Complete General Construction Co. v. Ohio Department of Transportation

94 Ohio St. 3d 54
CourtOhio Supreme Court
DecidedJanuary 16, 2002
DocketNo. 00-1267
StatusPublished
Cited by28 cases

This text of 94 Ohio St. 3d 54 (Complete General Construction Co. v. Ohio Department of Transportation) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Complete General Construction Co. v. Ohio Department of Transportation, 94 Ohio St. 3d 54 (Ohio 2002).

Opinions

Pfeifer, J.

This case evolved out of a contractor’s claim for additional costs on a highway construction project as a result of delays caused by the Ohio Department of Transportation (“ODOT”). The bulk of this case concerns the method of calculating unabsorbed home office overhead — the cost of running a contractor’s home office during the delay period — and whether Ohio should adopt the “Eichleay formula,” an equation employed by federal courts in determining such costs. The formula acquired its name from the Armed Services Board of Contract Appeals decision in Eichleay Corp. (1960), ASBCA No. 5183, 60-2 BCA ¶ 2688, 1960 WL 538, and “is the most well-known formula for calculating unabsorbed overhead” costs arising out of government-caused delay. Shapiro & Worthington, Use of the Eichleay Formula to Calculate Unabsorbed Overhead for Government Caused Delay Under Manufacturing Contracts (1996), 25 Pub. Contr.L.J. 513, 514. We hold that Ohio courts may use the Eichleay formula, with certain important modifications, in calculating such costs. We do not find that the Eichleay formula is the exclusive manner of determining unabsorbed home office overhead.

Factual Background

This action arises out of the construction of a stretch of 1-670 from just north of downtown Columbus to Port Columbus International Airport. Construction of that portion of 1-670 was broken into five sections, with each section being bid as a separate project. Appellee and cross-appellant, Complete General Construction Company (“Complete General”), successfully bid on four of those five projects. One of those four, Project 56-91 (“the Project”), is the focus of this action.

[56]*56The Project provided for the construction of 1-670 from the Greater Columbus Convention Center to a point just west of 1-71. The contract called for the construction of that stretch of highway, including the erection of three new bridges and the widening of another. Work on the Project began on March 15, 1991, with a slated completion date of August 31, 1992.

However, early on in the Project, design errors relating to the bridges and attributable to ODOT caused a seven-month delay. Due to the delay, on May 13, 1992, ODOT granted Complete General a twelve-month work extension, moving the completion date to August 31, 1993. While the actual delay was seven months, an extension to March 31, 1993, automatically triggered an additional five-month extension under the contract because the March date fell within the winter shutdown period.

Later, ODOT granted Complete General an additional sixty-day extension for other work not contemplated by the original contract, moving the completion date to October 31,1993.

Following the completion of the Project, the parties entered into negotiations to compensate Complete General for costs it incurred as a result of the extension of the completion date. On October 31, 1996, they agreed that ODOT would pay Complete General $177,662.47 as final compensation for all costs related to the contract extensions, except “home office overhead, interest, major equipment costs, and bond costs.” The settlement was a part of Change Order 39. The parties continued negotiating on the unresolved issues.

On January 7, 1997, Complete General sued ODOT to recover unabsorbed home office overhead, idle equipment costs, extended equipment costs, and additional bond costs, as well as interest on all these costs from the time of completion of the Project. ODOT offered to pay Complete General $196,410.34: $182,500 for unabsorbed overhead, $888.31 for bond costs, and $13,022.03 for interest. Complete General accepted the amount as partial payment for the disputed claims, and continued on with its lawsuit. This partial settlement was memorialized in Change Order 40.

The parties tried the case before the Court of Claims beginning on April 13, 1998. On November 18, 1998, the court awarded Complete General $374,231.08. The award broke down as follows: $184,947 for unabsorbed home office overhead, $62,622.50 for idle equipment costs, $115,171.49 in interest on the overhead and idle equipment awards, and $11,490.09 in additional bond costs. The court found for ODOT on Complete General’s claim for extended equipment costs, i.e., costs for additional equipment time required beyond that originally allocated in Complete General’s bid.

[57]*57Both parties appealed the decision of the Court of Claims. In its decision, the Franklin County Court of Appeals affirmed the judgment of the Court of Claims in part, reversed it in part, and remanded the cause for further proceedings.

The cause is before this court upon the allowance of a discretionary appeal and cross-appeal.

Law and Analysis

Both parties appeal aspects of the court of appeals’ decision. We resolve those issues below.

Unabsorbed Home Office Overhead

ODOT appeals this part of Complete General’s award based upon the lower courts’ reliance on the Eichleay formula for the calculation of home office overhead during the delay period.

Bids on construction projects incorporate two different kinds of costs. The first type, direct costs, include construction wages and equipment expenses and are attributed to specific projects. The second type, indirect costs, are the expenses involved in generally running a business, not attributable to any one project. The most significant indirect cost is home office overhead. Such costs typically include salaries of executive or administrative personnel, general insurance, rent, utilities, telephone, depreciation, professional fees, legal and accounting expenses, advertising, and interest on loans. See Interstate Gen. Govt. Contrs., Inc. v. West (Fed.Cir.1993), 12 F.3d 1053, 1058.

Each project a contractor undertakes derives benefits from the home office, and each contributes to paying for home office overhead. Contractors typically do not apportion overhead costs among individual projects. Each project in some degree is responsible for the contractor’s costs of simply doing business, and each project plays its proportionate part in paying those costs. When a delay occurs on a particular construction project, that particular project ceases to carry its weight in regard to running the business, which can result in damages to the contractor. See Kauffman & Holman, The Eichleay Formula: A Resilient Means for Recovering Unabsorbed Overhead (1995), 24 Pub.Contr.L.J. 319, 320-321.

Assigning a value to a delayed project’s effect on home office overhead can be difficult. Calculating overhead costs allocable to a delay on a given project is generally achieved through the employment of a mathematical formula. The most prominent of those formulas, especially in the federal government context, is the Eichleay formula. See Golden & Thomas, The Spearin Doctrine: The False Dichotomy Between Design and Performance Specifications (1995), 25 Pub.Contr.L.J. 47, 66-67.

[58]*58The Eichleay formula “ ‘seeks to equitably determine allocation of unabsorbed [home office] overhead to allow fair compensation of a contractor for government delay.’ ” Satellite Elec. Co. v. Dalton

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Bluebook (online)
94 Ohio St. 3d 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/complete-general-construction-co-v-ohio-department-of-transportation-ohio-2002.