_______________________________ DENIED: November 3, 1998 _______________________________ GSBCA 11583 G & R ELECTRIC COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. L. T. Gay, President, G & R Electric Company, Augusta, GA appearing for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. BORWICK, Board Judge. Background This appeal was filed on November 13, 1991. Appellant, G & R Electric Company, seeks $4,362.54 from the respondent, General Services Administration, for an alleged change under a contract to retrofit fluorescent light fixtures in the Federal Building, Little Rock, Arkansas. Such fixtures contained ballasts which are comprised of a transformer, a capacitor and a starter all wrapped in a cabinet. The capacitors contained polychlorinated biphenyl (PCB), a highly toxic substance. Appellant wished to disassemble the ballasts in the Federal Building, pull the capacitors contaminated with PCB and dispose of them. The contracting officer directed appellant to dispose of the ballasts without disassembly, as contemplated by the contract. Appellant argues that the contracting officer's direction constitutes a compensable change under the changes clause, as nothing in the contract prohibited disassembly of the ballasts within the Federal Building. The parties submitted their dispute on the record pursuant to Rule 11. Respondent has submitted its motion for summary relief as its record submission.1 Appellant submitted the appeal under the small claims procedure, Rule 13. This decision is therefore being rendered by a single judge, is final and conclusive, and may not be appealed or set aside in the absence of fraud. This opinion shall have no value as precedent. We deny the appeal, concluding that for safety reasons, the contract unambiguously required disposal of the PCB-laden ballasts intact, and did not allow disassembly of the ballasts within the confines of the Federal Building. Findings of Fact 1. On August 24, 1990, G & R Electric was awarded fixed- price contract GS-07P-90-HUC-0054 to retrofit lighting in the Federal Building, Little Rock, Arkansas. The price was $362,043. Appeal File, Exhibit 1. 2. The contractor was to furnish "necessary labor, supplies and equipment to retrofit all (about 6,900) fluorescent light fixtures in the building, including installation of lamps, ballasts, sockets, reflectors, and socket holders." Appeal File, Exhibit 1, 01010, 1.2 C.1 at 01010-1, and 16510, Part 1, 1.01A.7., at 16510-1. The contract contained the changes clause specified by FAR 52.243-4 providing for equitable adjustment for any direction from the contracting officer that causes a change in the contract. Id., Exhibit 1, CONSTRUCTION CONTRACT CLAUSES, 79(b), (d), at 27. 3. The description of the ballasts in the existing fixtures advised: "A random inspection of several ballasts would reveal some PCB based ballasts are still in operation in the facility." Appeal File, Exhibit 1, 16510, Part 1, 1.01A.7., at 16510-1. The interior lighting retrofit kits were to be "complete with . . . ballasts," id., 16510, Part 2, 2.01A., at 16510-5, with the contractor removing the existing ballasts, id., 16510, Part 3, 3.01D.8., at 16510-9. The procedures for removing PCB based ballasts were specified: Place PCB based ballasts in appropriate toxic waste containers as described in DOT Regulation 49 CFR-173.3 Section E. Standard, open head drums are acceptable when transporting solid or semisolid wastes to disposal sites. Id., 8.a. ____________________ 1 By order of November 18, we gave appellant the opportunity, by December 7, to supplement its opposition to respondent's motion for summary relief. Having heard nothing from appellant as of that date, we treat appellant's response to respondent's motion for summary reliefas its record submission. 4. The contract contained the following pertinent provisions regarding environmental protection: SECTION 01205 - PROCEDURES AND CONTROLS . . . . PART 3 - EXECUTION . . . . 3.2 ENVIRONMENTAL PROTECTION A. Solid, Liquid and Gaseous Contaminants: Contractor shall be responsible for the proper disposal of all solid, liquid, and gaseous contaminants in accordance with all local codes and regulations, together with the following requirements: . . . . 2. PCB Ballast disposal shall be accomplished in accordance with all applicable regulations. Appeal File, Exhibit 1, 01205, Part 3, 3.2A.2., at 01205-2. The applicable regulations were listed as 29 CFR 1926/1910 and 40 CFR 761. Id., 01546, 1.4B, at 01546-2. 5. The contract further prohibited the storing, positioning or use of materials in a manner likely to present a hazard to the public or building occupants by accidental shifting, ignition or other hazardous qualities. Id., 01546, Part 3.2, 3.2B., at 01546-4. 6. The contract required the contractor to clean the work area thoroughly and dispose of all removed items by delivering them to an authorized disposal site. Id. 16510, Part 3, 3.01D.19., at 16150-10. The contractor was also to "maintain the existing building in a safe and weathertight condition throughout the construction period." Id., 1.3 B.2., at 01010-2. 7. A fluorescent light ballast consists of a transformer, a capacitor and a starter, with a cover over all of the components. It is the capacitor which contains the PCB. Appeal File, Exhibit 5, Photographs, Caption Under Last Photograph. Appellant proposed to unscrew the cover, reveal the components, separate the tar holding the components together, pull the components from the case, disconnect the capacitor from the starter, and place the capacitor, cleaned of the tar, in a hazardous waste barrel located in appellant's trailer. 