ASBCA 62204

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Carothers Construction, Inc. ) ASBCA No. 62204 ) Under Contract No. W91278-12-D-0037 ) APPEARANCE FOR THE APPELLANT: Ralph B. Germany, Jr., Esq. Bradley Arant Boult Cummings LLP Jackson, MS APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Kathleen P. Miller, Esq. David C. Brasfield, Jr., Esq. Engineer Trial Attorneys U.S. Army Engineer District, Mobile OPINION BY ADMINISTRATIVE JUDGE CLARKE This appeal is submitted pursuant to Board Rule 11. The dispute involves a disagreement over whether the Air Force (AF) 1 specified a proprietary 2 1/2″ thick roof deck product and, if so, was Carothers Construction, Inc. (Carothers) entitled to substitute a 2″ thick roof deck as an equal pursuant to Federal Acquisition Regulation (FAR) 52.236-5, MATERIAL AND WORKMANSHIP. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA) 41 U.S.C. §§ 7101-7109. We sustain the appeal. FINDINGS OF FACT 1. On December 15, 2015, the Air Force (AF) solicited for the phased replacement of the Maxwell Elementary/Middle School at Maxwell Air Force Base, Alabama by Solicitation No. W91278-16-URGC-0001 (R4, tab 5 at 3). 2. The solicitation included several relevant clauses: FAR 52.243-4, CHANGES (JUN 2007) 2, FAR 52.236-21, SPECIFICATIONS AND DRAWINGS 1 The Corps of Engineers was also involved, but we use Air Force (AF) to avoid confusion. 2 We were unable to find FAR 52.243-4 Changes in the contract but, if it is missing, it is included by operation of law. Tri-County Contractors, Inc., ASBCA No. 58167, 15-1 BCA ¶ 36,017 at 175,916 n 2 (“Despite the absence of the OF CONSTRUCTION (FEB 1997), and FAR 52.236-5, MATERIAL AND WORKMANSHIP (APR 1984) (R4, tab 4 at 94-95). FAR 52.236-5, MATERIAL AND WORKMANSHIP, states in part: (a) All equipment, material, and articles incorporated into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. 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) 3. Phase 2A of the Contract included construction of a new addition to the existing Maxwell Elementary School. This new addition included a performance area and ICC500 Storm Shelter that both feature the acoustical deck roof product. The solicitation, Sheet S-002 3, STEEL DECK NOTES, ¶ 2. MATERIALS, (WRA) 2-1/2″, 20 GA ACOUSTICAL DECK (SR-0.70), required providing a 2 1/2″ thick acoustical roof deck at various locations in Phase 2A. (R4, tab 8 at 1 4, tab 22 at 2 ¶ 5) There were no markings that would indicate the 2 1/2″ deck was proprietary. 4. In a February 12, 2016 email and letter to Zyscovich Architects, 5 Mr. Sean Smith, New Millennium Building Systems, submitted its request to substitute required FAR 52.243-4, CHANGES (JUN 2007) clause from this construction contract (finding 7), such clause may be deemed included pursuant to G.L. Christian & Associates v. United States, 312 F.2d 418, 426 (Ct. C1.), cert. denied, 375 U.S. 954 (1963)”). 3 Drawing sheet S-002 General Notes was developed by “Transystems” but “ZYSCOVICH Architects” was printed on the right side of S-002 (R4, tab 8 at 1). We do not know the relationship between Transystems and Zyscovich. 4 Drawing S-002 was “issued” on October 2015 pursuant to Solicitation No.