Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                                                            
 
                       DENIED: September 9, 1999
                                                            
 
 
                              GSBCA 14643
 
 
                        GRIFFIN SERVICES, INC.,
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Kent C. Dugmore, Sandy, UT, counsel for Appellant.
 
        Adele  Ross  Vine,  Office  of   Regional  Counsel,  General
   Services Administration, Kansas City, MO, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), PARKER, and WILLIAMS.
 
   DANIELS, Board Judge.
 
        Griffin  Services,  Inc. (Griffin)  is responsible,  under a
   contract  with  the  General Services  Administration  (GSA), for
   maintaining a  chiller at a  Government building in  Kansas City,
   Missouri.  Several hundred pounds of refrigerant escaped from the
   chiller.  The  parties have asked us  to decide which of  them is
   responsible for the cost of replacing the lost refrigerant.
 
                            Findings of Fact
 
        1.   For  many years, GSA maintained, through the efforts of
   its  own personnel,  the  mechanical equipment  at  a complex  of
   Government   buildings   in   Kansas   City.      Transcript   at
   89.[foot #] 1       During    the   1990's,    as   the    agency
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 The court  reporter provided  the Board with  two
   transcripts of  the hearing  held in this  case.   One transcript
   consists of  full-size, 8-1/2 by  11 inch  pages; the other  is a
   "Multi-Page" version with four pages on each sheet of paper.  The
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   employees who  did this work  resigned and retired, but  were not
   replaced, GSA began to contract for performance of the work.  Id.
   at 317, 384.
 
 
        2.   Among  the  contracts  awarded by  the  agency  was one
   entered  into on February 8,  1995, with Griffin,  for mechanical
   maintenance at  the federal  building located  at 2306/2312  East
   Bannister Road  in Kansas City, which houses  an Internal Revenue
   Service Center.  Appeal File, Exhibit 1  at 1, 59, 93; Transcript
   at 394.   The contract  covers a three-year period,  beginning on
   March 1, 1995, and allows the agency,  at its option, to keep the
   arrangement  in effect  for  two  additional three-year  periods.
   Appeal  File, Exhibit  1 at  8,  12, 59;  Transcript at  89.   On
   January 20,  1998, GSA exercised  its option for the  period from
   March 1, 1998, through February 28, 2001.  Appeal File, Exhibit 1
   at   modification  PO13.    This  contract  requires  Griffin  to
   "operate[],  maintain[],  and  repair[]   . . .  all  mechanical,
   electrical,  plumbing,  and  utility  systems  installed  at  the
   complex/building(s)," including  "air-conditioning equipment  and
   systems."  Id. at 23-24; see also id. at 93-94.  
 
        3.   The   contract   includes  various   provisions   which
   establish general standards  to which the contractor will be held
   in the performance  of this work.  In one place, it provides that
   as  a  "minimum  level  of  work and  services  that  are  to  be
   provided," "the Contractor will be required to take all steps and
   measures  which would  be taken  by a  prudent building  owner to
   maximize  the life  expectancy of  the property."   Appeal  File,
   Exhibit  1  at 9.   Additionally,  under the  heading "Acceptable
   maintenance and repair," the contract states:
 
        All     mechanical,     electrical,     and     utility
        s y s t e m s [ f o o t   # ]   2      a n d      t h e
        facility/building(s) shall be  repaired, maintained and
        operated at the highest level  of efficiency compatible
        with the current energy conservation requirements,  and
        maintained  at  an   acceptable  level  throughout  the
        contract performance period.   An "acceptable level" of
        maintenance  and  repair  is defined  as  the  level of
        maintenance   and  repair   which  will   preserve  the
        facility/building(s),   equipment   and    systems   in
        unimpaired operating  condition; i.e., above  the point
        where deterioration  will begin --  thereby diminishing
        the normal life expectance [sic] of the equipment.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 (...continued)
   pagination of the two versions is unfortunately not the same.  We
   cite to the full-size transcript.
 
        [foot #] 2 Curiously, but  of  no relevance  to  this  case,
   although the  contractor is  required to  operate, maintain,  and
   repair plumbing systems  as well (see  Finding 2), these  systems
                                     ___
   are not covered by this standard.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Id.;  see also  id. at  98.   In  yet another  place,  a "Quality
   standards" paragraph says:
 
 
        The Contractor  shall be responsible  for ensuring that
        the  required  services  in   this  contract  meet  the
        requirements of the contract.  All work performed under
        this  contract shall be  of the highest  quality and in
        keeping  with  the  best  practices  of  the  industry.
        Services  rendered  under  this  contract  shall be  of
        sufficient  quality  to   ensure  timely  provision  of
        services, optimum satisfaction  of tenant agencies  and
        adequate protection of the Government's assets.
 
   Id. at 57.
 
        4.   In another  general, standard-setting  requirement, the
   contract also provides:
 
        Government  publications and  forms applicable  to this
        Contract   are  listed   below.    The   Contractor  is
        responsible and  required to follow  these publications
        as a part of this contract and to use the forms  to the
        extent required by  the Contract.  It is  the intent of
        this contract to  require the Contractor to  follow all
        the  rules,  regulations  and  laws  in  the operation,
        maintenance and  repairs that  the Government  managers
        and their employees are and would be required to follow
        in the performance of their jobs.
 
   Appeal File,  Exhibit 1  at 12.   The  "list of  publications are
   [sic]  located in  Section J,  Exhibit 6  -- Publications."   Id.
   That exhibit begins, "This contract throughout references various
   laws, regulation[s],  handbooks, orders  and memorandum[s].   All
   such  references are incorporated  as part  of this  contract and
   mandatory to be followed in the accomplishment of this  contract.
   The following is  a partial list of these requirements."   Id. at
   108.   A list thirteen pages long follows.   It includes a single
   publication of  the American  Society for  Heating, Refrigerating
   and  Air Conditioning Engineers,  Inc. (ASHRAE), "ASHRAE  No. 62,
   Standard on Ventilation for Acceptable Air Quality."  Id. at 119.
   The contract  contains no other mention  of ASHRAE or any  of its
   publications.[foot #] 3
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3 In a  separate portion of  the contract, entitled
   "Safety,"  the  contractor  is "required  to  follow  . . . those
   consensus  standards  and  other  guidance  documents   currently
   affecting fire protection,  safety and health, and  environmental
   management," including "consensus  codes and standards  developed
   by  groups such  as American  Society for  Testing and  Materials
   (ASTM),  American National  Standards Institute  (ANSI), National
   Fire   Protection   Association  (NFPA)   and   the  Underwriters
   Laboratories, INC. [sic]."  Appeal File, Exhibit 1 at 11.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
       5.   Among the regulations with  which Griffin is required to
  comply  are   those   issued  by   the  Environmental   Protection
  Administration (EPA)  establishing  standards  that implement  the
  Clean Air Act,  42 U.S.C.   7401 et  seq.  Appeal File, Exhibit  1
  at  84(g)-(h).  One  of these regulations is  part 82 of title 40,
  Code of Federal  Regulations, "Protection of Stratospheric Ozone,"
  which  governs  the  release   into  the  environment  of  certain
  substances  used as refrigerant in  comfort-cooling appliances and
  refrigeration  equipment.    The  regulation  provides, generally,
  that owners or operators  of large comfort-cooling appliances must
  have leaks repaired "within 30 days after discovery,  or within 30
  days  after when  the leaks  should have  been  discovered if  the
  owners intentionally  shielded themselves  from information  which
  would have  revealed a leak,"  "if the appliance  is leaking at  a
  rate such  that the loss of  refrigerant will exceed 15 percent of
  the total charge during a 12-month period."   40 CFR 82.156(i)(5),
  (9) (1997) (included  in Appeal File,  Exhibit 7).   EPA does  not
  mandate  that refrigerant holding  cylinders or  tanks be  on site
  and in quantity  to recover all the refrigerant in a system at all
  times; they need to be brought to a site  only in time to meet the
  thirty-day requirement.  Appeal File, Exhibit 9.
 
