DENIED: July 23, 1992 GSBCA 10394-COM LAKE UNION DRYDOCK COMPANY, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. G. H. Stebbins, Jr., Vice President of Lake Union Dry Dock Company, Seattle, WA, appearing for Appellant. Jerry A. Walz, Office of the Assistant General Counsel for Finance & Litigation, Department of Commerce, Washington, DC, and Michael Bancroft, Office of General Counsel, NOAA/GCNW, Seattle, WA, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and PARKER. NEILL, Board Judge. This appeal was filed on November 9, 1989, by Lake Union Drydock Company (appellant). In November 1986, appellant was awarded a contract by the National Oceanic and Atmospheric Administration (NOAA) for the upgrade, drydocking, and repairs of the NOAA Ship McARTHUR. This appeal concerns three claims which total $85,863 for costs which appellant claims resulted from (1) the failure to award certain contract items, (2) unanticipated asbestos removal, and (3) curtailed availability. For the reasons set out below, we deny this appeal. Findings of Fact The Solicitation 1. On November 14, 1986, respondent issued Solicitation No. WASC-87-00073 seeking to award a contract for the upgrade, drydocking, and repairs to the NOAA Ship McARTHUR utilizing sealed bid procedures. The bid schedule and specifications included thirty-five basic items and eighteen optional items. Appeal File, Exhibit 1. 2. The solicitation incorporated by reference into Section L.1 the Federal Acquisition Regulation (FAR) clause 52.214-12, Preparation of Bids (APR 1984), which provides, in part, as follows: (a) Bidders are expected to examine the drawings, specifications, Schedule, and all instructions. Failure to do so will be at the bidder's risk. Appeal File, Exhibit 1 at 50. 3. Also incorporated by reference into Section L.1 was FAR clause 52.214-10, Contract Award--Sealed Bidding (APR 1985). It provides, in part, as follows: (a) The Government will evaluate bids in response to this solicitation without discussions and will award a contract to the responsible bidder whose bid, conforming to the solicitation, will be most advantageous to the Government considering only price and the price-related factors specified elsewhere in the solicitation. . . . . (c) The Government may accept an item or group of items of a bid, unless the bidder qualifies the bid by specific limitations . . . . Appeal File, Exhibit 1 at 50. 4. Section M.2 of the solicitation contained FAR clause 52.217-5, Evaluation of Options (APR 1984), which provides as follows: (a) The Government will evaluate offers for award purposes by adding the total price for all options to the total price for the basic requirement. Evaluation of options will not obligate the Government to exercise the option(s). (b) The Government may reject an offer as nonresponsive if it is materially unbalanced as to prices for the basic requirement and the option quantities. An offer is unbalanced when it is based on prices significantly less than cost for some work and prices which are significantly overstated for other work. Appeal File, Exhibit 1 at 52.1 5. Section I.1 of the solicitation incorporated into the solicitation by reference FAR clause 52.217-7, Option for Increased Quantity--Separately Priced Line Item (APR 1984). It provides, in part, as follows: The Government may require the delivery of the numbered line item, identified in the Schedule as an option item, in the quantity and at the price stated in the Schedule. Appeal File, Exhibit 1 at 35. 6. Also included in the evaluation provisions of the solicitation is a clause regarding foreseeable costs. It provides, in part, as follows: M.3 Forseeable Costs Foreseeable costs will be assessed when the ship is moved from her homeport at the Pacific Marine Center (PMC) in Seattle to a shipyard to accomplish the specified work. These costs will be applied to the bids in their evaluation as follows . . . . Appeal File, Exhibit 1 at 52. Contract Items 7. The bid schedule contained fifty-three separate task items divided into two categories, "Basic Items" and "Optional Items." Each item represented a particular contract task. Thirty-five items were listed as basic; eighteen items were listed as optional. The schedule designated each item by number. Basic items were numbered 101 through 133, 401, and 402. Optional items were numbered 201 through 208 and 301 through 310. Appeal File, Exhibits 2 at 6-8, 3 at 6-8. 8. Solicitation appendix A contained detailed specifications for each contract item. The specifications were ____________________ 1 By letter dated May 11, 1988, appellant submitted to the contracting officer a collection of documents as part of negotiations concerning this dispute. Appeal File, Exhibit 31. Included in Exhibit 31 but not referenced in appellant's letter of May 11 is what appears to be a copy of the solicitation. This copy differs from the solicitation included as Exhibit 1; these unexplained differences, however, are irrelevant for the resolution of this appeal. divided into four separate categories: Basic - Class "A" Items numbered 101 to 133; Optional - Class "B" Items numbered 201 to 208; Optional - Class "C" Items numbered 301 to 309; and Basic - Class "D" Items numbered 401 to 402. Appeal File, Exhibits 1 at 56-57 (unnumbered), 2 at 6 (unnumbered). 9. The bid schedule provided that "[i]n order to be considered responsive, a bidder must bid on all items in the quantities stated in the Schedule." The schedule provided a line for price entries for each basic and optional item, the total price of all basic items, the total price of all optional items, and the combined price of all basic and optional items. Appeal File, Exhibits 2 at 6-8, 3 at 6-8. 10. Basic item 402 provides a "Production Scheduling Requirement." Because of the significance of this solicitation provision for one of appellant's claims, we set out below several of its provisions. The specification describing item 402 reads, in part, as follows: 1. INTENT 1.1 The intent of this item is to assure that this project is adequately planned and monitored. Use of the "critical path scheduling" (CPS) will be required. This will be used by the government for determining progress at any given point in time during the period of the contract. In addition the contractor is expected to actively use the method and information to adequately manage the project and complete on schedule. 1.2 The cost of carrying out this formalized production schedule and supplying required documentation will be considered as additional to the contractor's normal overhead. This effort may be carried out on an "in house" basis or by outside production consultants familiar with this work. . . . . 4. REQUIREMENTS 4.1 Network: Prepare and provide a production schedule in critical path method (CPM) format of all specification items . . . . 4.1.1 The network is to be developed from the contractor's estimate in order that the numbers be consistent and factual for subsequent evaluative purposes. . . . . 4.2 Labor Loading: A labor loading chart (schedule) shall be developed from the CPM Network and shall reflect the contractor's bid estimate in order that the Network and labor loading schedule be consistent with the estimate. . . . 4.3 Gant (Bar) Chart: A summary bar chart shall be developed from the Network showing each specification item/sub-item showing start, completion, and key milestone dates. The chart shall be revised at the same interval as the Network. 4.4 Narrative Report: A narrative report containing a summary of work progress shall be provided with each updated Network to brief all participants on the overall progress of the job as well as addressing any specific concerns . . . . 4.5 Monitoring of Work Progress: The contractor shall update the Network, labor loading schedule, gant chart and provide a narrative report to show actual performance as well as any alteration to the original information . . . . 4.5.1 Progress meetings are to be held weekly at mutually agreed upon times during the project. The frequency of updating the scheduling required information is to be every 2 weeks. The CPM planner shall be present a minimum of seven (7) times during the project as follows: . . . . The planner's time and expenses for the required attendances is to be within the scope of work. Attendance of the CPM planner is encouraged, though not required, at all other progress meetings . . . . 4.5.2 Four (4) copies each of the Network, related information and the narrative report are to be submitted to the COTR 2 working days prior to each scheduled updating progress meeting (i.e., every 2 weeks) . . . . Appeal File, Exhibit 1 at 106-08. 11. Appellant's bid submission listed a separate price for each basic and optional item. Appellant did not, however, qualify any of these bids. The total bid for all basic and optional items was $1,027,607. Appeal File, Exhibit 3 at 6-8. 12. On January 12, 1987, respondent awarded the contract to appellant. The contract award consisted of twenty-three items, consisting of twenty-one of the thirty-five basic items and two of the eighteen optional items, for a total award of $642,946. Appeal File, Exhibit 3 at 1. The contract award consisted of the following items: 101 to 115, 118, 119, 123, 126, 129, 305, 307, and 401.2 For the purposes of this appeal, contract award did not include the following relevant items: Basic Item: 402 Project Scheduling Optional Items: 205 Underwater Body Recoat 206 Underwater Hull Painting 308 Sanitary Systems Pipe Renewal 309 Telephone System Appeal File, Exhibits 108 at 1-6, 111 at 2-3. Appellant's Fractional Award Claims 13. By letter dated January 20, appellant sought an equitable adjustment to compensate for the allegedly "altered" nature of the contract award as opposed to the contract solicitation. The letter, in part, provides the following: The IFB set out two schedules for bidding, "Basic Items and Optional Items". Certain FAR Standard Contract Provisions were cited in the IFB, 52-214-10(C) and 52.217-7 among them. Read together these provisions indicate the government may require delivery of certain optional items. The award, verbally communicated to our firm, now indicates that the government considered all items as optional. Our company did not so regard it when submitting its bid. Further, the award omits 14 of 35 "Basic Items". The award, as we understand it, has significantly altered the nature of this contract and seeks to require our company to absorb many of the costs which we eliminated from some items solely to avoid duplication. Appeal File, Exhibit 5. ____________________ 2 The award notice did not list items 101 to 109 as among the awarded items. It listed items 110 to 115, among others. Progress payment reports, however, clearly establish that contract award included items 101 to 115, among others. Appeal File, Exhibits 8, 11, 13, 14, 19-21, 23, as did the proceedings before the Board. See, e.g., Respondent's Answer dated March 12, ___ ____ 1990. 