User:Aic2009/Constructability Review/Turner Case- Fleming

These appeals stem from disputes between appellants and the Government during the construction of the National Institute of Environmental Health Sciences (NIEHS) re-search facility at Research Triangle Park, North Carolina. For convenience, the construction manager, Turner, and the trade contractors are all referred to as appellants. Appellants assert delays and disruptions occasioned by defective plans and specifications. The Government counters by asserting that there were concurrent delays attributable to appellants and, further, that the plans and specifications were adequate for their purpose.

Turner was engaged by the Government as its construction manager (CM) but had a guaranteed maximum price (GMP) which the contract could not exceed. The CM agreement was not a conventional fixed price construction contract; it was for the performance of services. Article 1.1 of the CM agreement states that “the primary purpose and intent of.... this Agreement is to secure the services of a Construction Manager to organize and direct the complete construction of the project.” A detailed description of the role of Turner is contained in Section LXXVII of this opinion, infra.

The record in these appeals is quite voluminous consisting of several extensive correspondence files; a Rule 4 file provided by the Government consisting of almost 4,600 tabs (cited herein as R4, tab ___); a supplemental Rule 4 file provided by appellants consisting of about 4,000 tabs (cited as ASR4, tab ___); transcripts of the hearing which began on November 5, 1984 and ended on June 10, 1985 (cited as (Name of witness, tr. volume/page); transcripts for several prehearing conferences; Board exhibits prepared by the parties; extensive claim books; admissions and stipulations; written testimony of expert witnesses (cited as Written testimony of Name of witness, p. ___); numerous exhibits introduced during trial (cited as Exh. G (or A) ## of exhibit); and several hundred miscellaneous documents. Briefs were seriatim, the first being filed by appellants, a rebuttal brief filed by the Government and a surrebutal brief filed by appellants.

FINDINGS OF FACT

I

BACKGROUND—EVENTS PRIOR TO TURNER CONSTRUCTION CO.'S ACTIVITY A CONTRACT.

This was a project of the National Institute of Environ-mental Health Sciences (NIEHS), an organization of the then Department of Health, Education and Welfare (DHEW), now Department of Health and Human Services (DHHS or HHS), hereinafter referred to as the Govern-ment. This project dates back to 1961 when initial planning monies were appropriated by the Congress. Additional funds for the project were acquired in 1965 and 1972.

The 509–acre tract for the project site was acquired as a conditional grant from the State of North Carolina. The grant specified that the land would revert to the State of North Carolina unless construction on the facility would begin by June 26, 1976. This deadline was extended for one year at the request of DHEW (ASR4, tab 0582). Contracts to two design firms were awarded by the Government in 1974 (ASR4, tab 0620).

The NIEHS project was divided into two phases: Phase A (site development, service buildings and utilities, “SSB”) and Phase B (an Administration/Laboratory Building complex for office/research/laboratory usage (“ALB”) (ASR4, tab 0605).

Phase A involved the development of the underground utilities and the site services to support the complex referred to as the Phase B project as well as three other planned complexes. It was intended that a 509–acre park would be developed on an incremental basis and Phase A was designed to minimize the capital investment. The underground utilities were sized to support the ultimate development of the project and would permit construction as needed without future disruption of existing services.

Phase A consisted of the construction of the support re-quirements for Phase B as follows: primary networks, roads, water, sanitary sewers, storm drainage, gas, heating, chilled water, electrical power, street telephone, signal and supervisory systems. This phase also included the con-struction of the electrical substation, a central heating plant, a chilled water plant, an incinerator, a central mon-itoring station for operations and security, a locker room and assembly space for support personnel, building maintenance shops, ground maintenance shops, central warehousing, parking, and a lake. The central utilities plant was designed to provide space for additional boiler and chiller increments with provisions for future building expansion. The Government estimated that Phase A would cost between $15 and $20 million. (ASR4, tab 0605)

Phase B of the ALB consisted of the first of four planned complexes and was comprised of five inter-connected buildings with the approximate gross area of 310,000 square feet. Phase B also included the utility hook-up to the Phase A lines, as well as site work and paving in the im-mediate vicinity of the ALB complex. The Government estimated that Phase B would cost $39,918,737. (ASR4, tabs 0620, 3728)

The plans and specifications for Phase A were prepared by the joint venture of Odell Associates, Inc. and Smith, Hinchman & Grylls Associates, Inc. (R4, tab 1).

The Phase B plans and specifications were prepared by Max O. Urbahn Associates, Inc./LBC & W, Inc., a joint venture (hereinafter MOUA/LBC & W) (R4, tab 1).

As early as May 16, 1973, representatives of MOUA/LBC & W became aware that funds for the design of the project had been released and that there would be a competition for the purpose of selecting a designer for the ALB (ASR4, tab 0479).

At the initial negotiations with MOUA/LBC & W on Oc-tober 16, 1973, DHEW's contracting officer (CO) provided to MOUA/LBC & W copies of the three-volume Academic Building System (ABS) study. At that time, Mr. Don Boyle of DHEW provided a short briefing on the ABS to MOUA/LBC & W. The Scope of Professional Services for the contract for the ALB provided in Part A.6 as follows: The MOUA/LBC & W shall consider the use of available state-of-the-art building systems, sub-systems, modular concepts, and other in-novations which may optimize flexibility and expansion capability. Examples are the Academic Building System (ABS) and hardware development for the SCSD program of California. However, this is not intended to be a R & D effort. (ASR4, tab 0497)

The Scope of Professional Services section of the contract between DHEW and MOUA/LBC & W provided that the A & E would include a lump sum for construction supervision services (Option A) based on a thirty-month construction period (ASR, tab 0497).

In a “highly confidential,” “in house,” “eyes only,” me-morandum of December 6, 1973, a representative of MOUA/LBC & W recorded that the joint venture design team reduced its proposed fee for the performance of the design work upon the consideration that it was not a “Tif-fany Job” and that it was highly likely that the project would either be delayed a long time awaiting funding or might never be built at all.

With those considerations in mind, it was decided that the joint venture would propose a basic fee of $1,796,000 plus an “arbitrary” shop drawing review price of $100,000 (reduced from $170,000) which yielded a total design fee of $1,896,000. In addition to that figure, the joint venture left unchanged its proposed $613,400 figure as the para-meter for services during construction based upon the estimated construction time of 30 months. (ASR, tab 0491)

The final proposal by MOUA/LBC & W was approx-imately $536,000 less than the joint venture's original proposed fee for the performance of the work (ASR4, tabs 0490, 0491).

