D.F.K. Enterprises, Inc. v. United States

45 Fed. Cl. 280, 1999 U.S. Claims LEXIS 277, 1999 WL 1086948
CourtUnited States Court of Federal Claims
DecidedNovember 22, 1999
DocketNo. 96-423C
StatusPublished
Cited by13 cases

This text of 45 Fed. Cl. 280 (D.F.K. Enterprises, 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
D.F.K. Enterprises, Inc. v. United States, 45 Fed. Cl. 280, 1999 U.S. Claims LEXIS 277, 1999 WL 1086948 (uscfc 1999).

Opinion

OPINION

BRUGGINK, Judge.

This dispute arises out of a contract between plaintiff, D.F.K. Construction Corporation (“DFK”), and the Army Corps of Engineers (“Corps”), for the painting of water storage tanks located at the White Sands Missile Range (“WSMR”) in White Sands, New Mexico. In its complaint, DFK alleges that the Corps breached the contract by misrepresenting the amount of adverse weather experienced at the site, which in turn resulted in unanticipated work stoppages and corresponding increases in the overhead costs incurred by DFK over the course of contract performance. Plaintiff seeks damages for breach of contract stemming from its reliance on this alleged misrepresentation. The matter is currently pending on the parties’ cross-motions for summary judgment. Oral argument was held on April 28, 1999, during which the court ordered supplemental briefing. For the following reasons, the motions for summary judgment of both parties are denied.

BACKGROUND

On July 29,1994, the Corps issued Solicitation No. DACA63-94-B-0107 for the painting of four ground level and three elevated steel water storage tanks at WSMR.1 The [282]*282scope of work included, among other activities, the construction of a containment system around the tanks to prevent contamination from lead-based paint from entering the surrounding environment during the paint removal process.

The containment system specified in the solicitation consisted of large nylon reinforced tarps tied together and anchored with ropes and/or cables, extending the entire height of the tank (140 to 180 feet). Although this type of containment system is effective at confining pollutants, one of its drawbacks is that high winds can cause the tarps to tear, rendering the containment system useless. Work under the contract was thus dependent on favorable wind conditions.

On June 1, 1994, prior to award of the contract, the Corps issued a formal response to questions raised at the pre-bid conference. One of the questions dealt with the weather conditions:

Question 12: What is the normal wind speed at the job site?
Response: Contact the U.S. Weather Service in El Paso at (915) 772-8894.

Plaintiff did not contact the U.S. Weather Service prior to bidding on this project. Although DFK is headquartered in California, the President of DFK, David F. Kappos, states in his affidavit that he performed a pre-bid site visit to WSMR in July of 1994, along with two Corps representatives. According to Kappos, it was very hot on the day of his visit and there was very little wind. Kappos states that when he asked about the expected weather conditions at the site, one of the Corps representatives responded, “it’s hot and we get some winds occasionally.”

The solicitation provided prospective bidders with the following information with respect to anticipated adverse weather for the project period:

SECTION 00800 — SPECIAL CLAUSES
3. TIME EXTENSIONS FOR UNUSUALLY SEVERE WEATHER (OCT 1989) (ER 415-1-15)
b. The following schedule of monthly anticipated adverse weather delays is based on the National Oceanic and Atmospheric Administration (“NOAA”) or similar data for the project location and will constitute the base line for monthly weather time evaluations. The contractor’s progress schedule must reflect these anticipated adverse weather delays in all weather dependent activities.

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Engineering Regulation (“ER”) 415-1-15, referenced in the title of Paragraph 3 above, was issued by Corps Headquarters to provide guidance to Corps engineers for establishing time adjustments to the contract for delays caused by unusually severe weather. According to this document, unusually severe weather includes “weather that is more severe than the adverse weather anticipated for the season or location involved.”

Appendix “B” to ER 415-1-15 sets forth the methodology that Corps engineers are to use in developing the adverse weather projections for the project location:

1. Development of Adverse Weather Data....

a. Analyze the project scope and site geography to determine which weather parameters (temperature, precipitation, wind, etc.) are applicable. The parameters selected should present adverse conditions that could potentially delay construction activities.

[283]*283b. Review the technical specifications to determine the numerical values that will be assigned to each parameter in order to establish the anticipated adverse weath-er____

e. Compile the number of days per month that the anticipated weather is expected to be adverse by analysis of NOAA or other weather data. When at all possible, the last 10 years of consecutive data should be used to establish the baseline.

2. Application of Adverse Weather Data to Performance Time Estimates____

(2) Incorporation of anticipated delays due to weather will change individual activity durations and progressively shift the preliminary schedule and move weather dependent activities into or out of unfavorable conditions.

(Emphasis added).

The Corps internal guidance, in other words, directed that wind be considered a potential source of adverse weather delay. Nevertheless, in preparing the anticipated adverse weather chart for this project, the Corps included only adverse weather caused by rain and/or freezing precipitation. It did not include anticipated delay caused by adverse wind conditions. Kappos states in his affidavit, however, that DFK based its bid on the assumption that the weather chart in the solicitation included anticipated delays for all types of adverse weather. It thus did not include costs in its bid associated with the extended periods of high wind that actually prevail at the contract work site.

On June 29, 1994, the Corps awarded Contract No. DACA63-94-C-0156 to DFK in the amount of $991,300. Shortly thereafter, DFK submitted a Proposed Schedule of Work as required by the contract. This schedule incorporated the contract requirement that only one tank could be out of service at any one time. As shown on that schedule, DFK intended to begin painting the ground tanks the week of October 21, 1994 through the week of February 10, 1995. Next, DFK planned to paint the elevated tanks from the week of February 10, 1995 through the week of June 2, 1995. According to Kappos, DFK planned to paint the ground level tanks first because they were close together and would allow DFK to group its equipment and materials in one area and get a good jump on the work. Kappos states that in preparing this schedule, DFK relied on the anticipated adverse weather data included in the contract.

Beginning approximately March 13, 1995, the project site began to experience a series of high wind days. These winds began to rip tarps, diminishing the effectiveness of the containment systems, and causing unsafe working conditions. Because of these conditions, DFK was forced to temporarily cease its paint removal operations until the winds subsided. Over the next several weeks, plaintiff repaired damaged tarps and remobi-lized to areas of the project less affected by the wind.

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Bluebook (online)
45 Fed. Cl. 280, 1999 U.S. Claims LEXIS 277, 1999 WL 1086948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dfk-enterprises-inc-v-united-states-uscfc-1999.