14. The record contains numerous letters from appellant to respondent's contracting officer which provide further elaboration of the basis for the requested equitable adjustment. First, appellant alleged that by not awarding basic item 402, NOAA precluded appellant from recovering its supervisory costs which comprised all of appellant's bid price for item 402.3 Appellant seeks $20,466, the amount of its bid, for item 402. Second, appellant alleged that its offered prices for solicitation items 205, 206, 308, and 309 included the cost of performing common tasks necessary to complete other solicitation items.4 When the contract award did not include these "holding" items, appellant claims it was precluded from recovering the costs of performing work common to the solicitation items that were awarded.5 Appellant calculated these "stranded" costs as amounting to $19,896. Appeal File, Exhibits 9, 22, 27-28, 31-32, 34-38. 15. At the hearing for this appeal, appellant's general manager, who was the author of these fractional award claims, testified at some length regarding them. When asked whether he was concerned about burdening optional items with costs he ____________________ 3 Appellant bid less than its alleged actual cost for item 402. Appellant's master bidsheet lists an actual cost of $22,780 for item 402. Appellant's Exhibit 5 at 2. Cost documentation submitted by appellant to the contracting officer alleges actual costs of $23,250 for item 402. Appeal File, Exhibit 32 at 23. 4 We recognize that in some initial submissions, appellant also argued that certain costs associated with item 119 were stranded in the price bid for unawarded item 302. However, we do not list item 302 here as a holding item for the cost of work allegedly included in item 119 at time of award. In the cost documentation file submitted by appellant, Finding 27, no effort is made to document these allegedly stranded costs. Furthermore, these costs were apparently the subject of a contract modification which transferred them and work associated with them ___ from item 302 to item 119. See Finding 17. ___ 5 Namely: Item 101, CPP Controls; Item 103, Navigation Lights & Whistle Upgrade; Item 104, Anti-Roll Tank; Item 105, Paint Bow Void; Item 106, Officer Mess/Lounge; Item 107, Doppler Current Profiler Sea Chest; Item 109, Crew's Mess Upgrade; Item 111, DSF 6000 Transducers; Item 126, Overboard Discharges; Item 305, Thermosalinograph Sea Chest Installation; Item 307, Salt Water Service System. Appeal File, Exhibit 1. considered common to some basic items, he replied that he was "not a bit concerned." Transcript, Vol. 2 at 247, 270. He explained that he developed his prices on individual items by using the critical path method. He contended that bidders were required by the solicitation to use this method for developing their bid. Id. at 236, 253-54, 270. This method inevitably led to the inclusion of any alleged common costs in the price of the first critical path item requiring it. The burdening of some items with costs common to other items was, according to him, to be expected when one used the critical path method to prepare a bid. He testified that there were no alternatives to this approach. This type of pricing was the inevitable result of using the critical path method and avoided the possibility of any subsequent claim by NOAA for a refund of payments made for double charges on identical work. For this reason, he explained that he saw no need to qualify his bid or discuss the matter with the contracting officer prior to bid submission. Id. at 247, 271-73. 16. Appellant's general manager further testified that in the event the optional items burdened with common costs were not awarded, he considered that this would constitute a changed condition justifying an equitable adjustment. Under the adjustment, the common costs included in the unawarded items would be shifted to the related items which had been awarded. Transcript, Vol 2. at 247-48, 250, 271. This, he contended, would be in accordance with prior practice. Upon further cross-examination by counsel for respondent, appellant's general manager conceded that his company had dealt with NOAA for several years, that NOAA's solicitations have always contained both basic and optional items, and that it was not unusual at all for NOAA not to award all basic items, but to award some option items as well. The witness admitted to knowing of no instances where the award by NOAA left essential costs stranded. Consequently, he admitted that his company had never, in fact, negotiated with NOAA on an equitable adjustment of the type described. Id. at 251-52. He further conceded that it had never been necessary to negotiate for this type of an adjustment after contract award on contracts between his company and the Navy or the Coast Guard. Id. at 250-51. 17. Appellant also has contended that a precedent was established under this contract for granting the type of price adjustment it seeks in these fractional award claims. Appellant relies on contract modification 5 where NOAA agreed to amend the contract to increase the price of item 119, ventilation cleaning, to reflect the cost of some work called for on item 302, HCAV (heating, air conditioning and ventilation) system, which was not awarded. Appeal File, Exhibit 38 at 2. Under this modification, the parties agreed that item 119 would be amended to include work originally included under item 302, namely, the installation of a removable access cover (softpatch) in the stack on "G" deck. The contract price was increased by $4,231 to cover the cost of this work. Id., Exhibit 4. 18. Counsel for respondent also cross examined appellant's general manager regarding his alleged concern over potential claims by the Government for refunds in the event costs for common work are included in more than one item. Upon further discussion, this witness stated that neither NOAA nor the Coast Guard had ever asserted such a claim against appellant in negotiating amendments to fixed price contracts with no change in contract scope. He stated, however, that something akin to this had occurred on some contracts between appellant and the Navy, but the claims were successfully resisted owing to appellant's being able to demonstrate that by using the critical path "network" the cost had been charged only once. Transcript, Vol. 2 at 273-77. Supervisory Costs - Item 402 19. A subset of appellant's fractional award claim is its claim for the $20,466 bid for item 402, project scheduling, which was not awarded. Appellant contends that the price of this item contained virtually his entire cost of project supervision, scheduling and quality control. See Finding 14. By letter to the contracting officer dated February 11, 1987, appellant requested an equitable adjustment to compensate for "financial penalties" because of the mix of contract items awarded and not awarded. The letter, in part, states: Item 402 required scheduling described as beyond norm. Nothing outlined in 403 [sic] was beyond basic scheduling on all jobs and by cancelling 402, every dollar allowed for supervision, scheduling and quality control was cancelled. Appeal File, Exhibit 9 at 2. 20. By appellant's claim letter to the contracting officer dated May 6, 1987, appellant reasserted that it included all cost allowances for scheduling and overseeing the contract on item 402. Appellant asserted that every requirement listed under item 402 had to be accomplished to manage the project properly. Appeal File, Exhibit 22 at 6. By way of example, appellant alleged: For instance, the Contractor prepared critical path schedules and manpower loading curves during the planning stage of the overhaul. Separate prearrival conferences were held with both government representatives and shipyard foremen to discuss the management of the repairs. Once each week the Contractor held progress meetings where a narrative report was presented discussing work accomplished, anticipated activity and problems being encountered for each task. As new work was added, the Contractor modified his schedule and manpower loading to insure an effectively managed project that would complete on schedule. When government furnished material and/or information was late in arrival, the Contractor modified the overhaul schedule at no additional cost to the government to accommodate those delays. . . . All of the requirements delineated in item 402, Project Scheduling, had to be accomplished to properly manage the McArthur repair contract. Id. 21. The record contains documentation concerning appellant's forward pricing rate agreement with another Government agency, the Department of the Navy. Based on a review of its files conducted in 1988, the Navy concluded that appellant does not charge the cost of ship superintendents to overhead and that such costs will be considered a direct charge item when negotiating changes under the forward pricing rate agreement. Appeal File, Exhibit 103 at 1 (unnumbered). The record also contains appellant's overhead schedule, dated December 31, 1987, which lists the expenses included in its overhead. Consistent with the Navy's conclusion, the schedule does not list ship superintendents as an overhead expense.6 Id. at 5-7 (unnumbered). 22. Appellant bid $20,466 on item 402. Three other offerors submitted bids on this contract. Their bids for solicitation item 402 were respectively: $8,000 , $9,900, and $15,600. Appeal File, Exhibit 41 at 4 (unnumbered). 23. At trial, appellant called an expert witness qualified in the area of critical path planning and scheduling for ship production and repair. Transcript, Vol. 1 at 246-47. This expert testified that without more information as to how the management fee would normally be charged, he did not feel competent to answer whether it is reasonable to put the entire ship superintendent's fee into item 402. Id. at 309-10. Appellant's expert did testify, however, that while the duties described in item 402 would be part of the management effort, they would not constitute the entire management effort. Id. at 312. 