Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________________ DENIED: November 18, 1999 _____________________________ GSBCA 14894-COM IRWIN JURKEWIECZ CORPORATION, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Peter T. Kashulines, Secretary/Treasurer of Irwin Jurkewiecz Corporation, Pelham, NH, appearing for Appellant. Terry Hart Lee, Office of General Counsel, Department of Commerce, Washington, DC, counsel for Respondent. NEILL, Board Judge. The Irwin Jurkewiecz Corporation (IJC) appeals from the decision of a contracting officer of the Department of Commerce denying a claim for additional cost and lost time in connection with the demolition of a building at the Raleigh-Durham Airport in Raleigh, North Carolina. Appellant has elected to have this case decided using the Board's procedure for small claims. This decision, therefore, will have no value as precedent but is final and conclusive and shall not be set aside except in case of fraud. Board Rule 202(b). Both parties have agreed to have this case decided on the record without benefit of a hearing. For the reasons stated below, we sustain the contracting officer's decision and deny the appeal. Findings of Fact 1. On July 30, 1997, appellant and the Government entered into Purchase Order Number 40-EANW-7-02531 (hereinafter the "contract") in the amount of $23,990 to "provide material, labor and supervision necessary for the demolition and removal of a generator/modulator building as quoted in RFQ [request for quotation] 97-2531." The building in question was located at the Raleigh-Durham Airport. The work was to be completed by September 15, 1997. Appeal File, Exhibit 1 at 1 (unnumbered). 2. The project description in the contract read as follows: The work includes labor, material, and supervision to demolish and remove off site a Generator/Modulator Building (tower base concrete structure, approx. 19' x 19' x 10'), including excavation to remove the concrete piers and footings (4 ea. approx. 10' underground) and incidental related work. Remove electrical cables and conduit back to the power supply panel. Site shall be restored to match existing with 4" concrete pad reinforced with welded wire fabric 6x6-W2.9 x W2.9. Appeal File, Exhibit 1, 01110 at 1. 3. The contract also provided that regular working hours would consist of an eight-hour period established by the contracting officer, Monday through Friday. Work outside regular working hours required contracting officer approval. Appeal File, Exhibit 1, 01110 at 3. 4. Under the contract, IJC was required to use as common fill "[a]pproved unclassified soil material with the characteristics required to compact to the soil density specified for the intended location." For backfill and fill material, IJC was required to reuse excavated material. Appeal File, Exhibit 1, 02315 at 2. 5. The contract also required IJC to have a shoring plan prepared and sealed by a registered professional engineer licensed in the State of North Carolina. The purpose of the shoring plan was to provide protection for a nearby roadway. The plan was to be approved by the contracting officer prior to the start of work. Appeal File, Exhibit 1, 01110 at 1. 6. The contracting officer eventually approved the shoring plan, as presented, with the exception of the stone proposed as backfill for the excavation. Under the proposed plan, the foundation corner anchors or piers were to be removed and the excavations backfilled with clean washed #57 or #67 stone. The contracting officer initially called instead for ABC stone rather than washed stone and insisted that it be compacted. However, this change in the shoring plan was eventually withdrawn and IJC was directed to proceed with the shoring plan as submitted. Appeal File, Exhibits 17-23, 25. 7. On September 24, 1997, the contracting officer issued modification 1 to the contract, which changed the delivery or completion date from September 15 to November 4. Appeal File, Exhibit 19 at 2 (unnumbered). 8. On October 21, 1997, the Government's project manager for IJC's contract advised the contracting officer's assistant, by written memorandum, that a representative of IJC had noted the presence of a pile of dirt on site and had asked permission to use it as fill at its convenience and at no additional cost. In his memorandum, the project manager observed that the dirt was previously purchased by the National Weather Service (NWS) as backfill to be used after the removal of an underground storage tank. The memorandum concluded that this was a matter to be directed to the attention of the airport and which NWS needed to attend to before vacating the premises. Appeal File, Exhibit 25. 9. In a declaration given under penalty of perjury, appellant's on-site supervisor states: On November 6, 1997, at approximately 9:00 a.m., while excavating the last pier of four, at approximately an eight-foot depth we encountered contaminated material. I notified my office of this unforeseen condition. My office contacted [the contracting officer's assistant] to make notification of this discovery. The work condition was such that further excavation could not be done without further disturbing the contamination. Declaration of Peter Kashulines (Kashulines Declaration) (June 3, 1997) at 1. 