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Board of Contract Appeals
Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
_______________________
DENIED: January 24, 2005
_______________________
GSBCA 16470
HOOK CONSTRUCTION, INC.,
Appellant,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
Kenneth R. Hook, Vice President of Hook Construction, Inc., Solon, IA, appearing
for Appellant.
Mark R. Warnick, Office of Regional Counsel, General Services Administration,
Kansas City, MO, counsel for Respondent.
Before Board Judges DANIELS (Chairman), PARKER, and DeGRAFF.
DeGRAFF, Board Judge.
This appeal is from a contracting officer's decision denying the contractor's request
for an equitable adjustment to the contract price. The contractor claims the agency
improperly required the contractor to supply a product manufactured by a specific company,
and would not allow the contractor to supply a less expensive alternative product. We deny
the appeal because the contractor has not established the product it proposed to supply
fulfilled the requirements of the contract. GSBCA 16470
2
All cited exhibits are found in the appeal file.
1
Findings of Fact
In late 1993, Hook Construction, Inc. and the General Services Administration (GSA)
entered into a contract for renovation work at the United States Courthouse in Cedar Rapids,
Iowa. Section 12300 of the specifications contained the requirements for manufactured
casework, which consisted of base and wall cabinets. Exhibit 1.
1
Paragraph 1.6 of section 12300 required Hook to provide shop drawings showing
casework locations, large scale plans, elevations, cross sections, rough-in and anchor
placement dimensions and tolerances, clearances required, and relationship to adjoining
surfaces. Exhibit 1 at 12300-1. Shop drawings were supposed to show in detail the proposed
fabrication, assembly, and installation of the casework. Shop drawings included drawings,
diagrams, layouts, schematics, descriptive literature, illustrations, schedules, performance and
test data, and similar materials furnished by Hook to explain in detail the work required by
the contract. Hook was required to review all shop drawings for accuracy, completeness, and
compliance with contract requirements before sending them to GSA. Exhibit 1 (GSA Form
3506 at 15). Paragraph 1.6 of section 12300 also required Hook to provide product data,
including component dimensions, configurations, construction details, joint details and
attachments, utility and service requirements and locations, and shape and type of materials
used. Exhibit 1 at 12300-1.
Paragraph 1.8 of section 12300 required the manufacturer and installer of the
casework to be a company which specialized in manufacturing casework and had a minimum
of five years experience in such work. Paragraph 1.13 required the casework to come with
a ten-year warranty against defects in material and workmanship, a five-year warranty on all
parts on on-site labor, and a thirty-year warranty against delamination. Exhibit 1 at 12300-2.
Paragraph 2.1 of section 12300 said the basis of the specification was casework
manufactured by Goelst USA, and allowed Hook to supply an approved equal. Exhibit 1 at
12300-2, -3. The contract's Material and Workmanship clause said references to a product
by name "shall be regarded as establishing a standard of quality and shall not be construed
as limiting competition," and allowed Hook to use any casework that, in the judgment of the
contracting officer, was equal to the Goelst casework. If Hook wanted to supply something
other than Goelst casework, the contract required it to provide the contracting officer "full
information" regarding the alternative product. Exhibit 1 (GSA Form 3506 at 16).
Paragraphs 2.2, 2.3, and 2.4 of section 12300 contained two and one-half single-
spaced pages of detailed requirements for the casework, hardware, and accessories.
Paragraph 2.5 set out the fabrication requirements. Exhibit 1.
On October 15, 2003, Hook provided GSA with shop drawings showing the
manufactured casework and the woodwork required by the contract were to be supplied by
RCS Millwork. On November 3, 2003, GSA returned the drawings to Hook, unapproved and
containing several handwritten notes, and told Hook to resubmit the drawings. One of the
notes on a manufactured casework drawing said, "Goelst or equal." Exhibit 6. GSBCA 16470
3
In late October, Hook submitted shop drawings showing the casework was to be
manufactured by Goelst. The second week in November 2003, GSA approved the drawings,
with notations. Exhibit 7. It is unclear when GSA returned these drawings to Hook.
In mid-November, Hook contacted the contracting officer's representative (COR)
regarding the casework. Hook provided the COR with a telefax from RCS Millwork which
said, in its entirety, "After reviewing the specifications, we feel that RCS Millwork can meet
all the requirements. We are a certified [Architectural Woodwork Institute (AWI)] shop,
capable of producing casework to meet any specification." Hook said it understood the COR
would prefer the Goelst casework, which would cost more than the RCS Millwork product.
Hook suggested the COR contact RCS Millwork directly to verify it could comply with the
specifications. Exhibit 9. The contract did not mention AWI certification in section 12300,
which addressed manufactured casework. AWI certification was mentioned in section 6402,
which addressed woodwork. Exhibit 1 at 6402.
On December 5, the COR wrote to Hook regarding the casework. He said the first
shop drawing submittal was rejected because the subcontractor had not demonstrated an
understanding of the contract documents and GSA was concerned about whether a millwork
company could meet the standards set out in section 12300 of the contract. The COR then
listed sixteen manufactured casework characteristics he expected to see addressed in Hook's
submissions. The COR said he had assembled the list of contract requirements in order to
help Hook evaluate whether its subcontractor could meet the specifications. Exhibit 12. Our
review of Hook's shop drawings and section 12300 of the contract confirm most of the COR's
observations. Hook's shop drawings do not say whether RCS Millwork had the five years
of experience required by the contract or whether the casework would come with the required
warranty. In addition, the shop drawings do not address all of the finish and function
requirements set out in the specifications and mentioned in the COR's letter.
In a telefax to the COR dated December 9, Hook said RCS Millwork had reviewed
the COR's December 5 letter and "said just mark what you want on his shop drawings if
anything is not 100% clearly understood or call him at [telephone number]." Hook said it did
"not have time to send [the drawings] through again for corrections." Exhibit 13.
On December 17, GSA returned several items to Hook, including RCS Millwork shop
drawings. The drawings for woodwork were marked, "approved as noted." Those for the
manufactured casework were marked "rejected . . . until Goelst or equal is proved." These
latter drawings did not contain any markings. Exhibit 14.
In a December 19 telefax from Hook to the COR regarding the rejected RCS Millwork
shop drawings, Hook asked whether the drawings were sufficient to allow RCS Millwork
to build samples for GSA's approval. Also, Hook said, if GSA wanted another set of shop
drawings submitted, it would have to be specific about what was not satisfactory. Hook said
it needed a prompt response, due to the construction schedule. Exhibit 15.
On December 23, the COR wrote to Hook. In his letter, the COR said it was Hook's
responsibility to demonstrate through the shop drawing process that the requirements set out
in the contract documents would be met. GSA was not convinced Hook's shop drawings
demonstrated the standard established by the Goelst cabinets would be met by the product GSBCA 16470
4
Hook was proposing. The COR referred Hook to his December 5 letter for a list of
characteristics GSA was looking for in the casework. Exhibit 17.
In a December 23 telefax, Hook told the COR, "Due to verbal phone calls in regards
to Dec. 19, 03 fax. It is clear that 'or equal' is not going to be accepted." Hook said it would
place an order for Goelst casework. Exhibit 18.
On December 24, Hook sent another telefax to the COR. Hook said RCS Millwork
had looked up Goelst specifications and said they could build casework equal to the Goelst
product. Hook said because GSA had not marked up the rejected RCS Millwork drawings,
it did not know why the drawings had been rejected. Hook also said GSA should have
allowed RCS Millwork to build a sample of the casework it intended to manufacture. Exhibit
20.
The COR sent a letter to Hook on December 30, in order to clarify the agency's
position. He said the shop drawing submittal was rejected because the section 12300
requirements were never met and because the Government was not inclined to approve any
product based upon a st