Commercial Contractors, Inc. v. United States

39 Cont. Cas. Fed. 76,582, 29 Fed. Cl. 654, 1993 U.S. Claims LEXIS 174, 1993 WL 409973
CourtUnited States Court of Federal Claims
DecidedOctober 15, 1993
DocketNo. 648-89C
StatusPublished
Cited by9 cases

This text of 39 Cont. Cas. Fed. 76,582 (Commercial Contractors, 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
Commercial Contractors, Inc. v. United States, 39 Cont. Cas. Fed. 76,582, 29 Fed. Cl. 654, 1993 U.S. Claims LEXIS 174, 1993 WL 409973 (uscfc 1993).

Opinion

[657]*657OPINION

HARKINS, Senior Judge:

Plaintiff, Commercial Contractors, Inc., on August 25, 1987, was awarded a firm fixed price contract for $1,005,000 on a formally advertised IFB by the Army Corps of Engineers (Corps) for reconstruction of an existing runway and overrun at Libby Army Airfield in Fort Huachuca, Arizona. The procurement was a 100 percent small business set-aside. Work was to be commenced within 5 calendar days and completed within 180 days after receipt of the Notice to Proceed (NTP). The NTP was issued on October 26, 1987, was received on November 2, 1987, and contract work began on November 11, 1987. The contract documents were modified 12 times by P00001 through P00012. The reconstruction work was completed, and the project was accepted by the Government as of July 13, 1988. As modified, the contract completion date was May 30, 1988; the final contract price was $1,019,302, and the total performance period was 253 days. Plaintiff was assessed $17,160 in liquidated damages for 44 days.

On February 13, 1989, plaintiff submitted to the Contracting Officer (CO) a request for a change order to cover three periods of delay that totaled 91 days and amounted to $57,321.06. On May 9, 1989, plaintiff’s request was amended to include a refund of assessed liquidated damages and duly certified as a claim under the Contract Disputes Act. As amended, plaintiff’s claim totaled $74,481.06.

Plaintiff accepted the final pay estimate and executed the contractor’s release on June 30, 1989. The parties, in the closing documents, reserved rights as to plaintiff’s pending claim as follows:

This final pay estimate does not prejudice the contractor’s right to proceed with its claim in the amount of $74,-481.06, submitted to contracting officer by letter dated 9 May 89. Government does not waive any claim it may have arising out of the subject matter of the claim accepted by the contractor.

Plaintiff has been paid the amount of the final pay estimate, $1,019,302. On November 21, 1989, the CO issued a decision that denied plaintiff’s three delay claims. The decision, without explanation, ordered return of the $17,160 that had been assessed for liquidated damages. A check in that amount was issued on December 13, 1989.

In this court, the amended complaint and posttrial briefing claims damages for delays under the Suspension of Work clause in the contract. FAR 52.212-12. The delays involve three separate categories of government actions and separate time periods. The subject matter of the three delay periods is: (1) alleged failure to issue timely the notice to proceed (NTP), (2) unavailability of the work site for contract work that resulted from design oversight, and (3) additional testing of asphalt-in-place.

Unavailability of the work site (No. 2) and additional testing (No. 3) have been considered under summary judgment procedures. Defendant contended that these claims were included in contract changes No. P00002 (Mod 2) and No. P00006 (Mod 6) and had been resolved under the doctrine of accord and satisfaction. Defendant’s motion for partial summary judgment was denied because material issues of fact were in dispute with respect to the subject matter of negotiations on the changes and the scope of resulting modifications. See Commercial Contractors, Inc. v. United States, 25 Cl.Ct. 666 (1992).

Before the CO and in this court, plaintiff’s claims have included substantial variations as to delay times and dollar damages. Although the subject matter of the claims has not changed, the time periods have ranged from a total of 91 days to 107 days, and claimed dollar damages have ranged from $57,321.06 to $220,984. These variations are shown on the following table.

[658]*658[[Image here]]

Plaintiff is a corporation that operates as a general contractor for construction projects. Plaintiff qualifies as a small business. When organized in 1973, plaintiff had approximately six employees; in 1987 and 1988, plaintiff had approximately 35 employees. Plaintiffs main office is in San Diego, California, which is the location of its president. Supervision of the administration of contracts relative to plaintiff’s various projects is performed at the San Diego office. As needed, plaintiff established field offices for supervisors at project locations.

Plaintiff appointed a project manager for the Libby Army Airfield reconstruction contract on September 24, 1987, and notice of the appointment was given to the Army on that date. The project manager’s responsibilities included providing coordination of project foremen, subcontractors, and suppliers, preparation of the Daily Report to Inspector, notification of the CO of any problems, implementation of the Quality Control Plan, and enforcement of the Safety Program. The project manager had a field office in Tucson, and an office in a trailer on-site at Fort Huachuca. All of plaintiff’s activities relative to the subject contract were performed by two employees: plaintiff’s president, located in San Diego, and the project manager, located at the field offices.

As a general contractor, most of the work on contracts secured by plaintiff was provided through subcontractors. This contract contained nine line items, three of which concerned grading and removal of asphalt concrete (Item 4), aggregate base and asphalt concrete materials (Item 5), and installation of aggregate base and as[659]*659phalt concrete (Item 6). Another major line item (No. 8) concerned replacing and testing runway lighting.

The subcontractor for the asphalt work was Granite Construction Co. (Granite). The estimated value of the asphalt work totaled $730,456, which was 72.8 percent of the total $1,005,000 contract price. The subcontractor for the runway lighting work was ESS Corporation. The estimated cost of the lighting work was $148,000, which represented 14.7 percent of the total contract price. Together, the Granite and the ESS Corporation subcontracts covered 87.5 percent of the total contract value.

Granite does business nationwide; its business amounts to approximately $600 million annually, with $50 to $70 million at its Tucson office. The Fort Huachuca project amounted to approximately 1.4 percent of Granite’s work at the Tucson office.

The major portion of plaintiff’s claims are founded on claims from its subcontractor, Granite. Plaintiff's February 13, 1989, request to the CO for a change order was based on a claim from Granite to plaintiff on January 25, 1989. Plaintiff’s amended complaint, filed May 7, 1990, incorporated additional information provided by Granite. Plaintiff’s delay claims presented at trial and in posttrial briefing present contractor costs that amounted to approximately 14 percent of the total; the balance of the delay claims (approximately 86 percent) originate in the subcontractor, Granite.

Granite’s first claim was submitted to plaintiff on January 25, 1989. In this claim, Granite sought time extensions of 91 days: (1) 41 days during the period September 17 through October 27, 1987, for failure to issue timely the NTP; (2) 15 days during the period October 27 through November 11, 1987, for unavailability of the work site; and (3) 35 days for the period during January 19 through February 23, 1988, for additional testing of asphalt-in-place. Delay costs for items 1 and 2 were claimed at $448 per day, a total of $25,-110.40. Delay cost for item 3 was $247.60 per day, a total of $8,666.

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Cite This Page — Counsel Stack

Bluebook (online)
39 Cont. Cas. Fed. 76,582, 29 Fed. Cl. 654, 1993 U.S. Claims LEXIS 174, 1993 WL 409973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-contractors-inc-v-united-states-uscfc-1993.