1997-23 Adopting Findings of Fact and Conclusions of Law in the Matter of MKB Constructors, J.V. vs. Kodiak Island Borough. (Peterson Elementary Remodel).KODIAK ISLAND BOROUGH
RESOLUTION NO. 97 -23
A RESOLUTION ADOPTING FINDINGS OF FACT
AND CONCLUSIONS OF LAW
WHEREAS, the Kodiak Island Borough, as owner of Peterson Elementary School, and
MKB Constructors, J.V. entered into a contract for renovation of Peterson Elementary
School; and
WHEREAS, certain disputes developed between the parties culminating in the filing
of a lawsuit by MKB Constructors, J.V. against the Kodiak Island Borough in the
United States District Court for the District of Alaska, Case No. A95 -0301 CV (JKS);
and
WHEREAS, Judge James K. Singleton, Jr. ordered the parties to comply with the
dispute resolution provisions of their contract, which are set forth in section 00706
of the contract; and
WHEREAS, MKB Constructors, J.V. filed an appeal; and
Introduced by: Mayor Selby
Requested by: Borough Attorney
Drafted: Borough Attorney
Introduced: 06/10/97
Adopted: 06/10/97
WHEREAS, the Kodiak Island Borough Assembly, through its Hearing Examiner
Stanton Phillip Beck, held a hearing on April 14, 15, and 16, 1997 at which both the
Kodiak Island Borough and MKB Constructors, J.V. submitted testimony and
documentary evidence; and
WHEREAS, the Hearing Examiner has propounded proposed findings of fact and
conclusions of law which were furnished to both parties; and
WHEREAS, the Kodiak Island Borough and MKB Constructors, J.V. have had the
opportunity to present arguments regarding the proposed findings of fact and
conclusions of law to the full Assembly;
NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND
BOROUGH that:
Section 1: The Kodiak Island Borough Assembly adopts the Findings of Fact and
Conclusions of Law of Stanton Phillip Beck as its Findings of Fact and
Conclusions of Law.
Kodiak Island Borough, Alaska Resolution No. 97 -23
Page 1 of 2
Section 2: This resolution is final agency action pursuant to Alaska Rule of
Appellate Procedure 602(a)(2). Pursuant to said Rule, appeal may be
taken to the superior court withing 30 days from the date on which this
resolution is mailed or otherwise distributed to the appellant.
ATTEST:
ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
THIS TENTH DAY OF JUNE, 1997
k.)e7 rvz 7 /< ,c.z
Donna F. Smith, CMC /AAE, Borough Clerk
KODIAK ISLAND BOROUGH
e me M. Selby, y , Boro
Robin Heinrichs, Presiding Officer
Kodiak Island Borough, Alaska Resolution No. 97 -23
Page 2 of 2
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JAMIN, EBELL, BOLGER & GENTRY
A Professional Corporation
f.ir 1 5 1997
SEATTLE, WASHiM
APPEAL TO THE KODIAK ISLAND BOROUGH ASSEMBLY
In the Matter of the Claim of )
MKB CONSTRUCTORS, J.V., )
FINDINGS OF FACT AND
v. ) CONCLUSIONS OF LAW
KODIAK ISLAND BOROUGH )
INTRODUCTION
On December 20, 1993, the Kodiak Island Borough (hereafter
"KIB ") and MKB Constructors (hereafter "MKB ") entered into a
construction contract for the renovation and expansion of Peterson
Elementary School. A notice to proceed was issued on the same
authorizing MKB to begin work on or before January 10, 1994.
Exh. 2 . )
Construction commenced on or about January 14, 1994.
day,
(KIB
MKB
assigned Mr. Aronson as site superintendent, with the intention of
replacing him with Mr. Parker in May. Mr. Aronson remained on site
until late March and Mr. Parker arrived on site on May 17. Mr.
Clark was acting site superintendent for the period between Mr.
Aronson's departure and Mr. Parker's arrival.
The original Contract Substantial Completion date was August
10, 1994. The Contract work was not completed by this date.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 1
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Rather, the classroom areas of the project were completed by August
29 and the balance of the project was completed some time later.
(MKB Exh. 10.)
On October 31, 1994 MKB submitted Change Proposals A through
M to KIB. KIB considered the Change Proposals and responded on
December 7, 1994. MKB was not satisfied with KIB's response and,
on April 4, 1995, reasserted Change Proposals A through D and I
through M. In addition, MKB presented new Change Proposals N
through S.
On April 10, 1995, MKB made an oral presentation supporting
its Change Proposals to KIB and understood KIB would respond to the
Change Proposals by May 10, 1995. KIB did not respond. MKB filed
suit in the United States District Court For the District of Alaska
at Anchorage on August 4, 1995.
On June 19, 1996, KIB proposed a partial settlement to MKB.
KIB offered to pay MKB $253,363.84 (retention owed, approved Change
Proposals, and contract balance owed), plus interest. Further, KIB
proposed that the remaining claims, as presented to the District
Court, not be prejudiced. MKB rejected KIB's proposal.
Subsequently, the District Court ordered MKB to exhaust its
remedies under Contract by presenting its claims to the Kodiak
Island Borough Assembly (the "Assembly ").
Hearings before the Assembly were held on April 14, 15, and
16, 1997. Both parties submitted testimony and documentary
evidence. The record of the Assembly hearing therefore consists of
the witness testimony, briefing, KIB Exhibits 1 through 27, MKB
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 2
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Exhibits 1 through 25, two exhibit notebooks presented by MK'B, a
claim notebook presented by MKB, a change order proposal notebook
presented by MKB, the project manual presented by KIB, and a book
of photographs presented by KIB. This record forms the basis for
the following findings of fact and conclusions of law.
Pursuant to the Contract, decisions of this Assembly "shall be
final and conclusive unless determined by a court of competent
jurisdiction to have been fraudulent, or capricious, or arbitrary,
or so grossly erroneous as necessary to imply bad faith."
Contract, § 00706.A. Accordingly, if either party elects to
further pursue its claims, it must do so in a court of law, absent
mutual agreement of the parties to the contrary.
SCOPE OF HEARING
In its Pre - Hearing Brief, KIB claims that the scope of the
Assembly's hearing is limited to those issues presented in MKB's
Notice of Appeal dated October 7, 1996. Accordingly, KIB asserts
that this appeal includes only the following issues:
- late submittal turnaround
- parapet height
- structural steel framing
- Change Proposal I (8" waterline)
- Change Proposal M (temporary power)
- Change Proposal N (concrete demolition)
- Change Proposal 0 (additional bracing)
- Change Proposal P (removal and reinstallation of new window)
Accordingly, KIB implicitly contends that the following issues
cannot be heard by the Assembly:
- Change Proposal A (roof modifications)
- Change Proposal B (fuel tank slab)
- Change Proposal C (acoustical ceilings)
- Change Proposal D (TV and phone Lines)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 3
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- Change Proposal J (water service to boiler)
- Change Proposal K (tar covered exterior gym wall)
- Change Proposal L (steel door frames)
- Change Proposal Q (acceleration)
- Change Proposal R (subcontractor damages)
- Change Proposal S (preparation of change orders)
However, it appears that Change Proposal A is part of MKB's
structural steel framing and parapet claims, and Change Proposals
L and Q are part of MKB's late submittal turnaround claim. Hence,
KIB is challenging MKB's right to raise Change Proposals B, C^ ',D,
J, K, R, and S.
As expressed in the contract,
The decision of the Contracting Officer shall be final
and conclusive unless, within 30 days from the receipt of
such copy, the Contractor mails or otherwise furnishes to
the Kodiak Island Borough Assembly a written appeal. The
Notice of Appeal shall include specific exceptions to the
Contracting Officer's Decision, including specific
provisions of the contract relied upon. General
assertions that the Contracting Officer's Decision is
contrary to law or, to fact, are not sufficient.
Contract, § 00706.A. Thus, failure to provide timely notice or
identification of specific issues in the Notice of Appeal can be
grounds for refusing to hear those issues.
The Contract's 30 -day notice provision protects KIB from stale
claims and provides the Contractor with express guidance and notice
of its rights. Similarly, the requirement for including all issues
in the Notice of Appeal protects KIB from "surprise" claims
assures that KIB and the Assembly can adequately prepare to
consider the issues presented. The District Court waived the 30
day limit for notifying the Assembly of issues to be appealed.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 4
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and
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When considering the evidence presented at the hearing, the
pre - hearing briefs, and the proposed findings of fact and
conclusions of law, it is reasonable to conclude that consideration
of Change Proposals B, C, D, J, K, R, and S will not prejudice KIB
through surprise. These change proposals were presented to and
considered by KIB long before presentation to the Assembly. The
record reflects that KIB and its experts have thoroughly analyzed
and prepared positions regarding these change proposals.
Consequently, and in keeping with the intent of the District
Court's Order, the Assembly will consider the testimony and
evidence presented on all Change Proposals (A through D; J through
S) presented by MKB, and render decisions related thereto.
ISSUES CONCEDED BY KIB
In its opening statement, KIB conceded that the following
payments are due to MKB:
Contract Retention $155,068.84
Unpaid Contract Balance $32,416.00
Change'Order Concessions $65,875.00
Prejudgment interest - January 1, 1995 through June 19, 1996.
