Foley Co. v. United States

26 Cl. Ct. 936, 1992 WL 190614
CourtUnited States Court of Claims
DecidedAugust 11, 1992
DocketNo. 91-1308 C
StatusPublished
Cited by21 cases

This text of 26 Cl. Ct. 936 (Foley Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foley Co. v. United States, 26 Cl. Ct. 936, 1992 WL 190614 (cc 1992).

Opinion

OPINION and ORDER

TURNER, Judge.

This action involves a contract to close four hazardous waste lagoons at the Lake City Army Ammunition Plant in Independence, Missouri. Plaintiff seeks judgment for the amount withheld from the contract price as the result of the government’s unilateral downward adjustment (Count I) and also for additional overhead costs incurred when the contract period was extended due to a quantity overrun (Count II).1 Defendant filed a counterclaim seeking a further downward adjustment to the contract price.

The parties filed cross-motions for partial summary judgment concerning Foley’s Count I and the government’s counterclaim, and the government filed a motion to dismiss or alternatively for summary judgment concerning Count II.2 Oral argument was conducted on June 23, 1992. We conclude that Foley’s motion for partial summary judgment on Count I of its complaint and concerning the government’s counterclaim should be granted and that the government’s related motion should be denied. We further conclude that the government’s motion to dismiss Count II of Foley’s complaint for lack of jurisdiction should be granted.

[938]*938I

On September 28, 1988, the parties entered the contract in which Foley agreed to close the lagoons. Specifically, Foley agreed to treat waste water contained in the lagoons so that the lead content would be reduced to an appropriate level, to dispose of the waste water, and to remove and dispose of sludge and contaminated soil in EPA-approved hazardous waste landfills. Finally, the lagoons were to be backfilled with clay, graded, and seeded. Foley completely discharged its obligations under the contract.

This action arises out of performance of the sludge removal and disposal requirement. Foley agreed to remove and dispose of the sludge at a unit price of $308 per ton, based on an estimated quantity of 6,600 tons. In May 1989, Foley advised the United States that the quantity of sludge that would need to be removed would exceed the estimated quantity. The government instructed Foley to remove sludge in excess of the estimated quantity at graduated levels. Foley ultimately removed 23,-937.51 tons of sludge.

With respect to the first 7590 tons (that is, 115% of the contract amount),3 the government paid $2,337,720, or $308 per ton. With respect to the remaining sludge, the government paid Foley $4,822,515.45, which equalled only $295 per ton. Foley submitted a certified letter to the contracting officer on February 26,1991 requesting $212,517.63, the amount required to bring the total payment up to the contract unit price of $308 per ton for the excess tons removed. In this letter, Foley repeatedly mentioned that it also had a claim for extended overhead costs incurred because of the delay in completing the project. On March 11-, 1991, Foley submitted another letter identifying $313,685.06 of extended overhead costs and certifying that the cost information was current and accurate.

In a final decision, the contracting officer determined that pursuant to the Variation in Estimated Quantities clause, Foley was entitled to its actual costs plus a reasonable profit for the removal of sludge above 115% of the estimated quantity. This amount was set at $3,780,685. The contracting officer also determined that Foley’s extended overhead was $268,514. Thus, the total amount to which Foley was entitled for the removal work exceeding 115% of the estimated quantity, according to the contracting officer, was $4,049,199. Because Foley had already been paid $4,822,515.45 for the removal of sludge above 115% of the estimated quantity, the contracting officer demanded $773,316.45 from Foley.

Foley’s complaint seeks $212,517.63 as the contract balance for removing sludge in excess of 7590 tons (Count I) and a reasonable equitable adjustment for extended office overhead during the increased time of performance necessitated by the increased quantity of sludge (Count II). The government’s counterclaim seeks the amount allegedly overpaid to Foley.

II

In Count I, Foley asserts entitlement to the full contract unit price for each ton of sludge removed in excess 7590 tons.4 The government claims that the unit price should be adjusted downward for the excess tons. Because the government believes that the correctly adjusted amount is less than that initially paid to Foley, it believes Foley should repay the difference.

The government contends that three contract provisions entitle it to a downward adjustment: the Changes clause, the Differing Site Conditions clause and the Variation in Estimated Quantities (VEQ) clause.

A

Throughout the course of performance, the government consistently maintained that Foley would be compensated pursuant to the VEQ clause. The govern[939]*939ment never told Foley that it intended to make a downward adjustment pursuant to the Changes clause or Differing Site Conditions clause. Nevertheless, when the government answered Foley’s complaint in this action, it asserted a right to an adjustment under both of those clauses. First, the government contends that Foley, with the approval of the contracting officer, used a different method to remove the sludge from the specifications requirement. Although no change order was issued, the government asserts that this constituted a “constructive change” which entitles it to an adjustment under the Changes clause.5

Furthermore, the government contends that the variation in sludge quantities constituted a category one “differing site condition” which would entitle it to a downward equitable adjustment under the Differing Site Conditions clause.6 The government argues these clauses justify not only an affirmative defense to Foley’s claim, but also a counterclaim.

We conclude that this court lacks jurisdiction to address the government’s defenses and counterclaims based on the Changes clause and the Differing Site Conditions clause because they were not the subject of a decision by the contracting officer. Section 605(a) of title 41, U.S.C., provides, in pertinent part:

All claims by the government against a contractor relating to a contract shall be the subject of a decision by the contracting officer. The contracting officer shall issue his decisions in writing, and shall mail or otherwise furnish a copy of the decision to the contractor. The decision shall state the reasons for the decision reached, and shall inform the contractor of his rights as provided in this chapter.

It is settled that this requirement is jurisdictional. See Placeway Constr. Corp. v. United States, 920 F.2d 903, 906 (Fed.Cir. 1990) (“Because certification is not required for government claims, the Claims Court would have jurisdiction over an appeal from a decision of a CO, provided it is final.”); Wilner v. United States, 26 Cl.Ct. 260, 277-78 (1992) (holding that the CDA’s requirement that a claim by the government be subject to a contracting officer decision is jurisdictional); Little River Lumber Co. v. United States, 21 Cl.Ct. 527, 537 (1990) (“[T]he government’s raising of a claim before a contracting officer is a prerequisite to Claims Court jurisdiction under the CDA____”).

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Bluebook (online)
26 Cl. Ct. 936, 1992 WL 190614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-co-v-united-states-cc-1992.