CBCA 5410

GRANTED IN PART: March 26, 2018 CBCA 5410 BCPEABODY CONSTRUCTION SERVICES, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Robert M. Carpenter, President/Chief Executive Officer of BCPeabody Construction Services, Inc., Lutz, FL, appearing for Appellant. Harold W. Askins III, Office of Regional Counsel, Department of Veterans Affairs, Charleston, SC, counsel for Respondent. Before Board Judges BEARDSLEY, GOODMAN, and RUSSELL. BEARDSLEY, Board Judge. BCPeabody Construction Services, Inc. (BCPeabody) timely appealed from the denial of its certified claim. It asserts entitlement to suspension of work damages in the amount of $175,778, costs incurred for additional architectural and engineering (A/E) design services in the amount of $68,904, and extra and changed work totaling $73,864.26 under a firm- fixed-price design build task order issued by the Department of Veterans Affairs (VA). BCPeabody also appealed the VA’s claims for $115,294.93 for unused equipment costs and $17,501.13 for reprocurement costs. Additionally, BCPeabody alleged that the VA breached its implied duty to act in good faith and deal fairly with BCPeabody under the task order. CBCA 5410 2 The parties submitted the appeal for a decision on the record pursuant to Rule 19 of the Board’s rules. 48 CFR 6101.19 (2016). We find that BCPeabody is entitled to $13,700.54 for personnel costs and $13,282 for general conditions costs as a result of the unreasonable suspension of the work, but not unabsorbed home office overhead costs. We find that BCPeabody is also entitled to damages in the amount of $34,900 for additional A/E design services and $63,644.16 for extra and changed work. The VA did not breach the duty of good faith and fair dealing. The VA is not entitled to costs for unused equipment or reprocurement costs. The total awarded to BCPeabody is $125,526.70. Findings of Fact The VA awarded firm-fixed-price task order VA248-12-J-4502 (task order) under contract VA248-C-1851 to BCPeabody on June 29, 2012, to renovate nutrition and food service (N&FS) areas in buildings 101 and 102 of the Bay Pines Veterans Affairs Medical Center in Bay Pines, Florida. The task order required BCPeabody to provide “full design, all labor, tools, materials, equipment and supervision to renovate the kitchen areas in buildings 101 and 102.” The work included all “structural, architectural, utilities, and equipment as needed to meet the design.” The task order directed BCPeabody to renovate one building at a time to allow the VA to continue its mission. Additional Architectural and Engineering Design Services BCPeabody received the notice to proceed on or about July 9, 2012. BCPeabody was supposed to complete the design of both kitchen areas within sixty days from the notice to proceed, or by September 7, 2012. Instead, the VA approved the design on or about May 10, 2013, or 245 days later. The task order called for “all new equipment” except for the “dish machines currently in place.” The new equipment supplied by BCPeabody was to be “driven by the design, however, for bidding purposes” the equipment specified in the task order was “probable at a minimum for each building.” Instead and as a result of late coordination with the N&FS staff in November and December of 2012, the equipment list was revised to require BCPeabody to reuse thirty to forty percent of the existing equipment. While the task order documents were “intended to define existing conditions,” it was discovered late in the design process that the VA’s plans did not represent the actual operating heating, ventilation, and air conditioning (HVAC) system. The equipment changes and HVAC discovery required a major rework of the electrical and mechanical design. At a meeting on February 26, 2013, the design team realized that the kitchens would be used to grill food using grease, requiring a different hood and configuration. Although CBCA 5410 3 BCPeabody asserts that it was told that there would be no grease cooking, the drawings, early equipment list, and early design indicated that griddles would be used, and the specifications specifically called for a “griddle with hood” and “a dedicated grease hood exhaust system.” BCPeabody claims $68,904 in costs for additional A/E design services required as a result of the VA’s design changes.