Therefore, the issues and dollar amounts (amounts claimed by
MKB (MKB Exh. 25) less amount paid and /or conceded by KIB) to be
considered by the Assembly, include:
Change Proposal A (roof modifications) $15,194
Change Proposal B (fuel tank slab) $0
Change Proposal C (acoustical ceilings) $1,023
Change Proposal D (TV and phone Lines) $1,670
Change Proposal I (Water Main in USGS Area) $9,207
Change Proposal J (Water Service - Boiler) $0
Change Proposal K (tar covered exterior gym wall) $4,302
Change Proposal L (steel door frames expediting) $3,712
Change Proposal M (Temporary Power Hook -up) $2,400
Change Proposal N (Concrete Demolition) $19,317
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 5
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Change Proposal 0 (Bracing Existing Structure) $3,426
Change Proposal P (Remove and Reinstall New Window) $745
Change Proposal Q (acceleration and delay) $251,127
Change Proposal R (subcontractor damages) $126,490
Change Proposal S (preparation of change orders) $300,000
SUBTOTAL $738,613
Prejudgment interest (depending on total award)
Finally, KIB originally claimed offsets totalling $51,401.20
for work required, but not performed, under the Contract. However,
the evidence presented to the Assembly is insufficient to support
the award of this offset.
CHANGE PROPOSALS A THROUGH S
A. Change Proposal A - Roof Modifications
(MKB Total Claim: $45,999; KIB Paid and /or Conceded: $30,
Amount Contested: $15,194; Awarded: $0)
Change Proposal A combines a number of claims regarding roof
steel design errors. KIB concedes that MKB is entitled to
compensation as requested, less amounts attributable to the rework
of prefabricated parapet soffits. KIB contends that the ordering
of the soffits without verification of the drawing dimensions was
unreasonable and contrary to the terms of the Contract. MKB
asserts that it was not required to verify drawing dimensions
In Change Proposal A MKB also attributes 8 days of project
delay to the parapet wall redesign and 29 project delay days to
design errors in the new structural steel connections at the
Lobby. KIB contends that the design errors did not cause delay in
the critical path of the project schedule.
"Unlike design professionals, project owners owe purely
contractual duties as to the accuracy of designs. When provi
New
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 6
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805;
ding
plans and specifications to the contractor, an owner makes an
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implied warranty that they will be sufficient for their particular
purpose." State v. Transamerica Premier Ins. Co., 856 P.2d 7660 772
(Alaska 1993); citing Fairbanks N. Star Borough v. Kandik Cont: s.
Inc. & Assocs., 795 P.2d 793, 797 (Alaska 1990). "If defective
specifications cause the contractor to incur extra costs in
performing the contract, then the contractor may recover these
costs that may result from the breach of implied warranty.
Transamerica, 856 P.2d at 772.
To prove breach of warranty, a claimant must show: (1)
defective or inadequate plans or specifications; (2) reasonable
reliance on the plans; (3) actual disruption or delay; and (4)
actual damages. See Kandik, 795 P.2d at 797.
1. Parapet Soffit Rework
MKB ordered pre- fabricated parapet soffits in February 1994, using
the dimensions provided on the drawings. KIB argues that 1IKB's
reliance on the drawings was not reasonable because the Contract
required MKB to verify all existing conditions prior to
construction:
General contractor and all subcontractors should verify
all existing conditions prior to commencement of
construction. Some project requirements are shown
diagrammatically and reference existing construction.
Drawing G -1, Note 1;
The highest existing roof, parapet, metal roof edge .
elevation, shall determine the elevation of all other
roof, parapet, metal roof edge conditions around the
perimeter of existing and new construction. Some
existing roof parapet conditions may require no change,
other existing conditions may require removal and storage
of existing metal roof edge and raising parapet with new .
wood blocking and reinstallation of existing metal roof
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 7
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edge, plus extending vertical inside leg on back side of
existing metal roof edge to cover wood blocking.
Drawing A -10, Note 4.
These drawing notes do not require that the contractor verify all
dimensions provided on the drawings. However, the notes can be
reasonably interpreted as informing the contractor of the perils of
remodeling work and the need to check existing conditions at least
in critical areas or areas where the drawings present some
uncertainty.
The parapet soffits attach to the existing building structure.
Mr. Sundstrom testified that he ordered the parapet soffit
s in
February 1994 without field verifying the dimensions of the
existing structures. Further, drawing A10, detailing the parapet
soffits, does not fully dimension the soffits. This lack of
complete dimensions, coupled with the drawing notes referenced
above, should have cautioned MKB that some verification was
required. However, MKB failed to take caution and, as testified by
Mr. Sundstrom, "scaled" the drawings to determine the complete
soffit dimensions.
This Assembly finds that scaling drawings to obtain
fabrication information on a remodel project is not reasonable.
Even where dimensions are shown, they are never exact in previously
remodeled conditions such as those present on this Project. The
reasonable course of action on a remodel project, and especially in
light of Note 4 on drawing A -10, would have been to either *ield
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 8
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verify or request clarification from the architect prior to
fabrication of the soffits.
The Assembly finds that the cost of reworking the parapet
soffits is attributable to MKB's failure to verify existing field
conditions and the soffit dimensions prior to ordering the
prefabricated soffits. Accordingly, the Assembly finds that MI4B is
not entitled to the $15,194 contested in Change Proposal A.
amount is attributed to the soffit rework by Mr. Heather and
amount was not contested by MKB.
2. Lobby Steel Design Error
MKB claims that the design error regarding the steel eleva
of MKB for the costs of refabricating the roof steel implic
as a result of its reliance on the drawings. See Kandik, 795
3.)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 9
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This
t he
tion
and connection between the new lobby and existing library caused a
29 day delay in the project schedule.
It is undisputed that the steel elevations presented on the
drawings were erroneous. (MKB Exh. 3.) Further, KKB's compensation
i t: ly
concedes that MKB reasonably relied on the plans and was disrupted
P. 2d
at 797. Therefore, it must be determined whether the design error
actually disrupted or delayed MKB. Id.
The testimony and exhibits provided to the Assembly identify
a number of roof steel design problems. The first involves the
connection between the new addition roof steel and the gymnasium.
This problem was first identified by MKB on May 10, 1994. A
workable solution was provided by GDM on the same day. (MKB ,Exh.
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The second roof steel design errors affected the structural
connection at Entry 146 and 101. The record does not suppcErt a
conclusion that any project delay is associated with correctipn of
these errors. The entry parapets do not appear to be on the
project critical path. Accordingly, the Assembly finds that no
project delay resulted from these design errors.
The final roof steel error involved the connection between the
new and existing structures at the library. On June 1, MKB
notified GDM that the steel connection detailed on the drawings was
Proposal A.) GDM did not provide a
June 21. (Id.) The new design was
of its receipt. (Project Photographs;
unworkable. (MKB Change
workable solution until
implemented within days
Testimony of R. Parker.)
The project photographs indicate that installation of
structural steel in the new addition proceeded throughout June,
progressing not far behind block wall installation from the
side of the gymnasium to the lobby and library areas. This actual
progress, viewed in light of MKB's construction schedule and the
project photographs, is relevant to the amount of impact that may
have resulted from the roof steel design errors.
The MKB project schedule indicates that the block walls for
the new lobby were to be completed by April 7, 1994. If the block
wall had been on schedule, the roof steel design error would have
been discovered before early May. Instead, the error was
discovered on or about June 1. At the time the design error* was
discovered, block wall installation, an activity necessarily
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 10
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roof
east
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preceding installation of the lobby steel, was approximatel
days behind schedule. (Project Photographs; MKB's February
schedule; MKB Exh. 10.) As discussed in Change Proposal Q, below,
the block wall delay is attributable to MKB, not KIB. Further,
project schedule indicates that the roof structural steel
scheduled for installation from April 8 -14. The block walls,
however, were not available for the start of structural Steel
erection until late May or early June. (Project Photographs.)
The record does not present sufficient information to
precisely segregate the effects of the roof steel elevation errors
and the block wall delay. However, the project photographs
indicate the roof structural steel installation was ongoin in
June, but had not progressed to the effected area until after
17. Although this lack of progress may be attributable, in part,
to the discovery of the error on or about June 1, 1994, there is no
credible evidence to support such a finding. The final solution to
the connection problem was provided on or about June 21,
installation of the affected roof steel immediately thereafter.
While the Assembly believes that the project was already
delayed at this time by the block wall construction and other MKB
deficiencies, the record does not adequately allow for segregation
of the effects; consequently, the Assembly finds that 8 days of
delay are attributable to KIB. This delay starts on June 17,
time that the steel erector was ready to install the affected
steel, and runs through June 25, providing 4 days after the
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 11
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54
1994
the
was
June
and
the
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resolution for steel delivery and fabrication. (MKB Change
Proposal A.)
B. Change Proposal B - Fuel Tank Slab
(MKB Claim: $882; KIB Paid and /or Conceded: $882;
Amount Contested: $0; Awarded: $0)
KIB agreed that this work was a Contract change and has
conceded that payment is due in the amount claimed by MKB.
C. Change Proposal C - Acoustical Ceilings
(MKB Claim: $128,138; KIB Paid and /or Conceded: $127,11 ;
Amount Contested: $1,023; Awarded: $1,023)
Contract changes regarding the acoustical ceilings were
performed on a time and material basis. KIB has already paid
$121,932 of the $131,453 claimed by MKB. KIB concede$ an
additional $5,183, leaving $1,023 in dispute. The dispute appears
to lie in possible invoicing discrepancies identified by Mr.
