Clearwater Constructors, Inc. v. United States

56 Fed. Cl. 303, 2003 U.S. Claims LEXIS 96, 2003 WL 21076993
CourtUnited States Court of Federal Claims
DecidedApril 25, 2003
DocketNo. 01-351C
StatusPublished
Cited by13 cases

This text of 56 Fed. Cl. 303 (Clearwater Constructors, 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
Clearwater Constructors, Inc. v. United States, 56 Fed. Cl. 303, 2003 U.S. Claims LEXIS 96, 2003 WL 21076993 (uscfc 2003).

Opinion

OPINION

MEROW, Senior Judge.

This matter is before the court in this contract dispute action brought pursuant to the Contract Disputes Act of 1978 (“CDA”), upon defendant’s motion to dismiss a portion of plaintiffs complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). One of the jurisdictional predicates to commencing an action in this court pursuant to the CDA is that the parties must demonstrate that a valid claim has been presented to the Contracting Officer (“CO”) for consideration. The sole issue for the court’s consideration at this time is whether a letter submitted to the CO in 1986 constituted a valid claim by the contractor and whether the subsequent response was a final decision by the CO, sufficient to trigger the time running for plaintiff to file a complaint. For the reasons stated below, defendant’s motion to dismiss is granted.

BACKGROUND

Facts and Procedural History

The facts of this matter are undisputed. On or about February 20, 1986, plaintiff, Clearwater Constructors, Inc. (“Clearwater”) and the Army Corps of Engineers (“the Corps”) entered into Contract No. DACA45-86-C-0068. Pursuant to that agreement, Clearwater was to construct a “3-bay hangar” at Grand Forks Air Force Base in North Dakota. Compl. at Hit 7-8. Clear-water subcontracted the work required for the fabrication and erection of the hangar doors to Fleming Steel Company, Inc. (“Fleming”). On or about May 8, 1986, the government issued Modification P00002 (“Mod.P00002”) to the contract, which specifically provided that “control panels shall be explosion proof.” Compl. II47; see also Def.’s Reply in Supp. of Partial Mot. to Dismiss, Attach. “A” at p. 1. Fleming sought guidance from defendant with regard to that Modification. Compl. IfH 48-62; see also Def.’s Reply in Supp. of Partial Mot. to Dis[305]*305miss, Attach. “A” at p. 2. The Corps responded that the modification was merely a clarification of contract requirements and not a change to the contract.

Sometime before the end of May 1986, a dialogue ensued and continued through August 1986, via telephone, mailgram and letter, between Clearwater, Fleming and the Corps regarding the interpretation which should be applied to Mod. P00002. Compl. 111147-62. On or about July 14, 1986, Fleming advised the government and Clearwater that its pricing for Mod. P00002 would be $11,848.57. Compl. H 58. On or about August 22, 1986, plaintiff allegedly advised Fleming that “the Corps was going to direct Fleming to furnish all electrical equipment ... [for the h]angar as explosion proof.... and that Fleming was to do the work effort without additional compensation.” Compl. If 62. On or about September 3, 1986, Clear-water purportedly forwarded a letter from the Corps,1 which formally declared that certain paragraphs of Mod. P00002 were included for clarification and were not a change to the contract. Compl. 1163. Accordingly, the Corps stated that those paragraphs were to be deleted from Mod. P00002. Id. By letter dated September 16, 1986, Fleming formally voiced its disagreement with the Corps’ interpretation of the effect Mod. P00002 would have upon the contractor and subcontractor (“Fleming letter”). Specifically, Fleming stated:

This letter is a formal protest of the Corps of Engineers’ decision relating to the electrical equipment required for ... [the hangar doors.]
Our interpretation of Architectural Drawing A-3 exempts the electrical equipment for the [hangar] doors from hazardous duty classification.
^ s*i # * £
On May 8, 1986[,] Modification Proposal P00002 (months after award of contract) was issued; Item 2.10 reads “... Paragraph 3.6.1 in four places, ...” insert “except in the Fuel Cell hangar control panels shall be explosion-proof ----” Item 2.11 reads “... Paragraph 6.9.2 ... insert [’]except in the Fuel Cell hangar control panels shall be explosion-proof----[’]” These insertions without further modification of the existing Specifications are not workable. We had cabled for clarification on the change order request----
Mr____ of the Corps of Engineers had communicated in his July 29, 1986 letter, ... that Amendment 5, Item 3 “further specifies that the equipment ... [relative to the hangar doors] will be rated for hazardous equipment ____ Since Amendment 5 covered the requirements ..., as well as Sheet A-3, we see no reason for increasing contract price to achieve explosion-proof characteristics of the hangar doors____The explosion-proof characteristics should be provided at no additional cost to the [government.”
Firstly, we would like to point out that Addendum 5 did not change in any form Drawing A-3 of the contract drawings. Secondly, Addendum 5 states ... after “hinged doors,” insert “except control panels and associated wiring and devices shall be explosion-proof for hazardous areas.” There are no instructions in that insertion that changes the key plan or notes on Drawing A-3. This insertion merely states that the control panels and associated wiring and devices that are in the hazardous areas shall be explosion-proof. However, by Drawing A-3 the hangar doors are clearly not in the hazardous area....
Lastly, we contend that the Corps of Engineers did not make their intent clear and concise in the contract drawings or [specifications. This fact is backed up by the act of issuing a Modification Proposal requesting price change. It was not until the Corps of Engineers reviewed our submission on Modification Proposal P00002 that they declared unequivocably [sic] that their intent was contrary to the contract drawings. Why then was a Modification Proposal issued if, as they claim, their in[306]*306tentions were clear on the contract documents.
It is our position that we should not haye to suffer economically for the mistakes on the contract documents by the Architect and Corps of Engineers. It is our intention to seek reimbursement for the cost expended in complying with the Corps of Engineers!]] erroneous contention that all electrical equipment on the hangar doors ... were shown as hazardous equipment in the contract drawings.
As the General Contractor for this project, we request of you submission of our protest by the contract procedures and language.

Def.’s Reply in Supp. of Partial Mot. to Dismiss, Attach. “A,” p. 1-2.

On or about September 30, 1986, Clear-water submitted a cover letter to the Contracting Officer (“CO”) to which it attached the Fleming letter (“Clearwater letter”). In its cover letter, Clearwater specifically stated:

& sfc % # # Hí
Fleming Steel Company asserts that their interpretation of the Contract documents does not indicate Explosion Proof Electrical Equipment and Controls in [the] Hangar Bay ... as a requirement of the contract. Fleming’s position is that this work is a change in scope and should be covered by a Contract Modification.
Per Fleming’s request, and in accordance with Contract Clause 43, “Disputes,” we herein formally request a review and decision of the ... CO as allowed for under the terms of our agreement.

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56 Fed. Cl. 303, 2003 U.S. Claims LEXIS 96, 2003 WL 21076993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clearwater-constructors-inc-v-united-states-uscfc-2003.