24. Appellant's expert also agreed that item 402 requires the contractor to use the critical path method following receipt of the actual work scope and to plan, schedule, and monitor that work. Transcript, Vol. 1 at 294-95. It was his opinion, ____________________ 6 The overhead schedule does list plant superintendent as an overhead cost. Within appellant's organization, the plant superintendent is not the same individual as the ship superintendent, as evidenced by the fact that both these individuals submitted sworn statements for inclusion in the record. See Finding 45. ___ however, in view of this requirement, that the best way to assure this would be done effectively would be to develop a critical path schedule for the entire project as part of the bid process. Id. When asked if his position on this matter would change in view of the requirement in item 402 that a critical path method format be prepared for "all specification items," he expressed uncertainty as to whether the phrase applied to items to be bid upon or items awarded. Id. at 320. 25. The contracting officer testified that item 402 was intended to become operative upon award. She also testified that item 402 did not require bidders to use the critical path method in preparing their bid and that the reference in 402 to the preparation of a critical path method format for "all specification items" refers to items awarded. Transcript, Vol. 3 at 127-29. She contended that this solicitation requirement is for a critical path schedule and not for supervision. Id. at 101. Proof Of The Fractional Award Claims 26. The contracting officer has testified that upon being advised by appellant that it had been harmed by the Government's failure to award certain items, she suggested Lake Union Drydock Company consider filing a claim for mistake after award. She specifically suggested that appellant provide her with bid documents which would show where the costs claimed were in fact placed. Transcript, Vol. 2 at 131. Appellant chose not to provide this documentation prior to the contracting officer's final decision. Id., Vol. 2 at 132, Vol. 3 at 61. What appellant chose to present instead were estimates, summarizations, and resummarizations of the claim and the theory behind it. Id., Vol. 2 at 129, Vol. 3 at 60, 67, 69; Appeal File, Exhibits 22, 25, 27, 31-32, 34, 36-38. 27. One submission provided by appellant to the contracting officer by letter dated July 29, 1988, served as a supplement to several previous submissions. Appeal File, Exhibits 32, 78-100. Appellant refers to this material as its "cost documentation file" and contends that it is "self explanatory and can stand on the record." Appellant's Posthearing Brief at 10. We have examined the material in this submission which relates to appellant's fractional award claim. It is clear that the material assumes and expressly claims that certain common costs were factored into the price of items not awarded and not factored into the price of related items which were awarded. However, we can find nothing in this material which actually demonstrates this fact or, even more importantly, confirms appellant's estimates of the precise amounts sought in these claims.7 28. Actual bid worksheets regarding awarded and unawarded items were eventually provided to the Government by appellant in response to requests made during pretrial discovery. Transcript, Vol. 2 at 134, 284-86, Vol. 3 at 68. Some of this bid documentation was introduced into the record during trial. Appellant's Exhibits 5-14; Respondent's Exhibit 5. The bid documentation offered by appellant does contain estimates used for the pricing of some but not all of the awarded solicitation line items which appellant contends involved work common to some unawarded items.8 With the exception of the worksheet for item 111, these worksheets do not appear to contain any reference to those costs which appellant claims these awarded items share with unawarded items. See Appellant's Exhibits 6, 9-14. 29. Through the bid worksheets presented at trial and the testimony of one of its employees, appellant has demonstrated that the worksheets for the unawarded "holding" items do contain references to the alleged common costs. However, these references are general in nature. The costs are not described in any real detail; the estimates do not identify the costs allegedly related to the awarded item. Furthermore, the worksheets do not provide any basis to support the specific amounts appellant is seeking to transfer from these unawarded items to those which were awarded. See Appellant's Exhibits 5- 14; Respondent's Exhibit 5; Transcript, Vol. 2 at 294-438. 30. The contracting officer claims to have had no knowledge of appellant's alleged omission of certain costs from the prices of certain items selected for award. She maintains that there was nothing in appellant's bid which would have alerted her or ____________________ 7 Appellant makes much of the fact that, at trial, the contracting officer did not recognize this material as having been submitted to her prior to rendering her decision denying the fractional award claims. However, upon further inquiry, it was determined later in the hearing that the material was submitted to the contracting officer prior to her decision and that the contracting officer had, in fact, included it in the appeal file. We find no significance in her lapse of memory regarding this material, especially since the conclusions reached here regarding this material are based on the Board's review of it and not hers. 8 No estimator worksheets were offered for items 101, 103, 106, or 109. Each of these items was said to require the removal of overhead ceiling panels. The cost of this work was allegedly not included in the price of these items (all of which were awarded) but rather in the price of item 309 (which was not awarded). put her on notice of such a mistake. The Government's estimate for this project was considerably lower than the four bids received. Transcript, Vol. 1 at 92. Appellant's bid, in the aggregate, was the second highest among the four bids. Only when foreseeable costs associated with moving the vessel from its home port to the contractor's shipyard were added to the evaluation (as called for in the IFB, Finding 6) did appellant become low bidder. The contracting officer contends that, even on the individual items selected for award, appellant's prices were higher than the low offeror before adjustment for foreseeable costs. Transcript, Vol. 2 at 119-20, Vol. 3 at 64-65. 31. The bid abstract demonstrates that for the twenty-three items actually selected for award, appellant's offered prices (before adjustment for foreseeable costs) were low for only five items. On an additional five items, appellant's offered prices were second low. On nine items, however, its prices were third low, and on four items its prices were the highest offered. Based on a comparison of the offered prices on the eleven awarded items which appellant contends did not include the common costs allegedly factored into the price of unawarded items, we find the following: 1. On two items, appellant's offered prices were the lowest. 2. On one item appellant's price was second low. 3. On five items appellant's prices were third low. 4. On three items appellant's offered prices were the highest bid. Appeal File, Exhibit 41 at 4 (unnumbered). The Asbestos Claim 32. Contract clause H.12 expressly provides that if asbestos is encountered, the contractor is to follow specific Occupational Safety and Health Administration (OSHA) regulations. Appeal File, Exhibit 1 at 25. In addition, in the detailed contract specifications, specific reference is made to the presence of asbestos bearing material in piping insulation for item 130, evaporator overhaul. Id., Exhibit 1 (Appendix A). Within the same specifications, on item 110, galley upgrade, the contract references original ship drawing DA-S3902-1, Pipe Insulation - General Notes and Details Booklet. A copy of the General Notes and Details Booklet was included in the solicitation package provided to vendors. Transcript, Vol. 1 at 101. It states that where pipe insulation is not exposed to weather or undue moisture, the insulation shall be lagged with asbestos cloth applied with adhesive lagging cement. The booklet also provides that asbestos insulation behind joiner panels or ceilings need not be lagged.9 Appeal File, Exhibit 1 (final segment of that exhibit) at 12; Transcript, Vol. 1 at 105. 33. The McArthur's chief engineer testified that air samples are taken in the living and working areas of every compartment of the ship twice a year. To the best of his knowledge, no samples have ever indicated an unacceptable level of asbestos. Transcript, Vol. 1 at 27, 30-31. These samples are taken with overhead panels in place. Id. at 27. 34. The COTR on appellant's contract, who serves as project engineer for the McArthur and several other NOAA ships, testified in some detail regarding air samples taken to determine if there is an asbestos hazard on NOAA vessels. He explained that today asbestos is present virtually in all air that is breathed. The regulatory body in this country that governs work on asbestos is OSHA which has established standards for acceptable levels of asbestos in the workplace. He noted that OSHA has established a current standard of one-tenth of a fiber per cubic centimeter, greater than five microns (i.e., five millionths of an inch) in length. Given the small size of these fibers, an airborne asbestos fiber can easily get through most barriers. For that reason, NOAA continues to take air samples throughout the "household" of its vessels. He further testified that, based on these samples, NOAA does not have an asbestos hazard. He explained that as recently as August 1990, twenty-eight air samples were taken on board the McArthur. Twenty-seven of the ____________________ 9 When asked at trial to explain what is meant by "lagging," the contracting officer's technical representative (COTR) explained: "Pipe insulation is the material which inhibits heat transfer. 'Lagging' is a wrapping that typically goes around the outside of the insulation as a[n] abrasion barrier." Transcript, Vol. 1 at 44. twenty-eight samples showed .024 fibers per cubic centimeter. The OSHA standard is .1. Transcript, Vol. 1 at 58-59. 35. In order to gain access to the site for much of the work to be done under the contract, it was necessary to remove various asbestos bearing ceiling panels on the vessel. Transcript, Vol. 2 at 12-14. The first phase of the renovation required the removal of ceiling panels, behind which were pipes that were to be modified pursuant to the contract specifications. The pipes were insulated with asbestos bearing materials and many were insulated with unlagged (or uncovered) asbestos. The contract specifications required that the asbestos insulation on these pipes be removed and that they be reinsulated with non- asbestos material. Id. at 194-96, 212. 