ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of

-- GSI & Whitesell-Green, JV Under ContractNo. FA3022-15-C-OOO1 APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61816

Mr. Josh Owens

President Jeffrey P. Hildebrant, Esq.

Air Force Deputy ChiefTrial Attorney Lt Col Byron G. Shibata, USAF

Trial Attorney OPINION BYADMINIS-TRATIVE JUDGE O'CONNELL This appeal involves a claim for providing natural gas service to a building adjacent to the project at issue. Appellant seeks about $9,800 and has elected our Accelerated Procedure under Rule 12.3. Decisions under this rule contain summary findings offact and conclusions. The parties also elected to submit the appeal on the record without a hearing under Rule 11 and requested that the Board decide entitlement only. We sustain the appeal. SUMMARY FINDINGS OF FACT The AirForce awarded appellant, GSI & Whitesell-Green, JV (GSI-WG), a contract in the amount of$6,657,731 to renovate Hangar456 at Columbus Air Force Base. The contractrequired GSI-WG to demolish the building down to the frame and foundation and to design and rebuild it with a new foam fire suppression system. (R4, tab 7 at 39) The contract incorporated standard clauses, including the Federal Acquisition Regulation (FAR) 52.236-2, DIFFERING SITE CONDITIONS (APR 1984); and FAR 52.243-4, CHANGES (JUN 2007) (R4, tab 7 at 21). Priorto bid, the Air Force conducted a site visit attended by representatives of28 companies, including appellant (R4, tab 3 at 10). The visit lasted about two hours and occurred while the hangar was in use by the AirForce (R4, tab 2 at 2-3; gov'tbr., decl. ofRobert Gable

## ,r 2). Although the visitors thereafter submitted 146 written questions to the Air Force, none concernedthe pipe we discuss below (R4, tab 5 at 112-28). While the bid documents identified the locations ofexisting utilities, the Air Force disclaimed their accuracy. Thus, the contractprovided:D. Utilities 1) Layout: Accuracy ofgovernmentprovideddocuments showingutilities is not guaranteed, butmay help Contractor locate existingutilities. Verify all existing utility locationsbefore starting work. (R4, tab 7 at47, 

### see also tab 7 at46, 96) Hangar456 is close to anotherhangar, No. 450. A corridorreferred to as Building 450Afunctions as a corridorbetween the twohangars. (Gov'tbr., decl. ofBenjamin Sala at 3). Atthe comerwhere Hangar456 meets Building 450A, a small mechanical room juts out from the side ofHangar456 (R4, tab 7 at 126). As demonstrated in a phototaken by appellant during the site visit, the attendees wouldhave seen a gas meter onthe side ofthe mechanical room. Visible, but less obvious, was a short section ofpipe (the "Pipe")that exitedthe wall atthe comerofthe mechanical room nearthe borderwith Building450A andthen entered 450A. (App. supp. R4, tab 6, photoA)

H456 Mech. room Gas Meter ThePipe

2 H456 & B450 BorderLine B450ANeitherparty has provided the precise dimensions ofthe Pipe, butbased on this photo we find that it was no more than one foot long and one to two inches wide. As GSI-WG would learn after it began demolition, the Pipe was a gas line that could be traced back to the gas meter. The gas line enteredthe Hangar456 mechanical room from the meter. Once inside the wall (andthus not visible), the line split at a tee connection where one line fed Hangar456 and the other line exited the mechanical room and then entered Building 450A, as shown in the photograph. (App. br. at 7; gov't br. at 6) The bid documents/contract did not show a gas line orotherutility in this location (R4. tab 7 at 137-41). GSI-WG explains its failure to notice the gas line due to (among otherreasons), the size ofthe Pipe in comparison to the relative size ofan aircrafthangar and the fact that the pipe had been paintedthe same drab color as the rest ofthe two buildings and was a different color from the gas meter.* There is no indicationthat the Air Force knew that the Pipe was a gas line. The only way for a bidderto have ascertained whetherit was a gas line would have beento cut a piece out ofthe wall. which would have been impracticable on a short site visit and almost certainly would have been barred by the AirForce. GSI-WG agrees that the contract required it to demolish the line and cap it. but it objected when the contracting officer also required it to provide temporary gas service to Building 450A and then relocate the gas meterto providepermanent service to that building (R4, tabs 16, 19. 21, tab 27 at 1; app. supp. R4, tab 4). GSI-WG submitted a claim under the Contract Disputes Act contendingthat providing this gas service was outside the scope ofthe contract, thereby implicating the Changes clause (R4, tab 21); the contracting officer denied it in decisions issued on April 5, 2018 and July 3, 2018 (R4, tabs 25, 29). GSI-WG filed a timely appeal with the Board. DECISION We first considerwhetherthe AirForce can escape liability by disclaiming accuracy ofutility locations and requiring the contractorto verify them. Fartoo many decisions have been written on this issue to discuss in a Rule 12.3 decision, but, in

*GSI-WG also contends that industry standards require gas lines to bepainted yellow (app. br. at 9). While the AirForce does not challengethis statement, we are reluctant to make such a broad finding because GSI-WG fails to cite any authority. 