Heather and /or Mr. Hobgood. However, the record lacks evidence
substantiating KIB's claims that the invoices are inaccurate. The
Assembly therefore finds that KIB has failed to rebut the expanses
claimed and, accordingly, awards the $1,023 contested.
D. Change Proposal D - Extend TV and Phone Lines
(MKB Claim: $10,985; KIB Paid and /or conceded: $9,$15
Amount Contested: $1,670; Awarded: $1,670)
In change proposal D, MKB claims costs incurred for work added
to the contract by KIB after MKB bid the project. KIB concedes
$9,315 of the $10,985 claimed, leaving $1,670 in dispute. The
dispute appears to lie in invoicing discrepancies. Mr. Heather
testified that the costs invoiced for digging the trench associated
with the cables is $1,670 too high. Mr. Sundstrom, on the ether
hand, testified regarding the necessity for the trenching.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 12
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The
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record lacks credible evidence substantiating KIB's claims tha
invoices are inaccurate and /or that portions of the work should not
have been undertaken. The Assembly therefore finds that KIB has
failed to rebut the expenses claimed and, accordingly, awards the
$1,670 contested.
I. Change Proposal I - Water Main Work in the "USCG Ar
(MKB Claim: $10,043; KIB Paid and /or Conceded: $837
Amount Contested: $9,206; Awarded: $0)
In Change Proposal I, first presented to KIB on October
1994, MKB requests additional compensation for installation o the
8" water main located outside the school building in the USCG 4Irea.
"Unlike design professionals, project owners owe pi.re:
contractual duties as to the accuracy of designs. When providing
plans and specifications to the contractor, an owner makes an
implied warranty that they will be sufficient for their particular
purpose." State v. Transamerica Premier Ins. Co., 856 P.2d 766„ 772
(Alaska 1993); citing Fairbanks N. Star Borough v. Kandik Contr.,
Inc. & Assocs., 795 P.2d 793, 797 (Alaska 1990). "If defective
specifications cause the contractor to incur extra costs in
performing the contract, then the contractor may recover these
costs that may result from the breach of
Transamerica, 856 P.2d at 772.
To prove breach of warranty, a claimant
defective or inadequate plans or specifications;
reliance on the plans; (3) actual disruption or
actual damages. See Kandik, 795 P.2d at 797.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 13
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the
ea"
31,
implied warranty.
must show: (1)
(2) reasonable
delay; and (4)
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MKB and KIB provided the Assembly with opposing
interpretations of Civil drawings C2, C3, C4, and Mechanical
drawing M4. MKB asserts that the civil drawings clearly show that
the water main was not within the scope of the Contract.
asserts that drawing C -2 clearly defines the Coast Guard's scope of
work, placing the water main within the Contract scope of work.
KIB further relies on Mechanical drawing M4, whereupon it is noted:
"New 8" Fire Protection Water Line See Site Plan."
Although we find that the clarity of the drawings in
the scope of work in the USCG Area may be in question,
KIB's position compelling. Moreover, and in any event,
Assembly finds that MKB's conduct during construction
dispositive on whether this item is compensable.
The issue of whether the 8" water main was included in
Blondin regarding the water main, MKB expressly interpreted
hearing.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 14
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KIB
defiling
we find
the
is
the
contract scope of work was raised to MKB by Blondin sometime before
May 3, 1994. On May 3, 1994, in response to an inquiry from
drawings to include the water main within the Contract scope of
work. (KIB Exhibit 6.) MKB's interpretation of the drawings, as
presented to Blondin, is remarkably similar to KIB's interpretation
of the drawings. Further, while it might be assumed that MKB's
letter to Blondin was merely provided to protect MKB's interests in
the event that KIB disagreed with Blondin's drawing interpretation,
MKB made no attempt to explain the content of its letter at
the
t: he
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The Assembly finds that MKB neither relied on the cont
drawings in the manner claimed in Change Proposal I, nor
damaged by such reliance. Further, the record does not support
MKB's assertion that it provided timely written notice of
claim to KIB.
The Contracting Officer may at any time, by a written
Change Order and without notice to the Sureties, make
changes in the Contract Documents of the Contract if
within its general scope. . . . Any claim of the
Contractor for adjustment under this article must be
asserted in writing within 30 days from the date of
receipt by the Contractor of the notification of change.
Contract, § 00707.3, Changes to the Contract Documents. The record
indicates that MKB did not unequivocally notify KIB of the water
main issue until October 31, 1994, when MKB first submitted Change
Proposal I. (KIB's Notice of Appeal refers to earlier documlents
that address the water main, but these documents are not present in
the record.) The October notice occurred months after the water
main was actually installed. (MKB Exh. 10.) Accordingly,
ract
was
this
the
Assembly finds that MKB failed to provide timely notice of Change
Proposal I, as required by the Contract.
J. Change Proposal J - Water Service
(MKB Claim: $8,092; KIB Paid and /or Conceded: $8,092
Amount Contested: $0; Awarded: $0)
In Change Proposal J, MKB requests compensation for rewoxk:ing
the water service to the boiler. KIB agreed that this work was a
Contract change and agreed to pay the amount requested by MK.
K. Change Proposal K - Exterior Gym Wall
(MKB Claim: $13,322; KIB Paid and /or Conceded $9,00
Amount Contested: $4,302; Awarded: $2,562)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 15
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I I
Designated interior corridor walls were originally designed to be
sheet rocked and then overlaid with cork and fabric. A design
change eliminated the cork and replaced it with 1/4" sheet
MKB claims $13,322 for this change and KIB concedes $9,020 of the
claim, leaving $4,302 in dispute.
Limited evidence was presented on this issue. Mr. Sundstrom
testified that MKB purchased the cork before the design change was
issued, that the cork could not be returned for credit, and
the cork is now available for KIB's use. This testimony was not
disputed and reiterates MKB's April 4, 1995 claim. Mr. He4ther
testified that, although the amounts claimed by MKB are
unreasonable for the work to be performed, MKB failed to provide a
credit for cork board installation. This assertion was
rebutted by MKB. Rather, MKB indicated that sheet rock
installation is more expensive than cork installation. Mr. He
disagreed. Both arguments disregard the contents of the appli
Change Order Proposal, the contents of which were not plac
issue by KIB.
Just as MKB is entitled to payment for changes to the
documents, KIB is entitled to credits. "If such changes
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 16
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that
not
not
ther
able
d in
contract
cau$e an
increase or decrease in the Contractor's cost of, or time required
for, performance of the Contract, an equitable adjustment shall be
made and the Contract modified in writing accordingly." Contact,
§ 00707.B., Changes to Contract Documents.
MKB's assertion that it purchased and cannot return the unused
cork is undisputed. The change eliminating the need for cork was
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the result of a KIB- initiated design change. Consequently,
Assembly finds that KIB should compensate MKB for the cork and
should deliver the cork to KIB.
Further, the Assembly finds that KIB should be credited
the installation costs that would have been associated with
cork if it had been installed. The testimony presented at the
hearing and the MKB claim document of April 4, 1995 support the
assertion that no such credit was provided by MKB. The Asse ly
concludes that the cost of installing the cork is $820, the ost
shown in Change Proposal K. Therefore, MKB's claim
installation costs is reduced by $820 plus 15% markup for a total
reduction of $943.
Finally, Mr. Heather testified that the freight charges
presented in Change Proposal K included items other than t ose
necessary to execute the design change and that, as a result, the
changes should be reduced to $600. This testimony was undisputed
and the Assembly found the testimony to be credible. Therefore,
the Assembly finds that the freight costs presented in C ange
Proposal K should be reduced to $600, resulting in a reducti n of
$797 ($1,293 [total freight charges] - $600 + 15% [markup]).
In summary, the Assembly finds that MKB is entitled to $ ,562
of the $4,302 disputed in Change Proposal K.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 17
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the
MKB
ith
the
for
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L. Change Proposal L `- Steel Door Frame Expediting
(MKB Claim: $20,879; KIB Paid and /or Conceded: $17,
Amount Contested: $3,712; Award: $3,712)
In Change Proposal L, MKB claims that it expended $21,42
expediting the hollow steel door frames and for other miscellaneous
Contract changes. KIB does not dispute the compensability of the
expediting, but disputes $3,712 of the charges that MKB assigned to
field modifications of one or more frames. KIB asserts that MKB
failed to field check the frame dimensions prior to ordering the
frames.
At the hearing, Mr. Sundstrom testified in detail that MK did
field check the area where the frames required rework. Mr.
Sundstrom's testimony is supported by MKB Exhibit 20. This
testimony and documentation are largely undisputed by KIB.
Accordingly, the Assembly finds that MKB is entitled to full
compensation for Change Proposal L.
M. Change Proposal M - Temporary Power Connection
(MKB Claim: $7,471; KIB Paid and /or Conceded: $5,071
Amount Contested: $2,400; Awarded: $2,400)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 18
LPSEA is \DGI \OSIUCODIAK110343DS1.PLD
167
in
MKB provided temporary power to the project for three weeks by
making a temporary hook -up to energize the building elect
system. MKB claims that KIB was required to provide power
throughout the project. KIB claims that the contract require the
Contractor, not KIB, to supply temporary power:
` Note that MKB Exh. 25 appears to eliminate MKB's claim for
additional wall sheathing under Change Proposal L, but failed to
eliminate the associated mark -ups. Accordingly, the Assembly
concludes that MKB claims $20,879 under Change Proposal L.
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Kodiak Island Borough will pay for all normal electrical
power usage during the duration of the project so long as
the power is taken through the existing service to the
building.