General Provision 2(a) of the contract between the Gov-ernment and MOUA/LBC & W provided: The Architect–Engineer shall be responsible for the professional quality, technical accuracy and the coordination of all designs, drawings, specifications, and other services furnished by the Architect–Engineer under this contract. The Architect–Engineer shall, without additional compensation, correct or revise any errors or deficiencies in his designs, drawings, speci-fications, and other services. (ASR, tab 0497)

In a March 4, 1974, memorandum for record (M/R), a representative of MOUA/LBC & W recorded discussions and events which occurred during a tour of the existing NIEHS facilities at Research Triangle Park. The individuals participating in the tour and meetings included Messrs. Lyle Thomas, Earl Cook, Vincent Megna and Wilson Marshall. The M/R recorded under Item No. 1 that in the laboratory areas it was essential to have easy access to all utilities and that it was essential that these utilities be able to be modified easily. (ASR4, tab 0499)

In this M/R of March 4, 1974, a representative of MOUA/LBC & W noted that the National Institutes of Health (NIH) personnel seemed to favor the utility core concept over the “interstitial” concept for laboratories. In addition, the NIH personnel stressed to the designer that the ability to make changes easily was a requirement since changes frequently occurred in laboratory usage. (ASR4, tab 0500)

The term “interstitial” in this system refers to the resultant horizontal layering of alternate service spaces and occu-pied research spaces (ASR4, tab 0521; Segner written testimony at 6; Siegel written testimony at C–2). This is a floor of utility services with a floor of research space above or below the utility service floor.

Subsequent to a February 7, 1974, visit to the Western Medical Institute of Research, Letterman Army General Hospital, San Francisco, California by Mr. Earl Cook, the DHEW CO provided to MOUA/LBC & W a copy of Mr. Earl Cook's M/R regarding his inspection of the interstitial spaces at that facility. Mr. Cook noted that there was complete and ample access to all systems for alteration, repair and revamping of utility drops and that there was ample access for men, tools and equipment on the inters-titial floors. In addition, Mr. Cook noted that the cost per net square foot of the interstitial design was found to have been $9.35 less than that of the utility corridor design. (ASR4, tab 0502)

In a September 30, 1974, M/R, Mr. Vincent Megna of MOUA/LBC & W noted that LBC & W would proceed with an analysis of the distribution of the mechanical and electrical systems based upon two schemes. One would be the utility corridor scheme and the second was the inters-titial scheme utilizing the Western Medical Institute of Research in San Francisco, California as a reference. (ASR4, tab 0513)

In an October 14, 1974, M/R, Vincent Megna recorded that MOUA/LBC & W had concluded that it would utilize an interstitial concept for only two or possibly three levels in the “other area” of the ALB. The animal areas would utilize an “attic-type” ceiling space with access catwalks and lighting to provide ready access to the terminal re-heat coils, terminal filters and humidifiers. Accordingly, it was concluded that an interstitial type floor would not be needed for the animal areas. (ASR4, tab 0515)

In a November 27, 1974, comparative study of utility corridor systems and interstitial floor systems with laboratory areas, the designer recommended the use of the interstitial system. In support of that recommendation, the designer stressed the following advantages: a. The interstitial concept offered greater freedom of design due to its relative simplicity. Space problems would be much reduced and many design decisions could be delayed until closer to actual construction. b. The interstitial concept allowed for maximum flexibility because of the amount of available service space and the ease of installing new or revised service systems. c. On-going research would be relatively undisturbed when modifications were necessary. d. The interstitial system allowed adequate installation space for supplemental fan coil units, pumps, etc., outside of the laboratory's functional areas. e. The total initial cost of the interstitial scheme was less than the cost of a utility corridor scheme. f. The interstitial concept reduced construction time.

In addition, MOUA/LBC & W stated that it anticipated there would be greater life cycle savings with the interstitial floor system due to its greater efficiency. Changes or replacement of the utility systems could be more rapidly made due to the accessibility of equipment and the inters-titial floor system allowed a greater freedom of movement for personnel. Consequently, when alterations had to be made, there was minimum disruption of research activities. Appendix B to MOUA/LBC & W's report contained two references to the Letterman Army Hospital, Western Medical Institute of Research. (ASR4, tab 0521)

In an informal meeting between the designers and repre-sentatives of the Government on August 14, 1975, MOUA/LBC & W assured the Government's representa-tives that adequate space had been provided for the me-chanical equipment relative to servicing the equipment and for providing necessary clearance to remove the major pieces of equipment such as fans and motors. At the same meeting, the designer advised the Government that the formerly identified “attic” mechanical space above the animal rooms would be an interstitial space with the same structural configuration as the other interstitial spaces. (ASR4, tab 0555)

On or about August 15, 1975, representatives of MOUA/LBC & W, NIH and NIEHS, including Messrs. Lyle Thomas, Earl Cook and Vincent Megna, toured the Western Medical Institute of Research at the Letterman Army Hospital. This tour included the interstitial spaces for the laboratory areas. (ASR4, tab 0556)

On May 25, 1976, MOUA/LBC & W transmitted to the Government its replies to the Government's pre-final review comments on the design. These included a draw-ing-by-drawing response to the Government's comments. Many of the designer's responses indicated that the de-signer “will coordinate among the architectural, structural and mechanical drawings.” The designer's structural comments specifically indicated that the openings in the precast slabs would be coordinated with the mechanical and architectural drawings. (ASR4, tab 0592)

Mr. Vincent A. Megna, P.E., of LBC & W, had overall responsibility for the mechanical design for the ALB. Mr. Megna was listed by the Government as a witness, but the Government failed to call him to testify even though he was present in the hearing room during substantial portions of the appellant's case regarding the defects in the me-chanical design. (Government List of Prospective Wit-nesses)

Mr. Jan P. Nierzad, P.E., of FJN Engineers, Inc. (LBC & W), had overall responsibility for the structural design for the ALB. Mr. Nierzad was listed by the Government as a witness, but the Government failed to call him to testify even though he was present in the hearing room during portions of the appellant's case regarding the defects in the structural design. (Government List of Prospective Wit-nesses)

Mr. Joe Uicker, Vice President and Corporate Director of Mechanical Engineering for Smith, Hinchman and Grylls (a member of the joint venture design team on Phase A), was listed by the Government as a witness but the Gov-ernment failed to call him to testify. (Government List of Prospective Witnesses)

II

THE GOVERNMENT'S CHOICE TO USE A CON-STRUCTION MANAGER AND THE SELECTION OF THE CONSTRUCTION MANAGER ON A NEGOTIATED PROFESSIONAL SERVICES CONTRACT.

In a pre-contract meeting on October 5, 1973, between representatives of MOUA/LBC & W and the CO, the CO advised the designer that construction management was “not in the picture” at that time and that the ALB project should be designed for conventional bidding. It was agreed that the ALB project might be bid as a single lump sum contract to be awarded to a general contractor/builder. (ASR4, tab 0484)

Subsequently, at the initial contract negotiations on Oc-tober 16, 1973, the CO advised the architect/engineers for both Phase A and Phase B that the Scope of Professional Services should eliminate all references to the use of a construction manager (ASR5, tab 0487).

In early 1976, Mr. James E. Yarbrough, Regional Engineer for Region IV, DHEW, was requested to consider accepting responsibility for the bidding and the construction of the NIEHS facilities (ASR4, tabs 0585, 0598).

On March 29, 1976, MOUA/LBC & W submitted an un-solicited proposal to provide certain “total construction management services” to assist in the construction of the NIEHS Permanent Facilities (ASR4, tab 0584).