### But see Stars Investment Group, LLCv. AT&TCorp., 2017 WL 747610, at *3 (E.D. Mo. 2017) (noting without citation that a gas line "wasmarked with yellow paint according to industry standards"). We also acknowledge thatthe contract required GSI-WGto mark underground gas lines with yellow tape (R4, tab 7 at 47). 3general, a government contract may assign a specific risk to a contractor, even ifit is unwise for the contractorto acceptthe risk. E.g., 

### Lee'sFordDock, Inc. v. 

### Secretary of theArmy, 865 F.3d 1361, 1370-71 (Fed. Cir. 2017); 

### Rixon Electronics, Inc. v. 

### United States, 536 F.2d 1345, 1351 (Ct. Cl. 1976) (explainingthat, ifstated clearly, a contract may allocate to the contractorthe risk "to make snowmen in August"). On the other hand, when contracts merely alert the contractorthat information provided may be inaccurate and that it must be field verified, such clauses alone do not transfer the risk to the contractor. 

### MetcalfConstruction Co. v. 

### UnitedStates, 742 F.3d 984, 988, 995-96 (Fed. Cir. 2014); 

### White v. 

### Edsall Construction Co., 296 F.3d 1081, 1085 (Fed. Cir. 2002). We hold that the clauses in this contract fall into the second category. While the AirForce clearly put GSI-WG on notice that the information providedpre-bid might not accurately identify all utilities, it did not go beyondthat. The contract did not clearly convey that the AirForce intended the disclaimers to overridethe Differing Site Conditions and Changes clauses with respect to undisclosed utilities. 

### See Metcalf, 742 F.3d at 996. Thus, an offeror would not have been aware that, ifit found an unidentified utility line that necessitated work on the gas supply to a 

### different building, then it would bearthe financial consequences. Absent clear language that alerts the contractors that they would bearthis risk (allowing them to factor it into their bids), we are unwilling to interpret the disclaimer clauses in the broad manner advocated by the Air Force. A more significant obstacleto GSI-WG's recovery is that the both the gas meter and Pipe were visible on the site visit. Contractors are charged with knowledge ofwhat a reasonable pre-bid site visit would have revealed. 

### H.B. Mac, Inc. v. 

### United States, 153 F.3d 1338, 1346 (Fed. Cir. 1998). Thus, ifa reasonably alert contractor would have noticed the Pipe and discerned it was an undisclosed utility, GSI-WG cannotrecover. However, the duty to make an inspection ofthe site does not require the contractorto discover conditions "beyondthe limits ofan inspection appropriate to the time available." 

### Foster Constr. CA. and Williams Bros. Co. v. 

### UnitedStates, 435 F.2d 873, 888 (Ct. Cl. 1970). As evidence ofwhat a reasonable contractor would have noticed at the site visit, GSI-WG observes that none ofthe site visit attendees asked any questions about the Pipe. In its view, ifany ofthe other 27 attendees had suspected that the Pipe was a potential issue, they would have submitted a written question. Yet, none ofthe 146 questions they submitted asked some version ofan important question: '"what is that Pipe?" While GSI-WG's argument is speculative, the absence ofa single question aboutthe Pipe does suggestthat none ofthe other visitors were concerned about it. While we believe that the Air Force makes a fair objectionthat the Pipe was visible at the site visit, we conclude thatultimately this is outweighed by the failure to disclose the Pipe in the bid documents, as well as its small size, and the fact that it was paintedthe same color as the rest ofthe facility so that it blended, chameleon-like, into

4the background. We find the following argument from GSI-WG's reply briefto be convmcmg: 

### It is worth mentioning again that Hangar456 is a 20,000SF (almost halfan acre) facility, filled with miles ofstruts. supports, pipes, conduits, ducts, conductors and hoses; all crisscrossing in an industrial spider web throughout the structure. Bidders only had a couple ofhours to walk around and inspect the entire facility, inside and out. While in the referenced photo the subject metal protrusion is somewhat front and center, it was a mere weed in the forest ofimprovements inspected during the site visit. (App. reply br. at 9) We conclude that this statement by GSI-WG places the Pipe, the above photo, and the dispute in their proper context. Simply finding the Pipe had a needle-in-the-haystack quality to it. While a good detective might have found it, he would also have had to deduce that, even though it was not yellow orthe same color as the gas meter, the Pipe was a gas line (or some otherutility) serving Building450A. And he would have had to do so while the clockticked on the site visit, 27 other contractors roamed around, and base personnel went about their daily duties. While such sleuthing might not have required Sherlock Holmes, GSI-WG has convinced us that it would have required perceptive powers beyond that ofa reasonably prudent offeror. GSI-WG's provision of temporary andpermanent gas serviceto Building 450A is extra work for which it is entitled to recover under the Changes clause. CONCLUSION We sustain the appeal and remand to the contracting officer for determination ofquantum. Dated: March 20, 2019

(Signature continued)

5 

# 1~1~0'G_~JU MICHAEL N. O'CONNELL Administrative Judge Armed Services Board ofContract AppealsI concur

Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 61816, Appeal ofGSI & Whitesell-Green, JV, rendered in conformance withthe Board's Charter. Dated:

6 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals