Bromley Contracting Co. v. United States

596 F.2d 448, 25 Cont. Cas. Fed. 82,517, 219 Ct. Cl. 517, 1979 U.S. Ct. Cl. LEXIS 92
CourtUnited States Court of Claims
DecidedMarch 21, 1979
DocketNo. 5-76
StatusPublished
Cited by20 cases

This text of 596 F.2d 448 (Bromley Contracting 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
Bromley Contracting Co. v. United States, 596 F.2d 448, 25 Cont. Cas. Fed. 82,517, 219 Ct. Cl. 517, 1979 U.S. Ct. Cl. LEXIS 92 (cc 1979).

Opinion

PER CURIAM:

This case comes before the court on plaintiffs exception to the recommended decision of Trial Judge Joseph V. Colaianni, filed July 24, 1978, pursuant to Rule 134(h). The claim, as upheld by Trial Judge Colaianni, is for reformation of a contract for building reconstruction to correct a mistaken bid. Defendant before us has abandoned its opposition to the claim except as it asserts a right to interest on the sum awarded. After consideration of briefs and oral argument of counsel, this court agrees [520]*520with the trial judge’s recommended decision as set forth below, and affirms and adopts it as the basis for its judgment in this case. The court also adopts the trial judge’s separate findings of fact as its own, which are set forth in his recommended decision and are not printed here as such facts necessary to the decision are contained in his opinion.

The only aspect of the trial judge’s opinion to which plaintiff excepted was his omission of interest on the recommended judgment for plaintiff. Plaintiff seeks interest payments from the date of completion of the contract to the date of payment of the claim.

We agree with the trial judge’s recommended decision, and do not allow recovery of interest. Plaintiff bases its interest claim on the contract clause incorporated under ASPR 7-104.82, 32 C.F.R. § 7-104.82, for payment of interest on contractors’ claims. That provision reads in part:

(a) If an appeal is filed by the Contractor from a final decision of the Contracting Officer under the DISPUTES clause of this contract, denying a claim arising under the contract, simple interest on the amount of the claim finally determined owed by the Government shall be payable to the Contractor. Such interest shall be at the rate established by the Secretary of the Treasury pursuant to Public Law 92-41; 85 STAT 97 for the Renegotiation Board, from the date the Contractor furnishes to the Contracting Officer his written appeal pursuant to the DISPUTES clause of this contract, to the date of (i) a final judgment by a court of competent jurisdiction, or (ii) mailing to the Contractor of a supplemental agreement for execution either confirming completed negotiations between the parties or carrying out a decision of a Board of Contract Appeals. [Emphasis supplied.]

However, that provision does not govern the instant case, as it applies to appeals from a decision of the contracting officer made under the disputes clause of the contract. ASPR 2-406, 32 C.F.R. § 2-406, authorized correction of mistaken bids by the contracting officer. When, as here, he refused to correct a mistaken bid, the case went from the contracting officer to the General Accounting Office for resolution, and Boards of Contract Appeals did not have disputes clause jurisdiction. Plaintiff did not appeal to such [521]*521a board here. Thus, plaintiff did not utilize the disputes clause or any of its accompanying administrative procedures. Procedures that will apply under the Contract Disputes Act of 1978, Pub. L. No. 95-563, are not relevant in this case.

Plaintiff argues that ASPR 7-104.82, 32 C.F.R. § 7-104.82, was meant to authorize a general allowance of interest to contractors in disputes where they were ultimately determined to be entitled to damages, and cites a footnote in Framlau Corp. v. United States, 215 Ct. Cl. 185, 198 n. 16, 568 F.2d 687, 694 (1977) for that proposition. But the footnote in Framlau does not alter the requirement of the contract language that claims arise under the contract, and it cannot be interpreted to expand allowance of interest for claims arising outside, not under, the contract, and which are not settled via a disputes clause. As an allowance of interest would require an explicit waiver of sovereign immunity, such interest may be awarded only if a specific provision for payment exists in a statute or the contract. United States v. Mescalero Apache Tribe, 207 Ct. Cl. 369, 378-89, 518 F.2d 1309, 1314-17 (1975), cert. denied, 425 U.S. 911 (1976). This rule has been codified in 28 U.S.C. § 2516(a) which provides that:

§ 2516. Interest on claims and judgments
(a) Interest on a claim against the United States shall be allowed in a judgment of the Court of Claims only under a contract or Act of Congress expressly providing for payment thereof.

No express provision for the award of interest applied to cases of equitable reformation of contracts to correct mistaken bids. Existing interest provisions of contracts or statutes cannot be enlarged by implication or analogy without doing violence to the doctrine of strict construction of the consent to be sued. This case will not be a precedent for future cases governed by Pub. L. No. 95-563, the Contract Disputes Act of 1978.

Therefore, we cannot allow recovery of interest for plaintiff. Judgment is entered for the plaintiff in the amount of $76,505, the sum found to be the difference between the reformed price and the contracted price. The opinion of Trial Judge Colaianni follows:

[522]*522OPINION OF TRIAL JUDGE

COLAIANNI, Trial Judge:

In this action, plaintiff, Bromley Contracting Co., Inc. ("Bromley”), a construction firm with its principal place of business in Valley Stream, New York, seeks reformation of its contract with the Government due to an alleged bid mistake. For reasons hereinafter set forth, it is concluded that reformation is an appropriate remedy and that plaintiff is entitled to recover.

I. Background Facts

On May 29, 1973, the Department of the Army issued an invitation for bids ("IFB”) for contract DAHC02-73-B-1737 for repointing the exterior of Building 745a at the United States Military Academy at West Point, New York. The IFB was broken down into five separate items (Item Nos. 1, A, B, C, and 2) and Bromley and three other contractors submitted bids on that basis.

Bromley’s total bid was the lowest of the four, although it was slightly higher than the Government estimate. Defendant’s estimate, Bromley’s bid, and the next lowest bidder’s bid, were as follows:

Government Bromley Next Lowest Bidder
1 - Base Bid: Elevations A, B, C $103,250 $ 84,200 $125,750
A - Additive Bid: 15,000 18,750 Elevations E, F, G 26,000
B - Additive Bid: 43,320 64,500 Elevations D, K, L, M 86,000
C - Additive Bid: 5,000 14,650 Elevations N, O, P 15,000
2 - Elevations H, I, J 129,990 124,434 Total $296,560 $306,534 145,900 $398,650

The other bids totaled $1,034,370 and $1,183,000, respectively.

The estimates which formed the basis for plaintiffs bid were made by Melvin Bloom, its vice-president, manager, and general superintendent. Upon examination of the [523]

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Bluebook (online)
596 F.2d 448, 25 Cont. Cas. Fed. 82,517, 219 Ct. Cl. 517, 1979 U.S. Ct. Cl. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bromley-contracting-co-v-united-states-cc-1979.