CBCA 4545

MOTIONS FOR CLARIFICATION AND RECONSIDERATION DENIED: November 29, 2016 CBCA 4545 GRUNLEY CONSTRUCTION CO., INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Lawrence M. Prosen and Daniel P. Broderick of Kilpatrick Townsend & Stockton LLP, Washington, DC, counsel for Appellant. Jay N. Bernstein, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DRUMMOND, and RUSSELL. DANIELS, Board Judge. On October 27, 2016, the Board issued a decision granting in part and denying in part cross-motions filed by the parties, Grunley Construction Co., Inc. (Grunley) and the General Services Administration (GSA), for partial summary relief in two appeals, CBCA 4539 and CBCA 4545. Grunley Construction Co. v. General Services Administration, CBCA 4539, et al., 16-1 BCA ¶ 36,536. Both parties have asked us to reconsider portions of the decision, and Grunley has also asked us to clarify one part of the decision. CBCA 4545 2 We note first the aspects of the decision to which the clarification and reconsideration motions are not directed. Neither party takes exception to our ruling in CBCA 4539, regarding the wage determination claim, or to our ruling in CBCA 4545 as to markups on the additional asbestos claim. We consequently do not address those parts of the decision here. The clarification and reconsideration motions concern the principal issues in CBCA 4545 – what was indicated on the contract drawings and whether Grunley gave GSA sufficient notice of what the contractor considers differing site conditions, so as to avoid prejudicing the agency in responding to the claim. As to the first of these issues, the parties had different positions regarding the portions of the contract the contractor should have considered as showing the asbestos to be abated. Grunley maintained that it properly relied only on the hazardous materials, or hazmat, drawings, as showing that asbestos, while GSA contended that the contract’s mechanical, electrical, and plumbing, or MEP, drawings – and an appendix to section 02085 of the specifications – were relevant as well. We agreed with GSA’s position. 16-1 BCA at 177,990. Grunley moves for reconsideration of this ruling. In doing so, however, it merely reargues the points it made earlier. “Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration.” Rule 26(a) (48 CFR 6101.26(a) (2015)). This motion is denied. Grunley’s motion for clarification asks whether we meant to say that if horizontal piping was shown on the hazmat drawings without asbestos containing material (ACM) and also depicted on the MEP drawings as requiring demolition, the contractor should have anticipated ACM on that piping. The motion for clarification also asks whether, if neither the hazmat drawings nor the MEP drawings depicted a horizontal pipe, we meant to say that the contractor should have anticipated that the piping it found was wrapped with ACM. These questions go to matters beyond what the parties presented for a ruling in their cross-motions for summary relief. The questions may be hypothetical, as well; Grunley asserts that “[n]one of the pipe for which Grunley is claiming entitlement for additional asbestos abatement work was shown on the MEP Drawings or the Hazmat Drawings,” and GSA responds that it “vigorously disputes this contention.” An analysis of the matters raised in the motion for clarification will best be provided after development of the record. The motion is denied. We do note in this regard, though, that GSA has effectively conceded that it erred by saying, in its Statement of Undisputed Fact number 14, that “[t]he G400 series of hazmat drawings . . . do not depict any of the horizontal piping.” We incorporated this statement into our decision. The agency now tells us, in response to the contractor’s motion, CBCA 4545 3 that hazmat drawing G402B, which shows the building’s ground floor, depicts some horizontal piping.1 As to the second principal issue in CBCA 4545, whether Grunley gave sufficient notice, we reported that the contractor sent the agency two separate requests for information (RFIs) regarding asbestos it found but had not expected – RFI 175, on April 30, 2006, and RFI 408, in early January 2007.