By April 21, 1976, Mr. Yarbrough had decided that a general contractor for the construction of the NIEHS project was not appropriate and that the construction management system was necessary (ASR4, tab 0595).

In a June 11, 1976, memorandum, Mr. Yarbrough stated that, since he had become more familiar with the project, he was convinced that the site work and support facilities were particularly well suited to a construction manager and that his office simply could not bid and manage the volume of work without a construction manager (ASR4, tab 0598).

With regard to the administration of the project, Mr. Yar-brough stated in his June 11, 1976 memorandum that he did not have anyone on his staff who possessed the requi-site qualifications for the position of project manager who could be spared from their present duties. Further, he in-dicated he was opposed to hiring someone off the street and assigning that person to manage a complex project 400 miles away from his office without any first-hand knowledge of that person's ability. Consequently, as an alternative to the on-site project manager he proposed “that the project be administered by the Regional Engineer through a Construction Manager (CM) and supplemented by a ROFEC Resident Engineer at the job site.” (ASR4, tab 0598)

In a July 8, 1976, memorandum, Mr. Yarbrough set forth his plan for the ROFEC Region IV management of Phase A (site utilities and service buildings) for the project. This plan contemplated utilizing the construction manager to review the final plans and specifications and MOUA/LBC & W cost estimate and contemplated that first bid packages would be assembled within four weeks of the award of the contract to the construction manager. (ASR4, tab 0603)

In an August 24, 1976, letter to Turner Construction Co., DHEW advised Turner that it sought the services of a construction manager in connection with the NIEHS project and invited Turner to submit background data with respect to its qualifications for performing the services of the nature required under that contract. Turner was also advised that the offeror having the highest evaluated score, together with other offerors within a competitive range, would be invited to submit priced proposals.

Potential construction managers were also advised that they would provide services during a preconstruction ac-tivity and that before the completion of the pre-construction activity the construction manager would be required to submit a guaranteed maximum price (GMP). If that price were acceptable to the Government, a subse-quent agreement between the Government and the con-struction manager would be entered into pursuant to which the construction manager would be required to furnish supervisory and managerial services during construction.

The potential construction managers were also informed that during the construction activity, the construction manager would superintend and inspect the construction and assume the responsibilities of a general contractor. The construction manager's services during that activity would include awarding subcontracts through public advertising in accordance with the Federal Procurement Regulation, providing full field supervision, coordination and inspec-tion services and developing a management control system for the entire project. Nothing in the Request For Proposals (RFP) stated that the construction manager would assume, during construction, all of the typical risks and liabilities of a general contractor on a Government project.

The RFP indicated that the firms deemed qualified to perform the construction manager's services for the project would be asked to submit price proposals and an award would be made to the firm with the best overall proposal. In addition, potential construction manager firms were advised that the proposals would be evaluated as to price and substance of the management plan. Award of the contract would be made on the basis of the highest com-bined score based upon (1) the evaluation related to the construction management questionnaire, (2) the management plan and (3) the price. Each of the three evaluation factors would have a maximum weight approximately the same as the others with a slightly greater emphasis on the management plan. (ASR4, tab 0605)

In response to the Government's request for a submission of qualifications, Turner Construction Co. submitted data regarding its qualifications for performance of the con-struction management services. Thereafter, in accordance with the Government's October 21, 1976, RFP, Turner Construction Co. submitted its price proposal containing its management plan for performance of the construction management services. This plan contained information regarding the individuals whom Turner Construction Co. anticipated assigning to the project, their duties and an indication of the amount of time in working days which Turner anticipated would be devoted to the various tasks. For example, Turner's detailed listing of tasks indicated that it anticipated reviewing the plans and specifications during December 1976. The task listing stated that ten working days had been allotted for the constructability review and recommendations from December 13, 1976 through December 24, 1976. Concurrently, for a period of five working days from December 13, 1976 through De-cember 17, 1976, Turner indicated that it would be re-viewing and making recommendations regarding the completeness of the plans and specifications. (R4, tab 3) In its qualification statement at § 3.f., Turner emphasized that under its approach to construction management, contract management, cost control and construction control functions are vested in Turner who acts in the interest of the Government (R4, tab 4).

The price proposals from six potential construction man-agement firms were evaluated by a committee chaired by Messrs. Cecil Garvin (who succeeded Mr. Yarbrough as CO on the project in early 1981), Robert W. Schmidt and W.H. Hill (ASR4, tab 3723).

Turner was selected by the committee as the construction manager since the committee felt it offered the best com-bination of price, management plan and preliminary rating. Daniels International Co. (Daniels) would have been rated number one based solely upon price. However, in the opinion of the evaluation committee, Daniels' management plan was not the best. The evaluation committee questioned whether Daniels could perform Activity B for the estimated man hours they had shown. In addition, it was apparent from Daniels' submission that it anticipated much greater participation by MOUA/LBC & W and DHEW than any of the other offerors. In the memorandum regarding the selection of the construction manager, Mr. Cecil Garvin confirmed that his committee realized that price constituted only approximately 1/3 of the overall evaluation. (ASR4, tab 3723)

Subsequently, Messrs. Cecil Garvin and Robert Schmidt met with representatives of the unsuccessful competitors for the construction management contract. Mr. Cecil Gar-vin's December 16, 1976, memorandum regarding that meeting stated, in part, as follows: It was a very difficult debriefing because it involved trying to explain to someone the many subjective factors and not price alone that are involved in eva-luating a proposal for professional services.... [Em-phasis added] (ASR4, tab 3724)

The Federal Procurement Regulation required the award of construction contracts by formal advertising. (41 C.R.F. § 1–2.102) However, these regulations permitted an agency to negotiate contracts for professional services. (41 C.R.F. § 1–3.2) The contract awarded to Turner Construction Co. was a negotiated contract for construction management services; i.e., professional services.

III

QUALIFICATIONS OF THE TRADE CONTRACTORS AND THEIR SUBCONTRACTORS.

Industrotech Constructors, Inc., A Trade Contractor (BP 67)

Industrotech Constructors, Inc. (ICI) was the lowest res-ponsive, responsible bidder for the heating, ventilating and air conditioning (HVAC) portion of the project (ASR4, tab 0647). Accordingly, Turner awarded ICI a trade contract for that portion of the work. ICI is a wholly owned sub-sidiary of Cento Industries, Inc., a holding company which also owns other mechanical contractors including Cento International, Broyles and Broyles, Inc., Universal Sheet Metal, and Industrotech Southwestern. (Fleming tr. 39/87; Blacklock tr. 18/58; exh. A–831(B))

The Cento group, including ICI, has varied experience in the construction industry both within the United States and abroad (Blacklock tr. 18/55). The group has performed numerous multi-million dollar hospital projects across the United States including the Osteopathic Hospital, Fort Worth, Texas; St. Edward's Medical Center, Fort Smith, Arkansas; Arkansas Baptist Medical Center, Little Rock, Arkansas; Veterans Administration Hospital, Temple, Texas; Odessa Hospital, Odessa, Texas; and Duke Hospital North, Durham, North Carolina (Blacklock tr. 18/56; Lewis tr. 20/10, 11, 12, 13; Fleming tr. 39/86; exh. A–831(B)).

