The contractor was performing a fixed price building contract which required the performance of certain alterations to an existing facility, including several painting tasks. The scope of two elements of the contractor's painting work were disputed during the course of performance, including the painting of a firewall approximately thirty feet high and the painting of approximately 500 linear feet of gas piping in a mechanical room. Both questions of the scope of work were controlled by the interpretation of the term "exposed" as used in the specifications. Kinetic Builders, Inc., ASBCA No. 51012, 98-2 BCA p. 29,899.
The contractor's finish schedule required that drywall be painted, but did not specify the height. The disputed firewall extended beyond the roof trusses to the roof deck to a height of thirty feet. In all other rooms, the contractor was only required to paint the walls approximately twelve feet high to the existing ceiling line. The contractor was required by the contracting officer to paint the entire thirty feet of the firewall because the firewall was visible through the spaces between the trusses. The contracting officer's position was based on a portion of the specifications which required the contractor to paint all "exposed surfaces."
The word "exposed" was not defined in the contract. The contractor argued that the portion of the wall above ceiling level (roof truss level to roof deck) was not an exposed surface. Deciding the issue in favor of the government, the Armed Services Board of Contract Appeals relied on the dictionary definition of "exposed" which included "not shielded or protected." Thus, as the firewall could be seen through the trusses, it was "exposed" and the contractor was obliged to paint it. Interestingly, the board pointed out that there was no evidence the contractor had relied on that interpretation when bidding-an absolute necessity if a contractor expects to recover for subsequently complying with another's interpretation of a requirement of the contract.
A similar position was taken by the contractor with respect to gas piping in a mechanical room. The specifications required the contractor to paint "exposed bare pipes." The contractor asserted (disingenuously) that because the piping in the mechanical room could only be seen when the mechanical room door was open, it was therefore not exposed, and painting was not required. The board had little trouble ruling against the contractor, finding that the term "exposed" relates to the piping and not the area where it is installed. "Inside the room, the piping was in plain view."
With respect to the gas piping, the contractor also argued that the government has abandoned its rights to require performance as it did not insist that the piping be painted during performance. Instead, the contracting officer only asserted a credit for the unperformed work and in the final decision stated that the contractor was entitled to be paid the remaining contract balance. After the appeal, the government asserted that it was entitled to both a credit for the unperformed work and to retain liquidated damages since the contractor had substantially completed the work after the contract completion date. The final decision had made no reference to or claim for liquidated damages. The board, relying on the "Inspection of Construction (JUL 1986) Clause," found that the government was entitled to accept the facility with unperformed work and taken appropriate credit against the contract price and assess liquidated damages.
Comment
The final aspect of this decision worthy of note deals with an issue often overlooked by contractors - the weight accorded to a final decision after it is appealed. When a contracting officer's final decision awards any of the claimed costs and/or time, an appeal effectively nullifies the award and the trier of fact is not bound by the contracting officer's decision. Effectively, a contractor starts over as if the contracting officer's decision had denied the claim in its entirety.