Fort Myer Construction Corp. v. United States

43 Cont. Cas. Fed. 77,425, 42 Fed. Cl. 720, 1999 U.S. Claims LEXIS 12, 1999 WL 33854
CourtUnited States Court of Federal Claims
DecidedJanuary 22, 1999
DocketNo. 97-503 C
StatusPublished
Cited by5 cases

This text of 43 Cont. Cas. Fed. 77,425 (Fort Myer Construction 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
Fort Myer Construction Corp. v. United States, 43 Cont. Cas. Fed. 77,425, 42 Fed. Cl. 720, 1999 U.S. Claims LEXIS 12, 1999 WL 33854 (uscfc 1999).

Opinion

ORDER

MOODY R. TIDWELL, III, Senior Judge.

This government contracts case is before the court on defendant’s motion for summary judgment. The parties dispute whether a contract to construct guardwalls along a certain portion of the Baltimore-Washington Parkway (“BW Parkway”) required plaintiff to precast the entire guardwall units offsite or only a portion thereof. The issue is one of straight contract interpretation which defendant contends entitles it to judgment as a matter of law. This court agrees and, for the reasons set forth below, allows defendant’s motion for summary judgment and dismisses plaintiffs complaint.

BACKGROUND

I. Summary of Facts

In June 1992, the Federal Highway Administration (“defendant”) awarded Fort Myer Construction Corp. (“plaintiff’) a fixed-price contract to construct and install precast concrete guardwalls along a 5.1 mile section of the BW Parkway. Each guardwall unit consisted primarily of four components: the core wall, footings, face panel, and capstone. The issue before the court is whether the contract required plaintiff to use a “total precast” method of construction (requiring plaintiff to precast all four components as an integrated unit) or “partial precast” method of construction (allowing plaintiff to construct a cast-in-place core wall and footings and precast only the face panels and capstone).

In July 1992, after winning the award, plaintiff proposed a partial precast method of construction. In August 1992, defendant informed plaintiff that its proposed method did not comply with the contract provisions because the contract required total precasting of the guardwall unit. Defendant further informed plaintiff that its proposal constituted a change to the contract and, therefore, if plaintiff wanted to use the partial precast method, plaintiff had to submit a value engineering change proposal (“VECP”) for approval. Plaintiff disputed defendant’s contention that its proposal constituted a change to the contract and refused to submit a VECP.

In August and September 1992, the parties exchanged a series of communications in which they disputed the meaning of the contract provisions, debated whether plaintiff’s proposal complied with the contract terms, argued whether plaintiffs proposal constituted a change to the contract, and disagreed whether a VECP was necessary. Ultimately, plaintiff abandoned its proposal and built the guardwalls using a total precast method. Plaintiff never submitted a VECP. Plaintiff was fully paid based upon the total precast method of construction. Plaintiff now seeks an equitable adjustment to the contract to recover alleged costs incurred by plaintiff and its subcontractor, which plaintiff claims defendant caused by refusing to approve the partial precast method.

II. Contract Provisions

A. Guardwall Specifications

The invitations for bids informed bidders that:

The bid schedule is comprised of three separate schedules of work as follows:
Schedule A: All project work excluding the guardwall
Schedule B: Stone masonry guardwall, 610 (7_) items
Schedule C: Precast concrete guardwall, 615 (1_) items

The invitation for bids also informed bidders that the work would be awarded in combination — as either Schedules A+B or Schedules A+C. Plaintiff was awarded the Schedule A+C combination to construct precast concrete guardwalls of three types, known as Types I, II, and IV. The award required performance “in strict accordance with the Contract Clauses and below listed specifications, schedules, drawings, and conditions,” [722]*722which included, inter alia, certain provisions of the special contract requirements (“SCR”) and certain plan sheets. The award and bid schedules labeled Types I, II, and IV guard-walls as “PRECAST CONCRETE GUARD-WALL, TYPE [I, II, and IV, respectively]” and specified that construction of each guardwall type was governed by the 615 item numbers. The 615 item numbers refer to section 615 of the SCR and corresponding plan sheets 206-08.

Section 615 of the SCR is titled “PRECAST CONCRETE GUARDWALL” and describes the materials and construction requirements for precast guardwall construction. Subsection 615.01 states:

This work shall consist of the furnishing, fabrication, and installation of precast concrete guardwall which is an alternative to the stone masonry guardwall. The guard-wall shall match in every respect profiles, colors and textures of the guardwalls constructed and in place on the Baltimore-Washington Parkway____

Subsection 615.02 states that “[p]recast concrete units shall conform to subsection 712.07,” which in turn states that “[t]hese units shall be cast in substantial permanent steel forms.”

Subsections 615.01 and 615.03 grant discretion to the Engineer to accept or reject precast segments that fail to conform, in any way, to contract specifications, and plaintiff agreed to bear the cost of such non-conformity:

The Contractor shall demonstrate the ability to match the Engineer’s sample by submitting a full scale guardwall sample (10 foot typical segment) of his own to the Engineer for approval, prior to fabrication of any guardwall. If in the opinion of the Engineer, the Contractor’s guardwall sample fails to match the engineer’s sample, and/or fails to be in accordance with these specifications, the materials and procedures shall be changed or altered by the Contractor and an additional sample, or samples, submitted until approval is obtained from the Engineer.
The Engineer shall be the sole judge as to the acceptability of the appearance of the segments. Any portion of the segments found to be unsatisfactory shall be repaired or replaced, as directed and approved by the Engineer, and at no expense to the Government.
Acceptance of precast segments by the Engineer shall be determined on the basis of material tests ... and ... visual inspection.

Plan sheets 206-08 depict the precast concrete guardwall. Plan sheet 208 is titled “PRECAST CONCRETE GUARDWALL STONE AND COLOR PATTERNS.” Plan sheets 206 and 207 are titled “PRECAST CONCRETE GUARDWALL, TYPE 1-27" HEIGHT.” Plan sheets 206 and 207 illustrate the design specifications (e.g. 10-foot segments, tongue-and-groove connectors, ship-lapped ends, and full-depth joints) and depict the precast concrete guardwall as a fully integrated unit.

Note 2 on plan sheet 207 refers the reader to stone masonry guardwall plan sheets for the limited purpose of obtaining “[rjeinforc-ing details and dimensions for Type IV guardwall” only.

B. VECP Provision and Changes Clause

Contract clause 52.248-3 sets forth the requirements and procedures for submitting a VECP. A VECP is defined in 52.248-3(b) as “a proposal that — (1) Requires a change to this, the instant contract, to implement; and (2) Results in reducing the contract price or estimated cost without impairing essential functions or characteristics____” Moreover, 52.248-3(e)(3) states:

Until a notice to proceed is issued or a contract modification applies a VECP to this contract, the Contractor shall perform in accordance with the existing contract.

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Bluebook (online)
43 Cont. Cas. Fed. 77,425, 42 Fed. Cl. 720, 1999 U.S. Claims LEXIS 12, 1999 WL 33854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-myer-construction-corp-v-united-states-uscfc-1999.