Additionally, the group had performed work at numerous commercial and industrial facilities including the Total Energy Plant for Wilford Hall Medical Center, United States Air Force, San Antonio, Texas; Bristol–Meyers Tableting Plant, Research Triangle Park, North Carolina; Federal Office Building for the Fifth Circuit Court of Appeals, New Orleans, Louisiana; Commons Office Building, El Paso, Texas; Richmond Bank Building, Richmond, Virginia; the Power Generation Plant for the City of Tallahassee, Florida; Social Sciences and Human-ities Library, University of Texas, Austin, Texas; and the Medical Biological Research Laboratory, Ft. Detrick, Maryland (Blacklock tr. 18/57, 58; Lewis tr. 20/10, 11; Fleming tr. 39/84, 85, 86; exh. A–831(B)).

Yeargin Construction Company, Subcontractor to ICI

ICI awarded the sheetmetal subcontract to Yeargin Con-struction Company (Yeargin) in May or June, 1977, and a letter of intent was issued in September, 1977 (Lam tr. 7/35). The scope of work of Yeargin's subcontract with ICI dated October 28, 1977, included the supply and installa-tion of all sheet metal ductwork shown on the contract drawings and the installation of all mechanical equipment (exh. A–202).

The estimate for Yeargin's bid to ICI was prepared on or around April 1977 by Mr. Bill Lam (Lam tr. 7/16). Mr. Lam had been in the heating and air conditioning field since 1955 in a number of capacities. Mr. Lam had been involved in estimating, construction and design in the mechanical field. (Lam tr. 7/5, 6, 8)

Mr. Lam had worked for Impact, an industrial commercial heating and air-conditioning company, located in Char-lotte, N.C., since 1964. Impact was acquired by Yeargin in or around 1970 or 1971. Yeargin is a general contractor, headquartered in Greenville, South Carolina. Impact be-came the mechanical division of Yeargin. (Lam tr. 7/7, 8)

Mr. Lam and Mr. Paul Duff had managerial responsibility for Yeargin in the NIEHS project. Mr. Lam remained as project manager for the NIEHS project until November, 1979. (Lam tr. 7/8, 35, 36)

Mr. Lam had performed work similar to the NIEHS project on eight to ten occasions (Lam tr. 7/11). Mr. Lam has worked on projects which were more complex than the NIEHS project including the Carolina Eastman project which employed a mid-deck terminology which was similar in configuration to the interstitial on the NIEHS project (Lam tr. 7/11, 12).

Insulation Specialties, Inc., Subcontractor to ICI

Insulation Specialties, Inc. (ISI) is an experienced insula-tion contractor which has performed insulation work on industrial, commercial and utility installations. ISI had performed projects for numerous owners and on various types of projects, including Lee Laboratories (research laboratory), I.B.M. (office and manufacturing facilities), Allied Chemical (chemical plant insulation maintenance), MERCK (commercial and industrial installations), Her-cules (chemical plants), and VEPCO (nuclear power plants). (Dixon tr. 35/6–8)

Johnson Controls, Inc., A Trade Contractor (BP 13)

Johnson Controls, Inc. (Johnson Controls, JCI or Johnson) was the successful bidder on Bid Package (BP) 13 of the NIEHS project. BP 13 included the pnuematic temperature control system, quantitative air control (QAC) system, the computer monitoring system, and sound equipment (Travis tr. 24/12, 13). The work included within BP 13 was the kind of work that Johnson customarily does (Travis tr. 24/14).

Johnson has been in the temperature control business for 100 years. It has been involved in controlling the flow of air in various types of air flow systems since at least 1920. (Travis tr. 24/13; Janisse tr. 29/61) Johnson was heavily involved in controlling the flow of air in laboratories be-ginning in the 1950's when atomic energy was still a new subject (Travis tr. 29/61, 62). Johnson also is involved in energy management systems, fire alarm systems, and security systems. Johnson Controls installs all of such systems, as well as manufacturing a number of the components of such systems. (Travis tr. 24/13, 14) Johnson annual sales are approximately $1.5 billion. It has 116 branch offices in the United States, Canada, and a number of other foreign countries. It is the largest company in the United States involved in controls work. (Pickel tr. 24/123)

Watson Electrical Construction Company, A Trade Con-tractor (BP 66)

Watson Electrical Construction Company (Watson) was the successful bidder on BP 66, performing the electrical work for Phase B of the NIEHS Project. Watson was formed in 1937 as an electrical construction company by T.L. Watson, Sr. During the approximate 50 years that Watson has been in the electrical business, the company has performed all aspects of electrical construction, in-cluding industrial, commercial, institutional, high voltage and pole line work. The sizes of the projects Watson has performed vary, and there is no dollar limit placed upon Watson's ability to perform any work. (Blow tr. 32/46)

Watson is divided into several different divisions. The Special Division of Watson was responsible for performing the NIEHS Project because this Division was responsible for the larger jobs that Watson performed. Watson has performed work on multi-million dollar projects in North Carolina, South Carolina, Virginia and other states in the southeast. (Blow tr. 32/49) In fact, prior to the NIEHS Project, the Special Division of Watson had performed the electrical installation on many large hospital projects that were similar in nature and complexity to the NIEHS facility (Blow tr. 32/50, 51).

Within the Special Division of Watson, Mr. Carlton Blow was assigned as the project field superintendent for the NIEHS project. Mr. Blow has a North Carolina Unlimited Electrical License and has been with Watson since 1966. Mr. Blow is considered to be Watson's hospital and labor-atory field specialist because of his extensive experience in performing the function of a project field superintendent on projects of this nature. (Blow tr. 32/47, 48, 51)

TAB Services, Inc., A Trade Contractor (BP 68)

TAB Services, Inc. (TAB) was the successful bidder for Bid Package 68, the testing and balancing package for both Phase A and Phase B of the Project. TAB was organized as a testing and balancing company in 1968. (Ingram tr. 36/12) TAB has been a member of the Associated Air Balance Council since it was formed in 1968 (Ingram tr. 36/12, 13). The Associated Air Balance Council is an organization of testing and balancing contractors that sets the procedures and standards for field testing and balanc-ing (Ingram tr. 36/10). TAB has had experience in per-forming testing and balancing work for large commerical and institutional projects such as the Richard Russell Federal Office Building and Courthouse in Atlanta, Geor-gia; the Georgia Pacific Building in Atlanta, Georgia; the Veterans Administration Medical Center in Columbia, South Carolina, and the Atlanta International Airport, Atlanta, Georgia (Ingram tr. 36/12). The Veterans Ad-ministration Medical Center, Columbia, South Carolina, project performed by TAB was comparable to the work outlined by the original Project specifications for the NIEHS facility (Ingram tr. 36/12).