Contract, § 01510, Temporary Services, ¶ 3.01.b. (KIB Exh. 22
The parties dispute the meaning of this contract language
whether the need to supply additional temporary power
reasonably expected or, rather, caused by KIB.
The Assembly finds that KIB's interpretation is
reasonable. The contract language does not express or imply
the building power will not be available during construct
Rather, the language strongly implies the opposite, namely,
normal power can be drawn from the building service "during
duration of the project ". Accordingly, the Assembly finds that
is entitled to full compensation for Change Proposal M.
N. Change Proposal N - Added Cost of Concrete Demoliti
(MKB Claim: $19,317; KIB Paid and /or Conceded: $0
Amount Contested: $19,371; Awarded: $0)
The Contract clearly requires notice of claims before the work
identified in the claim is performed.
The Contractor shall promptly, and before such conditions
are disturbed, notify the Contracting Agency in writing
of: . . . physical conditions at the site differing
materially from those ordinarily encountered and
generally recognized as inherent in work of the character
provided for in this Contract. . . .
Contract, General Conditions, § 00707.B. Likewise, claims based on
changes must be asserted within 30 days. Id. The requirement
prompt, written notice can be satisfied through oral notice when
the oral notice is clear and provides actual notice that the
contractor believes it has encountered a differing condition. Teal
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 19
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and
was
not
hat
on.
hat
the
MKB
n
for
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& Co., Inc. v. City of Dillingham, 923 P.2d 89, 94 n. 4 (Alaska
1996). Tentative or equivocal notice that there may be a diffe ing
site condition is not sufficient to replace the written notice
requirements. Id.; citing Blankenshi• Construction C
State Highway Commission, 222 S.E.2d 452, 461 (N.C. App. 1976)
MKB claims that it encountered differing site conditions
because one concrete wall that was to be demolished contained more
rebar than anticipated. According to MKB, the concrete %tall
reinforcing constituted an unknown physical condition of an unus
nature differing materially from those ordinarily encountered
and
generally recognized as inherent in work of the character provided
for in the contract. MKB further asserts that it notified KIa of
the changed condition, citing Daily Record of Work Progress, Report
Nos. 3 and 14.
Neither of the daily reports cited by MKB offers unequivocal,
or even equivocal, notice that rebar discovered in a concrete all
constituted an unknown physical condition. As quoted in MKB's re-
Hearing Brief, Daily Report No. 3 refers to design clarificat'ons
and Daily Report No. 14 refers to removal of a block w -1
Moreover, MKB asserts that, on July 20, 1994, KIB waived the novice
requirement in favor of aggregation of claims. Even if suc an
agreement was made, it is unreasonable to assume that the scop- of
such an agreement included claims for work completed months be ore
for which no timely notice was provided.
Further, evidence presented at the hearings identifying the
alleged condition was contradictory and not credible. Mr. Gorr
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 20
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testified and presented photos of demolition of a concrete all
with rebar of an indiscernible size. Mr. Sundstrom testi ied
regarding a double mat of rebar representing the unknown condition,
but failed to identify the particular wall where the condition was
encountered. Mr. Clark, who was on site at the time the concrete
was demolished, testified that the subject wall contained two Mats
of # 9 bar, where he expected to find 1 mat of # 8 bar. Mr. Clark
did not view the alleged changed condition as worthy of repor6.ng
as a contract change condition, and testified that he did of
course, expect to find some rebar in the wall. Thus, while
rebar as incidental to the construction and demolition proc
Tentative and equivocal notice
condition is not sufficient
requirements. Dillingham, 923 P.2d 89, 94.
Further, MKB's post facto assertion that demolition of
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 21
LPSEA JAM! \DSIUC ODIAK\10343DSI.PLO
Mr.
Clark presents the most credible account of the alleged changed
condition, he also presents the most credible dismissal ofithe
ess.
that there may be a differing site
to replace the written notice
this
single wall delayed the project for eight days is not credible.
Mr. Clark testified that he was on schedule at the end of A ril,
over a month after the wall was demolished. Accordingly, the
Assembly finds that no delay time should be assigned to this tem.
The record does not indicate any notice of delay rega ding
this claim element until April 1995, over a year after the wal was
demolished. MKB failed to provide KIB with timely and ade ate
notice that its discovery of more rebar than expected in a single
concrete wall was an unknown physical condition of an unt_sual
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nature differing materially from those ordinarily encountere• and
inherent in work of the character provided for in the Contrast or
that the difficulty encountered, if any, was not attributable to
construction means or methods. Accordingly, the Assembly find that
MKB is not entitled to either compensation or schedule adjus meant
for Change Proposal N.
O. Change Proposal 0 - Additional Bracing of Exi -ting
Structure
(MKB Claim: $3,426; KIB Paid and /or Conceded: $0
Amount Contested: $3,426; Awarded: $0)
In Change Proposal 0, MKB claims that it encountered -reas
where it had to brace the roof structure beyond those identifi: d in
the Contract. This change was first identified by MKB on Apr '1 4,
1995, over a year after the alleged changed condition was
encountered. The discussion regarding Change Proposal N, su•r., is
equally applicable to this Change Proposal. The requirement for
prompt, written notice can be satisfied through oral notice when
the oral notice is clear and provides actual notice that the
contractor believes it has encountered a differing condi ion.
Neal. MKB presented no evidence that it provided KIB with
unequivocal notice of this alleged unknown physical condition.
Accordingly, MKB has waived any claim for additional compens -t
for this item. In addition, the Assembly finds that we believ- the
contract documents clearly establish the requirement to suppor the
existing structure. The fact that MKB was paid for other
additional bracing is not relevant to this inquiry.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 22
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P. Change Proposal P - Window Removal and Replacement
(MKB Claim: $745; KIB Paid and /or Conceded: $0
Amount Contested: $745; Awarded: $0)
In Change Proposal P, MKB requests compensation for the
removal and reinstallation of an unidentified window. This ch =n.ge
was first identified by MKB on April 4, 1995. The actual dat- of
the window removal and reinstallation was not identified, but it is
reasonable to assume that it occurred during construction in 1:94,
at least six months before MKB provided notice of this ch =n.ge
proposal to KIB. The notice requirements expressed in the
discussions regarding Change Proposals N and 0, supra, are equ -ily
applicable to this Change Proposal. MKB presented no evidence hat
it provided KIB with notice of this alleged unknown physical
condition. Moreover, the evidence presented was indicativ- of
noncompensable deficient contractor work; the evidence offere• to
the contrary by MKB was unpersuasive. Accordingly, the Asse )ly
denies additional compensation for this item.
Q. Change Proposal Q - Acceleration and Expanded Over ead
(MKB Claim: $251,127; KIB Paid and /or Conceded: $0
Amount Contested: $251,127; Award: $60,851)
In Change Proposal Q, MKB claims that it incurred additional
costs resulting from delays attributable to KIB. Specifically, MKB
asserts that KIB is responsible for 61 days of project dela and
that MKB suffered damages in the form of extended project ove head
and extended home office overhead. Further, MKB claims that lIB's
failure to acknowledge delays caused MKB to suffer acceler -tion
damages in the form of labor inefficiencies, overtime premiums,
expediting costs, and additional clean -up costs.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 23
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MKB asserts that KIB delayed the project as follows: (1)
extended boiler shutdown preventing the start of interior fin'sh
work (35 days); (2) extended demolition time due to unidentif'ed
rebar found in one concrete wall (8 days); (3) addition of ew
foundation walls at room 163 and in miscellaneous areas (6 day
(4) delay in processing hollow metal door frame submittal (40
days); and (5) roof steel design errors causing a delay in r•of
steel erection (divided into delays of 8, 27, and 29 days). KB
fails to adequately address the delay in masonry work as a delay
factor. However, as discussed below, analysis of the masonry delay
is essential in assessing the effect of the delays that MKB alle•es
are the responsibility of KIB.
A. Delays
1. New Lobby Masonry Delay.
Project construction commenced on or about January 18, 1994,
Also, it appears that MKB transmitted revised schedules to KI
March, April, June, and July. (Testimony of Mr. Sundstrom;
Letter 17, dated June 17, 1994.)
MKB's February 1994 project schedule indicated
slab on grade were to be installed from March 14 through March
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 24
LPSEA 1: \DGI \DSl \KODIAK \10343DS1.PLD
);
with Mr. Aronson assigned as MKB's superintendent. MKB's fist
project schedule was produced by Mr. Sundstrom, MKB's project
manager, in early February 1994, two weeks after the commence ent
of work and six weeks after the Notice to Proceed was iss ed.
i n
MKB
hat
installation of footings for the New Addition was to occur from
March 10 through March 11; that masonry blocks from footing to
18;
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that the slab on grade was to be poured from March 23 through M =rch
24, and that the above -grade block walls were to be erected M =rch
25 through April 7. (MKB Project Schedule.) None of these d =tes
were met. (Heather As -Built Schedule; Gorr As -Built Sum ary
Schedule; Brunell As -Built Schedule; Project Photographs.)
As indicated by the project photographs, excavation for the
new addition ( "Lobby Area ") footings started on or about Marc l 14
and the final footings were not poured until March 30. Below- rade
block work was not completed before March 25, and the slab -on- rade
was not completed before May 4. Moreover, above -grade block -work
did not start until April 29, 34 days after the scheduled ate.
Completion of the walls did not occur before late June. The
earthwork, footings, below -grade walls and above grade walls were
all on the critical path of the MKB schedule. Thus, the Ass mbly
finds that by April 1994, the project was significantly b h:Lnd
schedule.
