damages stemming from the termination for default, which are in the nature of a termination for convenience settlement claim.  Board consideration of them would be premature in view of the Board’s conversion of the termination to one for Respondent’s convenience.  See Singleton Contracting Corp., ASBCA No. 51692, 03-2 BCA ¶ 32,360 at 160,076; David Boland, Inc., VABCA No. 5858, et al., 01-2 BCA ¶ 31,578 at 155,949.

Conclusion

            The appeal of PSBCA No. 5047 is granted.  The appeal of PSBCA No. 5178 is dismissed without prejudice.  Appellant may submit a convenience settlement proposal for the contracting officer’s consideration and settlement discussions.  If the parties are unable to resolve the amount of Appellant’s recovery, Appellant may file an appeal from the contracting officer’s final decision addressing its convenience settlement proposal.

Norman D. Menegat
Administrative Judge
Board Member

I concur
William A. Campbell                                               
Administrative Judge                      
Chairman

I concur
David I. Brochstein
Administrative Judge
Vice Chairman

[1] The documents in Appellant’s pretrial submittal were identified by continuing the lettering scheme established in the Supplemental Appeal File (“SAF”) Appellant submitted earlier and are designated as SAF documents.

[2] Appellant raised other grounds for granting it an extension:  differing site conditions of seeping groundwater and a buried concrete slab and “above average bad weather” from April through early July 2003.  Any delay caused by the differing site conditions coincided with the winter weather extension granted by the Board and would not entitle Appellant to additional days of delay.  Appellant did not prove that it encountered unusually severe weather after April 2003.

[3] Respondent argues that the workmanship deficiencies constituted a violation of an “other provision” of the contract—presumably the Materials and Workmanship clause (Finding 3)—and provided an independent ground for sustaining the termination for default, citing Kelso v. Kirk Bros. Mech. Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994).  However, completing the work in a skilful and workmanlike manner (Finding 3), in accordance with the specifications, pertains directly to accomplishment of the contract work itself and, thus, is an element of completing “the requirements of this contract within the time specified in the contract or any extension.”  (Finding 4).  See Nash Metalware Co., GSBCA Nos. 11951, 11952, 94-2 BCA ¶ 26,780 at 133,183; Precision Products, ASBCA No. 25280, 82-2 BCA ¶ 15,981 at 79,247.  Under these circumstances, the workmanship deficiencies (Findings 44-47) were not shown to be independent grounds for the termination because Respondent did not demonstrate that Appellant could not have corrected them, as contemplated by the Inspection and Acceptance clause (Finding 3), within the time remaining for its performance.