C.W. Over & Sons, Inc. v. United States

44 Fed. Cl. 18, 1999 U.S. Claims LEXIS 130, 1999 WL 388150
CourtUnited States Court of Federal Claims
DecidedMay 20, 1999
DocketNo. 98-741C
StatusPublished
Cited by12 cases

This text of 44 Fed. Cl. 18 (C.W. Over & Sons, 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
C.W. Over & Sons, Inc. v. United States, 44 Fed. Cl. 18, 1999 U.S. Claims LEXIS 130, 1999 WL 388150 (uscfc 1999).

Opinion

OPINION

MILLER, Judge.

This contract case is before the court after argument on defendant’s motion for summary judgment. The issues to be decided are (1) whether the contract price as awarded included all state sales tax on materials; (2) whether the contractor’s performance of work orders under $2,000.00 was beyond the scope of the contract; and (3) whether the Government applied improper coefficients for modifications to certain delivery orders.

FACTS

On January 14, 1994, the Maryland Procurement Office of the National Security Agency (the “NSA”) awarded contract MDA904-94-D-2502 to C.W. Over & Sons, Inc. (“plaintiff’). This firm fixed-priced contract was an indefinite delivery, indefinite quantity job order contract providing for construction and renovation work at Fort George G. Meade, Maryland (“Fort Meade”). The duration of the contract was a base year with four options years; the NSA exercised three of the four option years.

1. Sales tax

The contract incorporated by reference a Job Order Contract Unit Price Book, Vol. II (Aug. 19, 1991) (the “UPB”), which is a project-segment based compilation of pre-prieed work items and provides the costs for individual construction tasks. Per the contract, the contractor was to provide three fixed coefficients for the base year and each of the option years. Clause B.2 of the contract defines coefficient as “a numerical factor that represents the contractor’s direct and indirect costs and profit over and above the fixed prices established in the [UPB].” The three fixed coefficients for each year represented the cost of normal working hours, other than normal working hours (overtime), and flya[21]*21way services or services not performed at Fort Meade. Although the coefficients would change for each successive year of the contract to account for differing economic conditions, the coefficients would remain fixed during the year for which each was designated. Plaintiffs proposal included the coefficients applicable during the base year and each of the option years, which were incorporated into the contract upon award.

Clause B.2 provided: “The unit prices include all labor, material and equipment necessary to install one unit of a particular line item. The coefficients will be used to price the cost of each Delivery Order by multiplying the applicable coefficient by the unit prices and quantities. The coefficients must include all associated costs that are not included in the [UPB].” Because the contract indicated that “no allowances for any prices other than the non-prepriced item unit prices” would be permitted, whether the UPB prices include a coefficient that includes sales tax is significant.1

The parties dispute what costs are encompassed within the UPB price listing, specifically with regard to state sales tax. Defendant asserts that the UPB prices included applicable sales tax, so that the absence of sales tax from the coefficient was proper. In contrast, plaintiff contends: “Sales Tax is a cost not included in the [UPB].” Plfs Proposed Finding No. 6, filed Feb. 26, 1999. According to plaintiff, because sales tax is not a cost contained within the UPB, it should have been included in the coefficient. Contending that it relied upon statements of tax exemption in excluding state sales tax from its coefficient, plaintiff argues, inter alia, its entitlement to an equitable adjustment for state sales tax.

Under this contract the NSA notified plaintiff of the work it required through delivery orders. Upon receiving a delivery order, plaintiff prepared a proposal consistent with clause H.21 of the contract. NSA technical personnel would verify the estimates in the proposal. Once approved, the coefficient would be applied as provided in clause H.21.g, which states:

The base prices determined will be multiplied by the number of work units required to determine the extended base unit price, which will be converted to the delivery order firm-fixed price by multiplying the extended base unit price by the appropriate current contractor’s coefficient.

The contracting officer issued an omnibus delivery order for each year that was intended to provide sufficient funding to pay for all small jobs anticipated during that year. Delivery Orders (“DO”) 0001, 0043, 0135, and 0210 had respective values of $420,000.00, $400,000.00, $450,000.00, and $275,000.00.

2. Small job orders

Clause 1.4, entitled DELIVERY-ORDER LIMITATIONS, placed a minimum value on orders, stating, in pertinent part:

When the Government requires supplies or services covered by this contract in an amount of less than $2,000.00, the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract.

The record contains a series of correspondence and discussions concerning the provision for small job orders requiring Quick Response Capability. In a request for clarification from plaintiff, the NSA predicted that 300 small requirements would be needed per month. The parties dispute whether plaintiff agreed to perform small job orders valued under $2,000.00, and whether the NSA agreed to bundle job orders together until the $2,000.00 minimum was reached. In this regard Contracting Officer Mark C. Doring authored a memorandum dated April 15, 1994 to David L. Cobb, the Contracting Officer’s Representative. The memorandum stated:

For requirements between $0.00 and $2,500.00, the contractor shall use R.S. Means to estimate jobs and submit the estimates to the Government for review and approval. R.S. Means shall be used until [the U.S. Army Corps of Engineers [22]*22Computer Aided Cost Accounting System] is made available to the contractor. Upon approval, L584 will issue work orders for the contractor’s estimate, and L584 will verify that the work has been completed. L584 will bundle work orders until they meet the $2,000.00 threshold for individual delivery orders, and when possible, bundle them for work in the same areas (building complexes).2

Plaintiff contends that the NSA’s failure to bundle work orders and continued issuance of work orders valued under $2,000.00 resulted in a loss of $264,992.00. This loss stemmed from the application of plaintiff’s coefficient to work that plaintiff was not required to perform under the contract. Plaintiff maintains that the cost of site inspection, estimating the work, and performance increased markedly for jobs under the $2,000.00 threshold and that such costs could not be covered by the proposed coefficient. Thus, plaintiff seeks an equitable adjustment totaling $264,992.00 for the issuance of work orders under $2,000.00 in violation of the contract.

3. Expired coefficients

Finally, plaintiff challenges the NSA’s application, of expired coefficients for work orders performed during the option years. Plaintiff seeks an equitable adjustment in the amount of $6,202.74 under the Changes clause for application of the wrong coefficient on delivery orders 0168, 0198, 0192, 0204, 0193, 0207, 0232, and 0135.

On February 20,1998, plaintiff submitted a certified claim to the contracting officer for $1,069,189.71 representing additional costs incurred during the course of performance. On July 20, 1998, the contracting officer denied plaintiffs claim.

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Bluebook (online)
44 Fed. Cl. 18, 1999 U.S. Claims LEXIS 130, 1999 WL 388150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cw-over-sons-inc-v-united-states-uscfc-1999.