Consequently, the Assembly finds that any delay analysis based
on the MKB February 1994 schedule for the period after April
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 25
LPSEA 1: \DGI\DS1 XODIAK \10343DS1.PLD
is suspect because the schedule, as presented, was no lnger
representative of the requirements necessary to complete the
project by August 10, the Contract Substantial Completion date.
Ironically, and perhaps tellingly, the schedules that MKB
claims to have submitted to KIB in March, April and July 199 are
not a part of the record. Further MKB's June 1994 "Up ated
Schedule" does not accurately reflect the actual timin of
activities described above. (MKB Exh. 18) Thus, it is unclear
1994
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whether MKB contemplated the effect of critical path dela s in
Lobby Area construction during the first five months of the
project. It is clear, however, that Mr. Aronson and his succe•.sor,
Mr. Clark, did not contemplate any affects resulting from 'hose
delays. Mr. Clark testified at the hearings that he though ■ the
project was on schedule as of the end of April.
Both MKB and KIB acknowledge that a delay in delive y of
concrete CMU materials and some inclement weather caused a po tion
of the masonry delay. Further, KIB asserts poor coordination of
project activities by MKB, coupled with less than ami able
relations between the masonry contractor and MKB, added t• the
masonry work delay. (Testimony of Heather.) MKB pro ides
additional justification for the delay in Lobby Area CMU
construction through Mr. Gorr, who testified that owner - caused
delays at the New Storage Area caused the masonry contractor to
work out of sequence, thereby causing a "global" delay i the
masonry work.
The Assembly finds Mr. Gorr's explanation to be incred'ble.
First, the New Storage Area is physically isolated from the obby
Addition, rendering any claim that activity in one of these =yeas
was a necessary predecessor to activity in the other cot.
Further, even as scheduled, Lobby masonry activities were sequ -n.ced
ahead of New Storage Area Masonry activities. Accordingly the
Assembly finds that any delay related to the New Storage Area
concrete and masonry work did not delay the concrete and masonry
work at the Lobby Area.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 26
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The Assembly finds that MKB has offered no credible evid =nce
to indicate that the masonry delay in the New Lobby Area is
attributable to KIB. Further, the Assembly notes that MKB fa led
to recognize the effect of this delay until sometime in May 1'94.
It is clear from the record that MKB still does not acknowledge the
extent and effect of the delays in masonry work at the Lobby A ea.
The Assembly finds that the project was approximately 54 nays
behind schedule on June 1, 1994. Further, the Assembly finds his
delay is wholly attributable to MKB.
2. Boiler Shutdown.
During construction, an existing boiler system was use to
heat the school. On April 4, 1994, the boiler was shut down
inspection and a determination of what rework would be neces
for the system to be fully functional for the completed sch
The boiler shutdown was expected to last only a few days. Howe
the system was not restarted until May 10, 1994. The dates
duration of the boiler shutdown are undisputed.
MKB claims that this extended boiler shutdown caused a pro
delay of 35 days. (MKB Exh. 10.) Specifically, MKB claims tha
six week boiler shutdown prevented the GWB contractor from t
and finishing the GWB as scheduled. (MKB Claim Notebook.)
claims that KIB was aware that the boiler was in need of
rework at the time MKB bid the project, but failed to inform M
the extent of rework anticipated. Consequently, MKB did not
on the boiler being shut down for a long duration.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 27
LPSEA J: \DGI \DSIUCODIAK \10343DSI.PLD
n
for
ary
ol.
er,
and
ject
t he
ping
MKB
ajor
B of
plan
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It is well settled in this court that where the
Government possesses special knowledge, not shared by the
contractor, which is vital to the performance of the
contract, the Government has an affirmative duty to
disclose such knowledge.
Morrison - Knudsen Company, Inc. v. Alaska, 519 P.2d 834, 841 (A1 -ska
1974); cquotinq Helene Curtis Industries. Inc. v United Sta ■es,
312 F.2d 774, 160 Ct.C1. 437 (1963).
We read these cases as establishing the following test
for imposing a duty to disclose upon the state: did the
state occupy so uniquely- favored a position with regard
to the information at issue that no ordinary bidder in
the plaintiff's position could reasonably acquire that
information without resort to the State?
Morison - Knudsen, 519 P.2d at 841. Of course, the duty is not
imposed unless the special knowledge is vital to the performanc- of
the contract. Id.
In the case at hand, MKB claims that KIB had supe ior
knowledge regarding the need for an extended boiler shutdown c aim
because KIB was aware, prior to bid, that the boiler might eed
extensive work. The Assembly finds that KIB did have such supe ior
knowledge. (EnCon letter, dated October 11, 1993 (KIB 0171 ►).)
Thus, if MKB can demonstrate that the extended boiler shutdown
delayed the GWB installation and finish, the delay will be
attributable to KIB.
The first reference to the boiler shutdown presented in the
record is in the project meeting minutes of April 27, 1994. The
minutes reflect a concern by the GWB contractor that the start •ate
for heat would impact his "final stage." However, when asked
whether he was on schedule, the contractor indicated that "Mik may
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 28
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'
have prep." The minutes do not indicate that the GWB contract
work was actually impacted by the boiler shutdown and do not
provide notice that the boiler shutdown actually has delayed the
project.
Curiously, at the April 27th meeting, the GWB contractor
indicates that his original start date was scheduled for Febr ary
20. The MKB project schedule of February 1994 indicates that GWB
installation was to start on April 28 in Corridor 102 and on M:y 5
in Corridor 125. Mr. Sundstrom at his deposition indicated hat
MKB was not planning and was not ready to install GWB before A
28. ( Sundstrom pp. 196 -99.) Using the dates provided on the
project schedule, and utilizing the undisputed boiler restart •ate
of May 10, a delay of 12 days on the GWB installation c•uld
reasonably have resulted from the boiler shutdown.
However, as testified by Mr. Parker, even though framing had
been installed in the Corridor 102 area when he arrived on sit- on
May 17 or 18, GWB was not yet installed. Further, Mr. Clark
testified that the boiler shutdown did not affect GWB work. Mr.
Clark further testified that he thought the project was on schedule
at the end of April, three weeks before Ron Parker's arri al.
Accordingly, it is reasonable to assume that the boiler shutdown
did not impact the installation and finishing of GWB.
On May 11, 1994, in response to a KIB letter regarding
construction progress, MKB identified the boiler shutdow as
impacting the project. "As the heating system needs to b- in
operation to perform drywall work, this severely impacted
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 29
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0
r' s
our
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schedule for that activity. We finally placed the boiler bac in
operation . . . because we had to proceed." Sundstrom lette of
May 11, 1994. We find this statement to be less than credi.le.
Mr. Sundstrom was not on site to observe this allegedly se ere
schedule impact. Further, the statement contradicts the schedule
published by MKB and the testimony of site superintendents Pa ker
and Clark. We dismiss this portion of the May 11 lette as
unsubstantiated.
Finally, the Assembly finds that the extended boiler shutdown
delay analysis presented by Mr. Gorr to be unpersuasive. Mr.
Gorr's analysis concluded that the boiler shutdown delayed GWB
taping for 35 days. This analysis ignores the MKB schedule s art
dates of April 28 for installation of GWB and May 5 for tap" ng.
These dates fall 24 and 31 days, respectively, after the star of
the delay shown on Mr. Gorr's As -Built Summary Schedule. (MKB xh.
10.)
In conclusion, the Assembly finds that the boiler shutdow did
not impact the installation and finish of GWB.
3. Door Frames.
MKB transmitted the hollow metal door frame submittal dire tly
to GDM on February 1, 1994. It is undisputed that this submi tal
was approved on April 28 and returned to MKB on May 3, 1994. It is
also undisputed that this 91 day turnaround failed to comply ith
the implied contract requirement that KIB return submittal within
thirty days of receipt:
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As specified in the individual sections, forward
submittal to Contracting Officer at least 30 days before
need for approval.
Contract, § 01300, ¶ 1.04.A.1. However, the effect of K B's
extended submittal processing on project construction is disp ted
by KIB and MKB.
MKB asserts that the extra time taken by KIB to process the
hollow steel floor frame transmittal resulted in late deliver of
the door frames, causing a project schedule delay of 40 days. KIB
acknowledges that the door frames were delivered late, but ass =rts
that the late delivery of door frames did not affect pro ect
construction.
As indicated in the testimony and evidence presented by
Messrs. Heather, Brunell, and Gorr, determination of whether the
late door delivery affected construction is dependent, in t rn,
upon whether installation of the door frames affected the crit cal
path of the project. Mr. Heather's analysis concludes that the
critical path of the project ran through the new lobby area for the
duration of the project. Mr. Gorr and Mr. Brunell, howe er,
conclude that the critical path ran through the new lobby are in
the early stages of the project, but moved to Corridor 125 in J ly.
This shift in critical path is attributable to the change in
project focus implemented by KIB on July 20, 1994.
