CBCA 2953

GRANTED IN PART: December 19, 2019 CBCA 2953, 2954, 2955, 3596, 4175, 4377, 5006 SUFFOLK CONSTRUCTION COMPANY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James R. Newland, Jr., and Anthony J. LaPlaca of Seyfarth Shaw, LLP, Washington, DC, counsel for Appellant. James F.H. Scott and Justin S. Hawkins, Office of General Counsel, General Services Administration, Washington, DC; and Nancy E. O’Connell and Meaghan Q. LeClerc, Office of Regional Counsel, General Services Administration, Boston, MA, counsel for Respondent. Before Board Judges SOMERS (Chair), DRUMMOND, and ZISCHKAU. ZISCHKAU, Board Judge. These consolidated appeals involve claims by appellant, Suffolk Construction Company, Inc. (Suffolk), amounting to $22,766,290 plus interest and claims by respondent, General Services Administration (GSA), of $3,196,437, arising from the renovation of the John W. McCormack Building located in Boston, Massachusetts. After protracted discovery and a lengthy hearing and briefing by the parties, these consolidated appeals are ready for decision. We conclude that Suffolk is entitled to recover a net amount of $12,583,546 plus interest pursuant to the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012). CBCA 2953, 2954, 2955, 3596, 4175, 4377, 5006 2 Background On September 25, 2006, Suffolk and GSA entered into contract no. GS01P05BZC3010 (the contract) for the renovation of the McCormack Building, a twenty- two story “historic art deco structure” located in Boston, Massachusetts. This firm-fixed- price contract was awarded for $136,153,445, and notice to proceed was issued on October 6, 2006, with a completion date of April 16, 2009. Under the contract, Suffolk was to renovate the building with an emphasis on “environmental sustainability and historic preservation.” Suffolk and its subcontractors were to perform the renovation work according to plans and specifications prepared by GSA and its design team headed by the designer of record, Goody Clancy & Associates, Inc. (Goody), with Cosentini Associates serving as the mechanical, electrical, and plumbing design engineer, and Weidlinger Associates, Inc., retained as the structural design engineer. Goody hired Tishman Construction Corporation of Massachusetts to serve as GSA’s construction manager. Suffolk renovated the building’s existing entrances, lobbies, stairways, fixtures, libraries, and courtrooms. Suffolk also abated hazardous materials, modernized elevator systems, refurbished finishes, accommodated new tenant spaces, removed existing mechanical and electrical systems, and installed new mechanical and electrical systems. Suffolk was engaged to restore the post-office areas to their original condition and to renovate the office space for new building tenants, including the Environmental Protection Agency (EPA), the Department of Education, the U.S. Bankruptcy Courts, the U.S. Trustees, and divisions of GSA, using Goody’s design documents. Given the building was constructed in 1933, a large proportion of the interstitial spaces (those spaces above ceilings, between walls, and in the building shafts and chases) were concealed, and thus portions of these spaces were not fully and accurately detailed in the plans and specifications. Although GSA argues now that the design was substantially complete, the record as a whole shows that GSA, due to serious time constraints for obligating the funds for this project, had to obtain bids on a design package that frequently did not adequately define the work within the concealed spaces. Progress of Construction Suffolk began construction work in October 2006. From the start, there were many unknown and concealed conditions, not addressed in the contract documents, that required numerous design clarifications and changes. During 2007, GSA and Suffolk executed contract modifications PS-02 ($387,702), PS-03 ($16,737), PS-04 ($1272), PS-05 ($463,769), PS-06 ($64,276), PS-07 ($44,368), PS-08 ($38,000), PS-09 ($380,056), PS-10 ($114,200), PS-13 ($671,664), and PS-15 ($728,440) for change order work amounting to CBCA 2953, 2954, 2955, 3596, 4175, 4377, 5006 3 almost $3 million. From February through November 2008, GSA and Suffolk executed contract modifications PS-16 through PS-21, PS-24, PS-25, PS-27, PS-31, PS-34, PS-38, and PS-40 for change order work amounting to over $4.5 million.