       6.   The   contract   imposes   additional,    more   precise
  requirements on Griffin,  as well.  "The Contractor shall  furnish
  all   supplies,  materials   and   equipment  necessary   for  the
  performance  of  the  work  required   by  this  contract   unless
  specified herein" (such as by  being furnished by the Government).
  Appeal  File,  Exhibit  1  at  48;  see  also  id.  at 20.    "The
  contractor  is [also]  responsible for  the  day-to-day inspection
  and  monitoring of  all work  performed to  ensure compliance with
  the  contract  requirements."     Id.  at  22.    Air-conditioning
  machines  with large chillers, in particular, are  to be monitored
  frequently.   One  contract  provision says  those which  are  not
  included in a "refrigeration plant watch" are "to  be toured twice
  daily,  one tour for  start-up and  second for operational check."
  Id.  at 32.   Another  paragraph  says these  machines are  to  be
  toured "twice  per shift."   Id. at  34.  "When  the compressor is
  running,  make  routine  inspection  of  pressures,  temperatures,
  fluid levels, fluid flow, etc.   . .  .  If refrigerant leaks  are
  suspected, check with leak  detector.  Add refrigerant and oil  as
  needed."  Id. at 33.  In addition, the  contractor is "responsible
  for  establishing an  effective  system for  accomplishing .  .  .
  maintenance and  repair," including preventive  maintenance.   Id.
  at 37.   "Preventive maintenance," as to chillers, includes adding
  refrigerant when necessary.  Id. at 99.
 
       7.   The  contract provides  for an  allocation, between  GSA
  and Griffin,  of costs of repair.   Repairs are divided into three
  categories: maintenance,  minor, and  major.    Repairs are  "work
  required to prevent a  breakdown of equipment and/or system or  to
  put  it back  in  service  after  a  breakdown  or  failure."    A
  "maintenance  repair"  is  one  for  which "the  cost  for  labor,
  materials  and  parts  is  expected  to  be  $10,000.00 or  less."
  Maintenance repairs  are the responsibility  of the  contractor. A
  "minor repair"  is one  for which  "the expected  cost is  between
  $10,000.00  and   $25,000.00  for  labor,   material  and  parts."
  Griffin  is responsible  for $10,000  of the  cost  of each  minor
  repair.  A "major repair"  is one for which  "the cost is expected
  to exceed  $25,000.00 for  labor, materials  and parts."   GSA  is
  responsible for  major repairs.  For  each of the categories,  the
  "dollar threshold  applies to each  individual repair job that may
  be  required."  Appeal  File, Exhibit 1 at  39-41; see also id. at
  98.
 
       8.   The  contract  directs  Griffin to  proceed  differently
  with  repairs, depending  on  the category  within which  a matter
  falls.  A maintenance  repair is to be "immediately perform[ed]  .
  .  . when  [it  is] required  in  order  to ensure  continuity  of
  operations or to return equipment and/or the system  to service as
  soon as possible. . . .   The delay of any repair shall be brought
  to the  attention of  the [GSA]  Field Office  Manager and/or  COR
  [contracting  officer's representative]."  "Any minor  repair work
  shall be immediately  reported to the COR,  but work shall NOT  be
  performed  unless  directed  to  do  so  by  the  CO  [contracting
  officer]  and/or the  COR."   Major repairs  "shall be immediately
  reported to the COR but  the work shall  not be performed.   Major
  repairs  are not a  part of this contract  and may be performed by
  Government employees  or other  Contractors."    However, GSA  may
  authorize Griffin  "to  perform part  of a  major repair."  Appeal
  File, Exhibit 1 at 39-41.
 
       9.   The  contract also  contains three  provisions called to
  our  attention by  GSA  which allow  the  agency to  make  Griffin
  responsible  for  certain costs.    Respondent's  Brief at  16-17.
  Under  the  heading "Contractor  responsibility,"  the  instrument
  states:
 
       If   any    of   the    services[[foot #] 4]   do    not
       conform  with the  contract requirements, the Government
       may require  the  Contractor  to  perform  the  services
       again in  conformity with  contract requirements,  at no
       increase in  contract amount. . . .   If  the Contractor
       fails to  promptly perform the services again or to take
       the  necessary action  to ensure  future performance  in
       conformity  with contract  requirements, the  Government
       may (1) by contract or  otherwise, perform the  services
       and charge  to the  Contractor any cost incurred  by the
       Government that  is directly related  to the performance
       of  such  service  or  (2)  terminate  the  contract for
       default.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 The  contract  defines  the  term  "services"  to
   include "services  performed, workmanship and  material furnished
   or  utilized  in  the  performance of  services."    Appeal File,
   Exhibit 1 at  22; see also  id. at 55  (same  definition,  except
                     ________  ___
   that a comma appears after the word "workmanship").
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  Id. at  23.    Another clause  allowing  GSA  to impose  costs  on
  Griffin   is   entitled  "Protection   of  Government   buildings,
  equipment and vegetation."  It reads:
 
       The  Contractor  shall  use  reasonable  care  to  avoid
       damaging existing  buildings, equipment, and  vegetation
       on  the  Government installation.   If  the Contractor's
       failure to use reasonable  care causes damage  to any of
       this property,  the Contractor  shall replace  or repair
       the  damage at  no  expense  to the  Government  as  the
       Contracting Officer directs.
 
  Id.  at 84(p).    The third  provision,  included in  a  "Contract
  Deduction  Table,"  says  that   if  the  contractor  "[fails]  to
  complete minor  repairs within  the time period  specified by  the
  Contracting  Officer's   Representative  (COR)  or  any   approved
  extension,"  "[t]he  Contractor will  be  held  liable for  excess
  costs incurred  by the  Government to  complete  any minor  repair
  which the  Contractor fails to complete  within the required  time
  period."  Id. at 66.
 
       10.  Yet  another clause which makes  Griffin responsible for
  certain costs is FAR 52.236-7,  Permits and Responsibilities  (Nov
  1991),  which states  in  part:  "The Contractor  shall  . . .  be
  responsible for all damages  to persons or property that occur  as
  a result of the  Contractor's fault or negligence."  Appeal  File,
  Exhibit 1 at 90.
 
       11.  The  dispute  which  is   the  subject  of  this  appeal
  involves  a Westinghouse high-pressure chiller which was installed
  in  the building  during 1980.   Transcript  at  22, 295,  370-71.
  This chiller  is relatively inefficient, so  it is used only  when
  the outside temperature is very hot, to supplement  more efficient
  air conditioning units in the  building.  Id. at  21.  The chiller
  is generally taken off-line in  mid-October, when the  temperature
  cools to  the  point  that  supplemental  chilling  is  no  longer
  necessary.   Id. at  20.  The  chiller uses R-12  refrigerant, and
  when  it  is  fully  charged,  it  holds  2,365   pounds  of  this
  substance.  Appellant's Exhibit 39 (entry for Nov. 25, 1997).
 
       12.  Mark Thomas,  Griffin's project  manager  for the  work,
  characterized the chiller as "a big leak."   Transcript at 34.  He
  testified, "[T]here  were  more  welded  joints,  flair  fittings,
  [and] couplings on this thing than you can shake a stick  at," and
  each of these  points was susceptible to  leaking.  Id.  at 34-35.
  Ted  Correl,  a  GSA  air  conditioning  and  equipment mechanical
  supervisor who  had been  responsible  for  operating the  chiller
  from the  date of  its installation  until 1994,  agreed that  the
  machine leaked refrigerant on  a regular basis.   Id. at 295, 298.
  Every spring,  GSA personnel who  had worked  on the machine  told
  Mr. Thomas, they  had had to "drop . .  . a few  hundred pounds of
  gas into this thing."  Id. at 44-45.
       13.  Each party  presented, at  our hearing in  this case,  a
  witness  who  was  highly  experienced   in  working  with   large
  chillers.   Griffin's expert witness was Aubrey McStay, the firm's
  vice president  of operations.  Transcript  at 208-11.  GSA's  was
  Gene  Ramirez,   a  mechanical  engineer   who  is   the  agency's
  refrigerant  program  manager  for  the  four-state  region  which
  includes    Kansas    City.        Id.    at    331-34,    377-78,
  382.[foot #] 5     Both  of  these   witnesses  agreed   that  the
  Westinghouse chiller  in question  was not  unusual,  in terms  of
  leaking refrigerant, for  a machine of its age and design.  Id. at
  211-12,  217-18, 404-05, 462-63.   Mr. McStay explained that "when
  you have  hundreds of . . . little  fittings all over the  cabinet
  and the compressor,"  as this chiller has, any one can leak at any
  time.  Id. at 213.
 
       14.  There is  no mechanism on  the chiller through which the
  refrigerant  level inside  may  be  observed.   Transcript  at 47.
  Nevertheless,  Griffin  personnel   made  consistent   efforts  to
  determine whether the machine was leaking refrigerant.   While the
  machine  was operating,  they performed  a visual check  for leaks
  every two hours and a  more detailed check once a  week.  When the
  unit  was shut  down for  the season,  they  made a  comprehensive
  examination.  In the  spring, they performed  a further  analysis.
  Id.  at  30-32,  35-36.   Griffin  used  two  different  means  of
  checking  for leaks -- electronic leak detection and soap bubbles.
  The  latter technique  involves misting  an area  with dishwashing
  soap and watching to  see whether (and how quickly) bubbles  form.
  Id. at  36-39.  According to  Mr. Thomas's uncontested  testimony,
  bubble tests are fairly reliable indicators of leaks.  Id. at 47.
 