A project meeting was held on July 20, 1994, attendee :by
representatives of MKB, KIB, and others. It was apparent at hat
time that the entire project would not be completed by August 10,
1994. Consequently, it was decided that Corridor 102 (the majo ity
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of the classrooms and the principal's office) would be completed by
August 15, Corridor 125 (except the gymnasium, storage room, and
lobby) would be completed by August 22, and the balance of the
project would be completed as soon as possible thereafter. (MKB
Letter 21, dated July 26, 1994.) "The school will therefore be
fully available for students on the August 30 scheduled dat- for
start of the school year." (Id.) Thus, the project was essent ally
divided into two sub - projects, with the critical path shifting from
the new lobby area to Corridor 125. (Gorr Testimony; Br'nell
testimony; KIB Exh. 21.) The Assembly finds that, as a resu t of
the July 20 agreement between KIB and MKB, the critical path o the
project moved from the New Lobby to Corridor 125.
There were approximately 53 new door frames affected b the
extended submittal processing. Approximately 36 of these door
frames were installed in Corridors 125 and 102.
The door frames were critical for completion of Corrido• :125
by August 22. The lack of door frames delayed finish work in
Corridor 125 and caused inefficiencies throughout each int =rior
area of the project. Door bucks were used in place of the door
When
to
the
The
the
frames to allow construction to progress as far as practical.
the door frames arrived on site, MKB's crews were force
backtrack into areas where they had already worked to instal
frames, causing inefficiencies and stacking of trades.
Assembly finds that the door frame submittal delay did impac
project.
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The extent of the impact caused by the late door frames is
less clear.
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First, the MKB schedule of February 1994 indic -tes
that many of the door frames were scheduled for installation o or
before March 30 and April 6, with framing and sheathing of inte for
walls. Adding the 14 days of float apparently built into
completion of these areas by August 29. (MKB Exh. 10.) The
activities, without identifying particular areas effected.
compensable. (KIB Exh. 15, 16.)
t ese
scheduled activities, the majority of the door frames ere
scheduled for installation by April 25. However, the doors ere
not scheduled for shipment from Seattle until April 14, 1994. (MKB
Exh. 23.) Thus, the schedule as presented by MKB was unreali -tic
from the start.
It appears from the As -Built schedules and from the testi ony
of Mr. Parker that MKB was ready to install steel door frame- in
the Corridor 125 area at the time Parker arrived on site, May 18,
1994. The door frames arrived on site on or about July 8,
(Parker Testimony; As -Built Schedules), at least 40 days after the
frames were required for installation. Late installation of the
door frames affected a number of subsequent activities inclu• ;ing
GWB installation and finish, painting, and final mechanical and
electrical work. (Testimony of Parker.)
The Gorr analysis shows a 40 day delay in the areas scheduled
for completion by August 15 and August 22, and shows acuual
994
orr
analysis also shows a 40 day delay in the mechanical /electr cal
oth
Heather and Brunell dismiss the door frame delay as on-
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The majority of the door frames effected by the late submi tal
processing were installed in the Corridor 125 Area, which was
essentially completed by August 29, 1994. No credible evidence was
presented to support a conclusion that the door frame delay
substantially affected completion of the New Lobby area. ( ote
that the "sliding glass door" was also late due to submi tal
delays, but its installation is best characterized as a punch ist
item.) Accordingly, the Assembly finds that the record does not
support a conclusion that the late door frames delayed the new
lobby area beyond August 29.
The original Contract Substantial Completion Date was August
10, 1994. Beneficial occupancy of the classroom areas occurre• on
August 29, 1994. (Gorr As -Built Summary Schedule.) When the
effects of the door frame delay and resulting acceleration are
analyzed in conjunction with these dates, it reasonable to conci ude
that the late delivery of hollow metal door frames caused a prof ect
delay of 19 days. The balance of the 40 day delay was mitig=ted
through acceleration. Accordingly, the Assembly finds that the
project substantial completion was delayed by 19 days as a re -ult
of the late delivery of hollow steel door frames.
4. Lobby Steel /Parapet Steel /Exterior Framing.
These issues were considered in Change Proposal A, supra, where we
held that the project schedule was delayed by 8 days as a result of
the New Lobby steel design error.
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5. Foundation at Electrical Room and New Foundation Wa is.
During construction, it was discovered that the outside all
of existing Electrical Room 163 was not supported by an adeq ate
foundation. A design change was issued for installation of a
foundation under the existing structure. Also, it appears th -t a
new foundation wall was added as a design change sometime earl in
the project. The As -Built Summary Schedule produced by Mr. to:rr
attributes delay of three days to each of these design changes.
However, aside from Mr. Gorr's analysis and the claim itself, the
record is silent on these alleged delays. The delays are not
addressed in the briefs presented by either side, nor supporteo:by
the exhibits presented at the hearing. It is not clear whether KIB
was notified of these alleged delays at the time the design cha ges
were issued.
Although a contractor need not prove damages with mathemat cal
precision, it may only recover those damages which it proves ith
reasonable certainty. Fairbanks North Star Borough v. Ka dik
Constr., Inc., 795 P.2d 793, 798 (Alaska 1990), reh'g grantee on
unrelated issue, 823 P.2d 632 (Alaska 1991). The Assembly f"nds
that MKB has not met its burden of proving that it incurred d lay
as a result of the design changes adding (1) foundation at
Electrical Room 163 and (2) other unidentified foundation wail
The evidence presented does not support MKB's claim.
6. Interior Demolition.
This issue was considered in Change Proposal N, supra, where the
Assembly found that the project schedule was not impacted by IB.
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7. Delay Summary.
In summary, the Assembly finds that project delays
attributable to KIB, which affected the project substan ial
completion date, are 19 days for the delay in processing the ho i low
steel door frame submittal and 8 days for the delay in providing a
solution to the lobby roof structural steel design er'or.
Therefore, the Assembly finds that the project substan ial
completion date, as provided under the Contract, is Septembe 6,
1994.
B. Acceleration
Acceleration is the application of additional manpower to the
work effort, either through the use of overtime, additional
manpower, or both. Acceleration may be undertaken to mitigate the
effects of a delay, disruption, or suspension to the •rk.
Constructive acceleration may be alleged when an owner refuses to
grant reasonable time extensions which are allegedly due the
contractor.
Within Change Proposal Q, MKB asserts that it inc rred
acceleration costs in the following categories: (1) Mat =rial
expediting costs; (2) Labor overtime premiums; (3) Added 2nd
Cleanup; and (4) Labor inefficiencies. MKB further asserts th -t it
incurred extended project overhead and extended home office
overhead. Each category is addressed separately below.
MKB carries the burden of proof that it incurred the •osts
claimed. Coluccio, 826 P.2d 316. As presented in Sectio R,
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infra, Alaska has rejected the total cost method and the modi ied
total cost method for calculating damages.
1. Material expediting costs (freight costs).
MKB asserts that it incurred extra shipping costs resul ing
from late submittal processing. Specifically, MKB claims hat
delays in submittal processing by KIB caused a number of critical
items to be shipped separate from the bulk shipment originally
anticipated by MKB. The particular items so affected are not
identified in the record, but clearly exclude steel frames
addressed in Change Proposal L.
The record presents no credible evidence in support of M ='s
assertion that KIB is responsible for any additional shipping casts
incurred by MKB. The particular items for which the shipping casts
were incurred are not identified, no invoices were presented, and
no specifics regarding causation were presented. Absent causation,
there are no damages. Coluccio , 826 P.2d 316 Kandik, 795 P.2d 93.
The Assembly finds that MKB failed to demonstrate that any
additional expediting costs it may have incurred were cause. by
KIB's late processing of submittals.
2. Labor overtime premiums.
MKB appears to have attributed all of its overtime costs
incurred on the project to KIB. This attribution, however, assumes
that all critical project delays are attributable to KIB.
discussed in the delays section, supra, that assumptio
erroneous.
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As previously discussed, the project was substantially be ind
schedule by April because of the delay in masonry work on the New
Lobby addition. Further, the S -curve submitted by MKB for 'une
indicates that MKB is substantially behind its proje ted
expenditures. Moreover, the project critical path ran through the
New Lobby until July 20, when the project focus was chanted.
Consequently, the delay in closing the lobby addition, attributable
mostly to the delay in masonry work, prevented a significant am•unt
of interior work to be completed in May, June and early J ly.
Although the lobby steel tie -in caused 8 days of delay, overtim- is
not reasonably causally connected to this activity but, instea•, is
more appropriately addressed as inefficiency, infra. The Asse •ly
therefore finds it unreasonable to attribute overtime premium to
KIB for the period preceding July 8, when the hollow metal •oor
frames arrived on site. Further, the Assembly finds it
unreasonable to attribute overtime spent on exterior fi ish
activities to KIB, especially in light of the masonry delay. (MKB
Exh. 2A.)
Further, the Assembly finds it unreasonable to attri ute
overtime premiums to KIB for the period after the new Contract
substantial completion date of September 6, 1994. The scop- of
work remaining after September 6 is not significantly detailed in
the record, but appears to focus on areas other than classroom
interior work. Finally, the Assembly finds that the delay i the
Lobby Area is clearly more attributable to the masonry delay r -ther
than the hollow metal door frame delay.
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In conclusion, the Assembly finds that MKB is entitled to the
overtime claimed for interior finish activities from July 8, 994
through September 6, 1994. As presented on MKB Exh. 24, it app-ars
that overtime hours spent on interior activities for the perio• o
July 8 through September 6 amount to 635 man hours. Accordin ly,
the Assembly finds that MKB is entitled to $13,710 in over ime
premiums.
3. Added 2nd Cleanup.
KIB asserts that MKB's "second clean -up" does not inv ive
additional costs beyond that required under the Contract. See
Contract, § 00724.A, Progress Cleaning. However, given the 27 •ays
of delay attributable to KIB, coupled with the change in crit.cal
path resulting from the meeting of July 20, 1994, and the ope ing
of the school, it is reasonable to assume that a second clea -u
would have been required, regardless of either MKB or KIB's del =ys.
