Beta Construction Co. v. United States

42 Cont. Cas. Fed. 77,220, 39 Fed. Cl. 722, 1997 U.S. Claims LEXIS 248
CourtUnited States Court of Federal Claims
DecidedOctober 31, 1997
DocketNo. 94-585C
StatusPublished

This text of 42 Cont. Cas. Fed. 77,220 (Beta Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beta Construction Co. v. United States, 42 Cont. Cas. Fed. 77,220, 39 Fed. Cl. 722, 1997 U.S. Claims LEXIS 248 (uscfc 1997).

Opinion

[723]*723 OPINION

HORN, Judge.

FACTS

The General Services Administration (GSA) issued an invitation for bids for the “Roof Replacement” on a building located at 451 7th Street, N.W., Washington, D.C., in which the Department of Housing and Urban Development (HUD) is located. Beta Construction Company, Inc. (Beta) submitted a proposal responding to the solicitation. On October 17, 1991, GSA awarded Beta Contract No. GS-11P-91-MKC-0226 in the amount of $943,000.00 to perform the roof replacement on the HUD building.

The scope of the work to be performed under the contract was summarized in Specification Section 01010, Summary of Work, which labeled the project as a “Roof Replacement.” Paragraph 1.2 of Specification Section 01010 states:

E. Abbreviated Written Summary:

Briefly, and without force and effect upon contract documents, work of contract can be summarized as follows:
1. Replacement of existing built-up roof with new inverted roof membrane assembly.
a. includes drain replacement and related interior cutting and patching.
2. Removal of existing asbestos containing roof materials.
3. Rerouting of HVAC refrigerant lines.
4. Installation of high profile davits & safety tie-back anchors.
5. Installation of hose bibs & weatherproof outlets.
6. Removal of existing roof access doors and replacement with new.

The contract specified that portions of the roofing contained asbestos and, thus, required the use of asbestos abatement procedures to remove those areas of the roof. The joint stipulation of facts states that the scope of the work can be summarized as “removal of the existing roof and replacement with a new inverted roof assembly, including associated work involving removal of asbestos containing roof materials.... ”

GSA issued a notice to proceed on November 7, 1991. Beta originally subcontracted with Asbestos Mid-Atlantic to perform the asbestos abatement work on the contract. Beta, however, terminated Asbestos Mid-Atlantic’s subcontract in February, 1992. Beta then entered into a subcontract with AB-TEC, Inc.1 to perform asbestos abatement on the project.

The “Asbestos Abatement Plan” was defined in the contract drawings as referred to by Specification Section 02085R, paragraph 1.1(A)(2). Specification Section 02085R, paragraph 1.1(A) directs all references regarding the abatement of asbestos to the project’s contract drawings without further explanation:

1. Work Area: The work areas include the roof areas outlined on the contract drawings.
2. The following asbestos-containing materials are to be removed:

See contract drawings.

Contract Drawing C-l is the cover sheet for the project’s contract drawings and illustrates the Asbestos Abatement Plan, and Contract Drawings 3-1, 3-2 and 3-3 depict the demolition details.2 In particular, Contract Drawing C-l delineates the areas of the roof for asbestos abatement as a three-foot wide strip running parallel to the parapet, equipment curb and expansion joint walls, an oblong area on the main roof, and selected penetration flashing. The notes on Contract Drawing C-l explicitly state:

1. REMOVE ASBESTOS CONTAINING ROOFING & (VERT) FLASHING 3'-0" FROM VERT FACE OF PARAPET, EQUIPMENT CURBS &

[724]*724EXPANSION JOINTS & AS SHOWN IN SHADED AREAS.

2. REMOVE ASBESTOS CONTAINING PITCH POCKET, VENT, ROOF DRAIN, ROOF VENT & PIPE FLASHING IE: (ALL PENETRATION FLASHING).

The focus of the litigation before this court is the extent of asbestos abatement to be undertaken in the areas along the walls defined by Note 1 on Contract Drawing C-l. In general, the roof area to be demolished and removed using asbestos abatement procedures contained asbestos contaminated fabric base flashing, which was fastened to parapet, equipment curb and expansion joint walls, and then extended down the walls over a cant strip and horizontally across the roof. The flashing material was attached with an asphalt coating to a “built-up roofing” (BUR) system, which included rigid insulation that was attached with asphalt, and, the insulation, in turn, was attached to the concrete fill layer atop the concrete roof deck with asphalt.3

The contract drawings provided to Beta define the areas to be removed under the asbestos abatement program. Contract Drawing C-l, in the portion of the drawing and text captioned “Asbestos Abatement Plan,” states: “REFER TO PLAN SHTS 3-1 THRU 3-3 FOR ADDITIONAL DIMENSION INFORMATION.” All of the referenced drawings, Contract Drawings 3-1, 3-2 and 3-3, articulate demolition instructions, in pertinent part, as follows:

1. REMOVE EXIST BUR MEMBRANE & INSULATION DOWN TO EXIST CONC DECK.
2. REMOVE ALL EXIST PIPE FLASH (4" TYP UNLESS NOTED OTHERWISE).
3. REMOVE ALL PERIMETER METAL COUNTERFLASHINGS & MEMB. BASE FLASH EXCEPT AS NOTED OTHERWISE. SEE DETAIL 6/3-1. SEE COVER SHEET FOR ASBESTOS ABATEMENT.

These demolition illustrations, moreover, repeatedly state that the contractor is to “REMOVE RIGID INSULATION.”

The contract also included specifications for preparing to remove the asbestos containing roofing materials. Specification Section 02085R of the contract, Asbestos Abatement Procedures, paragraph 3.1, Roofing Removal, provides in pertinent part:

3.1 PREPARATION:
A. Isolate the roof work area for the duration of the work by completely sealing off all building openings at the designated work area, including but not limited to, heating and ventilation intake duets, doorways, corridors, windows, and lighting with plastic sheeting taped securely in place.
B. Install the Decontamination Facility at a roof access way. All entry and exit to the roof work area is to be through this facility.
C. Cover all ventilation openings within 100 feet of the work area with plastic sheeting taped and fastened securely in place to protect from damage.
D. Before the work is begun, clean all specified removable items and equipment. Remove them from the roof work area and store as directed.
E. Cover all remaining nonremovable items and equipment in the work area with plastic sheeting taped securely in place.
F. Post warning sign and labels as required by 29 CFR 1910.1001, 29 CFR 1926.58, ASTM E 849, and as directed by the Contracting Officer.

The contract further specified the construction of a decontamination system for the workers involved in removing the asbestos containing, roofing materials.

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Bluebook (online)
42 Cont. Cas. Fed. 77,220, 39 Fed. Cl. 722, 1997 U.S. Claims LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beta-construction-co-v-united-states-uscfc-1997.