       15.  In 1995, Griffin's first year of  performing maintenance
  under  the  contract,  the  company  tested  the  fitness  of  the
  Westinghouse chiller  before bringing it on  line for the  cooling
  season.   It  found  that  the  machine  was  355  pounds  low  on
  refrigerant.  GSA  supplied the refrigerant, and Griffin added it.
  During the  cooling season, the contractor  found no leaks in  the
  machine.  Transcript at 28-30; Appellant's Exhibit 11 at 1-3.
 
       16.  During 1996, Griffin  repaired leaks  at several  places
  on  the  chiller:  the  vane   control  solenoid,  suction   elbow
  victaulic  connector, liquid line  coupling braze  joint, pressure
  relief  valves, compressor  motor terminal  plug, oil  sight glass
  and sump  cap, and discharge  line victaulic  gasket.  The  system
  lost  about  four hundred  pounds  of  refrigerant, which  Griffin
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5 Mr. Ramirez  was  specifically  qualified  as  an
   expert.  Order (Mar. 23, 1999) at  2.  Mr. McStay was not, but he
   was treated as  one by  both parties  during the  hearing and  we
   consider him to be one in this opinion.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  replaced  at   its  own  cost.     Appeal   File,  Exhibit  2   at
  8[foot #] 6; see Respondent's Brief at 20.
 
       17.  In the  fall of 1996,  after the  chiller was shut  down
  for the season, Griffin detected slight  leakage of refrigerant at
  two or  three fittings where pipes  were joined with a  clamp-type
  mechanism.  Transcript at  42-44.  Mr. Thomas concluded, based  on
  his  past  experience  with  chillers,  that  the  leaks  were  so
  insubstantial  that   they  could   be  addressed   during  spring
  maintenance.   Id.  at  45-46.   In January  or February  of 1997,
  Griffin  removed  the  refrigerant  from  the  machine  to perform
  maintenance on  it.  Id. at  50.  The  chiller proved to be  about
  three hundred pounds low on refrigerant.   Id. at 52; Appeal File,
  Exhibit 2 at 8.  The contractor repaired these leaks, but  as soon
  as it  fixed one  problem, it would  find another.   Transcript at
  51.   Leaks were discovered  at the  fittings, on pressure  relief
  valves, on  some of the  controllers in  the control cabinet,  and
  all over the  oil sump container.  Id.  at 59.  During the spring,
  as it was performing  this work, Griffin found that the  machine's
  expansion valve had cracked.  Id. at 61-62.  New  expansion valves
  were unavailable,  and at GSA's direction, the contractor had this
  valve  replaced with one which had  been used.  Id. at  62-65.  By
  June, the machine had been  fully tested and appeared to be tight.
  Griffin  replaced  the  necessary  refrigerant  at  its  own cost.
  Appeal  File, Exhibit 2 at 8.  It put the chiller on line, and the
  machine functioned  well throughout the  cooling season.   Griffin
  did  not detect any leaks during this time.   The chiller was last
  operated for the season on October 8, 1997.  Transcript at 66-68.
 
       18.  After  shutting down  the chiller  for the  1997 cooling
  season, Griffin checked  it for  leaks, using  both an  electronic
  leak  detector  and  soap  bubble  tests.    On  October  16,  the
  contractor  found a leak on  a fitting.   Mr. Thomas believed that
  the  leak  was "very  small"  and  took no  action  regarding  it.
  Transcript at  69, 135;  Appeal File, Exhibit  2 at  2.   Thirteen
  days later, during normal rounds,  Griffin employees noticed  some
  oil --  less than a  pint --  under the expansion  valve which had
  been replaced the previous spring.  Transcript at  71, 117; Appeal
  File, Exhibit 2 at  2.  As is common,  the neoprene rubber  gasket
  which was  installed around the  connection between  the valve and
  the  machine   had  arrived  soaked   in  oil   to  maintain   its
  flexibility, and it had  been lubricated further so that it  could
  more  readily  be  eased   into  place  during  the  installation.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6 Exhibit  2 of  the Appeal  File  consists of  two
   letters.  The first (pages 1-4 of the exhibit), dated December 4,
   1997,  is from  Mr.  Thomas  to Arthur  Gendreau,  who was  GSA's
   contracting  officer's  representative  for  most   of  the  time
   involved in this dispute.   The second letter (pages 5-10), dated
   March 9, 1998, is fromRichard Rushton, Griffin's Vice President -
    Operations,  to  T. J.  Hewitt,   the  GSA  contracting  officer
   responsible for this contract.  The pages  of the exhibit are not
   numbered.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  Transcript at 43, 228-29, 322.   Mr. Thomas found  a small leak at
  this  gasket.   He  thought  that the  oil on  the  floor was  not
  associated  with the  leak, however,  but rather,  was lubrication
  oil which  had congealed on  the gasket while the  chiller was on-
  line and had dripped  from the gasket  after the machine had  been
  shut down  and returned  to room  temperature.   Id.  at 71,  118;
  Appeal  File, Exhibit 2  at 2.  The action  of soap bubbles in the
  area  was  similar  to   what  had  been   observed  during  1996.
  Transcript at  113-14,  118.    In  Mr.  Thomas's  judgment,  "The
  combined leakage at  the suction line [fitting] and the  expansion
  valve was significantly less than what we experienced in  relation
  to all  the leaks we discovered  in the fall  of [19]96."   Appeal
  File,  Exhibit 2 at 2.   The project manager  testified that after
  October 29,  Griffin continued to test  for leaks, and found  that
  the one  in the area  of the oil spot had  stopped.  Transcript at
  87.
 
       19.  Mr. Thomas  testified that  if he  had  believed that  a
  major leak was present,  he would have hired a service company  to
  take  immediate action to  pump the remaining refrigerant into its
  own  storage   cylinders,  repair  the   leak,  and   replace  the
  refrigerant which had been lost.   He did  not think that such  an
  effort was  necessary, however, since  the leaks  seemed minor  --
  less than  the amount prescribed  by the  EPA as requiring  prompt
  action,  fifteen percent of the total charge during a twelve-month
  period.   Transcript at  74-75, 129;  see Finding  5.  Mr.  McStay
  agreed that  this decision was  prudent, since  a leak that  would
  involve  a large  quantity of  oil, and  consequently refrigerant,
  "would  just  be incredibly  obvious,"  and  no such  problem  was
  apparent.  Transcript  at 458; see also  id. at 224-25.   Further,
  Mr.  McStay  said,  in  his  experience,  he  had   never  seen  a
  refrigerant  leak that involved a significant amount  of oil "that
  would  leak and then stop leaking.  I can  only conclude that that
  oil  must  [have  been]  from  some  other  source,  for  example,
  residual oil from  the maintenance procedure that . . . replaced .
  . . the  valve."  Id.  at 460.  Mr. Thomas  also acknowledged that
  he could  have stored the refrigerant  in the machine's  condenser
  until  the leaks had  been repaired.   Transcript at  77; see also
  id. at 343-44  (Ramirez's testimony  that the machine is  designed
  to allow such storage),  299-300 (Correl's testimony that when GSA
  was responsible  for maintenance of the  machine, it or a  service
  contractor sometimes  took such action).   Mr. McStay opined  that
  the condenser, while acceptable  as an emergency storage facility,
  was not suitable  for long-term storage, since it had two to three
  hundred  connections which were  susceptible to  leaking.   Id. at
  461-62.     Mr.  McStay  thought  that   based  on  Mr.   Thomas's
  explanation  of the  facts involving  the leaks, no  emergency was
  present.  Id. at 470.
 
       20.  Mr.  Thomas  was not  completely  unconcerned  about the
  leaks  discovered in  October,  however.   In early  November,  he
  decided that because they  appeared to him similar to past  years'
  leaks, if  the problems were not  fixed promptly, they could  lead
  to  the  loss  of  another  two  hundred  pounds  of  refrigerant.
  Transcript at  72; see also  id. at  74 ("We didn't  at that point
  believe that [the leaks]  were any more aggressive in nature  than
  anything we had seen  in the past.").  Knowing that repairs  could
  not begin until the  refrigerant was removed from the chiller,  he
  contacted companies in Kansas City that  rented cylinders in which
  the  refrigerant could  be stored  while repairs  were undertaken.
  He was  not able  to rent  from these  companies,  on a  long-term
  basis, quantities  of cylinders capable  of storing  the chiller's
  entire charge of refrigerant.   Id. at 73, 128.   He then  decided
  to  buy storage  cylinders,  and to  do  so most  economically  by
  ordering  them directly  from a  manufacturer.   Id.  at 73,  129.
  (Mr.  Thomas  did  not   explore  the  possibility  of  purchasing
  cylinders from a  vendor in  the Kansas  City area.   Id. at  129.
  Such containers  were available  there at  the time.   They  could
  have  been  bought;  alternatively,  their  use  could  have  been
  secured by  hiring a  service contractor  to pump the  refrigerant
  into its  own cylinders.   Id.  at  425-26.)   The cylinders  were
  ordered on November 7th, shipped  on the 19th, and arrived on  the
  24th.   Appeal File, Exhibit  2 at 3,  10; Appellant's Exhibit  39
  (entry for Nov. 24, 1997).
 