The costs associated with this clean -up were not disputed by IB.
The need for the second clean -up is attributable to both part es;
hence, half of the cost is awarded to MKB, $5,216.
4. Labor Inefficiencies.
MKB asserts that its labor efficiency was reduced b 30
percent because the project delays caused stacking of trades and
congestion in the work area. MKB references specific case law
allowing the use of a percentage factor for damage calculations
attributable to inefficiencies. See Urban Plumbing & Heati.ng
Co.,Inc., ASBCA 9831, 71 -2 BCA 8980; Continental Consoli•at:ed
Corp., ASBCA 10662, 67 -1 BCA 6127. KIB challenges neither the fact
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FINDINGS OF FACT AND
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Post -it' Fax Note 7671
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From 4 / 4 LE 7'
Co.
that the costs claimed by MKB were actually incurred nor the
reasonableness of the 30% inefficiency factor. Rather, KIB
challenges whether the delay from which the inefficiency costs
result are attributable to KIB.
Pursuant to the discussion presented in the Labor Over ead
section, supra, the Assembly finds it unreasonable to attribute
labor inefficiencies incurred before July 8 or after September • to
KIB, especially in light of the masonry delay. Further, the
Assembly finds it unreasonable to attribute labor inefficiencies to
overtime hours because there is no credible evidence in the re ord
to show that problems of stacking and congestion occurred out -ide
of the normal work day.
Accordingly, the Assembly finds that MKB is entitled to the
labor inefficiencies claimed for the period of July 8, 1994 through
September 6, 1994, less overtime hours claimed. Thus, MK:: is
entitled to $22,425 for labor inefficiencies.
5. Project Overhead.
MKB claims to have incurred project overhead costs over th- 61
delay days that are attributable to KIB. KIB does not challenge
the fact that the costs claimed by MKB were actually incurred.
Rather, KIB challenges whether the delay from which the costs
result are attributable to KIB.
Mr. Sundstrom testified that he participated in the proj e. t on
a part -time basis through September, and that Mr. Parker wa on
site through September. Further, Mr. Sundstrom testified rega ding
the need of general overhead items for the duration of the d =lay,
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including equipment, telephones, and insurance. And finally, the
Contract requirement for periodic clean -up
the delay period.
The Assembly finds that the evidence presented supports the
fact that MKB incurred additional project overhead costs becau-e of
the project delay. However, the portion of the costs that MKB
attributes to KIB must be reduced. As discussed previously, 27 of
the 61 days of delay claimed by MKB are attributable to KIB.
Accordingly, the Assembly finds that MKB is entitled to 44 pe cent
of the amount claimed for project supervision, project manage ent,
per diem, extended general conditions, and periodic cle -nup,
$19,500.
6. Home Office Overhead.
MKB claims to have incurred extended home office ove head
expenses as a result of project delays
expenses using the Eichleay formula.
The purpose of the Eichleay formula is to arrive a an
approximate allocation of overhead costs when actual allocation is
not possible. Proof of compensable government delay does n by
itself entitle the contractor recovery of extended home office
overhead. Montoya Construction Co., Inc., ASBCA No. 34691, 89 -1
BCA ¶ 21,575. In order to recover damages calculated by use o the
Eichleay formula, a contractor must demonstrate that it suffered
damages as a result of the government delay, making it imprac•ical
to undertake the performance of other work. Boublis Electric Inc,
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clearly extended
and calculates
into
hese
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ASBCA No. 34056, 89 -3 BCA ¶ 22,094. Hence, the Eichleay formula is
not a method of proof, but merely a means to calculate damage
MKB did not present evidence to support a finding that the
delay caused by KIB made it impractical for MKB to undertake the
performance of other work. Rather, MKB presented evidence to the
contrary. Mr. Sundstrom testified that no home office layoff-. or
office space abandonment occurred after the Peterson project was
completed (See also Sundstrom deposition, p. 51). In the abs:nce
of any evidence to support the proper application of the Eich eay
formula, the Assembly finds application of the Eichleay for ula
inappropriate.
Further, the Assembly finds that the home office over ead
costs presented by MKB are not only unsupported, but unsupporta•l
Although a contractor need not prove damages with mathematical
precision, it may only recover those damages which it proves ith
reasonable certainty. Kandik, 795 P.2d 793, 798. The Asse •ly
finds that MKB is not entitled to the extended home office over ead
as claimed in Change Proposal Q.
R. Change Proposal R - Subcontractor Damages
(MKB Claim: $126,490; KIB Paid and /or Conceded: $0
Amount Contested: $126,490; Award: $22,657)
In Change Proposal R, MKS puts forth subcontractor claims for G idi
Electric, Allen & Peterson, Custom Painting and Drywall, and
Blondin and Sons.
The contractor carries the burden of proof that it inc rred
the costs claimed. Municipalitv of Anchorage v. Frank Col ccio
Construction Co., 826 P.2d 316 (Alaska 1992). Althou•h a
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contractor need not prove damages with mathematical precision, it
may only recover those damages which it proves with reasonable
certainty. Fairbanks North Star Borough v. Kandik Constr., Inc.,
795 P.2d 793, 798 (Alaska 1990), reh'g granted on unrelated issue,
823 P.2d 632 (Alaska 1991).
Alaska Courts have rejected the "total cost method" and the
"modified total cost method" of proving damages. These methods
entailed looking at all the money that was spent by the Contractor,
subtracting all the money paid, "and then taking a deeper look."
Coluccio, 826 P.2d at 324.
[T] he total cost method of proving damages is universally
disfavored. We recently joined this chorus of
disapproval. Fairbanks North Star Borough v. Kandik
Constr., Inc., 795 P.2d 793, 798 -99 (Alaska 1990), reh'g
granted on unrelated issue, 823 P.2d 632 (Alaska 1991).
The preferred method of damages calculations is the so-
called "actual cost" method, in which each element of
extra expense incurred because of [a change] is added up
for a total claimed amount. Courts have also allowed a
"jury verdict" method, a variant on the actual cost
approach which allows the contractor to present evidence
of the cost of additional work to the finder of fact,
including any actual cost data, accounting records,
estimates by law and expert witnesses, and calculations
from similar projects.
Municipality of Anchorage v. Frank Coluccio Construction Co., 826
P.2d at 324 -25.
1. Guldi Claim.
Guldi claims that it incurred costs of $95,004 as a result of
project delays and acceleration. This figure is calculated (not
considering obvious double -count errors) by simply totaling Guld:i's
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contract costs, adding overhead and profit, and then subtrac•ing
out payments made to Guldi by MKB. Guldi acknowledged that his
calculation as a "modified total cost" method. As testified by Mr.
Guldi, this modified total cost approach was the "quick =st,
easiest, and most accessible way to determine actual costs." hen
asked what it would take to segregate the costs, Mr. G ldi
responded: "I guess we just do not know how to do it."
The Assembly concurs with the Alaska courts' view hat
contract damage awards pursuant to a "total cost" calculation is
improper. However, if sufficient evidence is presented in addi ion
to the total cost method calculations, an award of damage- is
appropriate under the "jury verdict" method.
The manpower charts provided by Guldi evidence indicate hat
Guldi was affected by the delay and acceleration discussed ab•ve.
Accordingly, the Assembly finds that Guldi did incur accelera ion
costs attributable to KIB. As testified by Mr. Guldi, much of his
subcontract work was affected by the stacking of trade in the
classroom areas, and much of this stacking was caused by the d -lay
in door frame delivery and owner changes. Sufficient evidence has
been presented to conclude that the amount of costs incurre• by
Guldi in excess of its total anticipated income are attributab e to
the acceleration of interior finish work caused by KIB. The
Assembly finds that Guldi is entitled to $19,702 plus $2,955
overhead and profit.
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2. Allen & Peterson; Custom Painting and Drywall; and
Blondin and Sons.
MKB sets forth claims for subcontractors Allen & Peterson, Cu -tom
Painting and Drywall and Blondin and Sons under Change Proposal R.
No testimony was presented at the hearing regarding these cl =ims
beyond restating of the claims. A contractor may recover •n.ly
those damages which it proves with reasonable certainty. Kan•ik,
795 P.2d 793. Absent sufficient evidence, the Assembly finds hat
MKB is not entitled to the subcontractor damages claimed for A len
& Peterson, Custom Painting and Drywall and Blondin and Sons u der
Change Proposal R.
S. Change Proposal S - Preparation of Change Orders
(MKB Claim: $300,000; KIB Paid and /or Conceded: $0
Amount Contested: $300,000; Award: $0)
Ultimately, the award of attorney's fees is vested in the
sound discretion of the trial court and will be interfered wi h on
appeal only when that discretion is manifestly abused. Grasle v.
Electric Co. v. Clark, 525 P.2d 1081 (Alaska 1974); Munici•ali• of
Anchorage v. Baugh Constr. & Eng'g. Co., 722 P.2d 919 (Alaska
1986). "The purpose of awarding attorney's fees under Rule 82 is
to afford partial compensation to a prevailing party for the egal
expenses necessitated by a court proceeding." [emphasis a•ded]
Alaska State Housing v. Ripley Pleas, Inc., 586 P.2d 1244, 1249
(Alaska 1978)(attorney's fees incurred for the arbitration he ring
may not be taken into account because Civil Rule 82 only appli =s to
`costs of an action', not attorney's fees incurred in the co duct
of a prior arbitration).
