ASBCA 57206

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Gilbane Building Company ) ASBCA No. 57206 ) Under Contract No. W9126G-07-C-0043 ) APPEARANCE FOR THE APPELLANT: Paul H. Sanderford, Esq. Sanderford & Carroll, P.C. Temple, TX APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Lloyd R. Crosswhite, Esq. District Counsel Kendra M. Laffe, Esq. Dawn-Carole Harris, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Ft. Worth OPINION BY ADMINISTRATIVE JUDGE JAMES This appeal arises from the contracting officer's (CO's) February 2010 decision which denied the $167,275 certified claim of Gilbane Building Company (Gilbane) that alleged the wrongful government rejection of Gilbane's first elevator subcontractor, PKD, Inc. (PKD). The Board has jurisdiction of the appeal under the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The parties have agreed to submit the appeal on the written record under Board Rule 11. The record includes the government's Rule 4 file and the declarations submitted with the parties' briefs. We decide entitlement only. FINDINGS OF FACT 1. On 11 June 2007, the U.S. Army Engineer District, Fort Worth (USACE) issued Solicitation No. W9126G-07-R-0072 for completion of design and construction of the Battlefield Health and Trauma (BHT) Research Facility, Fort Sam Houston, Texas (R4, tab 4 at 11). 1 Rule 4 cites are to Bates numbers less extra Os, e.g., page "4-000002" is "R4, tab 4 at 2."  2. On 29 September 2007, the USACE awarded Contract No. W9126G-07-C-0043 (BHT contract) to Gilbane for the BHT Research Facility for a $91,998,321 "Guaranteed Maximum Price" (R4, tab 4 at 2-4, 6). 3. The BHT contract included, inter alia, the FAR 52.233-1, DISPUTES (JUL 2002}-ALTERNATE I (DEC 1991) and 52.243-4, CHANGES (AUG 1987) clauses (R4, tab 4 at 90, 116, 121, 128). 4. The BHT contract specifications,§ 01 33 00, "SUBMITTAL PROCEDURES," provided in pertinent part: 1.4 APPROVED SUB MITTALS The [CO' s] approval of submittals shall not be construed as a complete check, but will indicate only that the general method of construction, materials, detailing and other information are satisfactory. Approval will not relieve the Contractor of the responsibility for any error which may exist, as the Contractor ... is responsible for ... the satisfactory construction of all work. ... 1.5 DISAPPROVED SUBMITTALS The Contractor shall make all corrections required by the [CO] and promptly furnish a corrected submittal in the form and number of copies specified for the initial submittal. If the Contractor considers any correction indicated on the submittals to constitute a change to the contract, a notice in accordance with the Contract Clause "Changes" shall be given promptly to the [CO]. 1.9 SCHEDULING Submittals covering component items forming a system or items that are interrelated shall be ... coordinated and submitted concurrently. Certifications to be submitted with the pertinent drawings shall be so scheduled. Adequate time (a minimum of 21 calendar days exclusive of mailing time) shall be allowed ... for review and approval. ... 2  1.11.2 Deviations For submittals which include proposed deviations requested by the Contractor, the column "variation" of ENG Form 4025 [TRANSMITTAL] shall be checked .... a. Contractor-proposed deviations, including variations and other departures from the contract requirements, shall be noted/marked in red on each copy of the submittal data and shall be provided with a letter attachment to the ENG Form 4025 summarizing the proposed variation, deviation, or departure.