Concrete Placing Co. v. United States

37 Cont. Cas. Fed. 76,267, 25 Cl. Ct. 369, 1992 U.S. Claims LEXIS 58, 1992 WL 28945
CourtUnited States Court of Claims
DecidedFebruary 19, 1992
DocketNo. 26-89C
StatusPublished
Cited by8 cases

This text of 37 Cont. Cas. Fed. 76,267 (Concrete Placing Co. 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
Concrete Placing Co. v. United States, 37 Cont. Cas. Fed. 76,267, 25 Cl. Ct. 369, 1992 U.S. Claims LEXIS 58, 1992 WL 28945 (cc 1992).

Opinion

OPINION

SMITH, Chief Judge.

This case involves a government contractor’s claim for an equitable adjustment to a contract with the National Guard Bureau, a joint bureau of the Departments of the Army and the Air Force. The contract was for maintenance and repair of an existing concrete aircraft parking apron at Gowen Field in Boise, Idaho. Plaintiff, Concrete Placing Co., Inc. (Concrete Placing), has performed the contract and pursuant to 28 U.S.C. § 1491 and 41 U.S.C. § 605 (Supp. 1991), appeals from the contracting officer’s (CO) final decision denying its request for relief. Defendant has filed a counterclaim seeking reimbursement of costs it allegedly incurred in correcting work performed by plaintiff. After a five day trial, and a thorough consideration of the legal issues before it, the court dismisses defendant’s counterclaim and directs judgment for plaintiff.

FACTS

On September 8, 1986, the United States Property and Fiscal Officer for Idaho (USPFO), an agency of the National Guard Bureau, issued a solicitation for maintenance and repair work on a concrete aircraft parking apron at Gowen Field in Boise, Idaho. The parking apron was used by the Idaho Air National Guard for parking military jet aircraft. The solicitation required, among other things, the placement of sealant between the concrete slabs covering areas of the parking apron.1 Concrete surfaces such as those at Gowen Field are composed of slabs, rather than poured as one unit, in order to reduce cracking which occurs when concrete expands and contracts with the seasonal variations in temperature and weather.2 To prevent cracking, concrete slabs are installed so that there are slight spaces, or joints, between them, thereby giving the concrete room to expand and contract. Rubber-like sealant is typically placed between concrete slabs in order to serve the dual function of filling the joints while at the same time permitting the concrete to fluctuate in size according to temperature and weather conditions. Sealant also prevents moisture, another cause of cracking, from seeping between the slabs. When moisture which has seeped between and below the concrete slabs freezes it can cause heaving, and ultimately cracking, of the concrete.

Prior to bidding on the project, Concrete Placing obtained copies of the plans and specifications and attended a prebid inspection of the work site on September 30, 1986. During that prebid inspection, representatives from Concrete Placing noted that some areas of the existing joints where sealant was to be removed and replaced appeared to be spalled.3 The evidence showed that bidders questioned the government representative, Major Perkins, on how such areas should be bid since the specifications addressed only uniform joint configurations. Major Perkins instructed the bidders that they should bid in accordance with the details given in the specifications and that any deviation from the plans would be noted during construction and would be handled by routine change order procedures. Another government representative, Lieutenant Argyle, confirmed this instruction to Concrete Placing by phone the week following the site visit.

[371]*371On January 6, 1987, USPFO awarded the contract to Concrete Placing. The total contract price was $498,474.00. Concrete Placing’s bid on the sealant portion of the project was $133,220.00. The government issued its notice to proceed on July 6, 1987. Plaintiff commenced work on July 9, 1987.

Prior to the time sealant operations began, Concrete Placing sought clarification from the government on how the spalled joints were going to be repaired. Spalled joints hamper the sealing process because sealant cannot adhere properly when bits and pieces of sand and gravel from the old concrete become imbedded in the sealant.4 After considerable discussion, the government prepared a modification to the contract to identify the method of repair. The government then asked Concrete Placing for a price proposal on the repair and that price proposal was submitted.' However, the government subsequently decided that the spall repair would only be done at designated portions of the project, instead of throughout the whole apron. The two modifications to the contract which called for joint repair, Modifications Nos. 3 and 5, only covered twenty-five and fifty-five square feet, respectively, of the apron, or less than one percent of surface area encompassed by the project. The specifications indicated that all spalled joints not covered by Modifications No. 3 or 5 were to be filled with sealant.

On March 19, 1987, Concrete Placing submitted for government approval as required by the contract a sealant known as Sonomeric CT-1 (CT-1), manufactured by Rexnord Chemical Products, Inc. (Rexnord). Concrete Placing also submitted materials from Rexnord indicating that after curing CT-1 would meet all of the performance requirements mandated by federal specifications. On March 24, 1987, the CO approved CT-1 for use as a sealant on the aircraft apron project.

Shortly before commencing performance on the Gowen Field apron, Concrete Placing became familiar with CT-1 sealant on an unrelated project at Gowen Field. Plaintiff found that CT-1 did not perform adequately as the sealant bubbled up and extruded out of the joints after being exposed to warm temperatures. Evidence at trial indicated that the problem with the CT-1 on the other project was that it had not properly cured, or solidified, because of the hot, dry conditions which are typical of Idaho summers. CT-1 is a moisture-curing sealant, which means that if it is not exposed to sufficiently humid conditions, it will remain in an unsolidified, liquidy form. If sealant fails to fully cure, it will inevitably extrude onto the concrete surface under hot conditions.

As a precaution for the Gowen Field project, Concrete Placing placed test strips of several sealants in several joints of the apron to determine what sealant would work best. These included CT-1, another sealant manufactured by Rexnord (CT-2), and sealants manufactured by another company, Vuleum. After reviewing the test strips and conferring with Rexnord representatives, Concrete Placing concluded that CT-2 would be the most appropriate sealant for the apron. CT-1, which had been intended for use on the apron, is a one-part sealant which can be applied directly to joints. CT-2 is a two-part sealant made up of two components which requires mixing before application. CT-2 is more costly than CT-1. It is also more costly to apply because the installation process is more labor and equipment intensive. On August 3, 1987, Concrete Placing ordered 1,940 gallons of CT-2 sealant for use on the project. Two days later, on August 5, 1987, Concrete Placing notified the CO, Lieutenant Colonel Sidney B. Call, that it wanted to use CT-2 instead of CT-1.5 After some dispute, the government, in a September 14, 1987 letter, approved the [372]*372use of CT-2. The government, however, refused to pay the increased cost for its use. The CO took the position that CT-1, if used properly, could adequately seal the joints.

Central to the dispute between the parties is the condition of the joints prior to contract performance and how that condition affected application of the sealant.

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Bluebook (online)
37 Cont. Cas. Fed. 76,267, 25 Cl. Ct. 369, 1992 U.S. Claims LEXIS 58, 1992 WL 28945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concrete-placing-co-v-united-states-cc-1992.