8. Appellant proposed to disassemble the ballasts in an area of the Federal Building to be designated by respondent's officials. Appeal File, Exhibit 5, PROCEDURE FOR DISPOSAL OF PCB CONTAINING BALLASTS, Caption Under Photographs. Appellant's proposal stated procedures to be followed in case there was a leak of PCB from the capacitors: (1) two-wash cleanup with a solvent such as kerosene; (2), isolation and disposal of material contaminated with PCB; (3) restricted access to the area to minimize spread of contamination; and (4) comprehensive report of the spill. Id. 9. Respondent's contracting personal were concerned about the procedures for disposal of the ballasts containing PCB. When dismantling of the ballasts in the Federal Building was suggested verbally, the contracting officer's technical representative said no. Appeal File, Exhibits 4, 12. By letter of January 18, 1990, appellant's president informed the contracting officer that it was never the intention of appellant to store the capacitors containing PCB off site, and that "the normal procedure is to handle and process these on site." Appeal File, Exhibit 5. On January 25, 1991, appellant was directed to dispose of the ballast "per the contract terms," i.e., to remove the PCB laden ballasts from the Federal Building before processing them for disposal. Appeal File, Exhibits 8, 9. 10. On July 30, 1991, appellant filed a claim with the contracting officer which stated in pertinent part: During the performance of the contract we were allowed to store material on the premises and to set up an assembly line to retrofit fixtures. This area could have been easily utilized for disassembling ballasts without requiring the contract[or] to relocate the waste material off of federal property. The process for disassembling the ballast allows the government the lowest price for PCB ballast disposal. . . . . The contract documents do not call for the material to be stored off site or prohibit the disassembly of the ballast; therefore, we feel the [G]overnment is responsible for additional cost incurred due the decision of the Building manager and COR. Appellant claimed $4,362.54 for the costs of trailer and labor to transport the ballasts to the trailers, plus overhead, bond and profit. Appeal File, Exhibit 12. 11. On August 2, 1991, the contracting officer denied the claim for these reasons: Because there is no contract provision requiring the Government to provide storage space for the materials and because it is clearly stated in the terms and conditions of your contract that your responsibility is to handle the PCB, the claim . . . is denied. Appeal File, Exhibit 13. Appellant received the denial on August 16. Correspondence, Board Files. A timely appeal followed. Discussion Appellant seeks equitable adjustment for an alleged change in its contract in being required by the contracting officer to remove intact fluorescent light ballasts from the Federal Building, rather than being allowed to disassemble the ballasts on the premises to remove PCB contaminated capacitors. Appellant states in its record submission that it wanted to "remove the ballast from the lights and transport them to his work area. There he would remove the capacitors containing PCB from the ballast and put them in sealed approved containers . . . ." Record Submission, 3.A. Appellant is not entitled to an equitable adjustment under the Changes clause unless it can establish a "change element," i.e., that the actual performance ordered went beyond the minimum standards demanded by the terms of the contract. T. Head & Company Inc. v. Department of Education, GSBCA 10828-ED, slip op. at 9 (July 2, 1992). Later in its record submission, appellant accurately states the requirements of the contract: "[T]he work we agreed to was to remove the ballast, put them in approved containers, and have them delivered to an approved landfill." Record Submission, 7. The contract required the contractor to "[p]lace PCB based ballasts in appropriate toxic waste containers as described in DOT Regulation . . . ." Finding 3. The contract further stated that it was the contractor's responsibility to dispose of the ballast, not just the toxic components within the ballast: "PCB Ballast disposal shall be accomplished in accordance with all applicable regulations." Finding 4. The general contract provisions prohibited the storing, positioning or use of materials in a manner likely to present a hazard to the public or building occupants by accidental shifting, ignition or other hazardous qualities. Finding 5. The contract terms cannot remotely be read as allowing the disassembly of the ballasts within the confines of the Federal Building, and the removal there of the capacitors containing PCB. It is no wonder, as PCB is a highly toxic and dangerous substance. Just how dangerous is illustrated by Inman & Associates, Inc., ASBCA 37869, et. al., 91-3 BCA 24,048. In that case, an unreported (for two days) spill from capacitors of one hundred pounds of PCB contaminated ground water near Corpus Christie Bay and a land area of fifty by sixty feet. The spill took six months to clean up. Id. at 120,365-66. In this case, appellant recognized how catastrophic a PCB spill could be. Its own clean-up plan for a spill called for washing the contaminated area with flammable solvent such as kerosene, removal of all material contaminated with PCB and isolation of the affected area. Finding 8. Such potential catastrophic environmental consequences are inconsistent with the contract requirement to avoid toxic hazard to the building's occupants and the public. Finding 5. Decision The appeal is DENIED. _________________________ ANTHONY S. BORWICK Board Judge