ASBCA 61197

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) KiewitPhelps ) ASBCA No. 61197 ) Under Contract No. W9128F-12-C-0023 ) APPEARANCES FOR THE APPELLANT: Vivian Katsantonis, Esq. Christopher M. Harris, Esq. Watt, Tieder, Hoffar & Fitzgerald, L.L.P. McLean, VA APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Thomas J. Ingram, Esq. Engineer Trial Attorney U.S. Army Engineer District, Omaha OPINION BY ADMINISTRATIVE JUDGE CLARKE This appeal arises from the contract to construct a five-level, one millio.n square foot facility to replace the U.S. Strategic Command (STRATCOM) complex at Offutt Air Force Base (OAFB) near Omaha, Nebraska. Specifically, this appeal deals with a dispute over wallboard (gypsum board) finishing requirements throughout the buildings. 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 Finishing vs. Finishes 1. Mr. Douglass is an operations manager for Hensel Phelps, one of the joint venture partners Kiewit and Hensel Phelps making up KiewitPhelps (KP). He had overall responsibility for this project. (Tr. 1/51-53) Mr. Douglass explained that drywall finishing is "used synonymously with the terminology of how you apply joint tape and drywall compound to the drywall to prepare it for decoration." He distinguished "drywall finishing" from "finishes" that are typically paint, wall covering or anything that would architecturally treat the wall surface. (Tr. 1/63) Mr. Douglass explained there are six levels of drywall finishing starting with zero which is blank drywall, Level 1 which is "fire-taping" up to Level 5 which is the highest level with the most applications of joint compound. Each successive level builds on the previous level of joint taping and the application of joint compound. There are seven levels of "finishes" for different kinds of paint, wall coverings,· wood panels, etc. (Tr. 1/64-65, 69) This similar terminology for different products can cause confusion as can be seen in the bidder inquiry discussed below. Pre-Award Bidder Inquiry 2. Bidder Inquiry No. 4179969 was submitted on September 14, 2011, and read "Spec section 09 29 00 identifies various drywall finish levels (Level 1-7). Please identify where each finish level is to be applied." The government response was: Provide Level 4 throughout facility unless noted otherwise. Provide Level 5 at the following locations: Primary Corridors (adjacent to: elevators, restrooms, break areas, atrium, auditorium, directorate areas), Walls with wood trim and/or panels, Walls and/or ceilings with direct sunlight [o]n surface. Walls with applied solid surfaces. These areas will be clarified in an upcoming amendment. (Supp. R4, tab 3; app. supp. R4, tab 34 at 2-3) Mr. Hailey is an architect working for architectural firm HOR on the STRATCOM replacement facility project since 2008 (tr. 2/204). Mr. Hailey wrote the government response to Bidder Inquiry No. 4179969 (tr. 2/222-24). Mr. Hailey explained that Levels 1-7 are paint levels not drywall finish levels and the inquiry cited the wrong specification "should be 0990, not 0929" (tr. 2/225-26, 271). His response told the bidders where to put the paint in terms of drywall finish (tr. 2/271, 273-74). 3. In her final decision, contracting officer (CO) Young stated, "The contract provisions dealing with drywall finishes, though atypical, are clear and unambiguous, and generated no bidder inquiries" (R4, disc I, tab 1 at 11 ). KP 's Drywall Subcontractor Bids & Trade Practice 4. KP's drywall subcontractor, Cleveland Construction, Inc. (CCI), did not bid finishing to Level 4 above ceilings and below floors (tr. 1/223; app. supp. R4, tab 19 at 1). In addition to CCI, three other drywall subcontractors submitted bids to KP for drywall work. Each bidder interpreted the drywall specifications the same as CCI that Level 4/5 finish was required for exposed walls and fire-taping or Level 1 finishing was required above ceilings (tr. 1/79-82). Allied Construction Services, Inc., wrote "Exposed drywall finished to G.A. level 4" and "Rated drywall above the ceiling finished to G.A.