10. The record contains a copy of a telefacsimile (fax), dated November 6, 1997, time stamped 9:39, and sent by IJC to the attention of the contracting officer s assistant. The fax advises that what appeared to be contaminated soil has been found at the site. The Government is asked to advise the contractor as soon as possible on action to be taken. A marginal note dated 11/6/97 and bearing the initials of the contracting officer s assistant appears at the bottom of the Government's copy of this fax. It states that the airport s environmental specialist was inspecting the site and would advise accordingly. Appeal File, Exhibit 27. 11. A handwritten memorandum to file signed by the same contracting officer's assistant and dated 11/7/97 states that on that date the assistant spoke with IJC's president, advising her to continue work on removal of the pier, to segregate the suspected soil from the original pile, to keep the segregated soil covered and to consider it unsuitable for backfill. Appeal File, Exhibit 28. 12. IJC's on-site supervisor has also declared as follows: On November 7, I received notification from my office that [the contracting officer's assistant] instructed to proceed but to segregate the contaminated material, placing it on plastic. I proceeded in removing approximately 25 to 30 yards of obviously contaminated material, removing all the material I suspected of being contaminated. At this point I stopped as the government had provided notification they had hired a geologist to take samples and who would determine the extent of the excavation required to remove all the contamination. Kashulines Declaration at 1. 13. A certified copy of the official meteorological records for Raleigh, North Carolina, for November 6 and 7, 1997, show that weather in the area on both days was not good. The maximum temperature for Thursday, November 6, was fifty-three degrees, with rain and mist. For Friday, November 7, the situation remained basically unchanged. The maximum temperature was fifty degrees with conditions of rain, drizzle, and mist. Respondent's Brief, Appendix B. 14. On Saturday, November 8, 1997, samples of the suspected soil were taken for testing by an independent contractor. On Tuesday, November 11, the results were made available. The samples showed unknown low hydrocarbon contamination, possibly degraded gasoline and fuel oil. Appeal File, Exhibits 30-31. The environmental consultant responsible for sampling and having the sampled soil tested recommended that IJC finish its current tasks, that all excavated soil be piled as if it were contaminated soil, and that IJC proceed with the backfilling. The consultant noted that upon completion of the project, the horizontal and vertical extent of the petroleum contaminated soil could be tested through groundwater monitoring and soil borings and analysis. 15. The purchase order issued by the contracting officer to secure the services of the environmental consultant calls for the sampling and testing of suspected petroleum contaminated soil. It says nothing regarding the removal of any soil suspected to be contaminated. Appeal File, Exhibit 30. 16. The record contains another handwritten memorandum, this one unsigned but dated 11/10/97. It discusses an inquiry received from IJC's on-site representative. He had asked if he should continue work in view of the fact that the contaminated soil was said to be resting on top of one of the piers which was to be removed. The author of the memorandum writes that he attempted to consult with the Government's project engineer but was unable to find him. The project engineer's associate, however, recommended that IJC be directed to move the pile of contaminated soil to the parking lot and continue work. Appeal File, Exhibit 29. 17. Another handwritten memorandum to the file, also unsigned, but dated 11/13/97, reports that the author had visited the site but the contractor was not there. The "hole" was said to be already closed without an opportunity being afforded to the Government's inspector to verify that the work was completed. Appeal File, Exhibit 29. 18. On Wednesday, November 19, the Government's inspector accepted IJC's performance as complying with the contract. Appeal File, Exhibit 33. 19. On November 23, the environmental consultant firm which had originally arranged for the testing of the contaminated soil also arranged for the disposal and treatment of this soil. Fifty tons of soil were removed from the site. Appeal File, Exhibits 32, 37-38. 