CBCA 5540

CBCA 5540 GRANTED; CBCA 5541 DISMISSED; CBCA 6037 DENIED: May 16, 2018 CBCA 5540, 5541, 6037 MARE SOLUTIONS, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James R. Mall of Meyer, Unkovic & Scott LLP, Pittsburgh, PA, counsel for Appellant. Neil S. Deol, Office of General Counsel, Department of Veterans Affairs, Decatur, GA, counsel for Respondent. Before Board Judges ZISCHKAU, RUSSELL, and O’ROURKE. O’ROURKE, Board Judge. The Department of Veterans Affairs (VA) issued solicitation number VA244-14-B- 0079 for the construction of a two-story parking garage at the VA Medical Center (VAMC) in Erie, Pennsylvania. Attached to the solicitation were 1832 pages of specifications and 172 pages of drawings developed by the VA’s design services contractor, Westlake Reed Leskosky (WRL or AE).1 A public bid opening was held on March 27, 2014. On May 6, 1 WRL is the architect-engineering (AE) firm that developed the design for the garage. Exhibit 121 (all exhibits are found in the appeal file unless otherwise noted). CBCA 5540, 5541, 6037 2 2014, the contract was awarded to Mare Solutions, Inc. (Mare), a service-disabled, veteran- owned small business in Pittsburgh. When the project was nearly complete, two disputes arose between the parties, one involving buckled metal conduit on the first floor ceiling of the garage and the other regarding which party was responsible for purchasing “head-end” equipment for the video surveillance system. The contracting officer (CO) issued final decisions on both issues, which Mare disagreed with and timely appealed to the Board. Mare sought declaratory relief in both appeals, requesting an interpretation of the contract’s terms that absolved it of liability for the buckled conduit and for the purchase of head-end equipment. Those appeals, dated November 7, 2016, were docketed as CBCA 5540 and CBCA 5541. During a hearing in May 2017, Mare testified that it had purchased and installed the head-end equipment and now sought reimbursement for the equipment costs. The buckled conduit, on the other hand, remained a live performance dispute. The Board raised concerns about its jurisdiction to decide the video equipment dispute since a monetary claim was never presented to the contracting officer. To resolve those concerns, Mare filed a claim for the costs of the equipment on February 9, 2018. The contracting officer denied the claim, and Mare filed a third appeal at the Board on February 16, 2018. That appeal was docketed as CBCA 6037. All three appeals were consolidated and are decided here. Findings of Fact I. The Buckled Conduit – CBCA 5540 The dispute over the buckled conduit primarily involved whether expansion couplings2 should have been installed on the conduit. Although the contract included specifications for expansion couplings, the parties disagreed on whether the conditions requiring their installation were present in the parking garage. A. Specifications, Drawings, and Relevant Contract Terms Specification 26 05 11, part one, paragraph 1.1.B (Requirements for Electrical Installations) required the contractor to “[f]urnish and install electrical wiring, systems, equipment and accessories in accordance with the specifications and drawings.” Paragraph 2 An expansion coupling is “an electrical fitting for a conduit run that would allow for expansion . . . on the conduit run.” Transcript at 79. CBCA 5540, 5541, 6037 3 1.2.A (Minimum Requirements) established the National Electrical Code (NEC) as a minimum standard for installation of the conduit.3 Exhibit 1 at 1031. Specification 26 05 33 (Raceway and Boxes for Electrical Systems) called for the “furnishing, installation, and connection of conduit, fittings, and boxes, to form complete, coordinated, grounded raceway systems” throughout the garage. Conduit was defined as “any or all of the raceway types specified.” Exhibit 1 at 1063. Part two of the specification identified the following products for use relevant to conduit and expansion couplings: C.6. Surface metal raceway fittings: As recommended by the raceway manufacturer. Include couplings, offsets, elbows, expansion joints, adapters, hold-down straps, end caps, conduit entry fittings, accessories, and other fittings as required for [a] complete system. C.7.