TAB is the largest testing and balancing contractor in the southeastern United States and is one of the largest inde-pendent testing and balancing companies in the United States (Ingram tr. 36/13). Mr. Ingram, who was involved with the project as the production manager from the estimate through its final completion, has been involved in testing and balancing large commercial buildings, schools, correctional institutions, hospitals and research type buildings (Ingram tr. 36/10). Mr. Ingram has been with TAB since 1975 when TAB purchased the company for which Mr. Ingram had been working since 1968 (Ingram tr. 36/10).

Crawford Sprinkler Of Raleigh, North Carolina, Inc., A Trade Contractor (BP 8)

Crawford Sprinkler Company of Raleigh, North Carolina, Inc. (Crawford), was the successful bidder for Bid Package 8, the sprinkler and fire protection system for both Phase A and Phase B of the project (Hypes tr. 34/6). Crawford has been in the business of installing sprinkler systems and fire protection systems since 1965 and was originally affiliated with Crawford Sprinkler Company of Charlotte, Inc., which has been in business since 1939 (Hypes tr. 34/13). Crawford has been involved in the business of installation of fire protection sprinkler systems in hospitals, ware-houses, manufacturing and office facilities, and high-rise office complexes (Hypes tr. 34/16, 17). The Rex Hospital Project in Raleigh performed by Crawford was comparable in terms of the complexity and size to the NIEHS project (Hypes tr. 34/17).

Mr. Ronald K. Hypes was the construction superintendent for Crawford during most of the construction for this project (Hypes tr. 34/11). Mr. Hypes has been with Crawford for twelve years and was involved in the fire protection and sprinkler business with another company prior to joining Crawford (Hypes tr. 34/12).

IV

KEY GOVERNMENT EMPLOYEES.

Mr. James E. Yarbrough, Regional Engineer, Region IV, DHEW was the CO responsible for the construction of the project beginning approximately in June 1976 until his death in the spring of 1981. He was succeeded in 1981 by Mr. Cecil Garvin who had been Chairman of the Selection Committee of the Construction Manager Evaluation Board. Mr. Cecil Garvin was listed as a witness by the Government but the Government failed to call him even though he was present in the hearing room during a sub-stantial part of the hearing. (Thomas tr. 59/154; ASR4, tab 3724)

Mr. Lyle D. Thomas was the Project Director for ROFEC Region IV during the construction of the NIEHS project. Mr. Thomas' assignment as project director began on July 5, 1977, and continued until his retirement. Mr. Thomas was also closely involved in the design phase of the project and participated in the on-board review of the NIEHS plans with the designers. Mr. Thomas was also involved with the performance of Turner's Activity A contract prior to his official appointment as project director. Mr. Thomas was deceased at the time of the hearing. A portion of his deposition was introduced at the hearing by appellants. (ASR4, tab 0710; Thomas tr. 59/154, 163)

Mr. Charles M. Dixon was Chief, Facilities Management Branch of ROFEC, Region IV, and was very much in-volved in the NIEHS project for ROFEC, Region IV, prior to his retirement. Mr. Dixon was listed as a witness by the Government but the Government failed to call him. (ASR4, tabs 0620, 0622, 0635, 0666, 0703, 3725; Thomas tr. 59/161)

Mr. Robert W. Schmidt was Project Manager for ROFEC, Region IV, DHEW and was involved in the construction of the NIEHS project during both Activity A and Activity B and participated in the selection of the construction man-ager. Mr. Schmidt was deceased at the time of the hearing. (ASR4, tab 3724, 3726, 2799)

Mr. Earl R. Cook was Chief, Facilities Planning and Design Section for NIEHS. Mr. Cook reviewed the drafts of the mechanical/electrical plans and specifications and remained involved with the project after the selection of the construction manager during both Activity A and Ac-tivity B. Mr. Cook was listed as a witness by the Gov-ernment but the Government also failed to call him. (Thomas tr. 59/164, 165; ASR4, tabs 0620, 0622, 0666, 0687, 0703)

Mr. Nathan Dewitt was an electrical engineer for NIEHS who was actively involved with the NIEHS project during both Activity A and Activity B. Mr. Dewitt was listed as a witness by the Government, but the Government also failed to call him. (ASR4, tabs 0217, 0620, 0622, 0666, 0703)

V

INTERSTITIAL SPACE DESIGN AND APPLICABLE PRINCIPLES.

At the initial negotiations with MOUA/LBC & W on Oc-tober 16, 1973, DHEW's CO provided copies of the three-volume Academic Building System (ABS) study to MOUA/LBC & W. At that time, Mr. Don Boyle of DHEW provided a short briefing on the Academic Building System to MOUA/LBC & W. The Scope of Professional Services for the contract for the ALB provided in Part A.6 as follows: The MOUA/LBC & W shall consider the use of available state-of-the art building systems, sub-systems, modular concepts, and other in-novations which may optimize flexibility and expansion capability. Examples are the Academic Building System (ABS) and hardware developed for the SCSD program of California. However, this is not intended to be a R & D effort. (ASR4, tab 0497)

General Provision 2(a) of the contract between the Gov-ernment and MOUA/LBC & W provided: The Architect–Engineer shall be responsible for the professional quality, technical accuracy and the coordination of all designs, drawings, specifications, and other services furnished by the Architect–Engineer under this contract. The Architect–Engineer shall, without additional compensation, correct or review any errors or deficiencies in his designs, drawings, specifications, and other services. (ASR4, tab 0497)

MOUA/LBC & W's recommendations supporting the use of interstitial space design were consistent with the gener-ally perceived advantages of an interstitial design, i.e., adaptability, accessibility and reduced installation costs for mechanical/electrical services (ASR4, tab 0521; Barstow written testimony, at 4; Segner written testimony at 6; Siegel written testimony at C–3—C–5; Siegel tr. 69/101, 102, 104, 105).

The benefits of a carefully dimensioned and organized interstitial space which has been developed to reduce life cycle cost, e.g., simplicity, adaptability and accessibility, are recognized to have a directly beneficial effect on con-struction cost and time. Both should be reduced because of few conflicts among trades. (Barstow written testimony at 9, 10; Siegel written testimony at C–5, C–7)

If the potential benefits of interstitial space are to be ob-tained, a sophisticated and highly disciplined systematic approach must be taken during the design of the service layouts and access routes within that space. By 1972, both the Academic Building Systems Design Report and the Veterans Administration Hospital Building Systems Re-search Study Report (hereinafter reports) had been pub-lished. With regard to the necessity for design discipline, these reports were at that time and remain the state-of-the-art. (Barstow written testimony at 4, 5; Bars-tow tr. 47/14–17; Siegel written testimony at B–2, H–10)

While the reports focus on a particular type of design for a particular type of facility (a hospital), the nature of the rules and principles outlined in the reports are generic to any type of interstitial design. Both reports present consistent approaches to the layout of services. The logic expressed in both studies provides a means to assure virtually the avoidance of interference and cross-over problems through the establishment of well defined linear rights-of-way for all principal service mains and access routes and vertical separations for the distribution branches. (Barstow tr. 43/17; Barstow written testimony at 5, 6; Segner written testimony at 6, 7)