20. On November 24, the contract specialist requested IJC to provide a quote for a concrete splash pad for the drain pipe under the roadway, for installation of a concrete slab somewhat larger than that called for in the contract, and for the plastic covering used for the contaminated soil. Appellant obliged with a quote totaling $3565. On February 13, 1998, the contracting officer issued modification 2, which added $887 to the contract to cover these three items. Appeal File, Exhibits 34-36, 39. 21. On February 24, 1998, IJC submitted its final invoice. Appeal File, Exhibit 40. The Government delayed payment of the invoice based on concerns regarding final landscaping of the site and removal of demolition material. There also was concern that the concrete piers had not all been removed. Id., Exhibits 41- 43. In reviewing photographs of the site provided by the contractor, the contracting officer concluded that the final landscaping had not been done properly and that not all construction debris had been removed. By letter dated March 31, he directed that all work be completed by April 14 and advised IJC that the balance due on the final invoice would not be paid until the work was complete. Id., Exhibit 44. 22. By letter dated April 7, IJC replied to the contracting officer that, in its opinion, it had complied with the instructions provided by the Government's project manager at the preconstruction conference. Nevertheless, IJC agreed to comply with the contracting officer's demands but under protest. IJC pointed out that the additional cost for landscaping would involve the labor of two men working one day each, plus the costs of materials, equipment, and remobilization. In the same letter, IJC complained that the last contract modification did not provide compensation for the costs of removing and replacing the contaminated soil ($20 dollars per yard) or for the two and one half days of lost time incurred while waiting for the Government to respond to the contractor's request for guidance on how to proceed ($1036). Finally, IJC objected that the modification also failed to address the cost incurred in removing an existing pile of soil not called for in the original contract ($200). Appeal File, Exhibit 45. 23. On July 21, 1998, the contracting officer issued a decision denying IJC's claim for the costs of removing and replacing contaminated soil, for the costs attendant to a delay of two and one half days, and for the costs of removing an existing pile of soil. The cost of removing the soil was said to be part of contract performance since the soil had to be excavated to remove the concrete piers. Since the shoring plan called for backfilling with gravel, the cost of replacing the excavated soil was also seen by the contracting officer as included in the contract price. The claim of delay was denied as unsubstantiated and the claim for removing an existing soil stockpile was denied on the ground that the Government was aware of no such removal. Appeal File, Exhibit 48. 24. Notwithstanding the contracting officer's decision of July 21, IJC continued to press its claim and was subsequently asked by the contracting officer to provide a breakdown for the costs allegedly incurred for removal and replacement of contaminated soil and for the two and a half days said to have been lost after the contamination was encountered. Declaration of Contracting Officer, William D. Privott (July 16, 1999) 26-27. By letter dated September 29, 1998, IJC responded to the request. The letter claimed $900 for the on-site supervisor's time (twenty hours at $40 an hour), $136 for the supervisor's room and board, and $200 for "removal of contaminated soil." The letter explains that the soil replacement cost is calculated by multiplying by $20 the number of yards or tons of contaminated soil which the Government removed from the site. Appeal File, Exhibit 49. 25. By letter dated November 6, 1998, the contracting officer denied the claim. The letter provides no explanation for the denial of IJC's claim for lost time. As to the claim for removal of contaminated soil, the contracting officer explained that this soil was removed by another contractor at the Government's expense. The cost of soil replacement was denied on the ground that under the approved shoring plan, the hole was to be backfilled with pea gravel and no additional soil was required. Appeal File, Exhibit 50. 26. By letter dated January 26, 1999, IJC appealed the contracting officer's decision of November 6. On March 25, 1999, after this appeal was docketed, IJC filed its complaint in this proceeding. In so doing, it amended its original claim. The claim, as amended, now seeks the following: Labor: Supervisor 26 hours @ $45 per hour $1,170.00 Laborer 2 hours @ $35 per hour 87.50 Equipment: Trackhoe 26 hours @ $47.50 per hour 1,235.00 Pick-up 3 days @ $30 per day 90.00 Barricades 3 days @ $25 per day 75.00 Trenchbox 3 days @ $52 per day 156.00 Compactor 3 days @ $35 per day 105.00 Hydr. BrkrHamer 3 days @ $85 per day 255.00 Concrete Saw 3 days @ $46 per day 138.00 Soil Replacement Cost for 50 yards 1,175.00 Room & Board 3 days @ $58 per day 204.00 Removal of existing stockpile 200.00 Total