General Dynamics Corp. v. United States

671 F.2d 474, 29 Cont. Cas. Fed. 82,234, 229 Ct. Cl. 399, 1982 U.S. Ct. Cl. LEXIS 76
CourtUnited States Court of Claims
DecidedFebruary 10, 1982
DocketNo. 352-80C
StatusPublished
Cited by16 cases

This text of 671 F.2d 474 (General Dynamics Corp. 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
General Dynamics Corp. v. United States, 671 F.2d 474, 29 Cont. Cas. Fed. 82,234, 229 Ct. Cl. 399, 1982 U.S. Ct. Cl. LEXIS 76 (cc 1982).

Opinion

FRIEDMAN, Chief Judge,

delivered the opinion of the court:

The issues before us relate primarily to the basis for determining the damages resulting from the plaintiffs alleged breach of its contract to supply equipment to the government. The Department of Transportation Contract Appeals Board ("the Board”) decided that the existing, rather than a prior, termination clause in the contract governed the determination of damages. The government declined to accept that ruling. The plaintiff then brought this suit to recover the amount that it claims it is entitled to under the Board’s ruling. The government denies that the plaintiff is entitled to recover anything and has filed a counterclaim. The case is before us on the plaintiffs motion for summary judgment on its petition and to dismiss or for summary judgment on the counterclaim.

We (1) uphold the decision of the Board, (2) grant the plaintiffs motion for summary judgment on its petition insofar as it relates to liability, (3) grant most of the plaintiffs motion to dismiss the counterclaim, and (4) remand the case to the Board.

I.

In January 1973, the plaintiff entered into a fixed-price contract with the Federal Aviation Administration ("FAA”) to produce 37 airport radar systems and 40 antennae for approximately $18.2 million. The contract contained the usual "termination for default” clause applicable to fixed-price contracts. Both the radar systems and the first antennae were to be delivered within two years. The [401]*401contract called for new designs that required many technological improvements over old models. The contractor was expected to do much of the research and development needed to perfect the systems.

The plaintiff was a newcomer to the field and encountered more difficulties than it had anticipated. In mid-1974, both parties recognized that the plaintiff was significantly behind schedule. Each party pointed to the other as the cause of the delays. A series of meetings was held to discuss the problems.

After extensive negotiations, the parties agreed to Modification No. 9 of the contract in March 1975. This modification reduced the number of radar systems to one and changed the delivery requirements. It also changed the basis of compensation from fixed-price to cost-reimbursement, with a lower ceiling price.

There was considerable discussion in the negotiations leading to Modification No. 9 about the type of termination clause to be used. The government wanted to retain the fixed-price termination clause while the plaintiff sought the termination clause normally included in cost-reimbursement contracts.

The significance of this disagreement was that, under a fixed-price termination clause, if the contractor defaults, the government may recover any progress payments covering equipment or services not provided, as well as any excess reprocurement costs. Under a cost-reimbursement termination clause, however, the contractor is entitled to reimbursement of its costs and the government is limited, with some minor exceptions not relevant here, see 41 C.F.R. § l-8.604(b) (1980), to the remedies it has under a termination for convenience of the government. These remedies are possession of and title to any finished or unfinished material connected with the contract, plans and information which would have been delivered under the contract, and equipment for which the contractor has been or will be compensated.

The parties ultimately agreed to substitute a cost-reimbursement termination clause for the original fixed-price termination clause. At the same time the following provisions were added to the contract:

[402]*402Notwithstanding the clause entitled "Limitation of Cost”, it is agreed that the contractor shall complete all work required under this contract, and the Government shall not reimburse the contractor for any costs incurred in excess of $12,799,987.
All costs incurred in excess of such $12,799,987 shall be borne 100% by the contractor until all contract requirements have been completed. [In this opinion we round off this amount to $12,800,000.]

Problems continued under the contract. In November 1975, the plaintiff stopped work, claiming that the government had breached the contract. The government terminated the contract for default and asserted that "[f]ixed-price default termination procedures are applicable to this contract.” The government then contracted with Texas Instruments, Inc., to complete the contract. The government states that it paid Texas Instruments approximately $6.9 million for that work.

The plaintiff filed a claim with the contracting officer for reimbursement of its costs under the new cost-reimbursement termination clause. The contracting officer denied the claim. Contending that fixed-price termination procedures applied, he also demanded the return of the progress payments of approximately $10.6 million that the government had made to the plaintiff.

The plaintiff appealed the contracting officer’s decision to the Board. On the plaintiffs motion, the Board severed for initial decision the question whether the fixed-price or cost-reimbursement termination provision applied. After an evidentiary hearing on that issue, the Board held that the cost-reimbursement termination provision was applicable. General Dynamics Corp., 78-2 BCA ¶ 13,281 (1978).

The Board rejected, as based upon "a strained construction” of the contract, the government’s contention that despite the substitution in Modification No. 9 of the cost-reimbursement for the fixed-price termination clause, the inclusion of the $12.8 million cost limitation made fixed-price termination procedures applicable. Id. at 64,947. The Board pointed out that in the negotiation of Modification No. 9 the plaintiff had resisted the government’s demand for a fixed-price termination clause because it believed that "the obligations inherent in the fixed price clause, particu[403]*403larly the requirement to refund payments made by the Government in the event of default, were inconsistent with the restructured contract and imposed an unacceptable cost risk.” The Board also noted that "the Government was well aware of the consequences of including the cost reimbursement clause in the contract. Further, there is no evidence that the Government asserted the theories now relied upon during negotiations leading to Modification No. 9.” Id. at 64,946.

The government moved for reconsideration. It argued that since the plaintiffs "performance was terminated for default, the Government is entitled to common law damages arising out of the breach of its obligation to complete,” and that those damages included recovery of the amounts paid to the plaintiff. General Dynamics Corp. 78-2 BCA ¶ 13,415 at 65,575 (1978). The government relied, as it previously had, upon paragraph 39(h) of the contract, which stated:

(h) In arriving at the amount due the Contractor under this clause there shall be deducted ... (2) any claim which the Government may have against the Contractor in connection with this contract.

The Board denied reconsideration. Id. It reiterated its prior ruling that paragraph 39(e) of the contract, which contains the cost-reimbursement termination provision, rather than paragraph 39(h), governs this case. The Board stated:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

IBM Corporation v. United States
119 Fed. Cl. 145 (Federal Claims, 2014)
Scott Timber Co. v. United States
692 F.3d 1365 (Federal Circuit, 2012)
CW Government Travel, Inc. v. United States
99 Fed. Cl. 666 (Federal Claims, 2011)
Armour of America v. United States
96 Fed. Cl. 726 (Federal Claims, 2011)
United States v. Rockwell International Corp.
265 F.3d 1157 (Tenth Circuit, 2001)
Hughes Communications Galaxy, Inc. v. United States
47 Fed. Cl. 236 (Federal Claims, 2000)
Northrop Grumman Corp. v. United States
42 Cont. Cas. Fed. 77,361 (Federal Claims, 1998)
McDonnell Douglas Corp. v. United States
41 Cont. Cas. Fed. 77,046 (Federal Claims, 1997)
Tountasakis v. United States
29 Cont. Cas. Fed. 82,326 (Court of Claims, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
671 F.2d 474, 29 Cont. Cas. Fed. 82,234, 229 Ct. Cl. 399, 1982 U.S. Ct. Cl. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-dynamics-corp-v-united-states-cc-1982.