A most important characteristic of interstitial design is the necessity to provide space for accessibility by human beings who generally take up more space than pipes and ducts. In a hung ceiling installation, it is possible to obtain access from below by removing ceiling tiles and utilizing a ladder to reach the pipes, ducts, etc. If you were to walk into the space, there must be physical space allowed to permit human beings to go through the space with tool boxes, equipment, lengths of pipe, sections of duct and other equipment. Therefore, it is necessary to lay out distribution of services and access routes in the interstitial spaces with considerable care in order to insure that these objectives are met. (Barstow tr. 43/21, 22; Barstow written testimony at 4, 5; Segner written testimony at 9, 10)

In a conventional building design, the principle of design discipline for the distribution of services is carried out in two dimensions in plan form. The duct system is laid out in a manner to provide distribution of air through the ducts to the ceilings of the rooms on that floor. During the design, a primary concern is to have studied the cross-overs of the services sufficiently to insure that there is enough height above the ceiling to permit the ducts and pipes to cross each other.

However in an interstitial design, it is necessary to allow space for people and to design accessible access routes. This provides a third dimension which must be thought through during the design to insure that not only can the cross-overs take place but that you do not in turn destroy the ability to have an access route. The designer must insure that at the location of cross-overs access is not constrained to the extent that it is not practical to get through the access route. (Barstow tr. 43/30, 31; Segner written testimony at 6–8) Mr. Siegel also agreed that maximizing access was a designer's goal in developing an interstitial space design (Siegel written testimony at F–1).

The requirement to provide accessibility for human beings together with their tools, materials and equipment imposes a very substantial increase in the degree of care with which the engineer or designer must lay out or coordinate the design of the various mechanical and electrical services (Barstow tr. 43/22, 23; Siegel written testimony at C–4). It is an accepted principle of interstitial design that a designer must perform more extensive pre-coordination of the design (Barstow written testimony at 7; Barstow tr. 43/23, 24, 27; Siegel tr. 69/101; Siegel written testimony at C–4, F–1).

During the preparation of an interstitial design, it is in-cumbent on the designer to study the process of installing services in that space very carefully. Part of the design must recognize that the contractors have to take material into the space, have to be able to install it and then have to be able to back out again. There are also similar consider-ations of repair and maintenance during the life of the building which have to be considered and the same rules must apply. In a conventional design, the designer simply accepts the fact that when services to a room are being replaced, the room is stripped and out of use. In a conventional design, ladders and scaffolding are used to reach the ductwork and pipes in order to replace them.

The concept of an interstitial space design is to enable the performance of these functions with minimum or no dis-ruption to the functional use of the building. Therefore, it is incumbent upon the designer to determine where each element is to be installed. Equally, it is then incumbent upon the contractor not to depart from that design because the contractor is normally not in the position to recognize any detrimental effect to the design caused by arbitrary movement of pipes, ducts or services. Conversely, in a conventional design, installation is performed on a first-come, first-served basis and the contractors simply work to avoid the materials (ducts, pipes, etc.) which have already been installed. (Barstow tr. 43/23, 34; Siegel written testimony at C–5; Segner tr. 19/21–26)

In contrast to the ad hoc installation process which is normal to a conventional project and results in extensive cutting and fitting, access problems and subcontractor improvisation during construction, the interstitial space design must utilize a sophisticated, highly disciplined approach during the design phase to obtain the maximum benefits of the system. It is not possible to rely upon the contractors who are under pressures of time and cost to take the degree of care and attention to insure a successful interstitial design. If the interstitial design has been com-prehensive, the contractors should not be free to make any substantial changes in the service layouts and access routes, nor, for that matter, should they need to make such changes. (Barstow written testimony at 5–10; Barstow tr. 43/28, 29; Segner tr. 19/25)

In summary, in an interstitial design, the contractors are constrained from varying from the pre-coordinated design documents during performance (Barstow written testi-mony at 7; Barstow tr. 43/23, 24, 27, 29).

In an interstitial space design, the service zone is highly organized into reserved sub-zones for various services. The purposes of this “pre-coordination” are to provide clear access in passage for the trades and subcontractors during installation, to minimize conflicts, to assure reasonable space for future extensions and additions and to permit a positive location of all components. The service runs must be organized on the basis of reserved sub-zones to simplify design and installation and to reserve rights-of-way for future service runs. With this organization, there can be no point-to-point re-routing of services without jeopardizing the predictability of initial or future installations. (Barstow written testimony at 7, 8)

The generic principles for properly pre-coordinating an interstitial space design have been described as necessi-tating a linear system of parallel “rights of way” for the main service runs and access routes. The main service runs must occupy pre-determined layers within the interstitial space and lateral systems of parallel branches off the mains must occupy other pre-determined “layers” without cutting off the access routes. In summary, every time a given service changes direction it must move into a layer assigned to that new direction. Special attention has to be paid to the long runs of drainage piping since these must be provided with gravity fall, whereas all other services can be laid in level layers. (Barstow written testimony at 10; Barstow tr. 43/31–33)

The utilization of an interstitial design requires a much deeper interdisciplinary understanding than is typical in a conventional design. The architectural drawings must be developed in parallel with the engineering drawings, rather than prior to them as in conventional practice. The service system design requires very close coordination with the structural design. (Barstow written testimony at 8, 9) The mechanical engineer must take a lead role (Segner tr. 19/21, 22).

One of the functions of the design coordination effort is to make sure that the duct work actually fits into the space allotted for it in the structure. The designer's coordination effort would include checking for the coordination of the structural drawings and mechanical drawings. One purpose of the design coordination effort is to avoid placing two pieces of material in the same location. (Petrossian tr. 68/36–38; Segner written testimony at 7, 8)

The fact that information is omitted from the drawings (e.g., the lack of a disciplinary drawing for the basement) does not relieve the designer of the responsibility to coor-dinate the drawings. By omitting the information from the drawing the designer has taken an even greater responsi-bility because the omission may result in unnecessary conflicts. (Segner tr. 9/111, 112)

There is nothing unusual about depicting a number of services within a space such as the interstitials. That more equipment is shown in an area does not relieve the designer of responsibility as far as his coordination goes. The con-trary is true; the designer assumes even more responsibility. (Segner tr. 19/120)

In designing tight spaces, a prudent designer should allow for the larger or largest item of equipment which meets the specifications. The designer should know within a range of manufacturers what equipment is to be installed and allow space for the largest piece of equipment of which the de-signer is aware. The designer knows far better than anyone else how much space is needed and how much is available. (Barstow tr. 60/27, 28) Location of equipment within an interstitial space where ease of access and maintenance were not provided in the design would be a design error (Segner tr. 19/121).

