Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States

87 Fed. Cl. 113, 2009 U.S. Claims LEXIS 116, 2009 WL 1361917
CourtUnited States Court of Federal Claims
DecidedMay 11, 2009
DocketNo. 08-417C
StatusPublished
Cited by43 cases

This text of 87 Fed. Cl. 113 (Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. 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
Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 2009 U.S. Claims LEXIS 116, 2009 WL 1361917 (uscfc 2009).

Opinion

[116]*116OPINION AND ORDER

LETTOW, Judge.

This contract case stems from work performed by a contractor, Dick Pacific/GHEMM, JV (“Dick Pacific”) and one of its subcontractors, W.A. Botting Company (“Botting”) in constructing the Bassett Hospital replacement at Fort Washington, Alaska. The crux of the dispute concerns a price-adjustment clause in the contract. The government has moved to dismiss plaintiffs price-adjustment claim for lack of subject matter jurisdiction, and the parties also have filed competing cross-motions for summary judgment. The issues on the merits are first, whether the government breached a settlement agreement entered in 2007 in a previously filed case in this court involving the same claim, and second, whether the contract requires the government to pay increased labor costs that Botting incurred when acting as a subcontractor to Dick Pacific. Compl. ¶¶ 24, 27, 28, 31. Dick Pacific’s motion for partial summary judgment addresses only the issue of whether Dick Pacific and Botting are entitled to receive a price adjustment that would cover their increases in actual labor costs and related expenses. PL’s Am. Mem. in Supp. of Mot. for Partial Summary Judgment at 13-14 (“PL’s Am. Mot.”). Contrastingly, the government puts forward a double-barreled response. It contends that the court lacks jurisdiction to adjudicate plaintiff’s economic-price-adjustment claim because Dick Pacific failed to recertify its claim to the contracting officer when that claim was again presented to the officer subsequent to entry of the settlement agreement in 2007, even though Dick Pacific had submitted a properly certified claim as an original matter. Def.’s Mot. to Dismiss or, in the Alternative, Cross-Mot. for Summary Judgment and Resp. to Pl.’s Mot. for Partial Summary Judgment at 11-12 (“Def.’s Cross-Mot.”). Separately, on the merits, the government avers that Dick Pacific cannot demonstrate that the government breached the 2007 settlement agreement and that the terms of the price-adjustment clause in the contract bar any relief. Id. at 12, 18. The competing motions have been fully briefed and a hearing was held on April 17, 2009.

FACTS 1

The government’s initial solicitation of bids for the Bassett Hospital replacement project was canceled because the government determined that the bids it received were prohibitive in cost. See Pl.’s App., Ex. 1 (Deel. of Pete Botting, President of W.A. Botting Co. (Oct. 15, 2008)) (“Botting Deck”) at 2.2 The government resolicited bids for the project in October 2001, proposing, among other things, to add an economic-priee-adjustment clause to address the risk that labor costs would increase during the course of the large project. See Botting Deck at 2. On February 19, 2002, the government informed Dick Pacific that it had been awarded the contract at a fixed price of $178,289,000. Pl.’s App. at 17 (Award of Contract (Feb. 19, 2002)). The government issued' the “contract notice to proceed” to Dick Pacific on March 14, 2002. Compl. ¶8. The Bassett Hospital replacement project was substantially completed four and one-half years later, on October 2, 2006. Id.

The second solicitation expressly incorporated an eeonomic-price-adjustment clause into the contract, drawn virtually verbatim from the economic-price-adjustment clause set out in the Federal Acquisition Regulations (“FAR”) at 48 C.F.R. § 52.216-4. See, e.g., Botting Deck at 2; Pl.’s App. at 13-14 (Contract Section 52.216-4). That provision of the FAR addresses adjustments for increases or decreases in actual costs of labor and materials; the slight modification of FAR § 52.216-4 in the solicitation deleted the words that would have allowed a contractor to receive price adjustments for materials. Compare Pl.’s App. at 13 (Contract Section 52.216-4 as modified), with FAR [117]*117§ 52.216-4. The resulting economic-price-adjustment clause provided that “[a]ny adjustment shall be limited to the effect on unit prices of the increases or decreases in the rates of pay for labor (including fringe benefits) in the Schedule. There shall be no adjustment for (i) [ejhanges in rates or unit prices other than those shown in the Schedule, or (ii) [ejhanges in the quantities of labor of those established in the baseline pre-award audit.” Pl.’s App. at 13 (Contract Section 52.216-4 as modified from FAR § 52.216-4).

In addition to the economic-price-adjustment clause, the government included a proposed schedule with the solicitation documents. Pl.’s App. at 18-20 (Proposal Schedule). The proposed schedule identified the work a contractor would have to perform under the contract by item number. Id. at 18. The construction of the replacement hospital and the site work were covered by base line items 0001 and 0002. Id at 18. The proposed schedule provided that those line items were “subject to clause 52.216-4, Economic Price Adjustment-Labor and Materials.” Id. at 19. However, that proposed schedule went on to provide that “Davis-Bacon General Decision Number AK010001 and AK010006, dated 10/19/01 in section 0700A are subject to [adjustment.” Id. Ordinarily, Davis-Bacon labor rates would be treated as a price-index base for adjustments of labor rates, covered under a different portion of the FAR than the actual-rate adjustment provision that was inserted into the solicitation. The proposed schedule concluded with a specification that “[gjovernment-evaluated EPA adjustments will be reflected as sub-line item under 0011 after contract award.” Id. The proposed schedule thus introduced an ambiguity into the solicitation.

On October 31, 2001, the government held a pre-proposal conference. Botting Deel. at 3. The participants at the meeting were informed that if “[ajnything ... comes out of this meeting we will address [it] in [an] amendment that’s going to be coming out in mid-November.” Pl.’s App. at 24 (Transcript of Pre-Proposal Conference (Oct. 31, 2001)). At the conference, the program manager explained that the economie-priee-adjustment clause was inserted into the solicitation in an effort “to allow contractors to bid competitively for labor rates initially, with the understanding that if rates increase in the future, that [t]he[y] will have a mechanism for getting additional funds to cover those increases in labor costs.” Id. at 26 (Transcript of Pre-Proposal Conference). Subsequently on November 21, 2001, the government issued Amendment 0001 to the solicitation, which provided that:

A. Prior to the award of the contract, the successful offeror shall be prepared to furnish cost information to assist DCAA (Defense Contract Audit Agency) for establishment of a baseline quantity of labor for future economic price adjustments. The following information may be requested from any offeror prior to contract award:
1. Direct Labor Rates:
a. If Davis Bacon wage determination is tised, identify rate categories used (e.g., operator 1, operator, etc.)
b. If union rates are tised, provide the latest negotiated union agreement
c. If labor rates are based on current employees, provide copies of latest payroll records
d. Provide breakdown of burdened labor rates (e.g., FICA, FUTA, Alaska Unemployment, Worker’s Comp., etc.)

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Cite This Page — Counsel Stack

Bluebook (online)
87 Fed. Cl. 113, 2009 U.S. Claims LEXIS 116, 2009 WL 1361917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dick-pacificghemm-jv-ex-rel-wa-botting-co-v-united-states-uscfc-2009.