CBCA 3655

CBCA 3655, 3666 GRANTED IN PART; CBCA 3658, 3660, 3661, 3662, 3663 DENIED: September 27, 2016 DOUGLAS P. FLEMING, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Fred A. Mendicino and Dylan M. Marck of Faughnan Mendicino PLLC, Dulles, VA, counsel for Appellant. David W. Altieri, Office of Regional Counsel, Department of Veterans Affairs, Syracuse, NY, counsel for Respondent. Before Board Judges VERGILIO, SHERIDAN, and ZISCHKAU. SHERIDAN, Board Judge. These disputes involve claims in which appellant, Douglas P. Fleming, LLC (DPF), asserts that respondent, the Department of Veterans Affairs (VA), required it to perform work beyond the scope of its contract. The contract was referred to as the “2D Halls and Walls Project” and was performed at the VA Medical Center, Washington, D.C. (Washington VAMC). DPF filed several claims which the contracting officer denied. At the start of the hearing, DPF withdrew CBCA 3656, 3657, 3659, 3664, and 3665, leaving seven claims currently before the Board, CBCA 3655, 3658, 3660, 3661, 3662, 3663, and 3666. The first group of cases was dismissed by order dated August 31, 2016. In this decision, we address the second group of cases. In CBCA 3655, DPC seeks payment for moving furniture. DPC alleges that the VA issued an “unnecessary and overly restrictive cure notice” in CBCA 3658, and seeks costs associated with its response to the cure notice. CBCA 3660 concerns additional compensation DPC seeks for painting allegedly beyond the scope of the contract. DPF seeks extra costs it claims it incurred associated with the VA’s delay in issuing the notice to CBCA 3655, 3658, 3660, 3661, 3662, 3663, 3666 2 proceed in CBCA 3661, performing extra work out of the contract scope and other delays in CBCA 3662, extra work directives by the VA in CBCA 3663, and the contract balance and costs associated with idle time in CBCA 3666. In total, DPF seeks $701,597.15. Findings of Facts 1. Chronological Facts On May 11, 2012, the VA issued solicitation number VA245-12-B-0206 for a firm, fixed price contract to furnish labor, tools, materials, equipment, and supplies to complete project 688-12-012 requiring the contractor to, among other things, patch and paint the halls and walls of ward 2D in the Washington VAMC. Appeal File, Exhibit 1.1 The solicitation stated that the ward 2D area was approximately 16,800 square feet. Id. at 4; see also Transcript, Vol. III at 97, 188. The work in ward 2D was to be performed while the ward was active and operational. That is, patients were occupying the ward; rooms and spaces were released for work based on patient care requirements, e.g,, when the VA decided a patient could or should be moved. Patient rooms were typically released two at a time adjacent to each other. Transcript, Vol. I at 76, Vol. III at 187. The selected contractor was to “prepare site for building operations, including demolition and removal of existing structures, and furnish labor and materials and perform work for [2D] Halls & Walls as required by drawings and specifications.” Exhibit 1 at 57. The General Requirements specified that the selected contractor was to: [P]rovide all supervision, labor, materials and equipment to perform the tasks for 2D Halls and Walls listed below: 2D (16,800 sq*ft)[2] • Patch/Paint for removed Room ID signs (76 door signs 12" x 12") • Replace Damaged 2' x 2' Acoustic Ceiling Tiles (NTE [not to exceed] 200, VA will provide to ensure they match) • Replace Bumper Guards/Corner Guards in patient corridors in 2D (All in the corridors, 400' x 40') • Remove wall covering in patient corridors and Patch and Paint patient corridors 1 All exhibits referenced in this decision are found in the appeal file, unless otherwise noted. 2 The inclusion of the asterisk was not explained. CBCA 3655, 3658, 3660, 3661, 3662, 3663, 3666 3 • Remove wall covering in main corridor leading to 2D wing, patch and paint corridor • Replace floor tiles in patient corridors and the main corridor leading to 2D wing • Remove 2' x 2' lighting and replace with 2' x 2' Recessed Direct/Indirect Fluorescent fixture, electronic ballast for 2 ballasts (double switching) Lithonia Type • Remove wall covering in patient rooms and Patch and Paint patient rooms • ...