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                       Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
                          ____________________
 
                         DENIED: July 31, 1998
                          ____________________
 
 
                              GSBCA 14472
 
                NORTH AMERICAN CONSTRUCTION CORPORATION,
 
                                      Appellant,
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                      Respondent.
        Norman Reitmeyer,  President of North  American Construction
   Corporation, Austin, TX, appearing for Appellant.
 
        Thomas Hawkins, Office of Regional Counsel, General Services
   Administration, San Francisco, CA, counsel for Respondent.
 
   Before Board Judges HYATT, VERGILIO, and DeGRAFF.
 
   VERGILIO, Board Judge.
        The  appellant,  North  American  Construction  Corporation,
   filed this appeal  concerning a contract with the respondent, the
   General   Services  Administration  (GSA).     On  behalf   of  a
   subcontractor,  North American  seeks  to  recover  for  asbestos
   insurance  costs associated with changed work which, according to
   North American,  were not priced  in thirteen change orders.   In
   each  change  order,  North  American  released  (with  specified
   exceptions  not  here  applicable)  the Government  from  further
   liability  and equitable  cost  adjustments  attributable to  the
   circumstances giving rise  to the modification.   No basis exists
   to treat the bilateral change  orders as other than accords, with
   the resulting modified contract as establishing a final price for
   the  work in  question,  or to  limit  the scope  of  the release
   language.  Accordingly, the Board denies the appeal.
                            Findings of Fact
 
        1.   On June  30,  1992, GSA  awarded  a contract  to  North
   American to provide a seismic  up-grade and fire/safety work at a
   building  in California.   Exhibit  1  (all exhibits  are in  the
   appeal file).
 
        2.   The contract  contains a section dealing  with asbestos
   abatement  procedures.    In describing  the  work,  the contract
   specifies  that  the   "Contractor  is  to  furnish   all  labor,
   materials, services, training, insurance, and equipment as needed
   to  complete  removal  of asbestos-containing  and  -contaminated
   materials . . . .  The Contractor shall follow all Federal, state
   and  local  ordinances,   regulations  or  rules  pertaining   to
   asbestos,  including its  storage, transportation  and disposal."
   Exhibit 1, Vol. II,   2085,   1.2.A (addendum 1).
 
        3.   During  performance, it  was  determined that  asbestos
   removal  in   addition  to  that  covered  in  the  contract  was
   necessary.   Several change orders were negotiated  and issued as
   bilateral contract  modifications  signed by  North American  and
   GSA.   Exhibits 5, 6, 11, 12, 14, 15, 17, 18, 21, 25, 26, 29, 30,
   33, 34, 38, 39, 43,  44, 48, 49, 51, 52,  56.  In increasing  the
   scope  of  work under,  and  the  price  of, the  contract,  each
   relevant  modification states that its purpose  is to provide all
   labor,  material, and equipment required to accomplish particular
   work.  Each such modification includes the following language:
 
        In  consideration of this  modification agreed to  as a
        complete  and equitable adjustment of cost for the work
        incorporated in  this  change,  the  Contractor  hereby
        releases  the  Government  from  any further  liability
        under  this  contract   and  for  any   equitable  cost
        adjustments  attributable to  the circumstances  giving
        rise to this modification.
 
   Exhibits 6, 12, 15, 18, 26, 30, 34, 39, 44, 49, 52, 56.  Further,
   each of these change orders specifies both that the  modification
   provides for  the release  of claims by  North American  for that
   portion of the modification upon which agreement had been reached
   and that  North American expressly  reserves its right to  seek a
   greater commission on subcontractor work than that compensated in
   the change  order, and/or to  seek compensation for  impact (time
   and  overhead  costs) relating  to the  underlying project.   Id.
   While one  of the thirteen disputed change  orders is not part of
   the  record, North  American does  not contend that  the language
   therein differs from that of the other orders.  Exhibit 21.
 
        4.   North  American  utilized  High  Valley  Inc. (HVI)  to
   perform   asbestos   abatement  work.     North   American  seeks
   reimbursement of $34,856.09 from GSA for asbestos insurance costs
   HVI  states it  incurred, but  for which  it was  not reimbursed,
   under thirteen particular change orders which contain the release
   language noted in the above finding.  Exhibit 54.
        5.   North  American does  not maintain  that  it was  under
   duress when it signed any modification which contains the release
   language and which does not reserve a right to pursue a claim for
   asbestos  insurance costs.    Rather,  in  its  complaint,  North
   American maintains that HVI would  not have been able to continue
   on the project unless it  could timely pay workers and suppliers.
   Thus, states North American, HVI was unable to object to the non-
   compensation  of asbestos insurance  costs and jeopardize receipt
   of  pay for  the labor  and materials  expended.   In conclusion,
   "[u]nder these circumstances, [North American] could not, against
   [HVI's] wishes, reserve HVI's right to asbestos insurance costs."
   Complaint at 1 (  2).
 
        6.   HVI contends  that a construction  manager utilized  by
   GSA on the  project informed HVI that it would  not be reimbursed
   for asbestos  insurance costs as  a separate line item  in change
   order proposals.   HVI asserts  that the individual  informed HVI
   that insurance costs  should be paid with HVI's  profit.  Exhibit
   53.   HVI,  whose president was  present during  the negotiations
   which led to  each of the relevant change orders, Exhibits 5, 11,
   14, 17, 21, 25, 29, 33, 38, 43, 48, 51, has not demonstrated that
   it was unable to seek or obtain a profit which included an amount
   for the  full recovery  of the insurance  costs or  otherwise was
   unable  to seek  or  obtain recovery  for its  asbestos insurance
   costs  in the  change orders  at  issue.   HVI maintains  that it
   obtained  reimbursement for asbestos insurance as a separate line
   item  of cost on change orders issued subsequent to those here at
   issue,  only  after it  refused  to perform  the  additional work
   without such compensation.
 