36. Removal of asbestos ceiling panels and pipe insulation was performed by a subcontractor retained by appellant. This subcontractor first built Visqueen tents and then had personnel dressed in protective clothing pull down the various overhead ceiling panels and wrap them in sealed bags. Transcript, Vol. 2 at 13. The subcontractor then entered the overhead areas and cut back asbestos insulation on the pipes which appellant had indicated as being the pipes which were to be modified. The insulation was to be taken off and new insulation material put on. Id. at 55. The ceiling area was then vacuumed, and the air tested and monitored. The panels were not replaced at this time. On Friday, January 23, 1987, the subcontractor completed its work and gave appellant a certificate stating that the area was safe to enter. Id., Vol. 1 at 218, Vol. 2 at 13, 14. 37. The COTR also testified that as long as the integrity of asbestos pipe insulation is not interfered with, the insulation, lagged or unlagged, should not emit hazardous fibers into the air. Transcript, Vol. 1 at 54. A representative of the subcontractor10 which removed the asbestos insulation from the McArthur was called to testify for appellant. This individual was qualified as an expert in the installation and removal of asbestos from inland and ocean going vessels. His testimony was similar to that of the COTR regarding the integrity of asbestos insulation. He explained that the practice of the industry for vessels which were built with asbestos before the hazards of asbestos were known, is not to remove the asbestos unless or until it is damaged in some way. Id. at 185, 194. 38. This expert witness also testified that one would expect to encounter dust on the overhead panels in a ship's compartment. He stated: ____________________ 10 It was the testimony of this witness that his company does all of appellant's asbestos installation and removal work. Transcript, Vol. 1 at 185. Because it's a -- it's just a normal thing. Whenever you take down the panels on a ship, whether it's asbestos or whatever, that panel's going to have debris. If it's been up -- if that panel's been up for ten, twelve years, there's going to be dust. And now, that's not to say it's asbestos dust, but there's definitely -- you're going to wipe your hand like that, and it's going to come up with lots of dust. . . . It's just a normal thing. Transcript, Vol. 1 at 219. Although this witness was an employee of the subcontractor responsible for removing the asbestos for appellant on the project in question and participated in the work itself, he could not recall whether the dust from the ceiling panels in this case was tested for asbestos. Id. at 220. 39. In the afternoon of January 23, 1987, pipefitters employed by appellant entered the work areas and discovered piping insulated with unlagged asbestos and dust which was thought to be potentially hazardous airborne asbestos. Transcript, Vol. 2 at 15. These conditions prompted appellant's workers to "walk off the job." Id., Vol. 1 at 188-89. 40. The representative of appellant's subcontractor for asbestos removal was somewhat contradictory in his testimony regarding the unlagged asbestos insulation found in the work area. Initially, he testified that, because unlagged pipe insulation is so unusual, he was certain that it would have been called to appellant's attention by the subcontractor's foreman during the initial removal of asbestos panels and insulation. This statement was made while the witness was still under the mistaken assumption that the unlagged insulation was found in an area of the ship different from that in which the asbestos panels and insulation were being removed. Once this misconception was clarified, he assured the Board that his people would really have no reason to pay attention to the piping.11 Transcript, Vol. 1 at 216-17, 222. 41. This same representative of appellant's subcontractor testified that upon being told by appellant's ship superintendent of the concern of the shipyard employees over asbestos in the work area, he went to the shipyard to inspect the situation ____________________ 11 Appellant's ship superintendent testified at hearing that the areas where the asbestos removal subcontractor performed its work during the initial phase of panel and insulation removal were the same areas where the unlagged asbestos was discovered on January 23, 1987. Transcript, Vol. 1 at 344. It was his opinion that personnel working during the initial phase could have looked up and seen the unlagged asbestos. It was "right in front of their faces when they removed the panels." Indeed, he believed that it was likely that some of the insulation removed by the subcontractor was itself unlagged. Id., Vol. II at 62, 65, 70. ___ personally. There he was shown the unlagged pipes. He has testified that he was not aware of any airborne fibers in the area at the time. However, he stated that the insulation was fragmented, cracked, and deteriorating. He did not take air samples before starting the corrective actions. Instead, he recommended immediate encapsulation to the ship supervisor. Transcript, Vol. 1 at 189-93. This witness also stated that in all thirty-five years of his experience, he had never seen unlagged pipe insulation on board a ship. Indeed, so unusual was it that, in his opinion, the owner of the vessel should certainly have told bidders of it in the bidding documents. Id. at 196-98, 207, 209. 42. Appellant's ship superintendent testified that on January 23, after the subcontractor had certified that the work area was safe to enter, he was told of workers' concern over entering the work area. He was shown pipes in that area which had unlagged insulation. He explained: "And everywhere -- if you touched it, or if you looked at it, just about, you would -- you could get dust off of the pipe, or off the brick." Transcript, Vol. 2 at 14-15. In a written statement given under penalty of perjury, he has further stated: The insulation on these pipes showed the effect of being subjected to vibration and moisture over many years: the outer covering was fuzzy, the inner walls no longer tightly "hugged" the pipe walls, and the ends of each section of brick insulation were worn where they abraded one another. There were also two recently repaired pipe joints that had been improperly relagged. The insulation had the appearance of an "exploding cigar" in the area of the repair. Appeal File, Exhibit 104. The ship superintendent also testified that even at the time the overhead panels were being removed, a considerable amount of dust had been noted in the area. Nothing, however, was said at that time about sampling the air. Transcript, Vol. 2 at 60. On Friday, January 23, 1987, after viewing the unlagged insulation in the work area, he brought operations to a halt and advised the asbestos removal subcontractor and a NOAA representative of the problem encountered. The NOAA representative contacted recommended taking air samples to confirm that there was airborne asbestos in the area. Id. at 17. 43. On Monday, January 26, 1987, appellant advised the contracting officer's representative in writing that problems had been encountered aboard the McArthur due to the discovery of unlagged asbestos on piping which was unrelated to the contract requirements, but which was located in areas where contract work was to be performed. Appellant also advised respondent at this time that these problems would cause the shipyard to stop production on certain specifications. Appeal File, Exhibit 6. 44. Also on Monday, January 26, the COTR toured the ship and the area in question and observed for himself the unlagged asbestos pipe insulation. He has testified that he found the unlagged asbestos intact, gray in color, and having the texture of an orange peel. Transcript, Vol. 3 at 210. In an affidavit provided for the record, he has also stated under penalty of perjury that in making his inspection of the work area on January 26, he "did not see any missing, damaged, frayed, or deteriorated sections of insulation." Respondent's Exhibit 2. He also has stated that on the morning of January 26, when he visited the ship, he met with the ship superintendent and appellant's contract administrator and discussed with them how the use of a jack hammer on the deck of the galley could cause unlagged pipe insulation in the spaces below to break or crack and release asbestos into the air. He has stated that appellant's representatives also were concerned that a worker might inadvertently strike the unlagged insulation with a tool and thus cause asbestos to break off and become airborne. He noted that only since that time has appellant's position gradually changed into one of concern over alleged "ragged, deteriorated, friable12 insulation throughout the ship." Id. The COTR also, at that time, made a rough estimate of the amount of unlagged insulation present in the work area. He estimated there to be approximately 235 feet of unlagged asbestos insulation. Transcript, Vol. 3 at 301. 45. The record also contains eight signed affidavits or statements given under penalty of perjury from employees of appellant. Also furnished was a statement from a representative of appellant's subcontractor for asbestos removal.13 The statements were executed between December 1990 and January 1991. They address the asbestos insulation problem encountered on January 23 but in highly varying terms. The statement of the ship's superintendent basically confirms his testimony given at trial. The statement of the company's contract administrator also describes an alleged deteriorated state of the insulation. The statement of the general manager shows on its face that the description of the insulation is based on the reports of others. At trial, the company's estimator freely admitted that the description of the insulation contained in his statement was not based on personal observation. Transcript, Vol. 2 at 88. The language in the statement of the subcontractor's representative makes no reference to personal observation of the condition described. We, therefore, give it little weight. A statement by the pipefitter leadman simply noted that insulation, which was gray in color and wrapped in gauze covering, was encountered in ____________________ 12 I.e., asbestos that is or can become airborne very ____ easily. Transcript, Vol. 1 at 51. 