__________________________________ DENIED: September 22, 1994 __________________________________ GSBCA 11085 PRECISION ROOFING & SUPPLY, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Howell Roger Riggs, Jr., Orange Beach, AL, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and VERGILIO. DEVINE, Board Judge. The Government contracted with appellant to repair one of its buildings but was forced to issue a stop work order when the work of another contractor prevented appellant from proceeding. The parties settled the original delay claim, and appellant now seeks the residual costs incurred during the later performance period. Findings of Fact The General Services Administration (GSA) awarded a contract to appellant Precision Roofing & Supply, Inc. of Glen Allen, Missouri, to remove and replace the roof of the Federal Building/United States Post Office in Pine Bluff, Arkansas, for the sum of $284,779. Government's Supplemental Appeal File, Exhibit 1 (hereafter GSA File). The contract was dated June 12, 1989, and was awarded to appellant on July 10, 1989. Id. The work also included removing, refurbishing, recaulking and replacing a curtain wall that ran around three sides of the building. Government's Exhibit 1. Appellant was required to begin work within 30 days of its receipt of the Government's notice to proceed (received on August 28, 1989), and to complete the work within 120 days thereafter. GSA File, Exhibit 3. Thus appellant's original finish date was December 26, 1989. Appellant arrived on the site on September 20, 1989, only to find that another contractor conducting asbestos removal operations had roped off one of the roof areas needed by appellant for access to its roofing operations. This situation was communicated to the Government by letter dated September 21, 1989. Id., Exhibit 4. On September 22, 1989, apparently in response to the presence of the second contractor in the roof area, the contracting officer issued a contract modification (price-to-be-determined-later but not to exceed $2,000), for the erection of scaffolding containing a stairway running from ground level to the main roof level some 45 to 48 feet above, to provide appellant's workmen access to the roof until "the normal means of access" was available. Id., Exhibit 5. This modification was settled for the sum of $1,249.45, and the contract performance time was extended for 14 days, resulting in a new completion date of January 9, 1990. On September 28, 1989, the contracting officer issued a stop work order effective that day, which stopped all work on the project until further notice. Appeal File, Exhibit 1. Thereafter the parties agreed to a contract modification dated October 23, l989, which increased the contract price by $70,462.24 and granted a contract time extension of 99 days, thus establishing a new completion date of April 18, 1990. Appeal File, Exhibit 6. Subsequent time extensions resulted in a final completion date of May 18, 1990. The additional $70,462.24 represented a negotiated settlement amount which covered "the cost impact of the suspension of work through January 4, l990." Id. Appellant reserved the right to claim additional costs "related to the suspension that might be incurred after January 4, 1990." Id. On January 3, 1990, the contracting officer lifted the suspension of work effective January 4, 1990. Id. On February l5, 1990, appellant began moving equipment onto site. Appellant's Exhibit 1. The temperature that day was 61 degrees Fahrenheit. Id. The full crew did not man the site until February 26, although appellant's subcontractor Arkansas Glass had had a two man crew working on the curtain walls since February 12. Id. There was no rain during the period February l5-26 and the temperature ranged from 44 degrees to 64 degrees. Id. The curtain wall subcontractor was on site every weekday through February 28, except February 19 and 26 according to the calendar kept by the Government's construction inspector. There is no mention of curtain wall work in either the construction inspector's calendar or in appellant's diary (Appellant's Exhibit 1) after February 28, 1990. Appellant eventually submitted a claim to the contracting officer totalling $103,761.33 for what it called "increased costs after Jan 3, 1990." GSA File, Exhibit 9. The contracting officer's original decision denied the claim, but a subsequent contract modification allowed the sum of $15,567, which "the Government has determined to be fair and reasonable on this claim." Appeal File, Exhibit 17; GSA File, Exhibit 10. However, the contracting officer did not describe the elements of appellant's claim that were being paid, or indicate how the sum was arrived at. The weather records for the Pine Bluff area for the period September 1989 through April l990, are in evidence. They show the daily high and low temperatures, and the amount of each day's precipitation. They do not show what time of day the precipitation occurred. Appeal File, Exhibit 15. Appellant's crew left the project site on two occasions. From March 16 through March 20, which included a weekend, the crew was working on a project elsewhere which the Spectrum Calendar described as the "Hat Factory." On April 26 the crew left the site and did not return until May 7, losing 6 working days. Appellant's Exhibit 1. Appellant submitted two schedules of work on the project, one dated March l3, l990 and one dated April 30, 1990, covering the second performance period which showed that appellant's performance would use the entire 120 days allowed by the contract. GSA File, Exhibit 7; Appeal File, Exhibit l5. The second schedule is dated only 9 days prior to the date of completion. Appellant's bid estimator, Mr. Holly, testified that he did not