ECC International Corp. v. United States

43 Cont. Cas. Fed. 77,452, 43 Fed. Cl. 359, 1999 U.S. Claims LEXIS 61, 1999 WL 191168
CourtUnited States Court of Federal Claims
DecidedApril 5, 1999
DocketNo. 97-64C
StatusPublished
Cited by9 cases

This text of 43 Cont. Cas. Fed. 77,452 (ECC International Corp. 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
ECC International Corp. v. United States, 43 Cont. Cas. Fed. 77,452, 43 Fed. Cl. 359, 1999 U.S. Claims LEXIS 61, 1999 WL 191168 (uscfc 1999).

Opinion

OPINION

MILLER, Judge.

This contract case is before the court after argument on the parties’ cross-motions for summary judgment. The issues under consideration are (1) whether the Economic Price Adjustment (“EPA”) clause operates in periods of delayed performance, and (2) whether a modification to the contract entitles the contractor to account in its EPA clause calculation for a two-year delay in performance of Contract Line Item Number (“CLIN”) 0006.

FACTS

The following facts are undisputed, unless otherwise noted.1 11 On April 21, 1989, the Department of the Air Force (the “Air Force”) awarded Contract No. F33657-89-C-0018 to ECC International Corporation (“plaintiff’). The contract called for the design, development, testing, and delivery of a suite of Maintenance Training Devices (“MTDs”) for the purpose of training the Air Force’s maintenance personnel on the C-17A aircraft. The contract also required plaintiff to provide related management, technical, and engineering data, as well as a MTD Support Center, a warranty, and site activation. The basic requirements of the contract were set forth in Contract Line Item Numbers (“CLINs”) 0001-0005, requiring an initial production suite of trainers for Site 1. CLINs 0006-0009 corresponded to options for an additional four production suites, for Sites 2 through 5, respectively. Although established as firm, fixed-price, option CLINs 0006-0009 were subject to adjustment under an Air Force EPA clause, which permits adjustment to contract price to account for fluctuations in labor and material costs caused by unanticipated inflation patterns.

On January 23, 1990, the Air Force unilaterally executed its option under CLIN 0006 through the issuance of Modification P00006. The contract, prior to its modification, required plaintiff to complete performance of CLIN 0006 by July 1, 1992. On or about August 29, 1990, the parties executed Modification P00008, which increased the contract price, but did not change the delivery schedule for work under CLIN 0006. The parties approximately two years later bilaterally executed Modification P00022, at the center of the instant dispute.

Modification P00022 extended the delivery date for the CLIN 0006 line items from July 1,1992, to April 1,1994; extended the schedule for the Site 1 trainers; and permitted the Air Force to store the Site 2 trainers at plaintiffs facilities at no additional cost.2 In[363]*363corporated by reference into the modification was a letter from plaintiffs Director of Contracts, Wayne C. Sullivan, to the Air Force contracting officer, dated May 19,1992. The letter states, in pertinent part:

As additional consideration for a modification revising the delivery schedule, ECC agrees to accept an extension of the Site 2 (Option 1) delivery schedule to 1 April 1994 and a one-year delay in the option exercise (and thence one year delivery extension) for Site 3 (Option 2) at no change in the firm-fixed prices (with EPA) set forth in the contract. For EPA purposes, the FY breakouts for labor and material bases will require adjustment by contract modification to accommodate the delay to other FY’s without changing the total of the bases for each site as shown in [the EPA clause].

In the months following the execution of Modification P00022, Mr. Sullivan submitted to the Air Force numerous proposals requesting the adjustment under the EPA clause to account for the delay in performance of CLIN 0006. The amount requested in these proposals varied. In a meeting attended by Mr. Sullivan and Air Force Contracting Officer Robert 0. Davis, who succeeded Mr. Phoenix in 1994, plaintiff proposed an adjustment for the CLIN 0006 line items in the amount of $802,505,358.00; this request was superseded by letter, dated February 9,1995, in which Mr. Sullivan proposed an adjustment in the amount of $821,233.00. Plaintiff contends that “all of Mr. Sullivan’s proposals were consistent with the proposal for accounting for delay set forth in ... the May 19, 1992 letter.” Plfs Statement of Genuine Issues No. 17.

Based on the Air Force’s interpretation of the EPA clause, the contracting officer responded to Mr. Sullivan’s February 9, 1995 proposal with proposed Modification P00048, which increased the CLIN 0006 contract price by $166,822.00. On June 28, 1995, Mr. Sullivan returned to Mr. Davis proposed Modification P00048 unsigned, accompanied by a letter stating that “[t]he modification does not represent any prior agreement between the parties as to an equitable adjustment for the [EPA] provisions of the contract, and does not properly or fairly compensate [plaintiff] for the adjustment due.”

By letter dated August 18, 1995, to Contracting Officer Theresa A. Cochran,3 Mr. Sullivan reiterated that plaintiff considered “resolution of the EPA adjustment matter through negotiations to be in the best interest of both parties to the contract.” Among the issues impeding amicable resolution, Mr. Sullivan identified the “many areas of error and interpretation” in the EPA clause rendering “a straight-forward calculation of an appropriate EPA adjustment ... not possible,” as well as the parties’ inability to agree on the proper period of adjustment. As was the case with his earlier correspondence with the Air Force, Mr. Sullivan, in the August 18, 1995 letter did not refer specifically to Modification P00022 as a basis for plaintiffs method of calculating the proper adjustment.

On or about September 5, 1995, the Air Force unilaterally executed Modification P00048 pursuant to its authority under the Changes clause, see 48 C.F.R. § 52.243-1 (1998), increasing the contract amount for CLIN 0006 by $166,822.00. Plaintiff filed its certified claim with the contracting officer on June 26, 1996, requesting an adjustment to the CLIN 0006 price in the amount of $810,-087.00. The contracting officer’s final decision, issued October 10, 1996, rejected plaintiffs CLIN 0006 EPA calculation because, inter alia, it failed to adhere to the clear language of the clause. The calculation performed by the contracting officer, as reflected in her final decision, determined that plaintiff was entitled to an increase of $46,-425.00 for the CLIN 0006 fine items. Defendant takes the position that plaintiff did not present to the contracting officer its claim based on Modification P0002 and the perti-[364]*364nency of plaintiffs May 19, 1992 letter modifying the clause.

DISCUSSION

I. ' Operation of the EPA clause

The EPA clause is a contractual device used to predict the cost of performance of a contract obligation scheduled to occur at a time subsequent to the time of contracting. According to its terms, the EPA clause requires adjustment in the price of designated contract line items if inflation rates cause a discrepancy between forecasted costs and actual costs for labor and material in excess of an established threshold. As is the case with any firm, fixed-price contract, the parties in the instant matter bound themselves to an agreed-upon price, aware that the cost of actual performance may be more or less than anticipated at the time of contracting.

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43 Cont. Cas. Fed. 77,452, 43 Fed. Cl. 359, 1999 U.S. Claims LEXIS 61, 1999 WL 191168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ecc-international-corp-v-united-states-uscfc-1999.