Aluminum Co. v. United States

31 Cont. Cas. Fed. 71,310, 2 Cl. Ct. 771, 1983 U.S. Claims LEXIS 1694
CourtUnited States Court of Claims
DecidedJune 29, 1983
DocketNos. 260-81C, 261-81C and 262-81C
StatusPublished
Cited by7 cases

This text of 31 Cont. Cas. Fed. 71,310 (Aluminum Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aluminum Co. v. United States, 31 Cont. Cas. Fed. 71,310, 2 Cl. Ct. 771, 1983 U.S. Claims LEXIS 1694 (cc 1983).

Opinion

ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

WOOD, Judge.

In these three consolidated cases, plaintiff seeks review, under the familiar standards of the Wunderlich Act, 41 U.S.C. §§ 321-22 (1976), of a decision of the General Services Administration Board of Contract Appeals (“GSBCA” or “the Board”) denying each of three separate, timely appeals from a decision of the contracting officer under General Services Administration Contract No. GS-00P-(DS)-11163 (“the contract”).1

In general terms, the contract, executed effective November 1, 1965, dealt with the [773]*773sale to plaintiff by defendant of excess aluminum from the strategic minerals stockpile authorized by the terms of the Defense Production Act, 50 U.S.C.App. §§ 2061-2166 (1964), and implementing regulations. Although each of the three cases now before the court arises out of the same general factual background, and involves the same contract, the issues here presented arose over a period of years, and each case presents a separate and distinct controversy. To facilitate understanding, the factual setting out of which all the controversies arose, and the relevant contractual provisions, will be set forth at the outset.2 Thereafter, the facts and the nature of the controversy in each ease will be delineated, and the separate controversies will be resolved, in the order in which the parties have briefed them.

For the reasons hereinafter appearing, plaintiff’s motion for summary judgment is granted in Docket No. 262-81C but denied in Docket Nos. 261-81C and 260-81C, and defendant’s cross-motion for summary judgment is denied in Docket No. 262-81C but granted in Docket Nos. 261-81C and 260-81C.

I

The General Factual Background

During the Korean emergency, a governmental determination that the national defense required (among other things) a large strategic stockpile of aluminum was made. In consequence, defendant, acting through the General Services Administration, entered into contracts with several major producers of aluminum (including plaintiff) for government purchases of substantial quantities of the aluminum those contractors produced. Pursuant to those contracts, defendant purchased, and stockpiled, several million tons of aluminum.3

By the mid-1960’s, however, defendant had determined that it no longer needed to maintain such huge amounts of aluminum in the strategic minerals stockpile. Accordingly, legislative authority to dispose of excess stockpile aluminum was sought and obtained. In an effort to minimize the harmful impact of a disposal program of such magnitude, the authorizing legislation (Pub.L. 89-460, 89th Cong., 1st Sess., 80 Stat. 212, approved June 21,1966) provided that the time and method of disposition should be fixed “with due regard to the protection of the United States against avoidable loss and the protection of producers, processors and consumers against avoidable disruption of their usual markets.”

In implementation of the disposal program, defendant and a number of aluminum producers (collectively referred to as “Participating Purchasers” or “Purchasers”) entered into individual, but essentially identical, contracts with respect to the sale and purchase of the excess stockpile aluminum. Each Participating Purchaser agreed to purchase a pro rata share of the entire quantity of excess stockpile aluminum to be sold. Article I, paragraph 3, of plaintiff’s contract prescribed the percentage share of each Participating Purchaser, and indicated that those shares were “determined on the basis of [the Participating Purchasers’ respective] percentages of Installed Aluminum Reduction Capacity.” Plaintiff’s stated percentage share was 29.4 percent, the largest assigned to any Participating Purchaser. The Participating Purchasers included Harvey Aluminum Incorporated, and Aluminum Limited, Inc.4

[774]*774Article X, paragraph 1(a), of plaintiff’s contract provided in part as follows:

1(a). The price at which Purchaser agrees to purchase aluminum hereunder shall be Purchaser’s published U.S. domestic price * * * in effect at the date of delivery * * * provided, however, that if on the date of delivery the current published U.S. domestic price * * * for the grade, form, size, and quantity involved of any other Participating Purchaser is lower than Purchaser’s published U.S. domestic price, then, and during the period of such differential, such lowest published price shall be used in lieu of Purchaser’s published price * * *. If on the 30th day after the date of any delivery, the applicable published price determined in accordance with this subparagraph (a) is higher or lower than the applicable published price in effect on the date of delivery, the price of any such delivery shall be adjusted by the amount of such difference.5

Article XI, paragraph 4(a) of plaintiff’s contract, the so-called “most favored nation” clause, provided as follows:

4. Amendments, (a) The Government agrees that if it amends any contract with another Participating Purchaser or waives any material right against any Participating Purchaser, it will within 30 days of such amendment or such waiver offer to Purchaser an amendment to this Contract incorporating the same terms and provisions or a waiver of the same right, as the case may be. Such offer must be acted upon by Purchaser within 30 days thereafter.

Article XII, paragraph 1, provided in part as follows:

1. Delivery and Shipping Instructions. Purchaser shall, prior to the desired dates of shipment, furnish' the Government with a schedule of desired deliveries and destinations. The Government will within 10 days after receipt of delivery information from the Purchaser notify the Purchaser as to the specific storage locations from which shipment will be made. After receipt of notice from the Government of the depot or depots from which shipments of aluminum hereunder are to be made, but at least 15 days prior to the desired initial delivery date, Purchaser shall furnish the Government complete shipping and document distribution instructions and the necessary commercial bills of lading where required to accomplish shipment, including, but not limited to, designation of type and kind of conveyance, carrier routing, minimum load per conveyance, shipping schedule and any other pertinent instructions. * * * The above instructions shall be addressed to General Services Administration, Defense Materials Service, Stockpile Division, General Services Building, Washington, D.C. 20405. The Government will deliver aluminum sold hereunder in accordance with Purchaser’s shipping instructions.

Docket No. 262-81C, in which plaintiff challenges the GSBCA’s ruling in Appeal No. 4728, involves Article X, paragraph 1(a) and particularly its so-called “reach-back” proviso. Docket No. 261-81C, in which the GSBCA’s ruling in Appeal No. 4764 is challenged, requires examination of both Article X, paragraph 1(a), and the Delivery and Shipping Instructions clause. Docket No. 260-81C (concerning the administrative ruling in Appeal No. 5024) focuses entirely on the most favored nation clause.

II

Docket No. 262-81C

Docket No.

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Bluebook (online)
31 Cont. Cas. Fed. 71,310, 2 Cl. Ct. 771, 1983 U.S. Claims LEXIS 1694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aluminum-co-v-united-states-cc-1983.