CBCA 6300

ISSUED WITHOUT REDACTION: May 20, 2019 DISMISSED FOR FAILURE TO STATE A CLAIM: May 13, 2019 CBCA 6300, 6301 B.L. HARBERT INTERNATIONAL, LLC, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Thomas B. Drohan of Drohan, Hitt & Hadas LLC, Boston, MA, counsel for Appellant. Catherine Crow and Kelly Y. Burnell, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges VERGILIO, ZISCHKAU, and SULLIVAN. VERGILIO, Board Judge. B.L. Harbert International, LLC (contractor), disputes two decisions of a contracting officer with the General Services Administration (agency), denying claims for additional money ($83,062 in CBCA 6300; $47,486 in CBCA 6301) said to arise from a change when the agency did not permit the contractor to utilize manufacturers of its choosing that differ from those specified in the contract. The agency has moved to dismiss the cases for failure to state a claim upon which relief can be granted, Board Rule 8(e), on the theory that no change occurred because, for the items at issue, the contractor was not entitled to substitute a product by a manufacturer of its own selection that was not named in the contract. The contractor has filed submissions in opposition. CBCA 6300, 6301 2 The Board resolves the motion by examining the complaint and the referenced claims and contract. The Board concludes that the contractor cannot obtain relief on its claims because the contract does not entitle the contractor to substitute the products it wanted. The Board grants the agency’s motion and dismisses the appeals. Background 1. The parties entered into a contract requiring the contractor to construct a building. Two items to be installed in the project are at issue here. The contract specifications name one manufacturer and product for one item, and list three manufacturers (one identified as the basis for design) for the other item. Complaint at 2 (¶ 2). 2. The product requirements section of the contract, division 1, § 01 6000, details requirements for product selection, including: Product: Where Specifications name a single manufacturer and product, provide the named product that complies with requirements. Comparable products or substitutions for Contractor’s convenience will not be considered. Exhibit 3 at 355, 359. And, regarding manufacturers: Restricted List: Where Specifications include a list of manufacturers’ names, provide a product by one of the manufacturers listed that complies with requirements. Comparable products or substitutions for Contractor’s convenience will not be considered. Exhibit 3 at 359. Further, for a basis of design product: Where Specifications name a product, or refer to a product indicated on Drawings, and include a list of manufacturers, provide the specified or indicated product or a comparable product by one of the other named manufacturers. Exhibit 3 at 359. The substitution procedures section of the contract, § 01 2500, contains procedures for the contractor to make substitutions, but also recognizes that other provisions identify specific requirements and limitations for substitutions. The section specifies that the division 1 requirements, which include those quoted above, identify requirements for submitting comparable product submittals for products by listed manufacturers. Other portions of the contract detail other procedures. Exhibit 3 at 175-78; Complaint at 5 (¶ 18). CBCA 6300, 6301 3 3. The contractor references, without objection, a Materials and Workmanship (APR 1984) clause, 48 CFR 52.236-5 (2018), as part of the contract. It provides: References in the specifications to equipment, material, articles, or patented processes by trade name, make or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this contract. (Emphasis added). The contractor also relies upon the Changes clause, 48 CFR 52.243-4, which it states, without objection, is part of the contract. Complaint at 4 (¶ 14). 4.