       21.  Meanwhile, Griffin's  operations logbook -- a  shift-by-
  shift  diary of  events occurring  on the  job  -- contains  three
  entries which appear to be relevant to  the matter in dispute.  An
  entry   on   November   6  states,   "Put   down  oil   dry  under
  vic[[foot #] 7]   leak   on   Westinghouse   (spreading)."      An
  entry on  November 9 says,  "Westinghouse chiller  -- put oil  dry
  down to contain OIL leak[;]  dump oil pan - X2 - keep eye on."   A
  second  entry on  November 9, for  the second  shift on  that day,
  says, "Changed bucket under chiller  (oil)."  Appellant's  Exhibit
  39 (entries for Nov. 6, 9, 1997).
 
       22.  As soon as the  storage cylinders arrived, Griffin began
  pumping refrigerant  from the  chiller into  them.  Transcript  at
  73-74.    Mr.  Thomas  remembers  that  all  the  refrigerant  was
  recovered  in an hour  and a half.   Id.  at 96.   Contemporaneous
  documentation by  Griffin employees shows,  however, that recovery
  was   not  complete   until  the   following  day,   November  25.
  Appellant's  Exhibit 39  (entry for  Nov. 25,  1997); Respondent's
  Exhibit 4.  Griffin has  estimated the amount  recovered variously
  as  six  hundred, six  hundred fifty,  and  seven  hundred pounds.
  Id.;  Transcript  at  77;  Appeal  File,  Exhibit  2  at  3.     A
  "refrigerant  removal   incident"  report   prepared  by   Griffin
  employees and  dated November  24-25,  1997  states: "Reason  Leak
  happened?  Failed Victolic [sic]  couplers & several minor leaks."
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 The manufacturer  of the fittings where leaks had
   been observed on  both October 16 and October  29 was Victaulics,
   and the fittings have been referred to throughout our proceedings
   as "Victaulic fittings."  See  Transcript at 42; see also Finding
                             ___                    ________
   16.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  Respondent's    Exhibit     4;    see     Transcript    at     93-
  95.[foot #] 8
 
       23.  Mr. Thomas did not  inform anyone at GSA about Griffin's
  fall 1997 activities involving the  Westinghouse chiller until  he
  had decided to buy the storage cylinders.   At that point, he told
  the COR, Arthur Gendreau, about the  discovery of the leaks and of
  his efforts  to obtain  the storage  vessels.   Transcript at  76,
  182-83.   Mr. Gendreau  expressed no concern.   Id.  at 183.   The
  absence  of  communication  was   in  keeping  with  the  parties'
  practice.    Mr. Gendreau  did  not  expect Griffin  to  keep  him
  informed  about maintenance  repairs  it was  performing.   Id. at
  171.  As explained by  Mr. Thomas, the  COR had said that as  long
  as a repair would  cost less than $10,000, the contractor was  "to
  just  handle  it.   They  trusted  our  judgment,  had  all  their
  confidence in me  to just take care of it."   Id. at 55.  "And  as
  long  as I  was taking  care  of  business and  keeping the  plant
  functional,  that was fine by [the COR]."  Id. at 57.  The lack of
  concern  on Mr.  Gendreau's  part  was also  consistent  with  his
  belief  that Mr.  Thomas was  "[v]ery competent" and  that Griffin
  "provide[d] quality  service."  Id. at  166, 184.  Similarly,  Mr.
  Correl, the  GSA employee who  had been  responsible for operating
  the  chiller  from  the  date  of  its  installation  until  1994,
  testified that  Griffin maintained  the  chiller  better than  GSA
  personnel had when they were responsible for maintenance.   Id. at
  318.
 
       24.  As  soon  as  recovery  operations  were  complete,  Mr.
  Thomas  informed   Mr.  Gendreau  that   a  significant   loss  of
  refrigerant  -- on  the  order of  1700  pounds --  had  occurred.
  Transcript at  78, 102.   Upon  learning of  this occurrence,  Mr.
  Gendreau asked  Mr. Thomas for a  letter recommending a course  of
  action.   Id. at 78.   Mr. Thomas responded  on December 4  with a
  summary of past events,  a list of four options (including  repair
  and  recharging of  the  chiller, at  a cost  of  $35,000),  and a
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8 The  record  also  contains  an  "Accidental   or
   Unintentional  Venting Report"  by a  Griffin  employee which  is
   dated   November  5,  1997,  and   states  that  1525  pounds  of
   refrigerant  were vented because  "Valitiac [sic] gasket  on high
   side came loose."  Respondent's Exhibit 5.  We give no  weight to
   this  report, which  we do not  consider credible.  Neither party
   called the  author of the  report to question  him about it.   We
   find compelling the  testimony of Mr. Thomas and  Mr. McStay that
   the  date on  the  report  must have  been  incorrect; since  the
   chiller did not have a  gauge for measuring its contents, no  one
   could  have  known the  extent  of  loss  until the  recovery  of
   remaining  refrigerant was complete  -- nearly three  weeks after
   this date.  See Transcript at 101, 242.  Additionally, the record
               ___
   contains  no  evidence  on  which we  could  accept  the report's
   conclusion that the loss came entirely from  a leak at the gasket
   on the "high side," where the October 16 leak occurred.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  recommendation that  the Westinghouse chiller  be replaced  with a
  new, energy-efficient machine.  Appeal File, Exhibit 4 at 1-4.
 
       25.  GSA's first  response, at the end  of 1997, was to  ship
  nine hundred  pounds of  R-12 refrigerant  to Kansas  City, to  be
  used in the Westinghouse  chiller.  Transcript at 79. Griffin  has
  characterized   this  action   as  an   effort  to   share  costs,
  Appellant's Brief  at 10,  and GSA  has not taken  issue with  the
  assertion.   Mr.  Gendreau later  told Mr.  Thomas not to  use the
  refrigerant, however, because GSA was considering  holding Griffin
  responsible  for  the  entire  cost   of  the  lost   refrigerant.
  Transcript  at  79.    On  February 19,  1998, Mr.  Gendreau,  Mr.
  Ramirez, Ms.  Hewitt, and other GSA  employees met to discuss  the
  issues  surrounding the  refrigerant loss.   Id.  at  341, 419-20.
  They concluded that the substance had escaped the  chiller through
  a  series of small leaks  and one major leak.   Id.  at 341.  They
  also  decided  to  have   the  machine  repaired,  with  financial
  obligations of Griffin and GSA to be determined later.  Id.
 
       26.  The  group's conclusion as  to the source of the problem
  is consistent with  Mr. Ramirez's expert  testimony.  The agency's
  refrigerant manager believes that  there must have been slow leaks
  through which refrigerant  escaped at a rate  of about 1.7  to 2.7
  pounds per hour.   A  leak at this  rate is  not sufficient to  be
  perceptible to the  eye or  to be  heard by  someone who works  in
  machine rooms,  according to  Mr. Ramirez.   Leaks  continue until
  the  pressure  inside  a  chiller  is  equal  to  the  atmospheric
  pressure outside  the machine,  and there  is no  reason to  think
  that  the leaks  would stop  short of  this  point, he  explained.
  Furthermore, an  oil leak  is  especially  significant, since  oil
  molecules  are  much bigger  than  refrigerant  molecules; if  oil
  passes through a  hole, refrigerant surely will,  too.  The oil on
  the floor very likely  came from the leak, Mr. Ramirez  suggested,
  since a gasket is not  coated with as much as a  pint of oil  when
  being installed.  Generally,  this witness testified, the industry
  standard  is that an  operator of  air conditioning  equipment who
  notices a  leak should  make a plan  of action for  addressing it.
  He opined that Griffin's  decision not to proceed rapidly to  take
  the refrigerant  out of  the chiller  was the  critical factor  in
  causing the significant loss.  Transcript at 344-61.
 