consider bad weather days in making up appellant's bid nor did he have any particular performance period in mind. Transcript at 25, 33. His bid was based on using 2,508 man hours to complete the job. Id. at 25, 39. The job actually took 2,325 manhours to complete. Appellant's Exhibit 1. He estimated that 24-26 working days would be necessary to complete the job. Transcript at 30, 31. Mr. Shelley, appellant's foreman, estimated that with better weather his crew could have cut the time by 2 to 4 days. Id. at 65. Mr. Trentham, who is appellant's president, also testified that if they could have worked in the fall they would have been a few days better off. Id. at 112. He testified that no calendar time, no set number of days, was figured in the bid and that the price was figured on so many man hours per square (100 square feet) of roof. Id. at 117, 118. Between the date of contract award and the date of contract completion appellant worked on four other projects: in Ft. Smith, Arkansas; Hot Springs, Arkansas; Big Spring, Texas; and a project in Minnesota. Id. at 123. Mr. Trentham also testified that he had no schedule of work at the time of the bid, and that the bid price included no weather days because he was unaware of the requirement. Id. at 124-25. Discussion Appellant claims that it incurred additional delay damages beyond those for which it has already been compensated, by reason of the fact that it was somehow prevented by the Government from finishing the project early. It is not entirely clear upon what theory appellant is proceeding. The only remaining effect of the original delay is the shift of contract performance from the period September-October-November-December, l989, to the period January-February-March-April, 1990. The only effect this shift could have had on work performance depends upon whether, as appellant alleges, there was less good working weather in the later period than the earlier. If such were the case, performance during the later period might have taken longer and thus cost more money than would otherwise have been the case. We shall see, however, that the performance calendar shift eliminated almost as much bad weather as it added, and there is no evidence that during performance appellant had any thought of finishing early, let alone a conscious plan to do so which was frustrated by the original delay. Appellant's contract required it to begin work within 30 days and to complete work within 120 days following receipt of notice to proceed. Thus the original performance period was August 28 through December 26, 1989. The theory that appellant used in computing what it called its additional delay costs was that appellant would have completed all of its work under the contract in 29 calendar days (including one day's rain delay) during the month of October 1989, if there had been no stop work order. Appellant then compares these 29 calendar days to the 126 calendar days that elapsed between January 3, l990, and May 9, l990, the period between the lifting of the stop work order and the completion of the work. Using these figures appellant next calculates that 97/126ths (or about 77%) of all costs incurred after January 3, l990, were attributable to the original delay. Appellant offers no authority for these imaginative calculations, and we are aware of none. Nor can we find any basis in logic or common sense to attribute 77% of the costs of the performance period to an earlier stop work order whose cost effects have already been negotiated, agreed upon and paid. If we consider that appellant could have applied its continuous performance/early finish theory during the month of January 1990 (when appellant could have worked but did not) instead of October 1989, we find that appellant could have worked straight through January beginning on January 5, and would have lost only two days to cold weather and three days to rain in January. Thus bad weather would have prevented work for two days in October 1989 and five days in January 1990. The difference of three days and the cost thereof would be the only continuing effect, during the performance period, of the original delay, if we accept appellant's statement that it intended to, and would have followed its continuous performance/early finish theory to its logical conclusion. It could also have done exactly the same thing in February, which had the same number of bad weather days as January. The foregoing is all merely speculation, however, because appellant has produced no evidence at all tending to prove that this is what it intended to do and was capable of doing, absent the Government's stop work order. The evidence is all the other way. If it was appellant's intention to jump right in and finish the job as soon as possible, it seems logical that it would have manned the site earlier than September 20, in order to take advantage of September's good weather (only two rain days). If it had done so it might even have completed the project before the stop work order became necessary, but it did not do so. Appellant had a second chance to demonstrate its intentions in early January when the stop work order was lifted on January 4, 1990. However it waited seven weeks before it finally manned the site on February 26. In doing so it exchanged a relatively dry January and February for a wet March and April, just as it had originally wasted three weeks of good weather in September 1989. We conclude that the only correct way to evaluate whether or not appellant was further hurt by the original delay is to compare the weather during the original 120 day performance period with the weather during the second 120 day performance period to find out if there is any significant difference in the weather between