Clean Giant, Inc. v. United States

36 Cont. Cas. Fed. 75,798, 19 Cl. Ct. 390, 1990 U.S. Claims LEXIS 23, 1990 WL 9503
CourtUnited States Court of Claims
DecidedFebruary 7, 1990
DocketNo. 455-88C
StatusPublished
Cited by10 cases

This text of 36 Cont. Cas. Fed. 75,798 (Clean Giant, 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
Clean Giant, Inc. v. United States, 36 Cont. Cas. Fed. 75,798, 19 Cl. Ct. 390, 1990 U.S. Claims LEXIS 23, 1990 WL 9503 (cc 1990).

Opinion

OPINION

FUTEY, Judge.

This case is before the court on defendant’s motion to dismiss pursuant to RUSCC 12(b)(1) for lack of subject matter jurisdiction. Plaintiff is seeking money damages in the amount of $1,632,265.00 for breach of contract. Defendant denies owing any sums to plaintiff and asserts that no contract or solicitation in the instant suit existed between the parties.

Statement of Facts

In June 1984, plaintiff was selected by the Small Business Administration (SBA) to receive a subcontract award under Section 8(a) of the Small Business Act, codified at 15 U.S.C. § 637 (1982)1 (Section 8(a) subcontract), to provide food services and supplies for an Air Force station in Cape Cod, Massachusetts. The section 8(a) subcontract had a termination date of September 30, 1987, with an option for two additional years at the election of defendant.

At the time that plaintiff was providing food services at the Air Force station, ITT Base Services Incorporated (ITT), was providing the operations and maintenance support services there pursuant to a contract with defendant. On August 13, 1987, the section 8(a) subcontract was modified. The time for performance was extended for three additional months. Prior to the expiration of the section 8(a) subcontract with plaintiff, defendant determined that food services were within the scope of ITT’s [392]*392contract and it requested that ITT submit two proposals for cafeteria style food service: one based upon the provision of three meals a day; and another based upon the provision of two meals a day.

ITT determined that it had the resources to provide two meals a day and estimated that it could do so over a 45-month period for a total price of $835,808.00. Additionally, although not required by defendant, ITT solicited requests for quotations (RFQ) for food service operation based upon three meals a day, in order to subcontract these duties (ITT subcontract). Plaintiff was the only firm that responded. In preparation for the submittal of the bid, plaintiff attended a bid conference on October 16, 1987, where it inquired about: (a) the amount of bond required; (b) whether a manager would be required; (c) food service management requirements; and (d) payment of billings. On October 19, 1987, plaintiff received a response to these questions. Thereafter, plaintiff proposed three meals a day for a 45-month performance period for the total price of $1,632,265.00.

ITT submitted to defendant two proposals: one for three meals a day based upon plaintiffs cost estimate; and another for two hot meals a day based upon its own cost estimate. Defendant decided upon supplying only two meals per day, and accepted the proposal of Base Services, Incorporated, of Colorado Springs, Colorado, a wholly owned subsidiary of ITT, to provide these meals. Consequently, ITT did not contract with plaintiff to perform any services. Therefore, when the section 8(a) three month subcontract extension between plaintiff and defendant terminated by its terms on December 31, 1987, ITT had a contract to perform the services originally performed by both itself and plaintiff.

On December 21, 1987, plaintiff filed a protest with the General Accounting Office (GAO), contesting in essence, defendant’s decision not to exercise its option to renew the section 8(a) subcontract. Specifically, plaintiff claimed that the ITT subcontract should have originally been solicited by the SBA and also that the section (8) and the ITT subcontracts should not have been merged. The Office of the Comptroller General denied plaintiff's protest on March 17, 1988, and on April 18, 1988, plaintiff’s request for reconsideration was denied.

On August 3, 1988, plaintiff filed a complaint in this court seeking money damages in the amount of $1,632,265.00. Plaintiff claims that there was a breach of contract, breach of express warranty, breach of implied warranty, and breach of implied covenants of good faith and fair dealing. On January 26, 1989, defendant filed a motion to dismiss. On February 16,1989, plaintiff filed an opposition to defendant’s motion to dismiss; defendant’s reply thereto was filed on April 7, 1989.

Discussion

Jurisdiction

On a motion to dismiss for lack of subject matter jurisdiction, the court may decide for itself the factual issues pertinent to resolving jurisdiction. Hedman v. United States, 15 Cl.Ct. 304, 306 n. 2 (1988) (citations omitted). This is due to the court’s obligation to assure itself that it has jurisdiction of an issue before addressing its merits. Hambsch v. United States, 857 F.2d 763, 765 (Fed.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1969, 104 L.Ed.2d 437 (1989).

Plaintiff alleges jurisdiction under both the Contract Disputes Act (CDA), codified at 41 U.S.C. §§ 601-13 (1978), and the Tucker Act, codified at 28 U.S.C. § 1491(a)(1) (1982). First, this court will address the parties’ CDA contentions.

Defendant claims that plaintiff does not meet the jurisdictional prerequisites to maintain an action under the CDA. The CDA is limited to claims by a “contractor” against the government. 41 U.S.C. §§ 605(a), 609(a)(1). “Contractor” is defined as “a party to a government contract other than the government.” 41 U.S.C. § 601(4). This has been further interpreted to exclude subcontractors. Universal Surety Co. v. United States, 10 Cl.Ct. 794, 800 (1986), (citing Balboa Insurance Co. v. United States, 775 F.2d 1158, 1160 (Fed.Cir.1985); S.Rep. No. 1118, 95th Cong. 2d Sess. 16, reprinted in 1978 U.S.Code Cong. [393]*393& Ad.News 5235, 5250) (“Senate Report discusses the need for a single point of contact with the contracting officer in order to highlight the risk of allowing direct claims by subcontractors”). In the present case, the court finds that all of plaintiff's claims stem from its failure to be awarded the ITT subcontract. Plaintiff’s status is that of a subcontractor. Therefore, this court does not have jurisdiction under the CDA to hear plaintiff’s claims. Furthermore, as discussed supra, plaintiff presents an implied contract theory based upon its status as a disappointed bidder. This type of implied-in-fact contract theory cannot support a claim under the CDA. Costal Corp. v. United States, 713 F.2d 728, 730 (Fed.Cir.1983).

Assuming arguendo, that plaintiff was allowed to proceed forward here under the CDA, the record indicates that plaintiff failed to submit a properly certified claim for monetary damages to the contracting officer. It is not enough, as plaintiff alleges, that the contracting officer had “actual knowledge” of the claim.

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Bluebook (online)
36 Cont. Cas. Fed. 75,798, 19 Cl. Ct. 390, 1990 U.S. Claims LEXIS 23, 1990 WL 9503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clean-giant-inc-v-united-states-cc-1990.