Becho, Inc. v. United States

47 Fed. Cl. 595, 2000 U.S. Claims LEXIS 190, 2000 WL 1429494
CourtUnited States Court of Federal Claims
DecidedSeptember 1, 2000
DocketNo. 98-798C
StatusPublished
Cited by85 cases

This text of 47 Fed. Cl. 595 (Becho, 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
Becho, Inc. v. United States, 47 Fed. Cl. 595, 2000 U.S. Claims LEXIS 190, 2000 WL 1429494 (uscfc 2000).

Opinion

OPINION

ALLEGRA, Judge.

In this contract case, the Army Corps of Engineers (the Corps) terminated, for default, its contract with plaintiff, Becho, Inc. (Becho), based on Becho’s failure to perform a modification ordered by the Corps’ contracting officer. Becho claims that the modification constituted a cardinal change, excusing it from further performance, and requiring that the default termination be set aside. Defendant has filed a motion for partial summary judgment, seeking a ruling that, as a matter of law, sustains the termination for default. Because the court finds that material questions of fact exist as to whether the modification was a cardinal change, it must deny the defendant’s motion.

I. Facts

On January 31, 1997, the Corps awarded Contract No. DACW6897-0012 to Becho. Line item 0001 of the contract was for the supply and delivery of 5,000 cubic yards of riprap — angular stone produced from bedrock that is used, inter alia, to control ero[597]*597sion. On May 19, 1997, the Corps exercised line item 0002 of the contract, an option for an additional 2,500 cubic yards of riprap. The contract provided various gradation requirements for the riprap — none of the rocks were to weigh less than 75 pounds or more than 2,500 pounds, and the average weight was to be 500 pounds. The riprap was to be stockpiled within an area designated by the Corps at its Walton Quarry in Jackson Hole, Wyoming, with the exact location and limits of the stockpile area to be determined by the Contracting Officer’s Representative (COR). The riprap was to be stockpiled in a manner that would not cause segregation, ie., like-sized pieces grouped together, or excessive breakage. The contract further provided that riprap would be measured for payment as the number of cubic yards of satisfactory material in place in the stockpile. Payment was to be at a contract unit price per cubic yard.

The contract incorporated, by reference, a number of standard FAR clauses. Among these was the standard “disputes clause,” which is set forth at 48 C.F.R. § 52.233-1, and provides as follows:

Disputes
(a) This contract is subject to the Contracts Disputes Act of 1978 as amended (41 U.S.C. §§ 601-613).
(i) The contractor shall proceed diligently with the performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply -with any decision of the Contracting Officer.

In addition, the contract incorporated, by reference, standard inspection and changes clauses. The inspection clause authorizes the government to inspect and accept delivered items, and indicates that “[ajeceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided in the contract.” 48 U.S.C. § 52.246-15(k). In relevant part, the changes clause provides that the contracting officer “may at any time, by written order, .... make changes within the general scope of this contract,” and provides that any dispute over whether such a change requires an equitable adjustment in the contract price “shall be a dispute under the Disputes clause.” 48 C.F.R. § 52.243-1.

On January 31, 1997, Fernando Aguilar, a civil engineer with the Walla Walla District of the Corps, was designated COR on the subject contract. On or about April 23, 1997, Becho commenced delivery of the 5,000 cubic yards of riprap, stacking the material into a pile in the south part of the quarry (pile 1). Defendant alleges that the Corps, almost immediately, noticed that not all the material supplied met the size specifications of the contract; plaintiff, however, alleges that such concerns were not communicated to it until much later. On May 19, 1997, Becho presented an invoice to the Corps in the amount of $197,000 for the payment of 5,000 cubic yards of riprap material. On July 2, 1997, following approval by Mr. Aguilar, the Corps issued Becho a certificate of payment, but for only 4,322 cubic yards of riprap material, which defendant alleges was the amount of conforming riprap contained in pile 1. Plaintiff, instead, contends that pile 1 reached an ultimate volume of 5,534 cubic yards of conforming riprap.

During late May and into June of 1997, as Becho continued to deliver and stack the 2,500 cubic yards of riprap for line item 0002 into a second pile (pile 2), various disputes arose between the parties as to whether portions of the riprap conformed with the contract specifications. These disputes continued even after Becho allegedly completed the delivery of this second batch of riprap on or about June 20, 1997. The parties disagree regarding the nature of these disputes, the degree of good (or bad) faith exercised or exhibited by the parties in taking their respective positions, and the content and character of the many oral conversations that occurred during this period. On June 10, 1997, Becho sent the Corps a letter requesting a one-week extension on the contract delivery schedule, citing, as one reason, inclement weather. By Modification P00002, dated June 16, 1997, the contract was modified to extend delivery dates for line items 0001 and 0002 to May 30,1997, and June 20, 1997, respectively. This modification also in-[598]*598cheated that the Corps would not be exercising an additional option in the contract, line item 0003, for more riprap.

On July 8 and 9,1997, the Corps excavated portions of piles 1 and 2 to examine the size of the rocks therein, after which the Corps adhered to its position that some of the rip-rap was undersized. Becho was unrepresented at the site during this excavation process. On July 18, 1997, Becho sent a letter to the Corps asking it to reconsider its decision not to exercise the line item 0003 option. This letter included various photographs, based upon which Becho contended that the xdprap delivered was “not only what was requested as a minimum by Mr. Aguilar but in fact was much over the medium x’equested.” After various communications in which the parties continued to disagree regarding whether the riprap met the contract specifications, on August 6, 1997, a meeting was held between representatives of Becho and the Corps seeking to resolve this matter. Following this meeting, on August 7, 1997, the Corps sent Becho a letter requesting that it furnish a plan for correcting the alleged nonconformity of the delivered materials. This letter also indicated that a Corps representative would be px’esent at all times while the contractor was sorting the materials. That same day, Becho sent the Corps a letter in which it disagreed that there were problems, but, nonetheless, indicated that it would resort pile 2 beginning on or about August 11,1997.

Sometime after the August 6, 1997, meeting (most likely on August 11, 1997), Becho began resox*ting the ripx'ap in pile 2, also reincorporating therein the materials that had been dissociated in the excavation by the Corps. Becho alleges that it performed this task not but because it agreed with the Corps’ position, but rather to expedite its payment for pile 2.

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Cite This Page — Counsel Stack

Bluebook (online)
47 Fed. Cl. 595, 2000 U.S. Claims LEXIS 190, 2000 WL 1429494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becho-inc-v-united-states-uscfc-2000.