Although it is possible to deviate from the generic principles applicable to the three dimensional considerations of interstitial design, it is necessary to understand the impli-cation of having deviated from those principles. The con-tract drawings should contain a specific detail to tell the contractor how to break that rule without closing off an access route or another route for other services. (Barstow tr. 43/33, 34)

While there are differences in the degree of density of services in any given laboratory building, the principles of interstitial space design and layout of the services do not change because one laboratory may be more or less densely serviced than another. These general principles are essentially generic to an acceptable interstitial design. (Barstow tr. 43/10, 45, 87; Segner written testimony at 6–10)

As Mr. Siegel, the Government's expert, conceded, the designer is held to a higher degree of care in the devel-opment of an interstitial space design and it is easier to control layout during design rather than during construc-tion (Siegel tr. 69/101). Mr. Siegel's written testimony also conceded that one of the reasons for the greater effort in the design preparation is to maximize access (Siegel written testimony at F–1).

While the contractors will ordinarily prepare coordination drawings on an interstitial space design project, the purpose of these is to establish precise dimensioning since the information for every individual service is not pre-established on the design drawings. To accomplish that, the contractors must “scale off” the contract drawings by measuring from particular reference points off the structural members and basic reference lines such as column lines and the location of the main grid lines of the buildings. This measuring from reference points is done by scaling. (Barstow tr. 43/25–27)

In a properly designed interstitial project, the contractors' coordination effort should be quite simplified as compared to a conventional design because the nature of the interstitial design necessarily requires a high degree of pre-coordination of the installation of services (Barstow tr. 43/24, 25).

VI

GOVERNMENT DIRECTION AND EMPHASIS DURING ACTIVITY A.

On November 24, 1976, Mr. James E. Yarbrough, the CO, notified Turner Construction Co. that it had been selected as the construction manager, and established December 1, 1976, for a kick-off meeting and to sign the Activity A contract (Smith tr. 2/41; ASR4, tab 0612).

At the December 1, 1976 meeting, Turner Construction Co. was represented by Messrs. Victor C. Smith, Jr., Ted Frank and Bruce Hurban. DHEW, Region IV, was represented by Messrs. Yarbrough and Dixon. (Smith tr. 2/41)

Prior to the NIEHS project, Turner's Cincinnati office had extensive experience in the construction of laboratory facilities including the University of Cincinnati's Crosley Tower Science Building, the Environmental Protection Agency Building in Cincinnati, the Sharon Woods Tech-nical Center for Proctor and Gamble, the Winton Hill Technical Center for Proctor and Gamble and the labora-tory facility associated with the Vanderbilt University Hospital Medical Complex (Smith tr. 2/18–22).

The Environmental Protection Agency project was closely analogous to the NIEHS project because it was a research laboratory related to environmental health and it included facilities for animal feeding and care which were also included at NIEHS. It also had a modular laboratory layout, as at NIEHS, so that future changes could be made simply by brining in the appropriate services from the service area to pre-arranged locations. Other than the fact that the EPA building was a service corridor concept rather than an interstitial space concept, the projects were similar. (Smith tr. 2/19, 20)

Turner's Cincinnati office was familiar with the concept of interstitial space since it was employed on the Duke Hos-pital North project, although the interstitial space was of a catwalk-type rather than the complete floor system as utilized at the NIEHS facility (Smith tr. 2/23, 24).

At the December 1, 1976, meeting, Turner understood that the Government representatives in Region IV believed that the project should have had a construction manager on board during the design phase to assist the Government in keeping the project within the budget and still felt the Government should have a construction manager for the project even though the design was complete (Smith tr. 2/42, 45; ASR4, tab 3983).

In the fall of 1976, DHEW, Region IV, was concerned that if the project was put out for lump-sum bids, the bids would come in over the budget. Accordingly, Turner's work priorities during Activity A were established by the Government. The Government's first priority, as commu-nicated to Turner, was to achieve a guaranteed maximum price (GMP) within the budget within 120 days. (Smith tr. 2/45, 46, 48, 49; Wilson tr. 40/34)

The Activity A contract between Turner and the Govern-ment instructed Turner that the particular emphasis of its review of the plans and specifications was to keep the costs of the project within the budget. This emphasis was rein-forced at the December 1, 1976 meeting between Turner's representatives and Messrs. Yarbrough and Charles Dixon. Turner was advised that the Government's primary concern was to have a viable project which could be built within the budget. (R4, tab 1; Smith tr. 2/46, 47; ASR4, tab 3983)

The second priority was the Government's concern re-garding the interface between Phase A and Phase B of the project. Each phase had been prepared by a different team of architects and engineers and had been completed at different times. Accordingly, there was a concern regarding the interface between the two phases which the parties called gaps or overlaps in the overall documentation. (Smith tr. 2/49–51; Wilson tr. 40/42, 43)

From the information provided by Messrs. Yarbrough and Dixon, Turner understood that there was a June 1977 deadline relative to the project and that it would be ne-cessary to have a viable project within the budget by that time. Accordingly, the third priority was to start the actual construction of the project in a meaningful fashion prior to the end of the 120–day period for the preparation of the guaranteed maximum price. (Smith tr. 2/46, 51, 52; ASR4, tab 3983)

Turner was advised to do such value engineering as would make it possible to bring the GMP for the NIEHS project within the budget. The guaranteed maximum price was to be based upon at least 60 percent firm bids taken in ac-cordance with the Federal Procurement Regulation. (Smith tr. 2/47; ASR4, tab 3983)

While the GMP was being developed, a certain amount of “fast track” construction of the site work was anticipated. Once the guaranteed maximum price was developed, it was planned that it would be possible to commence the balance of the work immediately. If needed, it would be possible to adjust the scope of the project in a short period of time and then release the project immediately. (Smith tr. 2/47; ASR4, tab 3983)

At the December 1, 1976, meeting with Messrs. Yarbrough and Dixon, Turner was advised that there would be no direct contact between the CM and either of MOUA/LBC & W joint venturees for the project. This advice was con-sistent with the provision contained in the Activity A con-tract. In addition, the CM was not to communicate directly with the NIEHS representatives; rather, all communication was to be handled through Region IV of DHEW. (Smith tr. 2/47, 48; R4, tab 1)

Turner viewed its role related to the design as somewhat different than on other CM projects due to the fact that the design had been completed. Turner's major objective dur-ing the design development and review was to review the documents to eliminate overlaps, gaps and omissions in the two phases that were designed by separate architects. In making its review of the plans and specifications, the Government did not provide Turner either the program of requirements or the design criteria for the original plans and specifications. This information was not expected by Turner because design was not a part of Turner's respon-sibility on the project. (Smith tr. 2/60, 207, 208)

Turner's first extensive review of the plans and specifica-tions for the NIEHS building occurred in a church base-ment. Approximately 10 to 12 Turner employees reviewed the plans over a five-day period. The sessions were held on a full time basis and went overtime on certain days. (Walter tr. 3/13–15; Wilson tr. 40/31, 32, 49/73)

At that time, Turner had not received the mechanical and electrical drawings for the ALB. These were received on approximately December 18, 1976. When these were received, Turner did the same kind of review of those drawings as was done during the session in the church basement. (Smith tr. 2/58, 59, 61, 62; Walter tr. 3/55–57)