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        7.   By  letter  dated  December 5,  1997,  the  contracting
   officer  denied  the  claim for  allegedly  unreimbursed asbestos
   insurance costs.   Exhibit 55.  North American  filed this appeal
   with the Board on January 22, 1998.
 
                               Discussion
        The  appeal before  the Board  involves the  ability  of the
   contractor, North American,  to recover from GSA  those insurance
   costs said  to have  been incurred by  a subcontractor,  HVI, but
   which are said to remain uncompensated by GSA.
        Through the bilateral contract modifications, North American
   and GSA  agreed upon  a price to  accomplish particular  work and
   modified the contract  accordingly.  In each  modification, North
   American   expressly  reserved  its  right  to  seek  a  contract
   adjustment  for  items other  than  that  here  at issue.    Each
   modification, which  altered the contract,  represents an  accord
   regarding  the   change  order   work  and   pricing  which   was
   incorporated into  the contract.   No basis  exists to  alter the
   fixed price  negotiated to perform  the contract, as  modified by
   each change order.  McLain Plumbing & Electrical Service, Inc. v.
   United  States, 30  Fed.  Cl.  70, 78-81  (1993).   Further,  the
   release language is clear and unambiguous.  Despite reserving its
   right to seek additional compensation for specific matters, North
   American did not reserve its right to seek a price adjustment for
   asbestos insurance costs  or increased subcontractor costs.   See
   Adler Construction Co. v. United States, 423 F.2d 1362, 1364, 191
   Ct. Cl.  607, 611 (1970)  ("No matter how meritorious  may be the
   claims not excepted by a contractor from the operation of a full,
   valid release under a Government  contract . . ., they may not be
   judicially  entertained later unless the release be found invalid
   or waived by subsequent conduct  of the Government"); B.D.  Click
   Co. v.  United States, 614  F.2d 748, 756,  222 Ct. Cl.  290, 305
   (1980) (in  the context of  a release signed with  final payment,
   the  court stated:  "It is  well  settled that  a contractor  who
   executes  a general release is thereafter barred from maintaining
   a  suit  for damages  or  for additional  compensation  under the
   contract based upon  events that occurred prior  to the execution
   of the release").
 
        While North American contends that  HVI was under duress  to
   agree to  each modification,  it was North  American and  not HVI
   which  signed each  modification with  release  language.   North
   American has  not demonstrated  that it  signed any  modification
   under duress.   Fruhauf Southwest  Garment Co. v.  United States,
   111 F. Supp. 945, 951, 126 Ct. Cl. 51, 62 (1953) (three necessary
   elements for duress are that  one side involuntarily accepted the
   terms  of   another;  that   circumstances  permitted   no  other
   alternative;  and that  the  circumstances  were  the  result  of
   coercive acts of the opposite party); McLain, 30 Fed.  Cl. at 82-
   84.  Further, the record does not demonstrate that North American
   could  not  have negotiated  a  reservation  of  claims  for  the
   asbestos insurance costs.   Adler, 423 F.2d at 1364,  191 Ct. Cl.
   at  611 ("no  conceivable economic  coercion  could invalidate  a
   release where, as  here, there is no evidence  that plaintiff was
   restricted in the scope  of his exceptions to the  release").  In
   any event, the  record does not demonstrate that  the agreed upon
   price could not  have included an  amount for asbestos  insurance
   costs, as a part of profit or otherwise.
 
        North American contends  that California Civil Code,    1542
   ("A general release does not  extend to claims which the creditor
   does not  know or suspect  to exist in his  favor at the  time of
 
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   executing the release, which if known by him must have materially
   affected  his settlement  with the  debtor"),  should be  applied
   "because HVI did not  even know a claim existed for  its asbestos
   insurance  costs"--the construction  manager  "had so  conned  or
   'persuaded' HVI that  its asbestos insurance  costs would not  be
   paid, that HVI did not  even submit asbestos insurance costs" for
   the change orders in question.  Complaint at 3.
        North  American  has  failed to  demonstrate  that  the code
   provision applies to the contract between North American and GSA.
   Moreover,  assuming the provision  is applicable to  a Government
   contract, North  American  has not  demonstrated  entitlement  to
   relief in the context of a negotiated contract modification which
   specifies what  may affect  the price.   The contract  made clear
   that  insurance was required  for asbestos  abatement work.   HVI
   knew specifically,  and North  American knew  indirectly, if  not
   specifically,   that   insurance  costs   were   associated  with
   performing the change order work.   In each instance, through the
   negotiated  bilateral  modifications,  North  American  and   GSA
   established a fixed price (subject  to the limited right of North
   American to seek an adjustment) to perform the changed work.  The
   release  language assists  in establishing  the  finality of  the
   price; it is not an isolated or  separate agreement to be used to
   undo the  modification  as North  American  suggests.   No  basis
   exists to reform the agreed-upon price.
 
                                Decision
        The Board DENIES the appeal of North American.
 
 
                                      __________________________
                                      JOSEPH A. VERGILIO
                                      Board Judge
   We concur:
 
   __________________________         __________________________
   CATHERINE B. HYATT                 MARTHA H. DeGRAFF
   Board Judge                        Board Judge