Gilbane Building Company ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Gilbane Building Company ) ASBCA No. 57206
)
Under Contract No. W9126G-07-C-0043 )
APPEARANCE FOR THE APPELLANT: Paul H. Sanderford, Esq.
Sanderford & Carroll, P.C.
Temple, TX
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
Lloyd R. Crosswhite, Esq.
District Counsel
Kendra M. Laffe, Esq.
Dawn-Carole Harris, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Ft. Worth
OPINION BY ADMINISTRATIVE JUDGE JAMES
ON APPELLANT'S MOTION FOR RECONSIDERATION
The Board's 13 August 2014 decision denied the captioned appeal. Gilbane
Building Company, ASBCA No. 57206, 14-1 BCA if 35,701. On 18 August 2014
appellant received that decision and on 17 September 2014 timely moved for
reconsideration. On 17 October 2014 respondent replied to the motion.
Appellant seeks reconsideration on two grounds: ( 1) The Board "misconstrued
PKD, Inc. 's ostensible statement that it was not regularly engaged as a manufacturer of
elevator systems," which, according to appellant, "can only be treated as an
admission .. .if 'assemblers of elevator components into an elevator system' do not
qualify as ... manufacturer[s]," which "is the central question of the appeal" a question
"which the Board declined to address" and (2) "The Board's decision stated that
PKD's past performance included only one qualifying project in the 10 years
preceding the Project," but PKD's past performance list "identified up to four (4)
major elevator system replacement projects completed within the previous 10 years"
(app. mot. at 1).
Ground (1). Gilbane argues that respondent's definition of a "manufacturer
regularly engaged in the manufacture of elevator systems" is that the "design intent
and intent of the specifications was to have a complete elevator system by one
manufacturer regularly engaged in the manufacture of elevator systems" (app. mot.
at 2, ~~ 4-5). Thus, "[h]eld to [this Government] definition, the record reflects PKD's
agreement that it was not a 'manufacturer regularly engaged in the manufacture of
elevator systems."' But "[s]uch statements by PKD ... do not amount to an
admission ... that it is not regularly engaged in the manufacture of elevator systems"
because "the proper legal definition of 'manufacturer' ... should be given the same
treatment as courts and boards have given the term used in the Standard Products
Clause and the Buy American Act. .. that assemblers of constituent parts into a final
product or system are manufacturers." (Id. at 2-3, ~ 7)
Appellant's foregoing premise- in order to decide whether the government
properly disapproved PKD's elevator submittals, one must decide whether a
component assembler was a "manufacturer" - is unsound, a non-sequitur. Assuming
arguendo, without deciding, that an assembler is a manufacturer, if PKD was not
regularly engaged in assembling or manufacturing elevators, those submittal rejections
were proper because PKD was not regularly engaged in the manufacture or assembly
of pre-engineered elevator systems within specification§ 14 21 23, ~ 1.3. As stated at
the conclusion of our decision: "Since PKD has not established that it was regularly
engaged in manufacturing elevators, we need not analyze the terms 'manufacturer' and
'pre-engineered."' 14-1BCA~35,701at174,823.
Ground (2). Based on the Board's review of Gilbane's 11-page list of PKD
elevator contracts performed, we stated:
Gilbane forwarded PKD's list of contracts completed from
October 1986 to February 2008, including several for
elevator repairs, upgrading and modernization; three
elevator installation contracts performed in 1991, 1994 and
1997 and a Navy contract for replacement of existing
elevators completed in April 1999, about a decade before
Gilbane's transmittals were submitted under this BHT
contract.
14-1BCA~35,701at174,822, finding 20.
Gilbane's motion asserts that PKD's list of elevator contracts completed after
16 October 1998 included four "fully completed elevator replacement projects" (app.
mot. at 4-5, ~ 13). We summarize PK.D's descriptions of those four projects from its
list appended to Gilbane's 19 March 2009 transmittal (R4, tab 14 at 13-17):
• Bexar County, Contract No. BC-05-554, completed in April 2007, PKD
described as: "ELEVATOR REPLACEMENTS: 10 new ECC AC solid-state
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controls, Machines, motors, elec. service, HVAC, stairs & handrails, cabs, doors,
Operating fixtures, wiring, etc."
• U.S. Penitentiary, Leavenworth, Contract No. J40804C-025, completed in
February 2004, PKD described as: "ELEVATOR UPGRADES: Complete
replacement of two hydraulic freight Elevator with new MCE solid-state controls,
pumps, jacks, cabs, etc.; re[p]lacement of one ... elevator with all new equipment
including machinery, cab, MCE solid-state controls .... "
• Naval Hospital, Agana, Guam, Contract No. N62766-96[-]C-26 l 8,
completed on 16 April 1999, PKD described as: "Replace Elevators ... 6 Geared
Elevators ... complete tear-out of old & install new."
• Camp Lejeune, Contract No. N62470-96-C-4470, completed 30 April 1999,
PKD described as: "Repair/Dismantle/Replace Elevators ... 6 Hydraulic Pass.
Elevators w/MCE solid-state controls/2-3 stories - removed old traction elevators,
converted shafts for new hydraulic units .... "
We have again reviewed the experience documentation PKD submitted. That
review reinforces our conclusion that the record is wholly insufficient to establish
that the subcontractor was "regularly engaged" in manufacturing elevators, much
less "pre-engineered elevator systems." The precise scope, complexity and requirements
of the four projects emphasized by appellant on reconsideration are unclear. All of those
. projects included "replacement" of elevators in an existing building. Only one of the
replacement projects emphasized by appellant was performed within the five years
preceding PKD's submittals. 1 Plainly, its recent experience fails to establish that
PKD was "regularly engaged" even in "replacement" projects. In addition, assuming
arguendo that the four projects that included "replacement" within the ten year
period before its submittal somehow qualify appellant as a "regularly engaged"
manufacturer/assembler generally, the evidence of record fails to establish that they
involved complete "pre-engineered systems." On reconsideration we again conclude
that PKD's submittal was properly rejected.
1
Our decision in this appeal used a ten year period for assessing whether appellant
was a "regularly engaged" manufacturer. The sole purpose of using such an
extensive experience period was to reflect that the most recent federal
government project that might arguably be considered comparable and relevant
was completed approximately one decade before appellant's transmittal in
dispute. The salient point is that regardless of whether a five or ten year period
is utilized for evaluating appellant's experience, it was not "regularly engaged."
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CONCLUSION
For the foregoing reasons, we deny appellant's motion for reconsideration.
Dated: 3 February 2015
S, JR.
Administrat udge
Armed Services Board
of Contract Appeals
I concur
~~~
Administrative Judge
-L-,,__B_E_R_T-=-T-."'"'pE"----A-C_O_C_K_ _ _ __
Administrative Judge
Acting Chairman Acting Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 57206, Appeal of Gilbane
Building Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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