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As presented in the Contract, the function of the Kodiak
Island Borough Assembly is analogous to that of an arbitration
board rather than to a court of law.
A. The decision of the Kodiak island Borough Assembly
shall be rendered within 120 days of the Notice of
Appeal. The decision shall be final and conclusive
unless determined by a court of competent jurisdiction to
have been fraudulent, or capricious, or arbitrary, or so
grossly erroneous as necessary to imply bad faith
B. This Disputed article does not preclude
considerations of questions of law in connection with
decisions provided for in Paragraph A above. Nothing in
this contract, however, shall be construed as making
final the decisions of the Kodiak Island Borough Assembly
or its representative on a question of law.
Contract, § 00706, Claims and Disputes. Accordingly, whereas his
Assembly Hearing is not a court proceeding, Rule 82 does not a•p:Ly
to the matter at hand.
In its reply brief, MKB abandons any reference to Rule 82 and
cites federal case law wherein awards were made for the cost- of
preparing claims. The cases cited, however, refer to cl -ims
preparation for presentation to the Contracting Officer, not to the
authorities to whom decisions of the Contracting Officer are
appealed. See Bill Strong Enterprises, Inc. v. Shannon, 49 :.3d
1541, 1549 (Fed. Cir. 1995). However, the Federal Acquisit ons
Regulation analyzed in Bill Strong does provide useful guidanc in
determining whether to award the costs of preparing change requ: sts
in the matter at hand.
According to the FAR, contractor costs can be placed in t ree
categories: (1) those incurred in the performance of the contract;
(2) those incurred in administering the contract, and (3) t ose
FINDINGS OF FACT AND
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SPEARS
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LLP
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550 W. 7th Ave.
Suite 1650
Anchorage. AK
99501 -3568
X07)277 -9511
incurred in connection with the prosecution of a claim. Id at
1549. Costs falling within the first two categories are gener =lly
compensable, while those falling into category three are not. Id.
Category 1 clearly does not apply to Change Proposal S.
The line between costs incidental to contract administra ion
verses claims prosecution is rather indistinct. Bill Strong, 49
F.3d at 1549. Generally, however, costs incurred in presenti g a
claim to the Contracting Officer are deemed to be administrative.
However, further costs require examination of the objective re -son
behind why the costs were incurred. "If a contractor incurre• the
cost for the genuine purpose of materially furthering the
negotiation process, such cost should normally be a contract
administration cost." Id. at 1550.
Applying the reasoning in Bill Strong to the matter at arid,
it is undisputed that MKB submitted the claims at issue in Oc ober
1994 and April 1995. In its April 1995 claim, MKB included C ange
Proposal S, Preparation of Change Orders, and requested $34,500.
As testified by Mr. Sundstrom, this dollar amount represented KB's
best estimate of costs expended to date in preparing MKB's cl -irns.
No documentation was presented in support of this testimony.
MKB made an oral presentation to KIB regarding its clai s on
April 28, 1995. At the end of that presentation, MKB believed that
KIB committed to respond to MKB's claim by May 10, 1995. KI did
not respond by that date. MKB filed suit in the United S • ales
District Court for the District of Alaska at Anchorage on Augu :t 4,
1995. (KIB Exh. 13.) It appears that the last communic -t:ion
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 47
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550 W. 7th Ave.
Suite 1650
Anchorage, AK
99501 -3568
07)277-9511
cancellation of a meeting between Mr. Hobgood and Mr. Sundstr
It would be unreasonable to conclude that expenses incurre• in
preparation of filing suit and prosecution of that suit were casts
for the genuine purpose of materially furthering the negotia ion
process. Rather, these costs are clearly those incurre• in
connection with the prosecution of a claim. See Bill Strong 49
F.2d at 1550. Thus, any costs incurred after August 5, 1995 are
not recoverable by MKB.
Further, some of the costs that MKB claims to have incu red
prior to filing suit were incurred in connection with the
prosecution of this claim. KIB provided MKB with the Contrac ing
Officer's decision on Change Proposals A through M on Decembe 7,
1994 (KIB Exh. 8.), therein ending the negotiation process with the
Contracting Officer. However, MKB again presented Change Propo -als
A through M to KIB in its April 1995 claim. Therefore, i is
reasonable to conclude that some, if not all, of the expe ses
incurred by MKB before filing suit, were incurred for the purpose
of prosecuting a claim. Note that when Change Proposals A thr•u
M were first presented in October 1995, no claim for Change 0 der
preparation was included.
Finally, the record does not provide any support for M c's
assertion that it actually incurred $300,000 in costs as cla med
under Change Proposal S.
The Assembly finds that any costs incurred by MKB after August
4, 1995, as claimed in Change Proposal S, were incurred for the
FINDINGS OF FACT AND
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between KIB and MKB to occur before suit was filed was the
LANE
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SPEARS
LUBERSKY
LLP
Law Offices
550 W. 7th Ave.
Suite 1650
Anchorage. AK
99501 -3568
V7)277-9511
purpose of prosecuting a claim and are not recoverable. Furt er,
the assembly finds that the costs incurred by MKB before Augus 4,
1994, as claimed in Change Proposal S, were likely incurred for
both administering the contract and prosecuting this c1 =im.
However, other than its bare assertion that such costs ere
incurred, MKB has provided no evidence to quantify or allow
allocation of the pre -suit costs. The Assembly will not appor ion
costs absent evidence that the costs were actually incur ed.
Therefore, MKB's claim for compensation under Change Proposal S is
denied in total.
T. Prejudgment Interest
Except when the court finds that the parties have ag
otherwise, prejudgment interest accrues from the day pro
is served on the defendant or the day the defendant rece
written notification that an injury has occurred and th
claim may be brought against the defendant for that inj
whichever is earlier. The written notification must be
nature that would lead a prudent person to believe th
claim will be made against the person receiving
notification.
AS 09.30.070. "Prejudgment interest should be denied in onl the
most unusual case. Since prejudgment interest is the norm i. our
law, the burden of proving that an unusual situation, such =s a
resulting double recovery, exists should be on the party opp•sing
the award . . . ." Hancock v. Northcutt, 808 P.2d 251, 261 (Alaska
1991) (citation omitted) .
KIB concedes interest from Jan. 1, 1995 through June 19, 1996
at 10.5% on items A -M, if awards are made. This concessio is
based on KIB receiving notice of claims A -M on October 31, 199 and
on MKB's refusal to accept KIB's settlement proposal of June 19,
FINDINGS OF FACT AND
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eed
ess
ivies
t a
ry,
f a
t a
the
LANE
POWELL
SPEARS
LUBERSKY
LLP
Law O
550 W. 7th Ave.
Suite 1650
Anchorage, AK
99501 -3568
)07)277-9511
1996. The Assembly finds that KIB's settlement offer was
sufficient to toll the accrual of interest after June 19, 199
Regarding Change Proposals N -S, the Assembly finds hat
interest should accrue starting on June 1, 1995, two months a ter
KIB was notified of the change proposals. Further, interest o all
non - conceded items included in A -S should run to the date hat
these findings are rendered.
Accordingly, prejudgment interest in the amount of $58,947.29,
calculated at 10.5% annually, is awarded by the Assembly.
Summary
Item Amount Due Interest Tot =1
Retainage $155,068.84 $23,865.73" $178,934.57
Contract Balance 32,416.00 4,988.96" 37,404.96
Change Proposal A 30,805.00 4,741.02" 35,546.02
Change Proposal B 882.00 135.74" 1,017.74
Change Proposal C 6,206.00 1,051.95 7,257.95
Change Proposal D 10,985.00 1,848.70 12,833.70
Change Proposal I 0.00 0.00 0.00
Change Proposal J 289.00 44.48" 333.48
Change Proposal K 4,800.00 981.22 5,781.22
Change Proposal L 20,879.00 3,564.68 24,443.68
Change Proposal M 2,400.00 596.52 2,996.52
Change Proposal N 0.00
Change Proposal 0 0.00
Change Proposal P 0.00
Change Proposal Q 60,851.00 12,481.12
Change Proposal R 22,657.00 4,647.17
Change Proposal S 0.00 .
FINDINGS OF FACT AND
CONCLUSIONS OF LAW - 50
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$348,238.84
73,332.12
27, 304.17
$58,947.29 $407,186.13
A. Interest from January 1, 1995 through June 19, 1996 (535
days) .
B. Interest on $5,183 from January 1, 1995 through June 19, 1996.
Interest on $1,023 from January 1, 1995 through May 14, 1997
(864 days).
LANE
POWELL
SPEARS
LUBERSKY
LLP
Law Offices
550 W. 7th Ave.
Suite 1650
Anchorage. AK
99501 -3568
97)277 -9511
C. Interest
Interest
D. Interest
Interest
E. Interest
1996.
Interest
F. Interest
G. Interest
on $1,670
on $9,315
on $2,238
on $2,562
FINDINGS OF FACT AND
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from January 1995 through May 14, 199
from January 1995 through June 19, 19
from January 1, 1995 through June 19, 1
from January 1, 1995 through May 14, 1
Stanton
•
•
•
6.
96.
97.
on $17,167 from January 1, 1995 through June 19,
on $3,712 from January 1, 1995 through May 14, 1997.
from January 1, 1995 through May 14, 1997.
from June 1, 1995 through May 14, 1997 (713 days).
4/
p B -ck, Hearing Examiner