       27.  No  other  GSA  witness  provided  any  fact  or opinion
  testimony  about the problem.  Mr. Gendreau, the COR, acknowledged
  that  he  has  no  experience  in  working  with  air-conditioning
  systems and  is not  familiar with  how  the Westinghouse  chiller
  functions.  Transcript  at 153, 168-69.  Mr. Ramirez  acknowledged
  that he  did not  examine the  chiller at times  relevant to  this
  dispute  and is not familiar with  it.  Id. at 334,  382; see also
  id. at 200-01.   Both Mr. Gendreau  and Mr. Correl testified  that
  GSA relies  on its  inspector in  the building  in question,  Alan
  Parker, for  information about  how  the  Westinghouse chiller  is
  being maintained.   Id. at 154, 305.   Mr. Ramirez testified  that
  Mr.  Parker had  suggested to him  that the chiller  must have had
  many  leaks.  Id. at 335-40.   Mr. Parker was on leave for several
  weeks  during the fall  of 1997, however,  id. at  132-33, and GSA
  did not  call him  as a witness, so  we have no  reason to believe
  that  he  has  any  knowledge  about  specifics relevant  to  this
  dispute.
 
       28.  Following the February 19  meeting (see Finding 25), Mr.
  Gendreau wrote on February 25 to Mr. Thomas:
 
       I have  consulted with  our  technical  and legal  staff
       regarding  this issue  and it  is their  belief, knowing
       the  Westinghouse   chiller's  maintenance  history   of
       leaks,  prompt recovery  action on  your Company's  part
       would have  averted the major  loss of  the refrigerant.
       I concur with our technical  staff in their  observation
       that  a significant  delay of  time elapsed  between the
       leak and actual recovery operations  contributed greatly
       to      your     estimated      repair      cost      of
       $35,000.00.[[foot #] 9]
 
       Therefore,   I   am  categorizing   this  breakdown   as
       maintenance  repairs.   Maintenance repairs  are defined
       as  work required  to prevent  a breakdown  of equipment
       and/or  system  or  to  put  back  in  service  after  a
       breakdown or failure when  the cost for labor, materials
       and parts is expected to be $10,000.00 or less.
 
       It  is  my  decision   your  company  must  assume  full
       responsibility  in  repair  costs  to  the  Westinghouse
       chiller system.
 
  Appeal File, Exhibit 3.
 
       29.  Griffin  Vice President  Rushton replied  in a  March 9,
  1998, letter  to GSA contracting officer  Hewitt.  He first  noted
  that  the COR's letter  recognized that  repair costs would exceed
  $25,000,  and maintained  that under  the contract,  this required
  categorization  of  the  matter  as  a  major  repair.    He  then
  "strongly refute[d] any implication  that our on-site team behaved
  in  any manner other  than one which  would have  been taken  by a
  prudent building  owner."  According  to Mr.  Rushton, Griffin had
  "no reason to believe that the refrigerant loss was  high, or that
  the rate  of loss  would rapidly  accelerate."   The company  took
  "[a]ll appropriate steps .  . . to ensure the [storage  cylinders]
  arrived as quickly as possible."  "Indeed," he  said, "the actions
  taken were with the  expectation that the Government would not  be
  involved in  the repair costs"  because those  would be less  than
  $10,000 and therefore associated  with maintenance repairs.  Thus,
  he concluded, there was no basis for the  COR's "implication" that
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 Elsewhere in the letter, Mr. Gendreau stated that
   "[a]t today's  market price,"  the cost of  one component  of the
   repairs,  replacing the refrigerant,  was $26,640.   Appeal File,
   Exhibit 3 at 1.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
  Griffin had acted in a  careless manner.  He  agreed to repair the
  chiller  and replace  the refrigerant,  but said that  the company
  would seek from  the agency  reimbursement of the costs  involved.
  Appeal File, Exhibit 2 at 5-7.
 
       30.  On April 16,  1998, a telephonic conference was held  to
  discuss  financial responsibility  for the  repair of  the chiller
  and  the  replacement  of  the  lost  refrigerant.   Appeal  File,
  Exhibit 4 at  3.  Participants  included Messrs.  Rushton, McStay,
  and  Thomas of  Griffin  and Mr.  Ramirez and  Ms. Hewitt  of GSA.
  Transcript at 113, 423.   Following the meeting, on  April 28, Ms.
  Hewitt  wrote to  Griffin "in  response to  your  April 16,  1998,
  telephone request for the  Contracting Officer's Final  Decision."
  Appeal  File, Exhibit 4 at  1.  She asserted the relevance to this
  matter  of several  contract provisions  -- the  mandate that  the
  contractor "take  all steps and measures which would be taken by a
  prudent building  owner to  maximize  the life  expectancy of  the
  property"  (Finding  3);  the  requirements  that  the  contractor
  immediately  perform maintenance  repairs and  immediately  report
  minor repair  work to the COR  (her underlining) (Finding 8);  and
  the  stipulation that  the  contractor comply  with Clean  Air Act
  requirements (Finding 5).  Id. at 1-2.  She then concluded:
 
       Griffin  failed to  report the  refrigerant leak  to the
       COR  upon  discovery.   Griffin  failed  to provide  the
       necessary  equipment needed  to recover refrigerant from
       the chiller.  Griffin failed to  repair the leak  within
       30 days (from October 16, 1997 to November 25, 1997).
 
       Griffin  failed  to  take  measures a  prudent  building
       owner would  take to ensure  maximum life  expectancy of
       the  property in  accordance with  the contract.   After
       leaks were discovered in  the chiller, Griffin failed to
       provide   immediate  repair   service   which   includes
       recovery  of refrigerant, as  specified in the contract.
       Therefore, Griffin Services Incorporated  is responsible
       for the  full cost of repairs  to the chiller  including
       the  replacement cost  of the refrigerant.   This is the
       final decision of the Contracting Officer.
 
  Id. at 3.
 
       31.  Also   after  the  April  16,   1998,  meeting,  Griffin
  repaired  the  leaks  in  the  Westinghouse  chiller,  checked the
  machine  to ensure  that it  kept  the  appropriate pressure,  and
  purchased  and installed  sufficient  refrigerant to  fully charge
  the  machine.   Transcript at  124-26.   The  chiller ran  without
  event through the 1998 cooling season.  Id. at 344.
 
       32.  Griffin  appealed  the contracting  officer's April  28,
  1998, decision to this Board on June 25, 1998.  In  March 1999, in
  preparation for  the  hearing in  this case,  the presiding  judge
  noted  that  although  the  Contract  Disputes  Act  requires that
  "[a]ll claims by a contractor against  the government relating  to
  a  contract  shall  be in  writing,"  40  U.S.C.    605(a)  (1994)
  (emphasis added), the "claim" upon  which the contracting  officer
  had issued her  decision had been made  orally.  He asked  Griffin
  to resubmit its claim in  writing.  A  letter from Mr. Rushton  to
  Ms. Hewitt, undated but  received by her  no later than March  25,
  1999,  states: "A  claim is  hereby submitted  to the  Contracting
  Officer under  the  provisions of  the Contract  Disputes Act,  41
  U.S.C. Sec. 605(c), in the amount of $26,365.68 to  cover the cost
  of repairs to the  Westinghouse Chiller.  The claim includes  both
  materials  including R12  Refrigerant and  labor costs.   A  final
  decision  is requested."   At  the hearing, Mr.  Rushton testified
  that  the  amount  claimed  is  the  precise  cost,  in  terms  of
  materials and labor, that Griffin  incurred to restore  the proper
  amount of  refrigerant to  the chiller.   Transcript at  281.   He
  also  asked that  GSA  pay overhead  and  profit markups  on  this
  amount.      Id.   at  284-86.[foot #] 10      Although  Griffin's
  counsel  represented   that  the   contractor  has  provided   all
  documentation it  has in support  of the claim,  id. at  288, 290,
  Griffin   has    supplied   no   such    documentation.[foot #] 11
  Ms.  Hewitt  testified that  her  decision of  April 1998  applies
  equally  to  the  written  claim  as  to  the   one  made  orally.
  Transcript at 433.
 
 
                              Discussion
 
        Griffin was responsible, under the contract in question, for
   operating,  maintaining,  and repairing  mechanical,  electrical,
   plumbing, and  utility systems  at a  federal building  in Kansas
   City, Missouri.  Finding 2.  One piece of equipment in one of the
   systems in the building was  a Westinghouse chiller.  Finding 11.
   On November  24 and 25,  1997, Griffin pumped the  refrigerant in
   that chiller into storage cylinders.  In so doing, the contractor
   discovered  that less  than thirty  percent of  a full  charge of
   refrigerant remained in the machine; evidently, more than seventy
   percent of the refrigerant had somehow escaped.  Finding 22.  The
   question  posed by  this appeal  is whether  Griffin or  GSA, the
   Government agency which had contracted for Griffin's services, is
   liable for the cost of replacing the lost refrigerant.
 
