CBCA 5387

GRANTED IN PART; DISMISSED IN PART: May 14, 2019 CBCA 5387 VET4U, LLC, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Michael T. Stanczyk of Centolella Lynn D’Elia & Temes LLC, Syracuse, NY, counsel for Appellant. Harold W. Askins III, Office of Regional Counsel, Department of Veterans Affairs, Charleston, SC, counsel for Respondent. Before Board Judges DRUMMOND, LESTER, and O’ROURKE. O’ROURKE, Board Judge. Appellant, Vet4U, LLC (Vet4U), seeks reimbursement of additional costs and losses resulting from an asbestos abatement contract with the Department of Veterans Affairs (VA). The VA denied all twenty-three claims in their entirety. Vet4U appealed to the Board and asked for a decision on the record. We grant the appeal in part and dismiss it in part. Background Facts In 2013, the VA solicited offers from qualified contractors to perform asbestos abatement services at a veterans hospital in Syracuse, New York. The project scope included “all demolition and construction services” necessary for the environmental remediation of the hospital’s sub-basement or crawl space. These services included “excavation . . . into CBCA 5387 2 unreachable areas of the sub-basement,” “demolition and removal of all abandoned [] piping, equipment, and systems,” and “abatement/encapsulation of soils, pipe insulation/gaskets, and other asbestos containing materials (ACM) and presumed asbestos containing materials (PACM).” It also required “selective demolition of existing electrical, communication, and lighting circuits,” “repairs and structural modifications to caissons, grade beams, and electrical grounding systems,” installation of an equipment lift system near a loading dock, and construction of access ways into the sub-basement. The solicitation included a project cost range between $1,000,000 and $2,000,000, and required a phased approach to the work. To accommodate this approach, the sub- basement was divided into work zones, each of which corresponded to an option under the contract as follows: Base Period: work zone A - phase 1 = dock/lift modifications Option 1: work zone A - phase 2 = access way excavation/encapsulation Option 2: work zone B = access way excavation/encapsulation Option 3: work zone C = access way excavation/encapsulation Option 4: work zone D/E = access way excavation/encapsulation The solicitation specified time limits for performing each phase of the project as follows: 240 days for the base period and 300 days for each option period, resulting in a total performance period of 1440 days, or forty-eight months. Included in the contract were 589 pages of specifications and twenty-three drawings. Multiple contractors attended the site visit in July 2013, including Vet4U. Interested contractors inquired about quantities of rock and asbestos in the crawl space to ensure accurate bidding. The VA responded by directing them to particular drawings and specifications, as well as to an asbestos survey conducted in 2012 and a sub-surface soil report dated September 15, 1949. According to the VA, this information was sufficient to estimate quantities of soil to be removed, but rock excavation was to be treated as a differing site condition. The VA conducted an evaluation of proposals using the lowest-price technically acceptable approach. Vet4U, the only bidder on the project, proposed an eighteen-month period of performance at a total cost of $4,145,302, inclusive of all four option periods. On September 23, 2013, the VA awarded Vet4U a firm fixed-price contract in the amount of $3,581,957, which included the base period and the first three options. Five months later, the VA exercised the fourth option in the amount of $563,345. CBCA 5387 3 During performance of the contract, a number of disputes arose between Vet4U and the VA’s architect-engineering (AE) firm, Tolman Engineering, PLLC (Tolman). These included the method of excavation, the time-line for review of submittals, suspensions of work, and responsibility for certain additional engineering services.