Dillingham Construction, N.A. v. United States

40 Cont. Cas. Fed. 76,827, 33 Fed. Cl. 495, 1995 U.S. Claims LEXIS 110, 1995 WL 327983
CourtUnited States Court of Federal Claims
DecidedMay 31, 1995
DocketNo. 93-636C
StatusPublished
Cited by5 cases

This text of 40 Cont. Cas. Fed. 76,827 (Dillingham Construction, N.A. 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
Dillingham Construction, N.A. v. United States, 40 Cont. Cas. Fed. 76,827, 33 Fed. Cl. 495, 1995 U.S. Claims LEXIS 110, 1995 WL 327983 (uscfc 1995).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on defendant’s motion for summary judgment, filed pursuant to RCFC 56(c). For the reasons set forth below, the court grants defendant’s motion.

FACTS

I. Background

This ease arose out of a contract between the Veterans Administration and Dillingham Construction, N.A., Inc. Under the contract, Dillingham was to provide all labor, materials, tools and equipment necessary to design and construct a two-story outpatient clinic building (the facility). The project began after the VA determined that the existing hospital in Martinez was seismically unsafe. Because the hospital serviced several hundred patients at the time the VA made its determination, a new facility was required as soon as possible. With this in mind, the VA entered into a fast-track, design-build contract, which required completion within 183 days of the notice of award.

This suit was initiated by Dillingham acting on behalf of its subcontractor, Saseo/Valley Electric, which provided electrical work on the project. Sasco sought an equitable adjustment for costs arising from defendant’s enforcement of more stringent electrical specifications than Sasco contends were required by the contract. Specifically, Sasco alleged that the government wrongfully denied its proposed use of: (1) metal clad cable & plenum rated cable, and (2) Caddy Kon Clips. Plaintiff also claimed that the VA required it to use more conduit supports than reasonably necessary.

II. Design Responsibilities Under the Contract

The contract was a design/build contract that split responsibility for designing the facility between the VA and Dillingham. The [497]*497cover page to the contract described Dillingham’s responsibilities:

Contractor shall provide complete construction drawings and specifications for the Clinic Building, based on the preliminary drawings and performance specifications included with this solicitation. The government’s Architects and Engineers will provide final construction plans and specifications for site improvements and the Central Mechanical Room prior to the Request for Best and Final Offer.

Each of the parties hired an architectural/engineering firm to assist it with its design responsibilities. The VA hired Anshen & Allen Associates, which in turn subcontracted with Pacific Engineering Associates to assist it with design of the electrical system. Dillingham contracted with Keller & Gannon. Anshen and Allen’s role was to review designs produced by Keller & Gannon. To expedite completion of the project, Anshen and Allen would review the designs as they were being produced. Anshen and Allen’s role, however, did not include approval of equipment substitutions. Section 01630, paragraph 1(D) of the contract provided, in part: “The Government is the final Arbiter in determining the evaluation and acceptability of the requested substitution.”

In dispute in this case was the meaning of certain specifications pertaining to the electrical system. Section 16010, paragraph 1.03(E), discussed Dillingham’s responsibility for designing the electrical system:

Contractor is to provide the complete design and is free to provide any design that meets all applicable codes, the design Build Criteria and the Electrical Specifications.

(Emphasis added.)

III. Electrical Specifications

One of the electrical specifications included in the contract required that Dillingham use raceways to run conduit through the facility. Section 16050, paragraph 2.02 stated, in part:

2.02 RACEWAYS
A. Raceways: complete with Boxes, Fittings and Accessories.
B. Raceways:
1. All conduits shall be minimum Jé inch, except as noted or required for wiring. Minimum % inch shall be used below grade, in slab and for the Fire Alarm System.
2. Rigid steel conduit; full weight pipe, galvanized, threaded.
3. Intermediate metal conduit (IMC); light weight steel pipe, galvanized, threaded.
4. Electrical metallic tubing (EMT); thin wall pipe, galvanized, threadless.
5. Polyvinyl chloride conduit (PVC); heavy wall, self extinguishing, Schedule 40.
6. Flexible steel conduit; continuous single strip, galvanized, PVC covered for liquid type.

Several other sections required that the contractor use raceways to house wiring for specific systems, which included: the alarm system (section 16050), the nurse call system (section 16750), the public address system (section 16770), and the data system and master antenna system (section 16010).

The specifications also described the method of supporting raceways:

C. Supports shall be as follows:
1. Ceiling trapeze, strap hangers, or wall brackets.
2. U-bolt or pipe straps at each grating level of riser raceways.
3. Raceways shall be secured to support with pipe straps or U-bolts.
4. Spacing shall be a maximum 10 foot on centers for metallic conduit and wire-ways.
5. Supports shall be mounted to structure with:
a. Toggle bolts on hollow masonry.
b. Expansion shields or insets on concrete.
e. Machine screws on metal.
d. Wood screws on wood.
[498]*498e. Nails, rawl plugs or wood plugs shall not be permitted.

Section 16050, paragraph 3.06(C).

IV. Sasco’s Proposed Use of Metal Clad Cable

In lieu of using raceways to house the electrical wiring, Sasco proposed using metal clad cable (MC cable).1 On February 4, 1992, Dillingham submitted to the VA its “Electrical Submittal No. 0001,” which contained this proposal. The submittal first was reviewed by Pacific Engineering and then was sent with comments to the VA senior resident engineer. As part of its comments Pacific Engineering noted: “Metal Clad Cable is not acceptable for this project.” Pacific Engineering also stamped “Rejected” on Section 3.0 of the submittal (the section pertaining to the use of MC Cable).

Upset by the rejection of metal-clad cable, Sasco requested a meeting of all of the design professionals, including Anshen & Allen and Pacific Engineering. Thereafter, a meeting was held on February 28, 1992, at the offices of Keller & Gannon to discuss the matter. Plaintiff alleged that during the course of the meeting, Mr. Kouyoumdjian, a design professional for Pacific Engineering, approved Sasco’s proposal to use MC cable. According to defendant, Mr. Kouyoumdjian had not objected to use of MC cable from a technical standpoint, but he wanted to know how much of a credit Sasco would offer to the VA for the use of this less expensive material. Under defendant’s version of the meeting, Mr. Kouyoumdjian also noted that the VA would have to give final approval of Sasco’s proposal.

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Cite This Page — Counsel Stack

Bluebook (online)
40 Cont. Cas. Fed. 76,827, 33 Fed. Cl. 495, 1995 U.S. Claims LEXIS 110, 1995 WL 327983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillingham-construction-na-v-united-states-uscfc-1995.