        In attempting  to answer  this question,  both parties  have
   focused  on the  contract  provision  which  allocates  costs  of
   repairs.   (Replacing  refrigerant in  a  chiller is  one of  the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 10 In  its brief, Griffin  says that it  "wishes to
   revise its  claim to $26,268.87,  of which $25,668.87  relates to
   refrigerant costs and materials."  Appellant's Brief at 13.
 
        [foot #] 11 GSA has  supplied invoices showing  that Griffin
   actually paid  $24,187.65 for  1695 pounds  of R-12  refrigerant,
   shipped to Kansas City.  Respondent's Reply Brief at Attachments.
   Neither party  has submitted any  evidence as to the  labor costs
   Griffin incurred in putting this refrigerant into the chiller, or
   in repairing the machine's leaks during the spring of 1998.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   contractor's maintenance duties.  Finding 6.)  The provision says
   that a repair for which the cost of labor, materials and parts is
   expected  to be  $10,000  or less  ("maintenance repair")  is the
   financial  responsibility of the  contractor; a repair  for which
   the cost  is expected to  exceed $25,000 ("major repair")  is the
   responsibility  of the agency; and a repair for which the cost is
   expected to  be between these  figures ("minor repair") is  to be
   split,  with  the contractor  paying  the first  $10,000  and the
   agency paying the rest.  Finding 7.
 
 
        This allocation is designed for repairs  which are the fault
   of  neither party.   Other  provisions of  the contract  make the
   contractor responsible for  the cost of repairs which  are caused
   by its actions or inactions, and using this provision to make the
   contractor an  insurer against  damage caused  by the  Government
   would  be inappropriate.   Griffin Services, Inc.,   GSBCA 11171,
   92-1  BCA   24,556,  at 122,533 (1991).   Griffin  maintains that
   there is  no way  of telling how  or why the  refrigerant escaped
   from the  chiller.  If we were to  accept this position, we would
   impose  on GSA  the cost  of replacing  the substance,  since the
   expected cost  of the repair  was more than $25,000  ($35,000 for
   fixing and  recharging  the chiller,  of  which $26,640  was  the
   anticipated cost of  the refrigerant itself).   See Findings  24,
   28.
 
        GSA  has also  attempted to use  this contract  provision as
   justification  for imposing  the cost  on the  other party.   The
   agency's theory  is that the  loss of refrigerant must  have been
   caused  by  many leaks  --  at  least  three, possibly  four,  or
   several, according to various versions of the supposition  -- and
   that each caused some of the refrigerant to escape.  Dividing the
   total demonstrated cost of replacing the refrigerant ($24,187.65,
   Finding 32n.11) by the  number of leaks  yields a figure of  less
   than  $10,000  per leak,  so,  according  to  GSA, the  cost  was
   Griffin's  responsibility.   See Respondent's  Brief  at 19,  30;
   Respondent's Reply Brief  at 7.  We see several  problems in this
   approach.   Most  fundamentally, the  contract  provision,  which
   applies  to  no-fault repairs,  does  not apply  to  the agency's
   position that  Griffin's own  actions (or  inactions) caused  the
   refrigerant to leave the chiller.  If the provision were to apply
   (that is to say, if we agreed with Griffin that no fault had been
   proven), other problems  would still plague GSA's  approach.  The
   record contains no  evidence that there were more  than two leaks
   in the machine --  the ones discovered  by Griffin on October  16
   and October 29.   See Finding 18.  Dividing the cost by two would
   yield a  figure between  $10,000 and $25,000,  so GSA  would bear
   some of the cost.  In any event, we do not read the provision  as
   making any division  appropriate; the replacement  of refrigerant
   was a  unitary  action and  cost.   Additionally,  the  provision
   speaks of costs which are  "expected," so to determine into which
   category a  repair falls,  one must look  to the amount  which is
   anticipated before the  repair takes place, not the  one which is
   proved after the fact.[foot #] 12
 
 
        To  accept  GSA's  position that  the  refrigerant  loss was
   caused by Griffin, we must find a duty which the  contractor owed
   to the  agency and  which it  did  not perform  in an  acceptable
   manner.     From  among  the  melange  of  performance  standards
   contained in the contract, three are  relevant to this case.  The
   first two are related  to each other.  (1) The  contractor's work
   "shall be  of the highest  quality and in  keeping with  the best
   practices  of the  industry."   Finding  3.   GSA seizes  on this
   sentence  as  imposing a  very  high  standard.   The  very  next
   sentence, however, says,  "Services rendered under  this contract
   shall  be of  sufficient quality  to ensure  timely  provision of
   services, optimum  satisfaction of  tenant agencies and  adequate
   protection  of  the  Government's  assets."   Id.    Provision of
   services  and satisfaction  of tenant agencies  are not  at issue
   here, since the chiller was planned to be off-line for the entire
   relevant  time period.  Refrigerant inside chillers is undeniably
   a Government asset, though.  For the purposes of this case, then,
   the  "highest quality"  of  services and  "best practices  of the
   industry"  mean simply that  the contractor's services  must have
   been of "sufficient  quality" to ensure "adequate  protection" of
   the refrigerant.  (2) The contract makes Griffin "responsible for
   all damages to persons or property that occur as a result  of the
   Contractor's fault  or negligence."  Finding 10.   This provision
   requires Griffin to act in a non-negligent way and sets forth the
   consequences   which  will  result  from  failure  to  meet  this
   standard.   One  of those  consequences is  that Griffin  will be
   responsible for all resulting damages to "property."  Because the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12 We   find   additional   problems   with   GSA's
   application  of this contract  provision in  the letters  sent to
   Griffin  by  the  contracting  officer's representative  and  the
   contracting officer herself.   The COR believed that because  the
   repairs were  expected to  cost $35,000,  they were  "maintenance
   repairs" for which the contractor was fully responsible.  Finding
   28.  The provision defines "maintenance repairs" as those with an
   expected cost  of $10,000 or  less, however; the agency  is fully
   responsible for  "major repairs"  anticipated to  cost more  than
   $25,000.   See Finding 7.   The contracting officer  thought that
              ___
   Griffin should have "immediately perform[ed] maintenance repairs"
                        ___________
   and  "immediately report[ed]  minor  repair  work  to  the  COR."
         ______________________
   Finding 30.  The  provision requires that maintenance repairs  be
   "immediately perform[ed]" only  "when they are required  in order
   to ensure continuity of operations or  to return equipment and/or
   the system to  service as soon as possible."  Finding 7.  Because
   the leaks occurred in the fall and the chiller was  not scheduled
   to go on line again until the following summer, there was no need
   to  fix the  machine to  ensure  continuity of  operations or  to
   return it to service quickly.  Neither party has suggested that a
   minor repair  (expected cost,  between $10,000  and $25,000)  was
   involved here.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   term "property" is used in  this clause without qualification, we
   understand  it  to  both real  and  personal  property, owned  by
   anyone, including the  Government.  Thus, the  provision requires
   Griffin  to compensate GSA  for loss of  refrigerant belonging to
   the agency,  if the loss  results from the contractor's  fault or
   negligence.
 
 
        The third standard to which  the contract holds Griffin is a
   regulation   promulgated   by    the   Environmental   Protection
   Administration  (EPA) in  implementation of  the  Clean Air  Act,
   "Protection of  Stratospheric Ozone."   This regulation  requires
   Griffin to have leaks in  the chiller repaired within thirty days
   after  they are discovered  (or should have  been discovered) "if
   the  appliance  is leaking  at  a  rate  such  that the  loss  of
   refrigerant will exceed  15 percent of the total  charge during a
   12-month  period."  Finding  5.   The Westinghouse  chiller, when
   fully charged, holds  2,365 pounds of  refrigerant.  Finding  11.
   Fifteen percent of this amount is 355 pounds.[foot #] 13
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13 The contract  contains other standards  to which
   GSA  calls our attention,  but which we  consider inapplicable to
   the loss of refrigerant.  The contractor must "take all steps and
   measures  which would  be taken  by a  prudent building  owner to
   maximize the life  expectancy of the property."  Finding  3.  The
   term "property" is not defined here, but reading this standard in
   conjunction with  another one,  regarding acceptable  maintenance
   and repair, see  id., we understand it to  encompass the building
               ___  ___
   and the equipment and systems within  the building.  There is  no
   evidence that leaking  refrigerant might have decreased  the life
   expectancy of the building.  Nor is  there evidence that it could
   have decreased  the life  expectancy of  any equipment or  system
   within the building.   Indeed, the chiller  was off line for  the
   season at all times relevant  to this dispute.  See  Findings 11,
                                                   ___
   17, 31.
 