During the review of the plans and specifications, each of the Turner employees was assigned particular disciplines of work and was given the plans and specifications that covered those areas. The plans and specifications were reviewed for possible gaps and to determine if there were any potential areas for value engineering. In addition, Turner's employees decided upon the preliminary scopes of work and prepared preliminary budgets for the scopes of work. (Walter tr. 3/14; Wilson tr. 49/74, 75)

On December 9 and 10, 1976, representatives of Turner met with representatives of DHEW, Region IV; DHEW, Washington, D.C.; NIEHS and NIH at the NIEHS Interim Facilities in Research Triangle Park, N.C. Among the Government's representatives attending that meeting were Messrs. Lyle Thomas, Robert Schmidt, Charles Dixon, Earl Cook and Nathan Dewitt. The purpose of that meeting was to discuss preconstruction activities, procedures and problems. In addition, Turner provided the Government its preliminary evaluation of the plans and specifications based on Turner's workshop review of the design docu-ments. This presentation noted gaps in the documents, items which needed definition, possible proprietary items and proposed value engineering concepts. (ASR4, tab 0620; ASR4, tab 0615; Walter tr. 3/15, 16)

At that meeting Turner was alerted to certain potential design deficiencies. Page 7 of the Government's M/R of that meeting indicates that Turner was advised as follows:

Design Deficiencies The CM was alerted to the need for picking up design deficiencies created by the lack of coordination by design Contractors “A” and “B”. These include: 1. Exterior lighting on buildings. 2. Retaining walls 3. Storm and sanitary line connections 4. Connecting points for utilities 5. Contour line changes

While numerous other issues related to the project were reviewed, there was no mention by the Government that Turner was to check the design coordination of the various disciplines in the ALB or that the Government had any concern that that portion of the design had not been coordinated. We find that given the reference to the ABS reports, the Western Medical Institute of Research, the visits to the facility, the express contract provisions regarding design coordination in MOUA/LBC & W's contract and the designer's express representations, there was no reason that the CM should have been directed to check that portion of the ALB design. (ASR4, tab 0620; ASR4, tab 0615)

VII

TURNER'S CONCLUSION WAS THAT THE PLANS AND SPECIFICATIONS APPEARED TO BE COMPLETE AND COORDINATED.

The employees involved in Activity A performance on behalf of Turner Construction Co. were Messrs. Victor C. Smith, Jr., James E. Houghton, Kenneth L. Wilson, Paul W. Smith, J. Paul Joyal, Kurt G. Walter, Theodore Frank and Bruce Hurban. These individuals had extensive experience in the construction of all aspects of complex facilities. In addition, other individuals involved in the Activity A performance for Turner were named in Turner's proposal to the Government. (Smith tr. 2/70, 71; R4, tab 3; exh. A–008)

A bid package is a distinct packet of contract documents created to define the work properly and to obtain good competitive bids from the trade contractors on a particular portion of the work. On the NIEHS project, Turner, as part of its contractual obligations and services, prepared more than sixty bid packages for the ALB, the site work and the services buildings, each of which was reviewed and ap-proved by the Government. (Smith tr. 2/52, 53; Walter tr. 3/16; R4, tab 3543; Wilson tr. 40/37)

The first step in creating a bid package was to determine for the industry, and particularly for the industry in a particular geographical location, what would be the appropriate grouping of trade responsibilities in order to draw from that market area the appropriate bidder interest. In preparing a bid package it was necessary to consider the size of the package being created and the availability of contractors in that area with the capability to perform a contract of that size. (Smith tr. 2/53, 54) Turner was required to create sixty-two bid packages (Smith tr. 2/53; R4, tab 2, Attachment F).

In preparing the sixty-two bid packages, it was necessary for Turner to develop the format for the bid form itself and the format in which the bids would be received. The CM also determined what alternative prices would be requested from the bid package contractors, the order in which the alternatives would be stated and the number and type (if any) of unit prices which would be utilized. (Smith tr. 2/57)

After determining the nature of the intended bid packages, Turner reviewed the various plans and specifications that related to the specific package of work. The plans and specifications review included examination for proprietary items and working out the interface with the other bid packages. For example, an electric motor starter for a pump might be shown and specified on both the plumbing drawings and specifications and the electrical drawings and specifications. It was necessary for Turner to determine which was the best choice from the standpoint of coordination and delivery. Based upon those decisions Turner removed the work from one package and defined in the scope of work where the responsibility of one bid package ended and the related responsibility for the other bid package contractor began. In addition, those general condition items which were particularly important to the particular scope of work were reviewed and any clarifica-tions which were obtained during the process of the review were included in the appropriate scope of work. Finally, any particular additional facility, e.g., temporary electrical work, was defined in a scope of work and assigned to the appropriate bid package. (Walter tr. 3/17, 18; Smith tr. 2/54–56)

Preparation of the various bid packages involved reviewing the plans and specifications for completeness and ac-curacy and attempting to ascertain if anything was ob-viously missing or in conflict with other requirements. This was an ongoing process that continued after the bid package was released for bids because there were pre-bid meetings with the bidders and a continuous flow of ques-tions up to the time of bidding. (Smith, tr. 2/56; Walter tr. 3/18, 19; Wilson tr. 40/41)

As a part of the responsibility of managing the bidding for sixty-two separate contracts, Turner received the flow of questions from the potential bidders and passed those questions to the design team, secured answers and took action to forward the answers to all the bidders since it was not consistent with the requirements of fair competition to provide the answer only to the person or party that asked it (Smith tr. 2/56).

During the process of preparing the bid packages, Turner checked the accuracy of the plans and specifications for constructability and reviewed the plans and specifications for their adequacy (Smith tr. 2/58, 209). A constructability review is a determination that the specifications are complete and cover all the items as shown on the drawings. It would be done to determine if all the equipment is scheduled or shown, the fixtures are shown and scheduled, and designated items such as conduit are sized and all of the areas of fixtures, devices and other items are shown on them.

A constructability review is not a determination that equipment will fit into the building. While Turner may look at that, it is normally a function of the designer. As discussed previously, this is particularly true for interstitial construction. If Turner, in reviewing the documents, de-termined that it appeared that the facility was too crowded or items would not fit, Turner would bring it to the designer's attention. (Walter tr. 3/62, 63) To Turner, the plans for the ALB appeared to be coordinated because they had been so well laid out on the drawings (Walter tr. 3/69).

Turner reviewed the plans and specifications for overde-sign, that is that the design called for equipment and fix-tures that were a much higher cost than really required to perform the same function (Water tr. 3/64).

Turner expended substantially more manhours on the review of the plans and specifications than had been included in its estimate for the all inclusive fee for Phase A of $75,000. Turner significantly overran that $75,000 fee during Phase A Work. (Smith tr. 2/60) The Phase A period was an intense, extremely active period of time for a large Turner staff. (Wilson tr. 40/35)

In addition to the fact that the drawings were at different scales, based upon the time that was available to Turner to review the documents, it was not possible for Turner to detect whether or not the drawings were fully coordinated