Free Amended Complaint - District Court of Federal Claims - federal

Case 1:05-cv-00981-MMS

Document 23-3
c a m d i n g OECW

Filed 03/18/2007

Page 1 ofPAGE 135/137 3
P.01

5505 Robin Wood Rd.,

United Statw Coat Guard Facilities Dosign &

Suite K

Construction Center (Atlantic)

_ ---. +-!-

Norfolk, Virginia 23513243 1 Staff Symbok Phone: ('7.573 852.3449 FAX: (757) 852-3495
l:

- - 2087 !\ 1 h\ \
K-Con Building Sy9tems

Ser. NO: 0015~ January 16,2007

2728 Spxuill Ave Charleston, SC 29405

Re: Contract DTCG47-03-F-3EFK17, Design and Construct Prefabricated Supply Wnrchouse at the USCG Group St. Petersburg, EL
Dear Mr. Kimm
C O m C m G OITICER1.SFINAL DECISTOJ

R c f m c ~is made to your claim dated Decmber 15,2006in the amount of $34,300.00 and 88 calendar ! days as a. result of direction by the government,

On September 5,2003, Contract No. DTCG47-03-F-3EFK.17 cntemd into W e e n your company was and tho G o m c n t for Design and Construct Supply Warehouse at: the USCG Gmup St. Pettxsburg, I. % The contract award price was $534,930.00 wifi a contract complctian date of July 26, 2004. Due to modi?icationsto the contract, the contract:compldtion date was extended to Sqcmber 2,2004,

Your claim letter of December 15,2006, mcived December 20,2006 demands payment of $34,300.00 plus intomst far additional work and an extension of 88 calmdax days.
FWING-S OF FACT

h connection with your claim, I hereby make the following fidiags of fact:
Our letters of July 28,2004 and August 11,2004 responded to the concerns of p t lctltter dat~d 26, u July 2004 which requested $34,300.00 and 73. calendar days. As stated previously,the contract was a fixed price designhuild contract in which you submitted a pxoposa.1and n~ptiatiom/discussions were conducted. Prior to award on 2'1 August 2003 we held a rcIephone conference with Mr, Pat Kimm to review specification requirements and K-Con's assumptions within the R w for h p sl package, p oa Wo specifically discussed topographic, p d t t h g requirements, paviug, @ding md K-Con's desire to use concrete in lieu'of asphalt. We also discussed the silt fence. telecomm~cation, Cable, plumbing md savitary Lines on Sheet A101, the sprinkler system m q ~ m m t and section 01160 design submittals. s Your Rcvjsion I to the August 15,2003 lettor, dated 29 August 2003 and wd by Skip M M m , e specifically states 'The work performed and price herein will be i accordance with the drawings and n

Case 1:05-cv-00981-MMS

K-CON, Filed 03/18/2007 INC. Document 23-3

Page 2 of PAGE 3
P , oz

06/07

specifications provide by FDCC, with the exception of those items excluded and/or clarifiedbelow:" limo cxceptiws were fisted: Asphalt, Fiber Optic Cable a d Plumbing Stub-ups. As a result of these djscussions and apcmcnt to s c q c asd price award was madc,
The contract specification section 01160 Parapphs 1,7.3, 1.7.4, 2.2.1 .1,2.22 and 2.2.2.1 clearly identified submittals, tbejr revicw processes, and the rcqubmmt that consthlction could &commence until the finat design submittal.had been W e w e d and approved. h addition, out hlephctne corderencc of 21 August 2003 with Mr. Pat Weman discussed variows aspects of the contract requirements including design submittals. Y m decision to deviate fiom the approved and accepted drawings caused building crcction and slab concms for thc U,S, Coast Guard. Yau were not building as pcr your Structural Drawing ($301), details J and E. SpecificaUy, you deviated h m detail E,which stated that the building is t be erected $ the slab is in place. Because you deviated from the designer-of-record hwjngs, o & you needcd to rcvisc and/or obtain their approd for the deviation and provide us with a copy of tb& approval. Your unilateral decision t o deviate £ram the approved drawings altmd your c o n m c t i m sequence. h additian, you assert tbat you wwe unable to oilload and stare the buitdhg on s i b for more tban one wcck, which affected your schedule and values. Even thm& we bad prwidcd reasonable spwc for your use on this project you wert not ready t crect the building due to your anchor bolt o dsplacemmb. You also assert "due to the concrete shortage and the allocation systems id effect i the n arm, in which the EDCC was made aware of, i m d additional costs and delays." Contract completion date was June 30,2004 m l you had amplc t h o to schedule concrete placmmt after he prc-construction c c~nfmmce April 6,2004. During our June 3 5,2004 progress mcethg we mtlfied you of our an c ~ n c m with thc quality of constmction. Specifically noted was the building and slab foundation. As s stated above, yaw unilateral decision to dcviatc from thc approved clrawhgs altered the construction sequence and caused your delays.

a

Prior to contract award, you w a e provided a copy of the Government geotecbnical. report dated 25 July 2003, This report indicated gomdwater could be expected at -4 feet below gade, Your dcsiper o f record, i drawing (2202,detail labeled "Grate Met & Sump Pump" noted that thc n existing grade to match for the surnp pump was -3.17 feet below grade. This is a few inches above the -4 f a t elevation that groundwater i s expected to be mcountered. Some watm will seep or appear into the bottom of the trad1. Dewatmifig normally requires digging a hole (well points) in tho pound, install a barrel or similar storage device with holes in it, near the trench. Water is allowed t o accumulate in the barrel. then a prllmp is used to remove the water from the barrel and the water is discharged fm away via piping. Providing a pump to remove a small m o m ?of water in a trench due to rain from stopping concrete p o r n or men w o r m i s a normal. practice i Florida due to the rainy conditions e n c o u n t d during tho summer months. Our n inspccctOfreports indicated fiat a 3" pump wzs required for one day. Your request for 5 additional days and $2300 due to unk;aown confitiom is unclear. We issued bi-lama1 Modification PO0003 for $4,500.00 for additional labor effort expended for differing site conditions involving tbe trench work. N o time was granted because this work was not on your scheduled critical path.

Bas& on the above findings, thme js no evidence to support y u claim. 1do not htend to reopen or o rccaasidcr this matter. Thmefore, it is my final Msim to deny your cia as it relates to this issuc.

T h i s i s tho final decision of the Contracting O E c u . You may appeal this decision to tho agency board of contract appeals. Ifyou decide to appeal, you must, w i m 90 days fkm f i e date you receive this docisinn, mail or otherwise M s h written aoticc to the agency b o d of contract:a p p d s and pravidc a copy of the Contrz~ctidg Officcr from whose decision t i s appeal is taken. Tht notice shall indicate .that

Case 1:05-cv-00981-MMS

Document 23-3 K-CON,Filed 03/18/2007 INC

Page 3 of 3 PAGE 0 7 / 0 7
P.03

an appeal is intmded, reftrcnce M s decision, md idcntify the contract by number. With regatd .to appeais
to tho agency board o f contract appeals, you may, solely at your d&on, proceed under the. board's ma11 claim procedure f claims of$50,00D or less or its accelerated p r o c d m for claims of $1D0,000 or less. m Snstcd of appealing to the agency board of contract appeals, you may 'bring an action directly t rbe o United States C m of Federal Claims (exccpt as provided Inthe Contract Disputes Act of 1978,41 U.S.C. 603, regarding W t h c C&fmcts) with 12 m o ~ t h of the date you rrccdve this decision. s

C A T ~ ~ R O U S S ~ con-g Officer

TOTAL P . 0 3