13 The affidavit was not from the same representative that testified at trial as to having personally viewed the alleged asbestos hazard. See Finding 41. ___ the McArthur. This individual was called to testify and actually confirmed that the insulation under the gauze was intact and actually "looked good." Transcript, Vol. 3 at 324. A statement from appellant's pipe foreman has a similar description of the insulation but observes that asbestos particles could be airborne from this insulation in the event of sudden shock. The plant superintendent states that he was shown the pipe coverings in the overhead area. He provides no description of their state, however, and simply observes that "suspicious looking particles" were falling from the coverings. Appellant's quality assurance manager likewise fails to describe the state of the insulation in question but simply states that he "found asbestos fibers were being released into the air from pipe insulation in the area we needed to work in, but remote from our actual work areas." Appeal File, Exhibit 104. 46. On Wednesday, January 28, 1987, the COTR delivered to appellant a letter signed by the contracting officer. The letter commended appellant for the diligent manner in which it was dealing with the asbestos hazard encountered, but made it quite clear that it was the responsibility of the contractor to resolve the problem and that there could be no delay in the timely completion of the contract. Appeal File, Exhibit 7; Transcript, Vol. 3 at 213-214. 47. On January 29, 1987, appellant's subcontractor returned to the McArthur, re-tented the work area, and covered the unlagged asbestos laden pipes with a white, liquid sealant, revacuumed, tested the air, and then recertified the area as safe to enter. The subcontractor completed its work by Monday, February 2. Transcript, Vol. 2 at 66-68. 48. On February 11, 1987, appellant submitted a claim for an equitable adjustment in the amount of $16,594 for the cost of correcting the asbestos condition encountered on January 23 on board the McArthur. In addition, a time extension for fourteen days was requested, and an $8,000 request for temporary services extended to cover the limited asbestos correction was also sought. Appeal File, Exhibit 10. 49. Respondent answered this request on March 16, 1987, in a letter from the contracting officer stating that the condition of the unlagged pipes should have been known to the contractor if the drawing DA-S-3902-1 had been reviewed; that air samples previously taken aboard the McArthur indicated allowable limits of asbestos; and that as the work ceased on January 28, 1987, and started up again on February 2, an extension of time was not justified. Appeal File, Exhibit 15. 50. At hearing, the contracting officer testified that she believed appellant had prior knowledge of the existence of this unlagged asbestos because appellant had previously worked on NOAA ships and had access to drawings and specifications which indicated the possibility of unlagged asbestos. Transcript, Vol. 2 at 136. In correspondence with appellant regarding this claim, she had also underscored the fact that the contract itself, in providing direction to the contractor on how to handle any encountered asbestos material, clearly provided notice of any potential hazard. Appeal File, Exhibit 26. 51. The COTR who, as already noted, is also project engineer for other ships in the NOAA fleet, testified that the use of asbestos on vessels in the fleet is very common. Transcript, Vol. 1 at 45. He also stated that there is more unlagged pipe insulation in the overhead void areas of the McArthur and her sister ship, the Davidson, than in any other vessels in NOAA's fleet. Id. at 51-52. This witness also reported that he had determined from NOAA files that appellant had six previous contracts with NOAA, on either the McArthur or the Davidson, and these contracts involved a knowledge of asbestos insulation. Transcript, Vol. 1 at 150, 154. Three key employees of appellant who testified at trial all admitted that prior to 1987 they had worked on the McArthur or the Davidson. Id., Vol. 1 at 338, Vol. 2 at 88-89, Vol. 3 at 320. 52. The COTR also testified that if there were to be a problem with asbestos emissions in the overhead area above the McArthur's ceiling panels or behind the bulkhead sheathing, there would most certainly be an air quality problem in the ship's living area as well. He explained that the overhead panels are not airtight. They are held up simply with sheetmetal screws and the ceiling perimeter is not at all airtight. In addition, in various locations there is ready access to overhead sheathing and some bulkhead sheathing through doors, switch boxes, or duct dampers. Transcript, Vol. 1 at 142-43. Accordingly, in the opinion of the project engineer, given the high quality of the air samples taken on board the McArthur, there is a strong probability that an air sample taken in the overhead area above ceiling panels would also have proven to be satisfactory. Id. at 60. 53. The record contains no evidence of any sampling or testing of the dust found in the overhead work area or of the air in that area prior to the asbestos removal. Testimony given by appellant's witnesses tends to confirm that no sampling or testing of the dust was ever done and the only testing of the air was done immediately prior to the issuance of the two certificates that the work area was safe to enter. See Transcript, Vol. 1 at 189, 220, 343, Vol. 2 at 60, 169. 54. Appellant submitted cost documentation regarding its asbestos claim in the amount of $16,108. This claim included $10,075 in labor costs, $1,015 in materials and samples taken, and $5,018 in costs for services performed by Performance Contracting, the insulation subcontractor. Worked into these costs figures was $3,203.25 in delay charges. Appeal File, Exhibits 88-90. Based on his earlier estimate of the amount of unlagged insulation he found in the work area on January 26, the COTR recommended to the contracting officer that she agree to pay an invoice for $1,602. This invoice was submitted by appellant's subcontractor for the encapsulation of the unlagged insulation and, in the opinion of the technical representative, it constituted a real benefit conferred on the Government by appellant. Transcript, Vol. 3 at 301-06. In her final decision denying the rest of appellant's asbestos claim, the contracting officer agreed to pay this amount. Appeal File, Exhibit 39. Constructive Acceleration Claim 55. By letter dated March 20, 1987, appellant advised the contracting officer that an equitable adjustment of approximately $20,000 would be required to meet the costs of finishing the contract by the completion date of April 24, 1987, notwithstanding an alleged delay of fourteen days. Appeal File, Exhibit 54. By letter dated February 11, appellant had already asked for a fourteen day extension. Id., Exhibit 52. The request, however, was denied. Id., Exhibit 55. 56. In a submission to the contracting officer dated May 6, 1987, appellant increased its claim for the costs of finishing on schedule.14 This submission also provided additional detail regarding the alleged delay -- now said to be fifteen days. Ten of the fifteen days were said to be occasioned by the additional time required for asbestos cleanup. The remaining five were said to be the result of late delivery of the vessel. Appellant pointed out that work on the vessel was originally scheduled to start on January 5, 1987, and to be completed no later than April 20. In fact, the vessel was delivered to appellant on January 14, nine days late. Appellant pointed out, however, that the contract completion date was extended from April 20 to 24. Appeal File, Exhibit 4 (modification 1). Because the contract was extended by only four days but the vessel delivered nine days later than expected, appellant claimed it was entitled to the additional five days delay. Id., Exhibit 56 at 9-10. 57. The original performance period specified in the solicitation was, in fact, January 5, to April 20, 1987. Because the contract was not awarded until January 12, the start of performance was changed from Monday, January 5, to Monday, January 12. The contract completion date was changed from Monday, April 20, to Friday, April 24. This constituted a net reduction of three calendar days or one working day in the ____________________ 14 Appellant's submission of May 6 is somewhat inconsistent regarding the precise amount actually claimed as a result of the alleged curtailment in the availability of the vessel. The cover letter lists a claim amounting to $28,921. The specific components as listed on page ten of the submission total $28,935. The summary of the claim, as stated on page eleven, reads $28,907. Appeal File, Exhibit 56 at 1, 10, 11. overall period of contract performance. Appeal File, Exhibits 3, 4. 58. Appellant's acceleration or "curtailed availability" claim is said to be composed of three elements. The major portion of the claim is based on an alleged cost of $27,889 said to have been incurred as a result of the combined effort on the part of appellant and its subcontractor to speed up the original schedule by assembling galley equipment in the field (shipside) rather than in the shop. The second element of this claim is $432 which appellant claims to have paid to have the vessel towed from the shipyard to NOAA's PMC for loading of scientific equipment required for the upcoming voyage. Appellant contends that this was necessary because the Government's delay precluded its subcontractor from the timely completion of work on a pneumatic propulsion control (PPC) system. The third element in appellant's curtailed availability claim is $614 in legal fees said to have been incurred for analysis of this claim. Appeal File, Exhibit 56 at 10. 59. The contracting officer has readily admitted that, although the contract was awarded on January 12, the vessel was not delivered to appellant's shipyard until January 14. She was uncertain why the vessel was not delivered on the 13th, but was of the opinion that the reason for it not being delivered on the 12th was that the contract was awarded too late in the day for the vessel to be moved on that same date to appellant's shipyard. However, the contracting officer has also testified that because of the close proximity of appellant's facility to NOAA's PMC ("practically right next door"), where the vessel was at time of award, appellant's representatives were invited to avail themselves of the vessel at NOAA's facility. Transcript, Vol. 2 at 154-55. The COTR has confirmed that Lake Union Drydock was advised of award in the afternoon of January 12. He also has testified that on the following day, while the vessel was still at NOAA's facility, foremen of various trades from Lake Union Drydock Company came aboard. He explained: [T]hey were inspecting areas and looking at their jobs, reading their specifications, looking the ship over to see what manpower they needed, what tools they needed and how they were going to muster on the job when the ship arrived at the shipyard. Id., Vol. 3 at 259. 60. Although the contracting officer denied appellant's request for an extension of the contract completion date, Finding 46, respondent did agree to the omission of some contract items to permit appellant to meet its production schedule. The parties are in agreement that one full day was saved by the omission of sea trials. Transcript, Vol. 1 at 15, Vol. 3 at 270. The parties also agreed to the elimination of item 115, the inclining experiment which was designed to determine the initial stability of the vessel. Appeal File, Exhibit 4 (modification 35). Given the elaborate preparation for this experiment and the carefully controlled conditions under which it is conducted -- as described in some detail by NOAA's project engineer -- we find that the elimination of this contract item saved appellant an additional two days. Transcript, Vol. 3 at 272-75. 61. Undoubtedly, one reason for appellant's failure to complete its contract on time was the inability of its subcontractor for stainless steel galley to further accelerate its pace. The subcontractor's committment to this project was total. Appellant advised the contracting officer that this subcontractor planned on working fourteen to twenty hours a day, seven days a week, to perform its portion of the contract. Appeal File, Exhibit 22 at 10. Appellant's ship superintendent, when asked what percentage of the subcontractor's capacity would be taken up by this contract, replied "all of it. Absolutely all of it." Transcript, Vol. 2 at 8. Contracting Officer's Decision 62. On August 15, 1989, the contracting officer issued a final decision denying all claims except for $1,602 allowed for the subcontractor's cost of asbestos encapsulation. Appeal File, Exhibit 39. 63. On November 9, 1989, appellant filed its Notice of Appeal with this Board. Appeal File, Exhibit 40. Discussion Fractional Award Claims Appellant's theory that partial award represented a change in contract scope is clearly at odds with the solicitation provision which advised bidders that the Government may accept an item or group of items of a bid unless the bidder qualified its bid by specific limitations. See Finding 3. Under this term of the solicitation, there was always the prospect of a partial award. Indeed, appellant's general manager conceded at trial that his company had dealt with NOAA for several years and that it was not at all unusual for NOAA to make partial awards of both basic and optional items. Finding 16. Clearly, if appellant intended to burden only one item with costs common to it and other items, it should have qualified its bid to avoid the common costs being stranded in the event the holding item was not awarded. Appellant chose not to do this. Finding 11. Several reasons have been offered by appellant for not taking advantage of the solicitation provision which permitted qualification of bids. Notable among the reasons given are: 1. Placing common costs into holding items is required when bidding is done using the critical path method which was required by the solicitation. There really are no alternatives. See Finding 15. 2. It was assumed, based on prior experience, that a contract modification would be negotiated to transfer common costs to awarded items if, after award, they were found to be stranded in items which were not awarded. Finding 16. 3. When certain solicitation items are interrelated by common work, they should be considered a single "item" for purposes of determining what items or group of items the contracting officer can award under the solicitation. Appellant's Posthearing Brief at 16. 4. It would have been improper to include a charge for the same common work in each item for which it was required. This would have led to a claim from NOAA. See Finding 15. 5. Inclusion of the same cost in multiple items would have led to unbalanced bidding. Appeal File, Exhibit 9 at 2. 6. Respondent's amendment of the contract to include work from unawarded item 302 constitutes a precedent under this contract for transferring costs from an unawarded item to an awarded item. Finding 17. For the reasons explained below, we find in none of these various explanations a justification for appellant not providing some qualification of its offered price to make clear that not all costs associated with a particular item were reflected in the price bid for that item. The explanations may provide some indication of how appellant's alleged mistake occurred, but they do nothing to justify appellant's failure to avail itself of the right offered under the solicitation, Finding 3, to include a qualification. Appellant's assumption that the solicitation required the use of critical path scheduling in the preparation of bid is based on its reading of item 402. We read that provision as applying to contract performance, not to the preparation of the bid. See Finding 10. This is the position of the contracting officer and likewise appears to be the position of appellant's own expert. Findings 23-24. This does not mean that use of critical path scheduling to prepare the bid was not permissible. Nevertheless, if it was used and this led to the burdening of certain critical path items with common costs, this could and should have been noted in a qualification of the prices bid. As to appellant's reliance on alleged past practice, appellant has failed to convince us that between respondent and appellant any such practice ever did exist. Indeed, there does not appear to be a precedent for any such postaward adjustments on any of appellant's Government contracts. See Finding 16. Appellant's reluctance to charge the Government more than once for a cost common to several solicitation items is certainly praiseworthy. It also makes infinite sense in competitive pricing for a fixed price contract -- especially in this case where the bids were to be evaluated on the basis of the total price for all solicitation items. See Finding 4. One can understand, therefore, why appellant chose not to include the costs repeatedly in pricing individual items. However, in view of the advisability of doing this in order to be competitive, the need to qualify one's bid is not eliminated, it only becomes greater in view of the risk associated with not including a qualification. The same can be said of any decision on appellant's part to avoid repeated inclusion of common costs in multiple items out of concern with unbalanced bidding. If appellant felt constrained to omit common costs from related items, it was imperative to note this fact through some appropriate qualification. Finally, we find no parallel between modification of the contract to include work originally offered under an unawarded item and modification of the contract to include costs associated with awarded work but allegedly buried in the price of work which remains unawarded. In entering modification 5, the parties agreed to an increase in the scope of work. See Finding 17. The modification which appellant seeks in these fractional award claims would make no change in the scope of actual work to be done. It seeks only to increase the price for work already called for in the items awarded. Appellant's problems with partial award do not stem from a change in conditions. They stem from a mistake on appellant's part. The contracting officer was correct when she suggested that the situation, as initially described by appellant, appeared to be a mistake disclosed after award. Her suggestion that appellant provide bid worksheets to demonstrate the error was a sound one but not followed by appellant. Finding 26. We find no fault in her denial of appellant's fractional award claims in the absence of evidence of the alleged mistake and of the precise amount in question. Findings 26-27. In the course of our de novo review of appellant's claim, certain bid worksheets have been offered for the record. They relate to costs allegedly stranded in unawarded items 205, 206, 308, and 309. As noted, through these worksheets and limited testimony, appellant has succeeded in demonstrating that the alleged common costs are at least mentioned in these estimator's worksheets for the unawarded items and not mentioned in worksheets for some of the awarded items. However, where the costs are mentioned, they are not described in any detail. Furthermore, neither these worksheets nor the testimony offered provide any basis for the specific amounts appellant now seeks to add to the contract price for the awarded items which are said to be affected by the alleged error. See Findings 28-29. The contracting officer testified at some length regarding appellant's bid in the aggregate and the prices bid by appellant on individual items. She pointed out that, although appellant ultimately won this contract, its offered prices, when compared to those of the other three bidders, were far from consistently low. Finding 30. Our own analysis of appellant's bids on the eleven items which were allegedly priced without consideration of common costs factored into unawarded items demonstrates that on only two of those items was appellant even the low bidder. See Finding 31. Given the prices actually bid on the eleven items which are allegedly affected by appellant's bidding method and the inconclusive nature of the bid worksheets eventually offered for the record by appellant, we are not even persuaded that the common costs were not included in the bids developed for the eleven awarded items said to be dependent on the four unawarded items in question. The burden of proof for the existence of such an error and the amount of the requested adjustment is traditionally recognized as a rigorous one. United States v. Hamilton Enterprises, Inc., 711 F.2d 1038, 1046 (Fed. Cir. 1983). Clearly, it has not been met here. Analyzing these fragmented award claims as potential mistakes disclosed after award, the contracting officer has quite rightfully addressed in her testimony the question of whether the alleged mistake on the part of appellant was one which she should have recognized. Given the record in this case, the exercise is unnecessary since appellant has not convinced us that the costs were overlooked or -- even assuming that they were -- that the specific amounts being sought are valid. Item 402 The situation with item 402 is slightly different from that involving unawarded items 205, 206, 308, and 309. Appellant contends that the latter four unawarded items contained costs which should have been factored into the prices of eleven specific items which were awarded. See Finding 14. Item 402 is different because, presumably, the supervisory costs allegedly stranded in it were common to all solicitation items and, therefore, to all items selected for award. Appellant makes a considerably more credible case for the existence of this mistake with regard to item 402 than it does with regard to items 205, 206, 308, and 309. The Navy's conclusion in 1988 that appellant does not charge the costs of a ship superintendent to overhead, but shows it instead as a direct charge lends a good deal of support to appellant's contention. So also does the fact that we find no mention of the cost of ship superintendents in appellant's overhead pool, but only reference to its plant superintendent. Finding 21. We are convinced, therefore, that in the case of item 402, appellant did mistakenly include in its price for this item a major portion of the supervisory costs of its ship superintendent and that these costs were not included in the overhead factored into the prices for the awarded items. In situations such as this, however, a contractor may seek postaward reformation of a contract for a mistake in bid "only if the contracting officer knew or should have known of the contractor's unilateral mistake at the time the bid was accepted." Bromley Contracting Co., Inc. v. United States, 794 F.2d 669, 671-72 (Fed. Cir. 1986) (citing Aydin Corp. v. United States, 229 Ct. Cl. 309, 316, 669 F.2d 681, 686 (1982) and Wender Presses, Inc. v. United States, 170 Ct. Cl. 483, 485, 343 F.2d 961, 962 (1965)); Natural Landscape Contractors, Inc., GSBCA 9187, et al., 91-2 BCA 23,886, at 119,655; Fan, Inc., GSBCA 7836, et al., 91-1 BCA 23,364, at 117,185 (1990). In the case of item 402, therefore, we must extend our inquiry to determine whether the contracting officer knew or should have known of appellant's error. Upon review of the record, we find nothing which convinces us the contracting officer knew or should have known of this error. Appellant's reading of the provisions of item 402 is radically different from that of the contracting officer. Appellant contends that item 402 covered all cost allowances for scheduling and overseeing the contract. Finding 20. The contracting officer contends instead that item 402 called for a critical path schedule but not for supervision. Finding 25. We find the contracting officer's reading of item 402 clearly the more reasonable one and would not expect her to anticipate the interpretation given to this provision by appellant. The focus of item 402 is most definitely on scheduling and monitoring and not on supervision. Appellant's own expert in critical path planning and scheduling for ship production and repair acknowledged that the responsibilities outlined for this item certainly did not cover the entire management effort. Finding 23. Furthermore, item 402 stated that the critical path schedule to be provided should be based on the contractor's estimate. Finding 10. Presumably, this refers to the prices bid by the contractor and not to the critical path method that might be used prior to bid submission to develop these estimates. Finally, item 402 also expressly states that the work called for could be done either on an in-house basis or by outside consultants and that the cost of performing this item would be considered as additional to normal overhead. Id. Certainly, provisions such as these strongly suggest that respondent never intended for this item to be burdened with the major portion of the costs of supervision by the ship superintendent. In addition to not expecting the contracting officer to anticipate the peculiar interpretation given to item 402 by appellant, we also do not believe that the high price bid by appellant on item 402 should have alerted the contracting officer to the existence of any mistake. See Finding 22. The contracting officer testified, and the bid abstract itself confirmed, that appellant's prices both in the aggregate and on an individual basis were far from consistently low. Findings 30- 31. Furthermore, since the provisions for item 402 permitted bidders to have this item performed either on an in-house or outside basis, one could readily attribute a higher price to the decision to contract out the item. Finally, even if the price bid by appellant for item 402 had appeared to be out of line, there still would have been no duty to inquire. Normally, this is done where an offered price appears to be unrealistically low not where, as here, it may appear to be unreasonably high. Also, there is little reason to inquire if the decision has already been made, as it was here, not to award the item. In sum, the responsibility for any mistake regarding the pricing of item 402 must rest with appellant. Having found no reason to conclude that the contracting officer knew or should have known of this mistake, we find no legal basis for modifying the price of the items awarded to include the supervisory costs which appear to have been stranded in item 402. The contracting officer's denial of this claim stands. The Asbestos Claim The facts relating to appellant's claim for the cost of additional asbestos removal have been well developed for the record by the parties. The solicitation called for the removal of asbestos insulation on certain identified pipes in the vessel. Finding 35. It likewise advised offerors that asbestos removal was to be effected in accordance with OSHA standards. Finding 32. Appellant made the necessary arrangements for the removal of the insulation in question by retaining a subcontractor. The area in which the pipes were located was closed off and the asbestos insulation removed. Following removal of the asbestos, air samples were taken and the area was declared to be free of any airborne asbestos. Finding 36. The barricades originally erected by appellant's asbestos removal subcontractor were taken down and appellant's employees permitted to enter. It was at this juncture that pipefitters employed by appellant entered the work area and discovered pipe insulated with unlagged asbestos, and dust which was thought to be potentially hazardous airborne asbestos. Appellant's workers thereupon walked off the job and the ship superintendent brought operations to a halt. Findings 39, 42. Eventually, appellant's subcontractor was brought back to the scene. The unlagged insulation was encapsulated and the work area recertified as safe to enter. Findings 41, 47. The basic question here is who should pay the costs associated with the return of appellant's subcontractor. The Government recognizes that the encapsulation provided by the subcontractor redounded to its benefit and has, therefore, agreed to pay an invoice covering the cost of the actual encapsulation. Finding 54. It steadfastly refuses, however, to pay any other costs incurred in conjunction with the subcontractor's return visit to the vessel. Appellant, for its part, contends that what it encountered here was an unexpected change in worksite conditions justifying an equitable adjustment in the contract price. Findings 48-49. Appellant's claim is based on the contention that the unlagged and allegedly deteriorated asbestos pipe insulation found in the overhead work area on January 23 constituted an unusual and unexpected condition which differed materially from conditions ordinarily encountered in a project of this nature. In order to prevail on its claim for the cost of correcting this alleged changed condition, appellant must prove that the new condition actually did exist and that it really was extraordinary and differed from conditions ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. Charles T. Parker Construction Co. v. United States, 193 Ct. Cl. 320, 333-34, 433 F.2d 771, 778 (1970).15 Upon review of the record, we conclude that appellant has proven none of these facts. The testimony and written statements presented regarding the actual condition of the unlagged pipe insulation in the overhead work area is in sharp conflict. While there appears to be no dispute over the existence of unlagged insulation in the area, the parties clearly disagree over the condition of this insulation. The COTR has stated that he personally inspected the insulation and found it to be gray in color, of a texture similar to that of an orange peel, and intact. Finding 44. One of appellant's pipefitters who observed the insulation also testified that it was intact. Finding 45. In contrast to these statements, a representative of appellant's subcontractor for asbestos removal, who also personally observed the insulation, has testified that the insulation was fragmented, cracked, and deteriorating. However, he conceded that he was not aware of any airborne fibers in the area at the time. Finding 41. The ship superintendent described the unlagged insulation as showing signs of deterioration and being extremely dusty. Finding 42. Other employees of appellant, although not providing a physical description of the alleged deterioration, nonetheless commented on the actual or potential emission of "asbestos" or "suspicious looking particles" from this unlagged insulation. Finding 45. On balance we find the testimony of the COTR and appellant's pipefitter to be the most credible. We recognize that the testimony of the NOAA official is self serving. Nevertheless, this individual testified at some length both as a witness for appellant and as a witness for NOAA. The Board had considerable opportunity to observe him and to assess the candor and consistency of his testimony on a number of issues. The hearing judge was left with the impression that this was a highly credible witness. On the other hand, in evaluating the statements of appellant's witnesses and employees, we note that their descriptions of the alleged new condition were in surprisingly varying terms. See Finding 45. Had the alleged condition been as obvious as appellant contends it to have been, we would have expected considerably more detail and consistency in the statements of these individuals. If anything, with the