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

48 Fed. Cl. 342, 2000 U.S. Claims LEXIS 257, 2000 WL 1860716
CourtUnited States Court of Federal Claims
DecidedDecember 18, 2000
DocketNo. 98-741C
StatusPublished
Cited by5 cases

This text of 48 Fed. Cl. 342 (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, 48 Fed. Cl. 342, 2000 U.S. Claims LEXIS 257, 2000 WL 1860716 (uscfc 2000).

Opinion

OPINION

MILLER, Judge.

This contract case is before the court on defendant’s motion for summary judgment as to Count II of the complaint. A contractor seeks damages incurred when the Government refused to allow aggregation or bundling of small work projects, so that the contractor was required to perform jobs under $2,000.00 at any one time, instead of in groups aggregating at least $2,000.00. The issues to be decided are (1) whether the law of the case doctrine prevents summary judgment after this court denied defendant’s pri- or summary judgment motion on the ground that genuine issues of material fact were present; (2) whether the contract can be interpreted as requiring bundling of orders for less than $2,000.00; (3) if the contract does not require bundling, whether the parties agreed to administer the contract differently such that plaintiff may be entitled to damages. Argument is deemed unnecessary.

FACTS

The following facts have been established in the prior proceedings or on this motion. 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-price contract was an indefinite delivery, indefinite quantity job order contract (“JOC”) providing for eonstruction and renovation work at Fort George G. Meade, Maryland. The duration of the contract was one year with four one-year options. All but the final option year of the contract were exercised. Count II of plaintiffs complaint alleges that the NSA breached its obligation to bundle work orders for under $2,000.00. Only those facts pertinent to the pending motion are recited.1

1. Orders and pricing

The contract establishes a formula to set the price of work ordered by the NSA. The contract incorporates by reference a Unit Price Book (“UPB”) to determine the costs of each potential undertaking. A UPB is a comprehensive register of individual construction tasks that the Government has pre-priced. The price of a particular task is established by cross-referencing the task performed with the UPB cost entry and multiplying by the relevant coefficient.2 The coefficients thus operate as multipliers in calculating the price that plaintiff was entitled to charge for work performed. At the outset plaintiff was required to provide the NSA with three fixed coefficients — for onsite work during normal working hours, onsite work during other than normal working hours (overtime), and offsite work — for each year of the contract. Although the coefficients changed for each successive year of the contract to account for differing economic conditions, they remained fixed during the year for which each was designated. Plaintiffs proposed coefficients were incorporated into the contract upon award.

The contract also establishes a procedure for ordering new work. The two vehicles employed for this purpose were (1) delivery orders and (2) modifications to delivery orders. Delivery orders were used to initiate separate projects within the contract. Various sections of the JOC relate to ordering procedures and applicable rules. Section [344]*344H.21 of the contract, entitled “ORDERING,” details the process for issuing delivery orders. Section F.6, “MPO 216-9002 ORDERING (APR 1989),” provides that “[a]ll Delivery Orders issued hereunder are subject to the terms and conditions of this contract. This contract shall control in the event of conflict with any Delivery Order.” Delivery order limitations are found in section 1.4, which states, in 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.

Additionally, section 1.5 required the NSA to order at least the amount of “supplies or services designated in the Schedule as the ‘minimum,’ ” as well as required plaintiff to provide supplies and services up to and including the “maximum.”

In pre-award discussions with offerors for the JOC, the NSA mentioned the issuance of requirements for work of less than $2,000.00 under large umbrella or “Omnibus” delivery orders, with the implication that bundling was a possibility. For example, the June 8, 1993, JOC pre-bid conference agenda contained a bullet point stating “Omnibus jobs— small requirements (bundling, but quick response ....)” The minutes from the pre-bid conference recorded that “[sjmall jobs costing less than $2,000 may be bundled together and issued under one delivery order.” The JOC Proposal Evaluation Clarification Questions posed to plaintiff included an inquiry into how plaintiff intended “to satisfy the small projects requirements (under $2,000.00), as discussed in the pre-bid conference,” apparently reinforcing the earlier references to bundling. The NSA issued the first “Omnibus” delivery order, DO 001, on February 10,1994. DO 001 “placed funds on the contract” to perform small dollar requirements, defined as work less than $5,000.00, during the contract’s base year. The NSA issued work orders under DO 001 as projects with lower costs arose.

Although the contract did establish a procedure for ordering new work, it did not establish a specific process by which the parties would agree on what work was necessary for a particular project. In practice the parties followed the same basic negotiating steps. After the NSA had identified its project requirements, plaintiff would prepare a proposal that included a listing of the line items necessary for performance. Plaintiff would cross-reference the required line items with the UPB, multiply by the relevant coefficient, and add the amounts to obtain a total price for the project. As was its custom, the NSA concurrently would prepare its own independent cost estimate. When plaintiffs proposal was received, the NSA would review it against its own estimate. Next, the parties would meet to discuss any discrepancies or outstanding technical issues. Any changes agreed to would be incorporated into plaintiffs proposal. Thereafter, the NSA would issue a work order consistent with the agreed-to terms.

Early into the contract performance, the manner in which orders for small work requirements would be processed became an issue. On March 7, 1994, plaintiffs Project Manager, Walt Wilson, and David Cobb, the Contracting Officer’s Representative (the “COR”) for the JOC, signed a memorandum entitled “Small Requirements Process Test Phase.” This memorandum memorialized an agreement to a three-month trial period for certain guidelines in processing and performance of small requirements.3 The process allowed for plaintiff to use a phoned-in estimate, rather than a “walk out,” and throughout the trial period appropriate adjustments were to be made as necessary. While an “implementation occurred,” the agreed upon trial process outlined in the March 7 memorandum was never followed.

Small work requirements remained an issue during the first year. In particular, plaintiff had to balance the hardship of lost profits from small orders with the need to complete work for less than $2,000.00 in a timely manner.4 A few months into the con[345]*345tract, plaintiff received delivery orders from the NSA for under $2,000.00. Charles W.

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Cite This Page — Counsel Stack

Bluebook (online)
48 Fed. Cl. 342, 2000 U.S. Claims LEXIS 257, 2000 WL 1860716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cw-over-sons-inc-v-united-states-uscfc-2000.