        The   contract  also  requires   that  Griffin   provide  an
   "acceptable" level of  maintenance of  the chiller.   Finding  3.
   "Acceptable"  is "the level of maintenance  and repair which will
   preserve  the  facility/building(s),  equipment  and  systems  in
   unimpaired operating  condition;  i.e.,  above  the  point  where
   deterioration will begin  -- thereby diminishing the  normal life
   expectance  [sic] of the equipment."   Id.  There is no evidence,
                                          ___
   however,  that a lack  of refrigerant in  a chiller which  is not
   operating might cause any deterioration to the chiller.
 
        The  contract additionally  requires Griffin  to follow  all
   publications listed within the document.  Finding 4.  At the same
   time,  however, the  contract says  that what  follows is  only a
   "partial list"  of those  publications.   The contract also  says
   that Griffin  must follow  consensus safety  and other  standards
   developed by "such  groups as" various named entities.   Only one
   publication of  the American Society  for Heating, Refrigerating,
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        We  have no  hesitance in  concluding that  Griffin did  not
   violate  the  third standard,  the  EPA regulation.    The record
   contains evidence  of only  two leaks in  the chiller  during the
   fall  of 1997.   No one has suggested  that the contractor should
   have found either of these leaks earlier  than it did.  The first
   one, discovered  on October  16, was "very  small."   Finding 18.
   There is no  reason to believe that the chiller was leaking, from
   this spot, at a rate such that the loss of refrigerant would have
   exceeded 355  pounds during  the next twelve  months.   Thus, the
   contractor's decision not to fix  that leak within thirty days of
   discovery was not an infraction of the EPA rule.  The second leak
   was discovered on October 29, id., and even if it was so large as
   to  cause refrigerant to  escape at greater  than the permissible
   rate,  Griffin  retrieved  all  remaining  refrigerant  from  the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13 (...continued)
   and Air Conditioning Engineers,  Inc. (ASHRAE) is on the  partial
   list, or mentioned  elsewhere in the contract, and  ASHRAE is not
   among the named  entities.   Id.   GSA has  alleged that  Griffin
                                ___
   failed  to  follow  the  requirements  contained  in  two  ASHRAE
   publications, Guideline  3-1990 and  Standard 15-1992, which  are
   not listed in the contract.  Respondent's Brief at 26, 31-32.  In
   our view, holding a contractor to requirements not specified in a
   contract, but referenced only vaguely  ("such as") or not at all,
   would be highly inequitable.  How can a contractor be expected to
   comply with an unknown  requirement?  We take into  consideration
   ASHRAE Guideline 3-1990  and Standard 15-1992 only  to the extent
   that   the  contents  of  those  publications  may  be  generally
   understood  as  what  constitutes  a  description   of  "adequate
   protection" of refrigerant.
 
        The contract also  contains three provisions, called  to our
   attention by GSA and set out in Finding 9, which allow the agency
   to make Griffin  responsible for certain costs, but  which do not
   apply to  the  situation before  us.   One says  that  if any  of
   Griffin's   services   "do   not   conform   with  the   contract
   requirements,"  the  Government  may require  the  contractor  to
   perform those services again, or may have the  services performed
   by others, either of these actions to be at Griffin's cost.   The
   record  does  not contain  any  evidence that  GSA  ever required
   Griffin to perform  any services a second  time, or that GSA  had
   any of the services covered by this contract performed by others.
   Another  provision permits  the  agency  to  charge  Griffin  for
   repairing damage  the contractor  caused to  "existing buildings,
   equipment,  and vegetation on  the Government installation."   We
   have no evidence that the  refrigerant which left the chiller, or
   anything Griffin did with regard to that refrigerant, damaged any
   building,  equipment,  or  vegetation.     Yet  another  contract
   provision  permits the  agency to  hold  Griffin responsible  for
   excess costs  incurred by the  Government to complete  any "minor
   repair."  Neither party has contended that any repair relating to
   the loss of  refrigerant was "minor," and the  record contains no
   evidence that Griffin ever failed to complete any sort of repair.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   chiller within  thirty days of  that date, thereby  ensuring that
   within the  time prescribed  by the EPA  regulation, more  of the
   substance would be lost.  Finding 22.  The fact that the leak was
   not  repaired  until   the  following  spring,  Finding   31,  is
   immaterial  because   an  off-line  chiller  which   contains  no
   refrigerant cannot damage stratospheric ozone.
 
 
        Whether  Griffin  violated  its  contractual requirement  to
   provide services  of  "sufficient quality"  to  ensure  "adequate
   protection"  of the refrigerant,  and/or the requirement  that it
   act  in  a non-negligent  way  so  as  not to  damage  Government
   property, is a more difficult question.  
 
        We  recognize, in considering this matter, that according to
   the GSA employees who were in the best position to know, Griffin,
   in  performing  its  work  under  this  contract,  (a)  generally
   provided  quality  services  through  a  very  competent  project
   manager, and  (b) with  respect to  the  Westinghouse chiller  in
   particular,  provided better maintenance than the agency had when
   using its own forces.   Finding 23; see also Finding 1.   We also
   recognize that  during the three  years before 1997,  the machine
   had been plagued with a number of small leaks, and the  amount of
   refrigerant  which escaped through  these leaks was approximately
   the amount which  may be allowed to leave  without requiring (per
   the EPA regulation) prompt repair.  Findings 15-17.  This pattern
   was clearly  known  to GSA,  and it  never caused  the agency  to
   direct Griffin  to take more  prompt action to  fix leaks.   As a
   result  of the  pattern  and  the agency's  reaction  to it,  the
   contractor  understandably developed  a disposition  not  to take
   immediate action  when confronted  with a  new, apparently  small
   hole  in the chiller.   With these  facts in mind,  we think that
   GSA's  first response to the loss  of refrigerant -- to split the
   cost of  replacement refrigerant with this  excellent contractor,
   rather  than to argue  about which party  was legally responsible
   for the loss -- was a very sensible reaction to the problem.  See
   Finding 25.
 
        Now  that the  case has  been presented  to us,  however, we
   cannot  suggest practical compromises; we must resolve a dispute.
   The agency, as the proponent  of the position that the contractor
   must absorb the  cost of refilling  the chiller with  refrigerant
   because it failed to comply with contract requirements, bears the
   burden of proof.  Halifax Engineering, Inc., GSBCA 8277, 91-1 BCA
     23,427, at 117,507 (1990).  We must determine whether, based on
   a preponderance of the evidence presented, it is more likely than
   not   that  Griffin's   failure  to   take   prompt  action,   in
   contravention of the first and/or second standards set out above,
   caused the loss of the refrigerant.  Griffin; Halifax; Sam McKee,
   IBCA 1790,  85-3 BCA    18,426; Santa Fe  Engineers, Inc.,  ASBCA
   20370,  76-1 BCA   11,806; American Stevedores, Inc., ASBCA 5286,
   60-2 BCA   2686.  No one will  ever know for sure, of course, why
   the refrigerant escaped.  We conclude, however, having considered
   all the evidence,  that the most likely cause  of this occurrence
   was the contractor's failure to take prompt action.
 
        The leak discovered  on October 29 is  of pivotal importance
   in  reaching this  conclusion.    This is  the  leak under  which
   Griffin  employees found  a  pool of  oil, less  than  a pint  in
   quantity.  Finding 18.   We have conflicting evidence as to  this
   leak.  Griffin's project manager, Mark Thomas, testified that the
   discharge from the  leak, even when combined  with discharge from
   the  leak first observed  on October 16,  was "significantly less
   than what we  experienced in relation to all  the leaks [Griffin]
   discovered in the  fall of [19]96,"  when the  leakage was not  a
   major  problem.   Id.;  see also  Finding  17.   Mr. Thomas  also
   testified that  after October  29, Griffin  determined that  this
   leak had  stopped.   Finding 18.   On the  other hand,  Griffin's
   operations logbook notes that on November 6 and twice on November
   9, oil continued to leak from the  chiller at this same spot, and
   to such an extent that a substance had to  be placed on the floor
   to  absorb the oil and  a pan which caught falling  oil had to be
   emptied more than once.  Finding 21.  
 
