Ebasco Services, Inc. v. United States

41 Cont. Cas. Fed. 77,082, 37 Fed. Cl. 370, 1997 U.S. Claims LEXIS 42, 1997 WL 94668
CourtUnited States Court of Federal Claims
DecidedFebruary 19, 1997
DocketNo. 92-355C
StatusPublished
Cited by10 cases

This text of 41 Cont. Cas. Fed. 77,082 (Ebasco Services, 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
Ebasco Services, Inc. v. United States, 41 Cont. Cas. Fed. 77,082, 37 Fed. Cl. 370, 1997 U.S. Claims LEXIS 42, 1997 WL 94668 (uscfc 1997).

Opinion

OPINION

ANDEWELT, Judge.

I.

In this government contract action, which is before the court for decision after trial, plaintiff, Ebasco Services, Inc. (Ebasco), seeks to recover approximately $3.4 million for unreimbursed costs it incurred under a cost-plus-fixed-fee contract it entered with the Defense Nuclear Agency of the Department of Defense (the DNA). The contract covered the conceptual design of an electricity storage system for the possible use in connection with a laser-based weapon system. As finally modified, the contract called for a ceiling payment to plaintiff of approximately $15.9 million. Plaintiff allegedly incurred total costs in excess of $19.3 million and seeks to recover the approximate $3.4 million difference.

The contract incorporates by reference a limitation of funds (LOF) clause which provides in part:

(c) The Contractor shall notify the Contracting Officer in writing whenever it has [372]*372reason to believe that the costs it expects to incur under this contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of (1) the total amount so far allotted to the contract by the Government____
(d) Sixty days before the end of the period specified in the Schedule, the Contractor shall notify the Contracting Officer in writing of the estimated amount of additional funds, if any, required to continue timely performance under the contract or for any further period specified in the Schedule or otherwise agreed upon, and when the funds will be required. Hi H« # H* H< *
(f) Except as required by other provisions of this contract, specifically citing and stated to be an exception to this clause—
(1) The Government is not obligated to reimburse the Contractor for costs incurred in excess of the total amount allotted by the Government to this contract; and
(2) The Contractor is not obligated to continue performance under this contract (including actions under the Termination clause of this contract) or otherwise incur costs in excess of (i) the amount then allotted to the contract by the Government ... until the Contracting Officer notifies the Contractor in writing that the amount allotted by the Government has been increased and specifies an increased amount, which shall then constitute the total amount allotted by the Government to this contract. Hi * H« # * *
(j) Change orders shall not be considered an authorization to exceed the amount allotted by the Government specified in the Schedule, unless they contain a statement increasing the amount allotted.

48 C.F.R. ch. 1 § 52.232-22.

Because the contract as modified allotted only $15.9 million to the contract, plaintiff is not entitled to any payment above that amount unless it can demonstrate that it is not bound by the limitation in subsection (f)(1) of the LOF clause that “[t]he Government is not obligated to reimburse the Contractor for costs incurred in excess of the total amount allotted by the Government to this contract....” Plaintiff presents three alternative theories for avoiding this limitation: (1) the government waived its rights under the LOF clause; (2) the government should be precluded from relying on the LOF clause based on the doctrine of equitable estoppel; and (3) the government breached its implied duty of good faith and fair dealing.

II.

Before considering plaintiffs theories for recovery, it is appropriate to recount certain background facts concerning the terms of the contract and performance thereunder. The contract, which the parties entered on November 20, 1987, covered the first phase of a possible two-phase contracting process. The primary objective of this first phase, identified the Superconducting Magnetic Energy Storage-Engineering Test Model Development Program-Phase I (Phase I), was to demonstrate the feasibility of using a Superconducting Magnetic Energy Storage System (SMES system) as an electrical power source. The SMES system was intended to store electrical energy in such a way that the energy could be utilized on instantaneous notice. If successfully developed, the SMES system could be used as a power source for a military ground-based laser system as well as for certain commercial applications, such as for storing excess energy produced by electronic power plants when usage is low and then discharging the energy during periods of high output.

Phase I focused on three major tasks: (1) the completion of a conceptual design of an Engineering Test Model (ETM) of the SMES system; (2) the development of a list of the critical materials and components necessary for construction of the ETM; and (3) the proposal of candidate sites for construction of the ETM. Phase I also called for a final report containing a proposal for continuing the program through Phase II. Phase I did not require plaintiff to perform any particular tests but rather required plaintiff to develop its own design for an ETM and submit [373]*373to the DNA a component development and test plan (CDTP). The CDTP was to identify the materials required for construction of the ETM and to demonstrate how those materials and components would be used.

The DNA awarded a similar Phase I contract to Bechtel Power Group (Bechtel). The DNA intended to award a Phase II contract for the detailed design, construction, and testing the ETM to one of the two Phase I contractors. The Phase I contract listed the criteria for the award of a Phase II contract in order of descending importance. Among the most important factors were the demonstration of minimum risk in proceeding with the construction of the ETM, the successful completion of the Phase I tasks, and the submission of reasonable estimated costs for construction of the ETM.

As originally drafted, the contract provided that Ebaseo’s allowable costs thereunder shall not exceed $13,935,442. The contract, however, did not obligate the DNA to pay the entire contract amount. Rather, the contract anticipated incremental funding and obligated the DNA to pay only the incremental funding specified in the contract. Under the contract, the contracting officer designated a Contract Technical Manager (CTM) to represent the contracting officer in the technical phases of the work and to act as a liaison on funding issues between Ebasco and the Strategic Defense Initiative Office (SDIO), the source of funding for the Phase I contracts. In addition, due in part to the complexity, size, and importance of the Phase I project, the DNA established a Technical Advisory Group (TAG) to advise the CTM as to Ebas-co’s performance under the contract. The TAG, which was made up of experts in the different areas relevant to the design and construction of the ETM, met periodically throughout performance of the contract with Ebasco and its subcontractors and DNA representatives to discuss the status of the project. After these meetings, the TAG issued nonbinding recommendations to Ebasco regarding Ebasco’s analyses, design, and testing efforts.

Contract funding became an important issue between the parties on a number of occasions. In October 1988, almost one year into performance, the DNA became aware that SDIO would not receive the funding it had anticipated for fiscal year 1989 and therefore that the DNA would not be able to provide the incremental funding required for the Phase I contracts.

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41 Cont. Cas. Fed. 77,082, 37 Fed. Cl. 370, 1997 U.S. Claims LEXIS 42, 1997 WL 94668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebasco-services-inc-v-united-states-uscfc-1997.