Bataco Industries, Inc. v. United States

39 Cont. Cas. Fed. 76,569, 29 Fed. Cl. 318, 1993 U.S. Claims LEXIS 142, 1993 WL 341168
CourtUnited States Court of Federal Claims
DecidedSeptember 9, 1993
DocketNo. 90-3899C
StatusPublished
Cited by40 cases

This text of 39 Cont. Cas. Fed. 76,569 (Bataco Industries, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bataco Industries, Inc. v. United States, 39 Cont. Cas. Fed. 76,569, 29 Fed. Cl. 318, 1993 U.S. Claims LEXIS 142, 1993 WL 341168 (uscfc 1993).

Opinion

OPINION

ROBINSON, Judge.

This case is before the court on defendant’s motion for summary judgment and plaintiff’s cross-motion for partial summary judgment. After initial briefing, oral argument and supplemental briefing, the court concludes that defendant’s motion for summary judgment will be granted in its entirety and plaintiff’s cross-motion will be denied. The court’s reasoning follows.

Background

This suit involves two claims for money damages by Bataco Industries, Inc. (plaintiff or Bataco), of Hollywood, Florida, stemming from defendant’s alleged failure to comply with the Economic Price Adjustment Clauses (EPA clauses) in two fixed price contracts the Defense Logistics Agency, Defense Construction Supply Center (DCSC), in Columbus, Ohio, entered into with plaintiff for the manufacture and delivery of concertina barbed tape (CBT). CBT is a type of barrier wire utilized by the armed services for perimeter security. CBT consists of coils of spring steel line wire, fitted with cold-rolled steel barbed tape. The barbed tape is made by cutting a strip of cold-rolled steel to form a series of sharp barbs.

On March 20, 1985, DCSC awarded plaintiff the first contract, No. 700-85-C-0601 (the 0601 contract), in the amount of $12,-423,088.86, for the manufacture and delivery of 681,838 rolls of CBT. The Government subsequently exercised a contract option which modified the contract to require Bataco to manufacture and deliver a total of 765,663 rolls at a total contract price of $13,761,564.61. On December 24, 1985, DCSC awarded plaintiff the second contract for CBT, No. 700-86C-0983 (the 0983 contract), in the amount of $6,776,350, for a quantity of 332,500 rolls. Subsequent modifications increased the total contract price to $6,776,850.

Both of these contracts contained virtually identical EPA clauses (the difference in wording is immaterial). These clauses are designed to protect the parties against inflation or deflation during contract performance by providing for increases or decreases in the contract price based upon fluctuations in a specified index published in the Producer Price Index (PPI), a publication of the Bureau of Labor Statistics, U.S. Department of Labor (BLS). The PPI measures changes in prices “received by domestic producers of commodities in all stages of processing.” The EPA clauses in these two contracts required that Bataco warrant that its contract price, as bid, did not contain any contingency allowances for inflation. Thus, as the specified PPI index either increased or decreased with economic changes, this contract provision would provide a degree of protection to both parties resulting from such fluctuations through contract price adjustments. Consequently, if a price adjustment request was made by Bataco within 180 days of final shipment of the product, as specified in these contracts, it would be able to obtain limited relief from the effects of inflation. However, these clauses provided that entitlement to a limited price increase would be waived unless the contracting officer received a written request from the contractor for the adjustment within 180 days after the final shipment of supplies.1

Both EPA clauses specified the applicable PPI code as “Code No. 10, Commodity Steel.” However, there was no such PPI code as “Code No. 10, Commodity Steel” at [320]*320the time of execution of the two contracts here involved. There was at that time and still is a PPI Code 10, “Metal and Metal Products,” but neither party argues that that code is applicable to CBT. The parties, however, have never agreed upon which PPI code should have been inserted in the EPA clauses. Plaintiff contends that PPI Code 1088.0951 most accurately reflects any price fluctuations of CBT.2 Defendant maintains that 1089.0989 is the appropriate PPI code.3

Contract clause 146(h) also appears in both contracts and provides:

If the Bureau of Labor Statistics ... (1) discontinues an index identified herein, or (2) fails to publish an index identified herein for any month, or (3) changes the method of computation of an index identified herein during the effective period of the contract, the parties shall agree upon appropriate substitute or alternate index. Failure of the parties to agree on a substitute index or adjustment shall be a dispute within the meaning of the “Disputes” clause of this contract.

