Broome Construction, Inc. v. United States

492 F.2d 829, 203 Ct. Cl. 521, 1974 U.S. Ct. Cl. LEXIS 231
CourtUnited States Court of Claims
DecidedFebruary 20, 1974
DocketNo. 375-72
StatusPublished
Cited by27 cases

This text of 492 F.2d 829 (Broome Construction, Inc. 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
Broome Construction, Inc. v. United States, 492 F.2d 829, 203 Ct. Cl. 521, 1974 U.S. Ct. Cl. LEXIS 231 (cc 1974).

Opinion

BeNNEtt, Judge,

delivered the opinion of the court:

This contract dispute was submitted to the court on cross-motions for summary judgment. The case has been well briefed and all material facts essential to determination of the issues of liability are stipulated. Two claims are made. Plaintiff seeks a Wunderlich Act1 review of a decision of the Department of Agriculture Board of Contract Appeals 2 on its remission of liquidated damages claim and seeks breach of contract damages in the sum of $18,331.34 for delay alleged to have been the fault of defendant. The board denied the latter claim for lack of jurisdiction and rejected the claim for an extension of contract time which would have brought remission of liquidated damages ($950) assessed for a 10-day delay in contract completion at the rate of $95 per day. We find neither claim sustainable in law. To the extent material to this decision, the facts may be summarized as follows:

Soil Conservation Service Contract No. 12-10-220-1448 was awarded to Broome Construction Company, of Mississippi, on June '24, 1966. The contract was in the amount of $153,398.57 and allowed a performance time of 158 calendar days for improvement in 8.5 miles of the Toposhaw Creek Channel in the Yalobusha Biver Watershed. Toposhaw Creek Channel empties into the Yalobusha Channel. A separate contract had been awarded on May 17, 1966, to Atlas Construction Company for the improvement of that section of the Yalobusha Channel where the Toposhaw Channel enters.

At the bid opening on May 31,1966, and at a preconstruction conference on July 11, 1966, plaintiff: was advised by Government representatives that it would be necessary that Atlas complete its work prior to plaintiff’s starting excavation work. Plaintiff’s representative agreed to this condition but stated that plaintiff would like to be authorized to proceed with clearing the Toposhaw Channel. Plaintiff also stated that it was in the process of buying or renting a new dragline that would be ready by the time it was to commence actual excavation. A contemporaneous memorandum off the [525]*525conference understandings, which is a part of the record in the case, states that “all left with a thorough understanding of what would be expected.”

Plaintiff was notified on July 6,1966, to start work within 20 days and to complete all work within 158 calendar days. However, by letter dated July 7, 1966, the contracting officer notified plaintiff that, pursuant to mutual agreement, Suspend Order No. 1 was issued. This was so that the second contractor, Atlas, could complete work and get out of plaintiff’s way. The order suspended all of plaintiff’s operations under the contract with the exception of the clearing of the channel right-of-way. Plaintiff agreed to the order and to Modification No. 1 which changed the contract to allow plaintiff to do the clearing while under the suspend order. The contracting officer’s letter transmitting the same concluded with the following sentences: “We would also like for you to submit your schedule of operations covering all items of work. In preparing your schedule, please keep in mind that it will be approximately October 1,1966 before channel excaroation can commence.” [Emphasis supplied.]

A second order to suspend work was issued August 23, 1966, because of plaintiff’s failure to sign and return Modification No. 1, and for other reasons not now material. A third order issued August 30, 1966, directed plaintiff to resume all work. This was in error, since it was actually intended that only the work permitted by Modification No. 1 should proceed. Plaintiff was not misled and did not rely on the order, and the board properly so found. A correction was issued on September 15,1966.

On September 14, 1966, plaintiff leased a dragline from Tri-State Equipment Company, Inc., at an aggregate rental of $234,518.64 for a 48-month period. Under terms of the lease, the first 12 installments were $8,610.17 each and the next 36 at a rate of $3,644.33 per month. The dragline was delivered to the site on September 19,1966.

Work on the Yalobusha Channel by Atlas progressed more slowly than expected and plaintiff did not receive Work Order No. 4 authorizing excavation work on all items of the contract until December 5, 1966, effective on that date.

Plaintiff’s claim for breach of contract is based on rental costs actually paid for the period from October 1 to Decern-[526]*526ber 5, 1966. Defendant, while not admitting liability, says that a proper computation of damages would be computed by using the total 48-month period of the lease and allocating to the average monthly rental over that period the sum of $10,428.06 to the claimed period of 2 months and 4 days of delay instead of plaintiff’s calculation which provides a figure of $18,331.34 at the higher base rate for the first 12 months under the lease. For reasons which will later appear, we do not have to resolve the quantum issue.

The Breach Claim

In declining to make findings or to adjudicate the merits of the breach claim, the AGBCA decision pointed out that plaintiff sought relief under the disputes article of the contract, Article 6 of the General Provisions, which limits jurisdiction of the board to any dispute concerning a question of fact arising under the contract, excluding breach claims whether for purposes of granting relief or making binding findings of fact. United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966). In this the board was clearly correct. It also ruled that in the absence of a suspension-of-work or other similar provision designed to compensate a contractor for increased costs resulting from Government-caused delays, the board did not have jurisdiction under the disputes article to compensate a contractor for such delays. This, too, is a proposition of law so firmly established as to require no discussion or citation here.

Plaintiff now comes to court alleging breach and pointing out that it is undisputed that the contractor here was delayed until December 5, 1966, in channel excavation. This is unquestionably so 'and the circumstances which occasioned it have been related. While the delay period alleged by plaintiff approximates 5 months, claim is made, 'as indicated above, only for the shorter period from October 1, 1966 to December 5, 1966, on the assertion that defendant promised availability of the worksite by October 1. The contracting officer admitted that plaintiff was caused a delay in the use of his dragline, but said, as did the board, that there was no authority under the contract for payment of delay. The question to be resolved here is whether there was a breach or whether the [527]*527delay was excusable under the contract terms. In resolving this question it is necessary to examine Article 11 of the Special Conditions section of the contract agreed to by the parties. It states in pertinent part:

11. SUSPENSION OP WORK
(■a) The Contracting Officer may order suspension of the work in whole or in part for such time as he deems necessary due to weather or such other conditions as he considers u/nfmorable for the satisfactory 'prosecution of the work.
(b) When the Contracting Officer orders suspension .

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Bluebook (online)
492 F.2d 829, 203 Ct. Cl. 521, 1974 U.S. Ct. Cl. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broome-construction-inc-v-united-states-cc-1974.