costs $4,890.50 Discussion It has long been established that in order to recover delay costs, a contractor must supply specific proof that the Government's unreasonable delay caused it to extend performance. Commerce International Co. v. United States, 338 F.2d 81, 89 (Ct. Cl. 1964); Joseph W. Green v. General Services Administration, GSBCA 12621, 96-2 BCA 28,306. The Government alleges that, in this case, IJC has failed to carry this burden. Respondent's Brief at 10. For the reasons discussed herein, we agree. IJC's Claim Based on Government Delay We turn first to the alleged delay of the contractor for two and one half days. In its complaint, IJC claims a delay of twenty-six hours. It states that on Wednesday, November 5, it suffered a delay of one and a half hours, from 3 p.m. to 4:30 p.m., while waiting for instructions. On the following day, Thursday, November 6, IJC claims to have lost a total of eight hours for the same reason. IJC contends that on Friday, November 7, it likewise lost an entire day. The delay on Friday, however, was not said to be because appellant was still awaiting instructions, but rather because it was allegedly doing work not called for under the contract, namely, excavating contaminated soil and stockpiling it as directed. Appellant also claims a delay of six hours on Saturday, November 8. It alleges that no work was done until the arrival of the environmental consultant at 10 a.m. The contractor states that, after excavating a few more yards of contaminated soil at the direction of the consultant, it was required to delay backfilling until 1 p.m., when it was finally given permission to proceed. Finally, appellant claims a delay of two and a half hours on November 12, when it was required to relocate the stockpile of contaminated soil in order to continue to perform the contract work. See Complaint 6-10. From the on-site supervisor's own statement given under penalty of perjury, we learned that it was on the morning of Thursday, November 6, at approximately 9 a.m., that the contractor, while excavating at approximately an eight-foot depth, encountered contaminated material. Finding 9. This, of course, conflicts with and disproves the allegation of delay said to have resulted from the discovery of the contaminated soil a day before, on Wednesday, November 5. As to the alleged Government delay on Thursday, November 6, we can find nothing in the record indicating that IJC was directed to suspend operations. Indeed, appellant's on-site supervisor does not contend that any such order was given. Rather, he explains that work stopped because the contamination was discovered while excavating the last pier and further excavation could not be done without disturbing the contamination. Finding 9. The decision to halt excavation at the location in question, therefore, was apparently made by IJC. Whether it was necessary, however, is far from clear. In its complaint, IJC alleges time was lost on November 12, when it was required to relocate the stockpile of contaminated soil "[i]n order to continue performing the contract work . . . ." This allegation appears to be corroborated by a memorandum found in the Government's files which states that, on November 10, the IJC representative on site had asked if he should continue work in view of the fact that the contaminated soil was resting on top of one of the piers which was to be removed. He was told to move the pile of contaminated soil and continue work. Finding 16. From these facts, we conclude that, as late as November 12, work remained to be performed on the contract and could be performed once the stockpile of contaminated soil was relocated. Appellant has not provided us with any explanation of why, on Thursday, November 6, this other work -- whatever it may have been -- was not a viable alternative to excavating at the contaminated site when excavation for one concrete pier was voluntarily suspended. Indeed, had IJC performed the other work, the soil subsequently excavated from the contaminated site would undoubtedly not have been stockpiled at the location where the remaining work was to be done and, hence, relocation of the pile at a later date would not have been necessary. Documentation found in the Government's files and contemporaneous with the time in question indicates that on Friday, November 7, IJC was expressly advised to continue excavation of the pier where the contamination was encountered. In its complaint, appellant does not deny this fact but, nevertheless, contends that compliance with this instruction resulted in further delay since this involved work not called for under the contract. We find this contention puzzling. Under its contract, appellant was required to remove the concrete piers and footings. Findings 2, 6. This required excavation of the soil surrounding the piers and footings -- whether it was contaminated or not contaminated. The only change we can discern which resulted from the discovery of the contamination was that