_____________________________________________ DENIED: December 14, 1992 _____________________________________________ GSBCA 11800, 11801 GRIFFIN SERVICES, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James J. Griffin, President of Griffin Services, Inc., Atlanta, GA, appearing for Appellant. A. R. Dattolo, Office of the Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges NEILL, HYATT, and VERGILIO. HYATT, Board Judge. Appellant, Griffin Services, Inc. (Griffin or GSI), has appealed a contracting officer's decision denying two claims asserted under its contract with respondent, the General Services Administration (GSA), for the provision of mechanical maintenance services for two government buildings in Florida. Appellant alleges that it is entitled to an equitable adjustment to compensate it for supplying materials and performing services beyond the scope of its contract.[foot #] 1 Specifically, in docket number 11800, Griffin seeks to recover ----------- FOOTNOTE BEGINS --------- [foot #] 1 Both appeals are submitted for decision on the written record. Rule 11. The record consists of the pleadings, the Rule 4 file, correspondence submitted to the Board by Griffin, and the Government's brief. ----------- FOOTNOTE ENDS ----------- $138.56, representing the cost of providing "emergency" services outside of normal working hours. In its second appeal, docket number 11801, Griffin claims entitlement to reimbursement of $518.20, for the cost of purchasing and installing a new wall- mounted water fountain in one of the buildings. For the reasons stated herein, the appeals are denied. Findings of Fact 1. Appellant entered into a contract with GSA to perform general repair and maintenance work required for the Federal Building - Courthouse and the U.S. Customhouse, both located in Fort Lauderdale, Florida. The contract commenced on June 1, 1990, and ran through May 31, 1991. Appeal File, Exhibit 1. 2. The contract's scope of work was defined as follows: The contractor shall provide all management, supervision, labor, materials, supplies, repair parts, tools, and equipment, and shall plan, schedule, coordinate and ensure the effective and economical operation, maintenance, and repair of the facility as specified . . . . All mechanical, electrical and plumbing systems shall be operated compatible with current GSA energy conservation requirements, and maintained at an acceptable level, throughout the contract performance period. An "acceptable level" of maintenance is defined as the level of maintenance which will preserve the equipment in unimpaired operating condition; i.e., above the point where deterioration will begin, thereby increasing the normal life expectancy of the equipment. The contractor is responsible for performing scheduled and unscheduled maintenance and repairs, as necessary, on a 24 hour a day, 7 days per week, basis, including emergency call-back service. The machinery to be maintained in accordance with the above provision included the sanitary sewage equipment and systems and the water equipment and systems. Appeal File, Exhibit 1. GSBCA 11800 3. The monthly contract price did not include "any allowance for additional services for overtime, emergency call- back . . . except elevator services" -- overtime and emergency call-back services were priced separately at hourly rates. Appeal File, Exhibit 1 at 55. At the same time, the contract required that "continuity of services must be maintained at the utmost proficiency without interruption; and continuity of all services shall be maintained by the Contractor." Id. at 62. The contract further required the contractor, on a daily basis, to "report to the COR [contracting officer's representative] the status of any major equipment or system not operating, or that becomes non-operational during the workday." Id. at 150. 4. In accordance with the contract, appellant operated and maintained a sump pump located in the parking garage of one of the buildings. During a time period that the permanent sump pump system was under repair, appellant used a portable sump pump on a temporary basis to take care of the building's sump pump needs. To provide power to the portable unit, appellant ran an extension cord from a wall outlet inside the parking level elevator lobby, through the elevator lobby door and across the parking area to the sump pump. Letter from Appellant to the Board (May 27, 1992). It appears from the record that appellant neither informed GSA that these measures were necessary due to the failure of the permanent pump nor placed any signs in the lobby area warning that the extension cord must not be disconnected. 5. Sometime after working hours on December 23, 1990, the extension cord plugged into the elevator lobby wall electrical outlet was disconnected. The cord was placed outside the lobby door; the lobby door was then closed. Letter from Appellant to the Board (May 27, 1992). This disconnected the power from the portable sump pump; flooding resulted. An employee of appellant was called in to correct the flooding at 4 a.m. on December 24, 1990. He worked there for four and one-half hours. Thereafter, appellant submitted an invoice to GSA for $138.56 (4.5 hours at the hourly rate of $30.79), the cost of this work. Appeal File, Exhibits 4, 5. 6. GSA refused payment of the invoice in a letter dated April 2, 1991. Appeal File, Exhibit 6. The reason given for denying payment was that appellant was responsible under its contract for monitoring the sump pump and that failure of the sump pump was therefore appellant's responsibility. Id. In a subsequent letter, dated August 2, 1991, GSA took the position that the failure of the extension cord "can only be attributed to GSI employees' improper work techniques." Id., Exhibit 8. Letters were exchanged between appellant and GSA regarding the appropriateness of powering the sump pump by an extension cord. Id., Exhibits 9, 11. Appellant requested a decision from the contracting officer on December 26, 1991. Id., Exhibit 12. The contracting officer issued a decision on February 10, 1992, denying Government liability for the cost of the emergency call- back services. Id., Exhibit 13. Appellant filed a notice of appeal to the Board on April 13, 1992, claiming its right to $138.56 plus interest. GSBCA 11801 7. In addition to the clause making the contractor responsible for maintaining water equipment and systems, the contract also provided that "[e]xcept for those items or services specifically stated to be Government furnished (See Section H) the Contractor shall furnish everything required to perform work under this contract." Appeal File, Exhibit 1 at 62. It was thereafter explicitly stated in the contract that the Government would not furnish any equipment or materials. Id. at 93. 