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MOTION FOR
RECONSIDERATION DENIED: October 29, 2008
CBCA
581-R
HERRE
BROS., INC.,
Appellant,
v.
DEPARTMENT
OF VETERANS AFFAIRS,
Respondent.
Jason
A. Copley and Robert G. Ruggieri of Cohen, Seglias, Pallas, Greenhall &
Furman, PC, Philadelphia, PA, counsel for Appellant.
Kenneth
B. MacKenzie and Phillipa L. Anderson, Office of the General Counsel,
Department of Veterans Affairs, Washington, DC, counsel for Respondent.
Before Board Judges
HYATT, SHERIDAN, and WALTERS.
SHERIDAN, Board Judge.
Appellant
has filed a motion for reconsideration and request to amend our decision in Herre
Bros., Inc. v. Department of Veterans Affairs, CBCA 581, 08-2 BCA & 33,870. The
appeal arose out of a dispute Herre Bros., Inc. (Herre Bros.) had with the
Department of Veterans Affairs (VA), regarding some asbestos abatement and lead
paint removal that was required under a contract. We denied the appeal because the asbestos
abatement and lead paint removal work that Herre Bros. was required to perform
was clearly required by the terms of the contract. Familiarity with that decision is
presumed. We deny Herre Bros.= motion for the reasons set forth below.
Herre
Bros. asserts in its motion that the Board erred in failing to consider
important evidence that showed that AHerre
Bros. was required to perform work not contemplated or bargained for by the
parties.@ The evidence
that was not considered, Herre Bros. asserts, was an estimate for the project Awhich provided clear and convincing support for Herre
Bros.= position that the parties never intended nor
contemplated that Herre Bros. would be responsible for performing the lead
paint and asbestos abatement work, to the extent required, on the project.@
The
evidence to which Herre Bros. refers is an estimate prepared by Lewicki
Estimating Services, Inc. (Lewicki).
Appeal File, Exhibit 1. Lewicki
was retained by Burdette, Koehler, Murphy & Associates, Inc. (BKM), the
architecture/engineering firm the VA had used to design the project and prepare
the specifications and drawings pertinent to the project. Id.
In April 2004, BKM hired Lewicki to provide a cost estimate for the project. Id.
This occurred about three months prior to the VA issuing the invitation
for bids (IFB), which it did on July 8, 2004.
Id., Exhibit 2. The
document in issue shows that Lewicki anticipated that the project would cost
approximately $1,995,909. Id.,
Exhibit 1.
Under
the Ahazardous material abatement@ portion of the estimate, Lewicki listed ninety linear
feet of pipe insulation as needing to be abated at an estimated unit cost of
$20 per linear foot for an estimated cost of $1800, twenty-seven pieces of pipe
fitting insulation to be abated at an estimated unit cost of $35 per piece for
an estimated cost of $945, lead paint removal listed as a lump sum estimated to
cost $3000, and abatement monitoring, also listed as a lump sum estimated to
cost $2500. Appeal File, Exhibit 1 at 2.
As
we noted in our decision, the specifications and drawings set forth the
requirement for asbestos abatement and lead paint removal, also including the
locations and amounts. Herre Bros.,
08-2 BCA at 167,662. Herre Bros.
acknowledged that Athe instant dispute is not over the interpretation of
ambiguous contract language. There is no
dispute that the specifications include the abatement work.@ Id. Finding the contract=s asbestos abatement and lead paint removal
requirements, locations, and amounts to be clear and unambiguous, we applied
the parol evidence rule to resist looking at extrinsic evidence to vary the
contract=s clear and unambiguous terms. Id. (citing Rumsfeld v. Freedom NY,
Inc., 329 F.3d 1320, 1327 (Fed. Cir. 2003); Coast Federal Bank, FSB v.
United States, 323 F.3d 1035 (Fed. Cir. 2003); HRE, Inc. v. United
States, 142 F.3d 1274 (Fed. Cir. 1998); Sylvania Electric Products, Inc.
v. United States, 458 F.2d 994, 1005 (Ct. Cl. 1972)). However, we noted that Aeven if the appellant could overcome the parol
evidence rule, it would still not prevail for several other reasons.@ Id. We went on to discuss some disputed facts
regarding oral statements the contracting officer was alleged to have made at
the pre-bid conference, finding that appellant had failed to prove that the
contracting officer had made the statements as Herre Bros. indicated. Id.
Although
we did not state it in the decision, we also considered the Lewicki estimate
and appellant=s arguments regarding the estimate, prior to issuing
the decision. While the Lewicki estimate
was put into the record, no compelling documentary or testimonial evidence was
presented to establish the facts giving rise to the estimate. Most notably, there were no facts addressing
how the estimate was derived, what specifications and drawings were used to
generate the estimate, or whether any hazardous materials abatement related
changes were made to the specifications or drawings during the three months
lapse between the estimate and the issuance of the IFB. On its face, the Lewicki estimate showed that
some hazardous material abatement was anticipated on the project, albeit less
than the amount that was ultimately required in the specifications and drawings
in the contract as awarded to Herre Bros.
In weighing these factors, we judged the Lewicki estimate to be neither
probative nor relevant to our decision applying the parol evidence rule.
We
considered the Lewicki estimate simply to be more extrinsic evidence that
appellant was attempting to use to vary the contract=s unambiguous terms.
As we judged the Lewicki estimate to be of no probative value, we
elected not to discuss the estimate in our written decision. However, the facts and issues presented by
this appeal, including the Lewicki estimate, were fully and adequately considered
in making the decision in this appeal.
Decision
The
appellant=s motion for reconsideration and to amend our decision
in this appeal is DENIED.
_____________________________
PATRICIA
J. SHERIDAN
Board
Judge
We concur:
CATHERINE B. HYATT RICHARD
C. WALTERS
Board Judge Board
Judge