CBCA 3724

GRANTED IN PART: January 26, 2015 CBCA 3724 LEEWARD CONSTRUCTION CORPORATION, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Donald R. Adams, Project Manager of Leeward Construction Corporation, Fort Worth, TX, appearing for Appellant. Lindsay C. Roop and Dennis M. McGuire, Office of Regional Counsel, Department of Veterans Affairs, Columbus, OH, counsel for Respondent. Before Board Judges POLLACK, McCANN, and ZISCHKAU. McCANN, Board Judge. Appellant, Leeward Construction Corporation (Leeward), seeks recovery for additional contract work performed at the Department of Veterans Affairs (VA) Medical Center (VAMC) in Dayton, Ohio. Both entitlement and quantum are in issue. The parties have submitted the case for decision on the written record pursuant to Board Rule 19. Facts 1. On April 6, 2012, the VA posted an invitation for bids (IFB) for construction work for the relocation of the oncology department at the VAMC in Dayton, Ohio. The specifications included a description of the work as follows: CBCA 3724 2 Contractor shall completely prepare site for building operations, including demolition and removal of existing items, and furnish labor and materials and perform work for project 552-11-109, entitled Dayton VAMC-Relocate Oncology as required by drawings and specifications. 2. The specifications contain a section on asbestos abatement entitled: Section 02 82 13.19 ASBESTOS FLOOR TILE AND MASTIC ABATEMENT (PROVIDED BY VAMC) TABLE OF CONTENTS This asbestos abatement specification states: 1.1 SUMMARY OF THE WORK 1.1.1 CONTRACT DOCUMENTS AND RELATED REQUIREMENTS Drawings, general provisions of the contract . . . shall apply to the work of this section. . . . In the event the Asbestos Abatement Contractor (Contractor) discovers a conflict in the contract documents and/or requirements or codes, the conflict must be brought to the immediate attention of the Contracting Officer for resolution. Whenever there is a conflict or overlap in the requirements, the most stringent shall apply. Any actions taken by the Contractor without obtaining guidance from the Contracting Officer shall become the sole risk and responsibility of the Contractor. All costs incurred due to such action are also the responsibility of the Contractor. .... 1.1.5 ABATEMENT CONTRACTOR USE OF PREMISES A. The Contractor and Contractor’s personnel shall cooperate fully with the VA representative/consultant to facilitate efficient use of buildings and areas within buildings. The Contractor shall perform the work in accordance with the VA specifications, phasing plan and in compliance with any/all applicable Federal, State and Local regulations and requirements. .... CBCA 3724 3 1.5.2 CONTRACTOR RESPONSIBILITY The contractor shall assume full responsibility and liability for compliance with all applicable Federal, State and Local regulations related to any and all aspects of the abatement project. The Contractor is responsible for providing and maintaining training, accreditations, medical exams, medical records, personal protective equipment as required . . . . The Contractor shall incur all costs of the Contractor Provided Industrial Hygienist (CPIH), including all sampling/analytical costs to assure compliance with OSHA/EPA/state requirements. 3. The solicitation incorporated a complete set of drawings which includes Drawing 310-A2, entitled PARTIAL FIRST FLOOR DEMOLITION PLAN (BLDG. 310 - VACATED ONCOLOGY). The general demolition notes on the drawing state: “Contractor shall coordinate demolition with owner; salvage and turn over to COTR [contracting officer’s technical representative] doors, toilet accessories, curtain tracks, light fixtures and other items designated by owner.” The drawing includes a demolition legend that states, inter alia: “[R]emove existing flooring and adhesive down to existing concrete slab.” Part of the drawing is unshaded and set off with a dotted line, and part of it is shaded. At the bottom of the legend there is a small, unshaded, dotted-line rectangle.