8. With respect to its maintenance obligations, the contract specifically stated that the contractor "shall be responsible for the repair/replacement costs, including labor, equipment, and supplies for all equipment and systems up to the limits contained in Paragraph 5 of this exhibit." Appeal File, Exhibit 1 at 161. The dollar threshold established in paragraph 5 is $1,500. Id. 9. During the period of this contract, appellant furnished and installed one wall-mounted water cooler at the Federal Building-Courthouse, for which it submitted an invoice to GSA in the amount of $518.20. Appeal File, Exhibit 7. 10. GSA declined to pay the invoice, stating that the purchase and installation of a water fountain was within the scope of the services required to be performed by Griffin under the contract. Appeal File, Exhibit 11. The contracting officer issued a decision to that effect on February 10, 1992. Id., Exhibit 13. Discussion GSBCA 11800 Since the monthly contract price excluded an allowance for additional services for overtime or emergency call-back services, ordinarily appellant would be entitled to recover the cost of an emergency call-back outside of normal business hours. To receive compensation for emergency call-back services, appellant is to submit an invoice, which it did. In these circumstances, where appellant's inactions contributed to the need for the emergency work, however, we find that appellant is not entitled to recover the labor costs it incurred. The systems covered under the contract for the fixed monthly rate are expected to "be maintained at the utmost proficiency without interruption." Finding 3. The disconnection of power to the sump pump interrupted a service that appellant was responsible for operating and maintaining. Finding 2. Although Griffin undertook to make temporary arrangements to ensure that the sump would be drained by a portable pump, its actions to ensure that the portable pump would continue to operate left something to be desired. Running an extension cord through an area normally subject to considerable tenant usage, and plugging the cord into an outlet without attaching a sign or providing some other indication of the criticality of the connection, does not constitute performing a contractual duty with "utmost proficiency." Additionally, appellant failed to comply with the contractual requirement that it notify GSA of the failure of any major equipment or system.[foot #] 2 Had it given such notice, perhaps GSA could have acted to ensure the plug would not be disconnected. Because appellant failed to act responsibly, let alone "proficiently," it has not met its burden to show that in the circumstances the risk of the extra costs incurred here should be shifted to the Government. See Gramercy Contractors, Inc., GSBCA 6495, 83-2 BCA 16,825. GSBCA 11801 Appellant also contends that, under the contract, the Government was responsible for providing replacements for water coolers that have exceeded their normal, useful, and economic life. Letter from Appellant to the Board (Aug. 11, 1992). The contract, however, also provided that the contractor was responsible for the operation and maintenance of water equipment and was required to provide all materials and supplies to repair and replace equipment as necessary up to the contract limit of $1,500. Finding 8. Moreover, the contract made clear the appellant's obligation to provide materials, specifying that GSA would supply "none" of the necessary equipment. See Finding 7. Appellant has not demonstrated that the replacement of the water fountain fell outside of the scope of the contract requirements. Appellant asserts that GSA paid to replace a water cooler in the Fort Lauderdale Federal Building in 1989. This contract, however, did not commence until June of 1990 and, without more, we do not find that past conduct on a different contract, the terms of which are not established in this record, is sufficient to justify a departure from the otherwise unambiguous terms of the instant contract. Appellant has not met its burden to prove a prior course of dealing in this regard. Cf. L.W. Foster Sportswear Co. v. United States, 186 Ct. Cl. 499, 405 F.2d 1285 (1969) (prior course of dealing established by showing reliance upon interpretation under at least five prior contracts that were "identical or very closely similar" to contract in issue). As such, there is no reason to interpret the language of this contract other than in accordance with the plain meaning ordinarily attributable to the terms at issue. See Hickman Mechanical, Inc. v. General Services Administration, GSBCA 11787, slip op. at 4-5 (Sept. 22, 1992). Appellant has not demonstrated that it is entitled to additional compensation to cover the cost of buying and installing the water fountain. Decision For the reasons stated, these appeals are DENIED. ----------- FOOTNOTE BEGINS --------- [foot #] 2 The fact that the failure of the sump pump for just a few hours caused flooding in the parking garage shows that it qualified as the type of important equipment for which appellant was contractually obligated to notify GSA of failures or other problems. ----------- FOOTNOTE ENDS ----------- ___________________________ CATHERINE B. HYATT Board Judge We concur: _______________________ __________________________ EDWIN B. NEILL JOSEPH A. VERGILIO Board Judge Board Judge