excavated material which might prove to be contaminated was to be piled separately from what had been excavated previously. Appellant's on-site supervisor contends that he excavated far more than what he would have otherwise excavated were it not for the discovery of contaminated soil. In a statement provided to the Board following a status conference on June 1, 1999, IJC's on-site supervisor declared that, owing to the contamination, it was necessary to do more excavation than what was required or shown on the shoring plan. He has also stated that, on being told to proceed on November 7, he removed approximately twenty- five to thirty yards of obviously contaminated material. Finding 12. On Saturday, November 8, he claims that he removed a few yards more at the direction of the consultant there to take samples. Complaint 9. There are three major problems with these contentions. First, we are not prepared to assume that all excavation done after discovery of the contamination went beyond that called for in the contract. The on-site supervisor himself tells us that the contamination was discovered while excavation was in progress to remove a concrete pier. When the excavation resumed, presumably this involved continued performance of the contract. Secondly, appellant has provided us with no measure to determine how much more excavation, if any, was in fact required beyond that which would have been necessary simply to perform the contract. Finally, and most importantly, nothing in the record convinces us that the excavation of material allegedly in excess of that which would otherwise have been excavated was done at the direction of the Government. The evidence indicates that IJC was directed to continue with its project. Findings 11-12, 16. This was also the recommendation of the Government's consultant. Finding 14. Nothing appears to have been said either to appellant or to the consulting firm about extending the original limits of the excavation to ensure complete removal of the suspected contamination. Indeed, the consultant's recommendation to complete the project and test later for contamination is apparently based on the assumption that the contamination would not necessarily be removed. See Finding 14. Consequently, if, as appellant alleges, it was in fact delayed in completing performance of its contract on Thursday, November 7, because it excavated more soil than it would otherwise have removed, then this is not a delay attributable to the Government. Rather, the delay, if any, must be attributed to the contractor's own judgment and initiative. As to the alleged delay on Saturday, November 8, appellant has provided us with nothing indicating that it was present on site in anything other than a volunteer capacity. The contract provided that regular work hours consisted of eight-hour periods, Monday through Friday, and that work outside these regular works hours required contracting officer approval. Finding 3. The record contains no evidence that the contracting officer had, in fact, authorized IJC to be on site on Saturday, November 8. While we recognize that appellant's decision to work on this particular Saturday may have been prompted by the inclement weather earlier in the week, nevertheless, we would expect the contractor to work around the consultant sent out by the Government on that date to take samples. Certainly, under circumstances such as these, appellant cannot hold the Government liable for any delay occasioned by the presence of the consultant on site at that time. The only remaining alleged Government delay is that which IJC contends occurred on November 12 when two and a half hours were said to be lost in relocating the pile of contaminated soil in order to continue contract performance. While it is true that the Government directed IJC to pile the contaminated soil in a pile separate from other dirt removed from the excavation, there is nothing in the record suggesting that the Government initially directed the contractor where to place this pile.[foot #] 1 Accordingly, where the contractor elected to place the pile was a matter left to its discretion. The spot selected was obviously not a good one since, within five days, it was necessary to move the pile in order to continue contract performance. Appellant has offered us nothing which convinces us that anyone but IJC should be responsible for the time lost as a result of the need to relocate the segregated pile. In short, we can find no basis for concluding that appellant was delayed by Government action or inaction on November 5, November 6, November 7, November 8, or November 12. We find, therefore, that the contracting officer acted properly in denying appellant's claim for all expenses which IJC contends were incurred as a result of these alleged delays. Removal of Existing Stockpile IJC seeks $200 as the cost of removing and disposing of an existing soil stockpile, approximately three years old, left behind by another contractor. Complaint 