        We  consider  the  contractor's  mechanics'  contemporaneous
   notes  to  be more  credible  than the  project  manager's memory
   nearly a year and a half after the event occurred.  We know  that
   in another instance, his memory was not correct.  See Finding 22.
   Additionally, the  fact that he  began to take steps  which would
   lead to  removal of the  refrigerant from the chiller  only after
   the October 29 leak was found, Finding 20, persuades us that this
   leak must have been of  greater importance than one would ascribe
   to  a little problem that ended as  quickly as it began.  We also
   understand from the  expert testimony of GSA  mechanical engineer
   Gene Ramirez that leaks do not stop until the pressure inside the
   chiller is equal to the atmospheric pressure outside the machine.
   Finding 26.  Thus, it would appear to be highly improbable that a
   leak, especially one  large enough that oil can  exit through it,
   would start and stop overnight.
 
        We rely  on the expert  testimony of Mr. Ramirez  in finding
   that an oil  leak in a chiller is especially  significant.  Since
   oil molecules are much bigger  than refrigerant molecules, if oil
   passes through a hole, refrigerant surely will, too.  Finding 26.
   Generally, Mr. Ramirez  testified, the industry standard  is that
   an  operator of  air conditioning  equipment  who notices  a leak
   should make a plan of action for addressing it.  Id.  He referred
   to a standard  text, which states:   "If you  find a leak  of any
   kind -- refrigerant, water, steam -- stop and repair it.  Record.
   Leaks are costly and may be dangerous. . . .   [E]very leak found
   must be  repaired. . . .   A Freon  leak is intolerable:   It not
   only wastes expensive  gas but, if not  corrected, will certainly
   lead to worse problems."   Transcript at 364-65  (quoting Sheldon
   J. Fuchs (ed.), Complete Building Equipment Maintenance Desk Book
   (1982)  at 206,  213-24).   ASHRAE  Guideline 3-1990  is to  like
   effect:  "  It is important that all leaks are noted and repaired
   immediately. .  . .   When a  leak is located,  that part  of the
   system  should be isolated  to minimize the  loss of refrigerant.
   If isolation  is impractical,  the refrigerant  charge should  be
   pumped into the system receiver or other suitable container.  The
   repair can then be undertaken."  Respondent's Exhibit 14 at 7, 9.
   Given the  special significance of  an oil leak, an  operator who
   encounters one should be expected to pay close attention to these
   general rules.
 
 
        Unfortunately,  in this  one instance, Griffin  proceeded to
   deal with the problem too slowly.  The project manager recognized
   that before any  action could be taken to repair  the chiller, he
   would  have  to  pump  the  remaining  refrigerant  into  storage
   cylinders.   Finding 20. To  do this, of  course, he  would first
   have to secure  a necessary quantity of such  cylinders.  When he
   was unable to  rent enough containers in Kansas  City, he decided
   to buy  them directly  from the  manufacturer.   Id.  While  this
   decision may have  resulted in obtaining cylinders  most cheaply,
   it was not  prudent insofar as concerns  the contract requirement
   that  Griffin's services  be of  "sufficient  quality" to  ensure
   "adequate    protection"    of     the    refrigerant.[foot #] 14
   The cylinders were not ordered until nine days after the oil leak
   was discovered, and they did not arrive (and thus were not put to
   use) until seventeen days  after that.  Id.  Waiting  more than a
   week to  place an order  for the tanks  may or may  not have been
   reasonable;  we do not know precisely what transpired relative to
   the leak  during that  period.   Even  if  the initial  wait  was
   reasonable, however, the decision to  secure the cylinders from a
   distant source was not.  At the same time that the contractor was
   ordering  containers,  its  own employees  were  noting  that the
   chiller was  leaking in  earnest.  Findings  20, 21.   Containers
   could have  been purchased  in town, or  a service  company could
   have been hired to pump  the refrigerant into its own containers.
   Finding 20.  Choosing either  of these options would have allowed
   Griffin to  stem the  flow of refrigerant  from the  chiller more
   promptly on the date the  cylinders were ordered.   Additionally,
   the refrigerant could have been  pumped into the condenser for at
   least temporary storage there.  Finding 19.  Although, as Griffin
   says, the condenser may have  been susceptible to leaking, id., a
   container  which  might  leak  could  hardly  have  been  a  less
   attractive choice than the place where the refrigerant was at the
   time -- a  container that did leak.   Not selecting one  of these
   alternatives was penny-wise but pound-foolish.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 14 We  appreciate Griffin's  position that  because
   the contractor  thought the leaks were small, replacement of lost
   refrigerant would be a contractor responsibility because it would
   cost less than $10,000.  Findings 19,  29.  We agree with Griffin
   that in light of this view  of the situation, and the pattern  of
   practice between the parties as to provision of information about
   such maintenance repairs, Mr. Thomas's decision not to inform the
   COR  about  each  leak  as  soon as  it  was  discovered  was not
   blameworthy.  See Finding 23.   This judgment does not affect our
                 ___
   ultimate   conclusion  as  to  responsibility  for  the  cost  of
   refrigerant replacement, however.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        In reaching this conclusion, we have considered Griffin Vice
   President Aubrey McStay's  capable expert testimony.   Mr. McStay
   testified  that significant  leaks of  refrigerant  can be  heard
   and/or smelled, and that because there is no evidence that anyone
   heard or smelled  refrigerant escaping from  this chiller, it  is
   unlikely that any leak here  was significant.  Transcript at 222-
   23, 258.   We find compelling, in response to this testimony, Mr.
   Ramirez's  expert opinion  that a slow  leak, sufficient,  over a
   period of  weeks, to  discharge as much  refrigerant as  was lost
   here,  is  not necessarily  detectable  by  people working  in  a
   machine room.  Finding 26.  Mr. McStay also based his  conclusion
   that there was no catastrophic  loss from the October 29  leak on
   the assumption  that,  as Mr.  Thomas  had testified,  that  leak
   stopped shortly  after it was discovered.   Finding 19.   We have
   found this  testimony by the  project manager not credible.   Mr.
   McStay also considered possible a theory advanced  by Mr. Thomas,
   that large quantities  of refrigerant might have  escaped through
   the chiller's pressure  relief valves.  These valves  vent to the
   outside, so a contractor working inside the building would not be
   likely to see  refrigerant leave through  them.   Id. at 60,  82,
   225-27.  Mr.  McStay noted that after such  a discharge, pressure
   relief  valves reset  themselves, so  the  fact that  they appear
   normal does not mean that a discharge did not occur.  Id. at 456-
   58.   Although we cannot  say for sure  that a large  quantity of
   refrigerant did not escape through these valves, we consider such
   a possibility  improbable.   As  Mr. Ramirez  noted, Griffin  has
   presented no  facts which  would indicate  a  cause for  pressure
   inside the chiller to have risen to the point at which the relief
   valves  would have  opened.   Id. at  359-60.   Additionally, the
   alternative explanation  that the  culprit was  leakage from  the
   gasket at the  expansion valve discovered on October  29 is quite
   likely to be correct.[foot #] 15
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 15 We have  also considered  Griffin's theory  that
   GSA   must  bear   some  responsibility   for   the  contractor's
   predicament  of having to  devote considerable time  to repairing
   leaks in this  excessively leaky chiller.   Griffin says,  "GSA's
   failure  to inform  appellant  of the  chiller's long  history of
   maintenance,  particularly  the  frequent  loss  of  refrigerant,
   constitutes   a  constructive  change  in  the  contract  thereby
                    ____________________
   entitling appellant  to receive  an equitable  adjustment in  the
   contract price."  Appellant's Brief at 13.  This argument suffers
   from   two  difficulties,  one   jurisdictional  and   the  other
   substantive.    First,  Griffin  has  not made  a  claim  to  the
   contracting officer for  an equitable adjustment, so  this matter
   is not properly before us.  Second, this chiller was not unusual,
   in  terms of leaking  refrigerant, for a  machine of  its age and
   design.  Finding 13.  All equipment in the building was available
   for inspection  prior to the  time Griffin submitted its  bid for
   this contract.   Appeal File, Exhibit 1  at 94.   Before entering
   into the  contract, Griffin  had every reason  to expect  that it
   would have to maintain just the sort of machine with which it was
   saddled.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Griffin's  slow  reaction  to  the   oil  leak  was  not  in
   compliance with the contract requirement that  its services be of
   sufficient  quality   to  ensure   adequate  protection   of  the
   refrigerant.   The  escape of  the  refrigerant was  consequently
   Griffin's  fault.   Although  the  evidence is  that  Griffin has
   generally performed its  contractual duties well,  the contractor
   failed in  this  one instance  and is  therefore responsible  for
   replacing the refrigerant lost as a result of its action.
 
                                Decision
 
        The appeal is DENIED.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   We concur:
   _________________________
 
                                      ______________________________
                                      _
   ROBERT W. PARKER                   MARY ELLEN COSTER WILLIAMS
   Board Judge                             Board Judge