CBCA 7472

GRANTED IN PART: June 29, 2023 CBCA 7472 GC WORKS, INC., Appellant, v. DEPARTMENT OF AGRICULTURE, Respondent. Diana Lyn Curtis McGraw and Nicholas T. Solosky of Fox Rothschild LLP, Washington, DC, counsel for Appellant. Mark R. Simpson, Office of the General Counsel, Department of Agriculture, Atlanta, GA, counsel for Respondent. VERGILIO, Board Judge. GC Works, Inc. (contractor) disputes a decision by a contracting officer for the Department of Agriculture (agency) denying relief (both money and time) for an alleged changed condition arising under a contract between the parties. The contractor now contends that changed conditions resulted in eighteen days of compensable delay as it seeks $15,191.26, also relying upon theories of breach. The contractor has elected the small claims procedure, such that this decision by one judge is final, conclusive, and non-precedential, and may be set aside only in cases of fraud. 41 U.S.C. § 7106(b) (2018); 48 CFR 6101.52 (2022). The Board grants in part the claim, concluding that the changed conditions were more modest than the contractor claims, and that the contractor is responsible for a period of delay which makes most of the sought costs non-compensable. The contractor is to recover $5000, plus interest. CBCA 7472 2 Findings of Fact Under pertinent aspects of the design-build contract, the contractor was responsible for providing and installing a new gate assembly (a sluice gate) for outlet control of a dam spillway. The contract contains Federal Acquisition Regulation (FAR) clauses concerning time extensions, changes, and disputes. 48 CFR 52.211-13, .243-4, .243-5, .333-1 (2021) (FAR 52.211-13 (SEP 2020), 52.243-4 (JUN 2007), 52.243-5 (APR 1984), 52.243-5 (JAN 2017), 52.333-1 (MAY 2014)). The agency provided a conceptual design for a new gate assembly and design documents of the existing gate assembly. The contractor was required to and did submit manufacturer’s details of all new components for agency review and approval. The existing gate was submerged. The new gate was designed with holes to match those in the agency-provided drawings of the existing gate assembly and frame, which depicted bolt locations and 5/8-inch threaded rods or bolts. In the contract, the contractor allocated time and attributed costs to cut the existing bolts in the concrete frame, drill out the bolts, grout and epoxy those holes and cracks, and install (drill and epoxy) new bolts in the frame for the gate. The contractor produced a new gate complying with the drawings. Shortly before installation, water was drained sufficiently to permit removal of the old and installation of the new gate. On March 11, 2022, with the old gate and frame exposed, the contractor recognized, and shortly informed the agency, that the existing conditions did not match the drawings—the bolts (in the frame) and corresponding bolt holes (in the gate) were not at the locations depicted in the design documents for the existing gate assembly. Specifics (in terms of numbers and actual locations, except for one bolt) have not been provided. Further, 1/2-inch (not 5/8-inch) bolts were used in the existing structure. The agency recognized a variation, as reflected in its March 11, 2022, issuance of a notice of noncompliance that specified that the new gate frame holes do not match up with the existing holes. Because the holes are placed in accordance with the agency-provided drawings, the locations of the bolts in the existing frame varied from those depicted. The Board finds that the actual conditions differed from the drawings. On March 12, 2022, the contractor expressed its concerns to the agency regarding the notice of noncompliance; the contractor specified that no deviation from the plans had occurred. On March 13, the contractor referenced the changed condition, resulting from inaccurate as-built drawings, and considered the way forward as a minor field modification to accommodate existing conditions; new holes would be drilled. On March 15, the contractor proposed a solution that involved cutting the old bolts and field drilling and securing 1/2-inch bolts in the concrete frame to match the holes in the new gate. The agency expressed concern with the proposed bolt size, which varied from the 5/8-inch bolts noted CBCA 7472 3 in the drawings and the approved submissions for the new gate.