possible exception of the subcontractor's representative, the statements ____________________ 15 We recognize that the changed condition encountered in Parker involved subsoil conditions. Nevertheless, we consider ______ that the principles enunciated in that case are equally applicable to artificial or man-made conditions. McClure, Differing Site Conditions: Evaluating the Material Difference, ----------- FOOTNOTE BEGINS --------- 15 Public Contract Law Journal 138, 165 (1984). ----------- FOOTNOTE ENDS ----------- of these individuals tend to focus more on concern with the threat of hazardous emissions than on a description of the actual state of the unlagged insulation. This appears to coincide with the COTR's own observation that initially appellant was more concerned with the general threat posed by unlagged insulation in a work area than with a de facto deteriorated state of the insulation at that time. See Finding 44. Information regarding air samples also tends to confirm that the unlagged insulation found in the work area on January 23 was not in a seriously deteriorated state. The COTR has explained that the living and working areas on board the McArthur were by no means separated from the overhead void areas by any sort of airtight barrier. The ceiling panels were not airtight. Consequently, had the unlagged asbestos in the overhead void areas become deteriorated to the point of being friable, this would, in his opinion, have created a problem with the air quality in the living and working areas below. See Finding 52. However, the ship's chief engineer testified that notwithstanding regular testing on board the vessel, he was aware of no samples ever having indicated an unacceptable level of asbestos. Finding 33. In addition, there is the even more telling evidence of the air samples taken by appellant's subcontractor after the removal of asbestos insulation in the overhead work area. We are told that upon completing its work and testing the air, the subcontractor certified the area as once more safe to enter. Finding 36. It is difficult to believe that these samples would have shown the air free of asbestos hazard if the unlagged insulation still in the work area was in the severely deteriorated condition alleged by appellant. We also note that on being informed of the asbestos problem on January 23, a NOAA official suggested to appellant's ship superintendent that the air be sampled. Finding 42. We find nothing in the record to confirm that this was done prior to the completion of encapsulation of the unlagged asbestos. Finding 53. Undoubtedly, the presence of dust on the ceiling panels, on pipe insulation, and in the work area generally was a matter of serious concern to appellant. Out of an abundance of caution, it would appear that appellant operated on a working assumption that any such dust might contain an unacceptable level of asbestos. Prudent as this policy may be, we still, for purposes of this claim, cannot conclude from the omnipresence of dust that there was a hazardous level of asbestos throughout the ship's work area. We find no indication that the dust was in fact tested. Finding 53. Furthermore, appellant's own expert in asbestos removal assured the Board that dust in the overhead areas of the ship was a very normal thing but that this did not necessarily mean that it was asbestos. Finding 38. Upon reviewing all the evidence presented on this matter, we remain unconvinced that the unlagged insulation in the work area was crumbling, was emitting asbestos particles and dust into the air, and was the source of the dust which apparently pervaded the entire work area. Rather we conclude that there was unlagged asbestos in the area which could, under certain circumstances, pose a potential health hazard to appellant's employees. See Findings 37, 44. This condition actually encountered by appellant should not have come as a surprise. Granted, appellant's expert on asbestos removal testified that unlagged asbestos insulation was quite unusual. He claimed that in thirty-five years of experience he had never seen it. He went so far as to say that if his foreman had seen it in the overhead work area, he would have called it to the attention of appellant. Findings 40-41. However, we have every reason to believe that his foreman did see this insulation. The expert's statement was based on the mistaken assumption that the unlagged asbestos insulation was discovered in an area separate from that in which his crew had been working. Finding 40. The ship superintendent corrected this assumption and confirmed that the unlagged insulation was right in front of the faces of those removing overhead panels. Id. We can only assume, therefore, that the unlagged insulation was seen by the subcontractor's foreman and other personnel but that they said nothing. This casts considerable doubt on the accuracy of the expert's initial testimony regarding the uniqueness of unlagged insulation. In the final analysis, however, it makes little difference whether appellant's expert is or is not correct regarding the alleged uniqueness of unlagged insulation. He further testified that because unlagged insulation was so unusual, the owner of the vessel should certainly have put bidders on notice of the possibility that it might be encountered. Finding 41. We find that respondent did just that. Bidders were put on notice of the possibility of asbestos on board the vessel. They were likewise provided with information which indicated that the builder of the McArthur was told that asbestos insulation behind joiner panels or ceilings need not be lagged. Finding 32. Such provisions clearly shift to the contractor the responsibility for any asbestos abatement required in conjunction with contract performance. Finally, there is the uncontroverted fact that the use of asbestos on board NOAA vessels is not unusual, that the McArthur and the Davidson both have an unusual amount of unlagged asbestos insulation, that appellant has had a number of contracts for work on these vessels, and that this work has involved asbestos insulation. Findings 50-51. Given these facts, we are convinced that appellant did in fact know or certainly should have known of the existence of the unlagged asbestos on board the McArthur. As such, "discovery" of it during the course of this contract did not constitute an unexpected extraordinary condition. Appellant should have been prepared to contend with any problems posed by its presence in the work area. In conclusion, appellant has failed to convince us that it encountered anything more in the work area than unlagged asbestos insulation. We find that the solicitation provided notice that asbestos might be encountered in this project and that unlagged asbestos might be encountered in the area above the ceiling panels. We further find that even without such notice, based on prior contracts with NOAA involving the McArthur or the Davidson, appellant knew or should have known of the presence of unlagged insulation. Its presence, therefore, certainly did not constitute discovery of an extraordinary, abnormal, or unusual condition. We agree with the contracting officer, therefore, that there is no basis for awarding appellant's claim for the cost of coping with this condition in a manner which would ultimately satisfy the understandable concerns of the shipyard's employees. Constructive Acceleration Claim Appellant's constructive acceleration claim is based on the assumption that respondent is responsible for a total delay of fifteen days. Finding 56. Five of these days are said to have been lost by the late delivery of the vessel. Appellant is correct in stating that the vessel was delivered nine days later than expected. Clearly four of those days were readily recovered by a four-day extension of the contract completion date. Finding 57. An additional three were recouped by the omission of contract items. Finding 60. That reduces the alleged delay to no more than two days. One of these days was January 12, the day of award. The second was January 13, the day after award, when the vessel remained at NOAA's PMC prior to delivery to appellant's shipyard the following day. We see no real significance in this two-day "delay." There was no guarantee that award would be made early enough on January 12 to permit appellant a full day of access to the vessel. Respondent's representatives appear to have lost little time in advising appellant of award once it was made. In addition, because of the close proximity of the shipyard to NOAA's Marine Center, appellant's personnel were actually afforded and took advantage of the opportunity for access to the vessel even before it was delivered on January 14. See Finding 59. We find, therefore, that respondent effectively made up for the nine-day delay in the delivery of the McArthur and that this delay did not appreciably retard appellant's performance of the contract. Ten days of the fifteen-day delay alleged by appellant are attributable to time taken to resolve the problem of the unlagged asbestos pipe insulation. Given the conclusions reached in this decision regarding appellant's asbestos claim, it should be clear that we do not hold respondent responsible for any of the time lost by appellant in resolving this asbestos problem. Resolution of that problem was the contractor's responsibility. The time lost did require appellant to improve on its original schedule. This obviously proved to be extremely difficult in view of the virtual impossibility of appellant's subcontractor to further accelerate its pace of performance. Finding 61. In short, of the alleged fifteen-day delay which serves as the basis of appellant's constructive acceleration claim, we find that there were only ten real days of delay and that these were not attributable to NOAA, but rather appellant. Appellant is to be commended for its conscientious efforts to make up for time lost during contract performance. However, since the delays were not excusable, the Government is certainly not liable for the costs associated with these efforts. Norair Engineering Corp. v. United States, 229 Ct. Cl. 160, 666 F.2d 546 (Ct. Cl. 1981); Utley-James, GSBCA 5370, 85-1 BCA 17,816 (1984). We, therefore, find the contracting officer's denial of appellant's constructive acceleration claim to be correct. Decision Appellant's claims for equitable adjustment in the total amount of $85,863 are DENIED. ______________________ EDWIN B. NEILL Board Judge We concur: ______________________ ______________________ VINCENT A. LaBELLA ROBERT W. PARKER Board Judge Board Judge