11, 13. This claim has been the source of some confusion since, in representing its claim in its letter of September 29, IJC referred to the soil ----------- FOOTNOTE BEGINS --------- [foot #] 1 When relocation was discussed, the Government did direct the contractor to move the soil to the parking lot. Finding 16. ----------- FOOTNOTE ENDS ----------- which it removed from the site as "contaminated soil." Finding 24. The contracting officer denied the claim on the ground that the contaminated soil was removed by another contractor. Findings 19, 25. From other materials in the record, however, it would appear that this portion of appellant's claim does not relate to contaminated soil, but to soil on site which was leftover from an earlier project. In a declaration given under penalty of perjury, appellant's on-site supervisor stated that his company was directed to remove this stockpile (approximately two truckloads) by the Government's project manager as it was not suitable for backfill. In an unsworn declaration,[foot #] 2 the project manager stated that he had no recollection of ever giving such an instruction to IJC. Similarly, the contracting officer, in his decision of July 21, denied the claim by stating that he was not aware of IJC's having removed any existing soil stockpile. Finding 23. A memorandum in the record, dated October 21, 1997, from the Government's project manager to the contracting officer's assistant, refers to this same pile of soil and advises that IJC wishes to use this soil as backfill. At the same time, the memorandum notes that responsibility for the soil ultimately rests with the National Weather Service which should address the matter before vacating the premises. Finding 8. Appellant's on-site manager would have us accept the fact that this same Government project manager later concluded that the soil could not be used as backfill and apparently took it upon himself, without further consultation with either the NWS or the contracting officer's staff, to direct IJC to remove the stockpile from the site. Without additional evidence that this or something similar did, in fact, occur, we decline to overrule the contracting officer's denial of this claim based solely upon the on-site supervisor's uncorroborated statement. Removal and Replacement of Contaminated Soil IJC seeks $1175 for removing and replacing fifty yards of contaminated soil. The claim is apparently based upon the fact that, of the fifty tons of segregated soil ultimately removed from the site, all of it was excavated solely because of contamination and not because its excavation and replacement was required under the contract. Such an assumption conflicts even with statements made in the on-site supervisor's own declaration. As we have already noted, he explained that the contamination was first encountered "while excavating a pier." Under the contract, IJC was, of course, required to excavate for the removal of the ----------- FOOTNOTE BEGINS --------- [foot #] 2 Although the declaration of this individual is said to be given under oath, it is not notarized and not given under penalty of perjury as permitted under 28 U.S.C. 1746 (1994). ----------- FOOTNOTE ENDS ----------- concrete piers and footings. Finding 2. Under the contract, IJC was originally expected to use excavated material for backfill and fill material. Finding 4. However, the shoring plan, also called for in the contract, specified that IJC would backfill the excavation with clean washed #57 or #67 stone. This provision regarding the nature of the backfill, although initially challenged by the contracting officer, was eventually permitted to stand as submitted and thus superseded the original provision regarding the use of excavated material for backfill. Findings 5-6. Removal and replacement of the soil with something other than excavated material must, therefore, be viewed as part and parcel of contract performance. As we have already noted, appellant has failed to establish how much more excavation and fill -- if any -- was required over and above that which was already required under the contract. We are not prepared to accept the fact, as appellant would have us do, that all of the fifty tons of contaminated soil removed from the site represented material that would not have been excavated or required replacement but for the discovery of contamination. Indeed, in the absence of any evidence that might permit us in any meaningful way to distinguish between soil excavated, as required by the contract, from that removed solely as a result of the contamination, we cannot and will not assume that any of it was other than that which appellant was required to remove and replace as part of contract performance. For this reason we conclude that the contracting officer acted correctly in denying this portion of IJC's claim. Decision The contracting officer's decision denying this claim is affirmed. IJC's appeal is DENIED. _____________________ EDWIN B. NEILL Board Judge