The final shipping date for the 0983 Contract was January 11, 1988, and May 4, 1988 for the 0601 Contract. Therefore, the 180 day periods for requesting a price adjustment expired July 9, 1988, and November 7, 1988, respectively. Plaintiff failed to contact the DCSC’s contracting officer during that time period. Plaintiff avers that it initially attempted to obtain the appropriate PPI code from the BLS. By letter dated January 11, 1989, plaintiff requested that the DCSC contracting officer provide to it the appropriate PPI indices so that plaintiff could evaluate the “financial effect of the PPI ... and, if appropriate, submit the required invoicing to [DCSC] for the PPI adjustments.”

The contracting officer responded to plaintiff’s inquiry by letter dated October 30, 1989, in which he simply referred plaintiff back to the BLS. Subsequently, the BLS told plaintiff that PPI Code 1088.0951, “barbed and twisted steel wire,” would be the appropriate code for CBT. Based upon this information, plaintiff submitted EPA claims to the contracting officer on February 7, 1990, using PPI Code 1088.0951 for its computations — $521,137.56 for the 0601 Contract and $34,418.52 for the 0983 Contract. In a decision dated April 24, 1990, the contracting officer denied plaintiff’s requests as untimely based upon the contract limitation periods of 180 days. The contracting officer also determined that plaintiff’s claims were premised upon the wrong PPI code. On June 15, 1990, plaintiff requested reconsideration of the contracting officer’s decision. On September 14, 1990, the contracting officer issued a final decision, again denying plaintiff’s claims as untimely.

Presently, the Government incorporates PPI Code 1089.0589, “other fabricated metal products” in contracts for CBT; that code was created in June, 1985, over two months after the award of the 601 Contract to plaintiff. The Government presently does not use PPI Code 1088.0951, advanced by plaintiff as the proper code, in any contracts for CBT because the BLS ceased publication of that code in July, 1991; however, PPI Code 1088.0951 was published during the contractual time periods here involved.

Plaintiff filed its complaint in this court on October 31, 1990, approximately eighteen months after final shipments under the contracts, seeking reformation of the contracts to include the PPI Code 1088.-0951 as the appropriate code.

Contentions of the Parties Defendant forcefully argues that Bata-co’s claims are time-barred under subsec[321]*321tion (d)(2) of these contracts because it failed to file its claims for adjustments within the applicable 180 day period specified in the two contracts which was agreed upon by Bataco. Further, defendant argues, the burden is upon the contractor in a fixed price contract, such as those here at issue, to request price increases during the specified periods after deliveries under these contracts.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. States
49 Fed. Cl. 24 (Federal Claims, 2001)
Berkley v. United States
48 Fed. Cl. 361 (Federal Claims, 2000)
State of California v. United States
47 Fed. Cl. 688 (Federal Claims, 2000)
Bond v. United States
47 Fed. Cl. 641 (Federal Claims, 2000)
Spodek v. United States
46 Fed. Cl. 819 (Federal Claims, 2000)
Song v. United States
43 Fed. Cl. 621 (Federal Claims, 1999)
Ecology & Environment, Inc. v. United States
43 Cont. Cas. Fed. 77,456 (Federal Claims, 1999)
White v. United States
43 Fed. Cl. 474 (Federal Claims, 1999)
Green Management Corp. v. United States
42 Cont. Cas. Fed. 77,412 (Federal Claims, 1998)
Westcott v. United States
42 Fed. Cl. 202 (Federal Claims, 1998)
Palm Beach Isles Associates v. United States
42 Fed. Cl. 340 (Federal Claims, 1998)
Louis Leustek & Sons, Inc. v. United States
41 Fed. Cl. 657 (Federal Claims, 1998)
PCL Construction Services, Inc. v. United States
42 Cont. Cas. Fed. 77,325 (Federal Claims, 1998)
Pacific National Cellular v. United States
41 Fed. Cl. 20 (Federal Claims, 1998)
Reading & Bates Corp. v. United States
40 Fed. Cl. 737 (Federal Claims, 1998)
Betz v. United States
40 Fed. Cl. 286 (Federal Claims, 1998)
Hoskins v. United States
40 Fed. Cl. 259 (Federal Claims, 1998)
Datalect Computer Services, Ltd. v. United States
42 Cont. Cas. Fed. 77,243 (Federal Claims, 1997)
Beta Construction Co. v. United States
42 Cont. Cas. Fed. 77,220 (Federal Claims, 1997)
Allied Technology Group, Inc. v. United States
41 Cont. Cas. Fed. 77,179 (Federal Claims, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
39 Cont. Cas. Fed. 76,569, 29 Fed. Cl. 318, 1993 U.S. Claims LEXIS 142, 1993 WL 341168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bataco-industries-inc-v-united-states-uscfc-1993.