the two. We do this because although the original delay forced appellant's performance into the later period, it was the right of appellant to decide on what days within that period work would be done. As it turned out, appellant picked the two worst weather months in which to do most of its work, though it could not have known this in advance. During the original performance period, September 1989 had six days of rain but only two occurred on working days. Appellant's Exhibit 1. October 1989 had four rain days but only two occurred on working days. Id. November l989 had five rain days and one day when it was too cold for roofing work (max 43, degrees, min 29 degrees), all on working days. December l989 had 5 rain (or snow) days but only 2 were working days; however, December also had l5 days when it was too cold to do roofing work. Nine of these days were working days. The warmest of these cold days had a high temperature of 42 degrees and a low of 33, and the coldest had a high of 15 and a low of 1. Id. Thus, the initial 120 day period contained 11 rain days and 10 days too cold to work. The second performance period, January 1990 through April 1990, had rain on 34 working days, and 4 days were too cold to work. Apellant's Exhibit 1. These were distributed as follows: 6 rain days and 2 days too cold to work in both January and February; in March, 12 rain days; and in April, 10 rain days. Id. Thus the initial performance period had 21 days during which the weather prevented work, and the second performance period had 38 such days. If we eliminate those days on which the precipitation measured less than one tenth of an inch, the foregoing figures become 19 and 29 respectively. Considering appellant's best case, the original delay moved appellant's performance into a weather period that had 17 more days of bad weather than the initial performance period. Appellant should have allowed for the normal number of bad weather days during the initial period which we calculate to be 50% of the normal bad weather days (22.44) in the January-April period. This figure is approximately 11 days. We therefore find that appellant would have finished the project a little less than 6 days earlier than it did, had it been allowed to work in the earlier period. This compares to the testimony of both appellant's president and its estimator that doing the work in the earlier period would have saved 4-6 days. Appellant submitted work schedules on March 13, and April 30, 1990. Both schedules showed that appellant would use all of the 120 days allowed by the contract. During actual performance after the stop work order was rescinded on January 4, l990, appellant took 125 days to complete the project, finishing on May 9, 1990. As late as April 12, l990, appellant sought a 45 day contract time extension stating "[W]e do recognize that the project cannot be completed within the 120 day performance period stipulated in the contract." Appeal File, Exhibit 8. We conclude from the record that there is no evidence that appellant intended to finish early, planned to finish early, or was capable of finishing early. On the contrary, the evidence shows that appellant always planned to use the allowed 120 days, and, in the end could not complete the work within that period. The original delay shifted appellant's performance into a weather period that had approximately 6 more bad weather days than would otherwise have been the case. The cost effects of this shift are not dealt with directly by appellant in its proof but they could not exceed the $15,577 allowed on appellant's claim by the contracting officer in his final contract modification. Decision For the reasons stated, the appeal is DENIED. _________________ DONALD W. DEVINE Board Judge DANIELS and VERGILIO, Board Judges, concurring. We agree with the presiding judge that the record shows no basis for recovery. First, appellant has not demonstrated that it incurred compensable delay after January 4, 1990; that is, the record does not reveal that the shift in season for performance caused appellant to incur costs in addition to what it reasonably should have anticipated for performance during the original contract period. Appellant's calculations, in part, premised on completion contemplated within 29 days, are not supported by the record. Second, assuming the existence of compensable delays or bases for recovery, the record does not demonstrate that appellant is entitled to money in excess of the $15,567 paid by the agency. We view many of the findings and much of the discussion set forth in the opinion of the presiding judge to be speculative, inaccurate, or not material to the conclusions reached. For example, the record contains no support for the statement of the presiding judge that the fall period should have 50% of the normal bad weather days in the January-April period. Given that the findings fail to discuss "normal" weather conditions, the figure of 50% appears to be arbitrary. Further, the record suggests that appellant anticipated and actually did complete performance in fewer than 120 days in terms of the number of days of actual performance. It was the suspension of work imposed by the agency which shifted appellant's period of performance, not the actions of appellant. Thus, contrary to the views of the presiding judge, to compare the number of days of delay over the entirety of the 120 performance periods appears to be the incorrect measure given that appellant intended to perform within a shorter period of time. The presiding judge's use of the phrase "we conclude" in discussing this matter is inappropriate; it refers to his views and not ours. _________________________ _________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge