Clearwater Constructors, Inc. v. United States

71 Fed. Cl. 25, 2006 U.S. Claims LEXIS 111, 2006 WL 1134478
CourtUnited States Court of Federal Claims
DecidedApril 28, 2006
DocketNo. 01-351C
StatusPublished
Cited by2 cases

This text of 71 Fed. Cl. 25 (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, 71 Fed. Cl. 25, 2006 U.S. Claims LEXIS 111, 2006 WL 1134478 (uscfc 2006).

Opinion

OPINION and ORDER

MEROW, Senior Judge.

INTRODUCTION

This contract dispute action is before the court upon defendant’s motion for summary judgment and plaintiffs cross-motion for summary judgment, both brought pursuant to Rule 56(b) of the Rules of the United States Court of Federal Claims (“RCFC”).

BACKGROUND

Facts and Procedural History

On February 20, 1986, Clearwater Constructors, Inc. (“Clearwater”) and the United States Army Corps of Engineers (“the Corps”) entered into Contract No. DACA45-86-C-0068 (“contract”) in the amount of $17,487,000 for the construction of a “Three Bay Hangar” for B-1B bombers at Grand Forks Ah- Force Base, North Dakota. (DPFUF1 ¶ 1; PPFUF ¶¶ 1-2.) The firm fixed-price contract was awarded as a result of a bid submitted by Clearwater in response to Solicitation No. DACA45-B-0013, dated November 14,1986. (PPFUF ¶ 1.)

On March 19, 1986, Clearwater subcontracted the fabrication and erection of the steel horizontal rolling hangar doors for the three hangar bays being constructed to Fleming Steel Company, Inc. (“Fleming”). (PPFUF ¶ 3; DPFUF ¶ 2.) Each of the three bay openings was to have a set of two doors with each door having four sections or “leaves.” Six 31 ’-5" doors, each with four leaves, were required, for a total of twenty-four leaves. (PPFUF ¶¶ 3, 6.) The contract included Corps-supplied drawings and specifications. (Id.)

Fleming’s subcontract was in the amount of $404,000 and included a 575 calendar day schedule. (PPFUF ¶4.) That subcontract incorporated the terms and conditions of Clearwater’s contract with the Corps by reference. (Id.) The final completion date was October 6, 1987, and work was substantially complete by this date. (DPFUF ¶ 1.)

On March 14, 1996, pursuant to a liquidation and indemnification agreement, Clear-water submitted a claim with the Contracting Officer on behalf of Fleming for equitable adjustments totaling $1,171,422.07. (PPFUF US.)

Clearwater claims additional compensation for: (1) constructive changes to the required wind load of the doors and the rail weight; (2) several other defective specifications and/or constructive changes; (3) breach of the duty to cooperate and not to hinder performance including unreasonably rejecting submittals; and (4) delays caused by the government.

Defendant moves for summary judgment asserting: (1) there were no constructive changes; (2) specifications were not defective; (3) the government is not liable for any [28]*28difficulties plaintiff may have had in obtaining specialty steel from its subcontractor; and (4) the Contracting Officer’s decisions were not unreasonable. Clearwater’s cross-motion seeks recovery on its claims.

DISCUSSION

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” RCFC 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one that would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment will not be granted “if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The court must resolve all reasonable inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct. 2505. The burden on the moving party is to demonstrate that there is no genuine issue of material fact, and may be discharged upon a showing “that there is an absence of evidence to support the nonmoving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987) (quoting Celotex, 106 S.Ct. at 2554). The burden then shifts to the nonmoving party to produce evidence setting forth specific facts of a genuine issue for trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 249-50, 256, 106 S.Ct. 2505; Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 627 (Fed.Cir.1984) (holding that the nonmovant “must set out, usually in an affidavit by one with knowledge of specific facts, what specific evidence could be offered at trial.”). To create “a genuine issue of fact, the nonmovant must do more than present some evidence on an issue it asserts is disputed.” Avia Group Int’l v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1560 (Fed.Cir.1988).

1. Constructive Changes — wind load and rail size

Clearwater alleges that the Corps constructively changed the contract specifications by requiring the hangar doors be designed to withstand a 40 pounds per square foot wind load, and the bottom rail be constructed with 60 pounds per yard rail.

“ ‘A constructive change generally arises where the Government, without more, expressly or impliedly orders the contractor to perform work that is not specified in the contract documents.’ ” Conner Bros. Const. Co., Inc. v. United States, 65 Fed.Cl. 657, 679 (2005) (citing Lathan Co. v. United States, 20 Cl. Ct 122, 128 (1990)). A contractor is entitled to additional compensation, an equitable adjustment in the contract price, for constructive changes. “To identify a constructive change, this court consults the contract language.” Aydin Corp. v. Widnall, 61 F.3d 1571, 1577 (Fed.Cir.1995). Contract interpretation presents an issue of law. Id.; Rutgers v. United States, 41 Fed.Cl. 764, 769 (1998).

A. Wind load

On or about May 12, 1986, Fleming submitted its design for the hangar doors, using a 30 pounds per square foot (“psf’) wind load. (PPFUF ¶ 9.) On June 9,1986, in a telephone conference, the Corps stated 40 psf was the standard for the hangar doors. (PPFUF ¶ 10.) According to the Affidavit of Seth Kohn, Fleming’s President, 40 psf equates to a wind greater than 100 miles per hour. (Kohn Aff. ¶ 12.) On July 1, 1986, the Corps rejected Fleming’s interpretation and reiterated its position that the doors be able to withstand a maximum wind load of 40 psf. (DPFUF ¶ 10; PPFUF ¶¶ 10, 15.) Fleming acquiesced under protest. (PPFUF ¶ 16.)

Several contract provisions are cited by the parties for their respective positions on the wind load standard. Both parties contend the contract is capable of only one interpretation, but this does not appear to be the case.

The contract has several sections specifically addressing hangar door wind loads. Section 3.2.2, titled “Design Loads” provides: [29]

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80 Fed. Cl. 178 (Federal Claims, 2008)

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Bluebook (online)
71 Fed. Cl. 25, 2006 U.S. Claims LEXIS 111, 2006 WL 1134478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clearwater-constructors-inc-v-united-states-uscfc-2006.