Avedon Corp. v. United States

35 Cont. Cas. Fed. 75,577, 15 Cl. Ct. 648, 1988 U.S. Claims LEXIS 172, 1988 WL 114645
CourtUnited States Court of Claims
DecidedOctober 31, 1988
DocketNo. 617-86C
StatusPublished
Cited by13 cases

This text of 35 Cont. Cas. Fed. 75,577 (Avedon Corp. 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
Avedon Corp. v. United States, 35 Cont. Cas. Fed. 75,577, 15 Cl. Ct. 648, 1988 U.S. Claims LEXIS 172, 1988 WL 114645 (cc 1988).

Opinion

OPINION

BRUGGINK, Judge.

This is an action under the Contract Disputes Act, 41 U.S.C. §§ 601-13 (1982) involving three claims for delay costs in the total amount, including interest, of $87,-691.57. Trial was held August 22-24,1988. For the reasons discussed below, the court concludes that plaintiff is not entitled to recover on any of its claims.

I. BACKGROUND FACTS

The Department of the Navy, Naval Facilities Engineering Command, awarded Contract No. N62474-82-B-0491, dated June 18, 1984, in the amount of $2,540,000 to Avedon Corporation. The contract called for the construction of a two-story temporary lodging facility (“TLF”) at the Marine Corps Base, Camp Pendleton, California. The originally scheduled contract completion date was April 14, 1985. However, the contract date was extended a total of 266 days to January 5, 1986 due to contract modifications issued by defendant. Defendant considered the contract substantially complete as of May 2, 1986.

A. Facts Related to Initial Start Delay

The contract required Avedon to submit a quality control plan to defendant prior to beginning construction.1 General Provision 76(c) of the contract specifically addressed the requirements for the contractor’s quality control (“CQC”) plan. It read in part:

[650]*650The contractor shall furnish four copies of the CQC plan to the Contracting Officer within fifteen calendar days after receipt of the Notice of Award. The CQC plan shall detail the procedures, instructions, and reports to be used to assure compliance with the contract. Unless specifically authorized by the Contracting Officer in writing, no construction will be started until the CQC plan is approved.

Defendant notified plaintiff of award of the contract by its letter of June 18, 1984. The letter of award iterated the need to submit a CQC plan prior to commencing construction. Avedon acknowledged receiving the notice of award on June 20, 1984. The CQC plan was thus due no later than July 5.

A CQC plan had not been submitted when a preconstruction conference was held on July 16, 1984. The parties agreed at that time that work on the project would commence about July 30, 1984. Joseph Stevenson, Avedon’s CQC representative, did not arrive at the jobsite until July 30, however, and only then began work on the CQC plan.

Plaintiff submitted its initial CQC plan to defendant on August 6, 1984. After interim discussions, defendant rejected the proposed plan by letter of August 22, 1984. Deficiencies perceived in the plan were set forth in an attachment to the letter. Plaintiff submitted supplemental CQC material to the Navy on August 31, 1984. At a meeting between Avedon and the Navy on September 6 the Navy approved the plan and authorized construction to proceed. Construction began on September 7, 1984.

By letters of April 30 and June 13, 1985, Avedon submitted a claim, as amended, to the Resident Officer in Charge of Construction (“ROICC”), seeking an extension of 32 calendar days and an adjustment of $43,-678.86 for claimed unreasonable start-up delay due to bad faith in consideration and approval of the CQC plan. Avedon alleged that the real reason approval of the plan took so long was that defendant wanted to temporarily delay the project to avoid parking problems which would result at a swimming pool adjacent to the building site. The claim was denied.

B. Facts Related to the Vending Alcove Claim

After construction of the TLF was underway, Avedon noticed a discrepancy between architectural and structural drawings supplied by defendant. An architectural drawing showed a vending alcove located along a wall of the second floor reception area. The alcove was represented by a portion of the wall being inset a number of feet. The structural drawing, however, indicated only a continuation of the wall at that location. By Request for Clarification No. 23, dated April 10, 1985, Avedon sought resolution of the discrepancy. In the request, Avedon stated that it bid the job expecting to include the alcove.

The Assistant ROICC (“AROICC”), Lt. Herring, initially responded to the request orally by directing Avedon to build according to its interpretation, i.e., to include the vending alcove, pending further clarification from the architect. This is confirmed by Lt. Herring’s April 24, 1984 letter to Avedon and by his letter of April 30 forwarding the architect’s direction to add a structural steel beam to support the alcove.

Avedon submitted an unsolicited cost proposal for work on the alcove and addition of the beam in the amount of $24,304 on May 8, 1985. Negotiations were subsequently held during which plaintiff’s cost proposal was reduced to $5,000, not including the delay claim. On May 17,2 the ROICC office rejected Avedon’s cost proposal and directed it to install a wall in accordance with the structural steel specifications, that is, without the alcove. Because Avedon had begun putting anchor bolts in to support the recessed wall, this decision required Avedon to remove the bolts and do other minor corrective work.

By letter of September 16, 1985, Avedon submitted a claim seeking 37 additional [651]*651days on the contract and an equitable adjustment of $37,329. The claim sought $294 attributable to plaintiffs direct costs related to the vending alcove and $37,035 attributable to claimed overhead and profit. Avedon supported the claim on the basis of the Navy’s asserted unreasonable delay in clarifying the defective specifications, and based on the specifications themselves.

By memorandum from the ROICC to the Commander, Western Division (“WEST-DIV”), Naval Facilities Engineering Command (“NAVFAC”) dated December 19, 1985, the ROICC office recommended that Avedon’s vending alcove claim be denied, but recommended that Avedon be compensated for the cost of work actually performed on the vending area prior to its deletion. By Final Decision No. WD 85-86, dated December 9, 1985, the Contracting Officer (“CO”) authorized the ROICC office to negotiate a settlement for Avedon’s actual costs for work performed for the vending area, but denied the delay claim.

C. Facts Related to Door Switch Delay Claim

The temporary lodging facility contract called for installation of a door frame and a window frame in the exterior wall of each unit. As an energy conservation measure, an automatic switch for the air-conditioning fan was to be installed with the door frame so that the fan would turn off when the door was opened. A push button switch inside the room would then be used to restart the fan. The contract required that the contractor furnish the switches and associated wiring.

While reviewing plans for the project, an electrical contractor, Honeywell, Inc., noticed that while a switch to turn off the fan was noted in certain drawings, it was not sufficiently detailed in the door plans or specifications. Honeywell also commented that wiring for these units had not been described on the electrical drawings. Honeywell conveyed this information by its letter of December 5, 1984, to R.P. Richards, Inc., Avedon’s mechanical contractor. By letter of December 10, 1984, R.P. Richards transmitted the Honeywell letter to Avedon for its review and advice. On Feb.

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Bluebook (online)
35 Cont. Cas. Fed. 75,577, 15 Cl. Ct. 648, 1988 U.S. Claims LEXIS 172, 1988 WL 114645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avedon-corp-v-united-states-cc-1988.