Giuliani Contracting Co. v. United States

36 Cont. Cas. Fed. 75,882, 21 Cl. Ct. 81, 1990 U.S. Claims LEXIS 289, 1990 WL 105557
CourtUnited States Court of Claims
DecidedJuly 26, 1990
DocketNo. 90-214-C
StatusPublished
Cited by10 cases

This text of 36 Cont. Cas. Fed. 75,882 (Giuliani Contracting 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
Giuliani Contracting Co. v. United States, 36 Cont. Cas. Fed. 75,882, 21 Cl. Ct. 81, 1990 U.S. Claims LEXIS 289, 1990 WL 105557 (cc 1990).

Opinion

OPINION

RADER, Judge.

Plaintiff, Guiliani Contracting Company, contracted with the Department of the Army (the Army) to replace sanitary sewers at West Point Military Academy. During performance, plaintiff claimed delay damages. The Contracting Officer (CO) [82]*82rejected the claims. Plaintiff subsequently filed a complaint with the United States Claims Court. Defendant moved under the Contract Disputes Act to transfer this action to the Armed Services Board of Contract Appeals (ASBCA or Board) where two claims on the same contract are now pending.

Due to the clarity of law and facts in the written briefs, no oral argument on defendant’s motion is necessary. In the interest of justice and for the convenience of the parties, this court grants defendant’s motion to transfer this case to the ASBCA.

Facts

On July 2, 1985, plaintiff entered a contract with the Army to replace sanitary sewers at the United States Military Academy in West Point, New York. Plaintiff promised to furnish labor, material and equipment to replace gravity sewer pipe.

Work suspensions, differing site conditions, and design defects allegedly delayed plaintiff’s performance. Plaintiff submitted over thirty claims to the CO. The CO provided several final opinions on plaintiff’s claims. In November 1988, the CO determined that three audits by the Defense Contract Audit Agency (DCAA) did not support plaintiff’s delay claims.

On January 8, 1990, the CO denied finally twenty of the unresolved claims. On March 9, 1990, plaintiff appealed the CO’s decision to the Claims Court. Plaintiff seeks $539,974.00 in damages, as well as interest and attorneys’ fees.

Prior to instituting an action in the Claims Court, plaintiff filed with ASBCA other claims springing from the same contract. Plaintiff ultimately resolved eighteen of these claims through negotiated settlement or litigation.1

ASBCA claim Nos. 39505 and 39506 remain at the present before the Board. Appeals) of Giuliani Contracting Co. Inc. under Contract No. DAAG 60-85-C-0206 (docketed September 11, 1989). In ASBCA No. 39505, plaintiff seeks $18,141.00 for a work suspension on the West Point contract between May 29 and to June 5, 1986. In ASBCA No. 39506, plaintiff seeks similar costs for a suspension of work between May 8 and May 21, 1986. Id.

On June 20, 1990, defendant moved to transfer plaintiff’s Claims Court complaint to the ASBCA. Defendant seeks to consolidate this action with ASBCA Nos. 39505 and 39506 because the claims involve the same contract, cover closely related issues, arose initially before the ASBCA, and would avoid duplicative efforts.

Plaintiff opposes the motion. Plaintiff argues that the Claims Court and ASBCA claims do not present overlapping factual or legal issues. Further, according to plaintiff, consolidation would not eliminate duplicative efforts and has only marginal benefit at best because the ASBCA has not yet expended substantial time on its pending claims.

Discussion

Section 10(d) of the Contract Disputes Act states:

If two or more suits arising from one contract are filed in the United States Claims Court and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice, the United States Claims Court may order the consolidation of such suits in that court or transfer any suits to or among the agency boards involved.

41 U.S.C. section 609(d) (1988). Thus, the Claims Court may either consolidate suits within the court or transfer suits to the appropriate agency board. The decision to consolidate or transfer suits, is within the court’s discretion. Warwick Constr., Inc. v. United States, 225 Ct.Cl. 567, 650 F.2d 289 (1980). The issues in dispute before the ASBCA and the Claims Court stem from the same contract. Thus, the circum[83]*83stances before this court satisfy the statutory requirement that suits “arise from one contract”. 41 U.S.C. § 609(d).

Therefore, this court may appropriately apply section 609(d). Section 609(d) identifies three standards for deciding whether to transfer or consolidate. The statute employs the disjunctive “or” to indicate that any single standard — convenience of the parties, convenience of witnesses, or interests of justice — justifies consolidation or transfer.2

The Claims Court and its predecessor have articulated several factors for determining whether justice or convenience favors transfer:

(1) Whether the disputes before the board and the court concern the same contract. Roubin & Janeiro, Inc. v. United States, 227 Ct.Cl. 580, 652 F.2d 70 (1981); Space Age Engineering, Inc. v. United States, 2 Cl.Ct. 164, 165 (1988); E.D.S. Federal Corp. v. United States, 1 Cl.Ct. 212, 214 (1983).

(2) Whether the claims before the court and board duplicate claims or involve overlapping and related issues. Roubin & Janeiro, Inc., 227 Ct.Cl. at 585, 652 F.2d at 70; David J. Tierney, Jr., Inc. v. United States, 226 Ct.Cl. 686, 687-88 (1981); Space Age Engineering, Inc., 2 Cl.Ct. at 165.

(3) Whether plaintiff initially chose to appeal its claims before a court or a board. David J. Tierney, Jr., Inc., 226 Ct.Cl. at 687; E.D.S. Federal Corp., 1 Cl.Ct. at 214.

(4) Whether one forum or the other has already made significant progress on the claim. Warwick Construction, Inc., 225 Ct.Cl. at 571, 650 F.2d at 289; Space Age Engineering, Inc., 2 Cl.Ct. at 165; Blount, Inc. v. United States, 15 Cl.Ct. 146, 148 (1988); E.D.S. Federal Corp., 1 Cl.Ct. at 214.

(5) Whether concurrent resolution would result in an inefficient allocation of court, board, and party resources. Warwick Construction, Inc., 225 Ct.Cl. at 571, 650 F.2d at 289; Space Age Engineering, Inc., 2 Cl.Ct. at 165; Blount, Inc., 15 Cl.Ct. at 149; E.D.S. Federal Corp., 1 Cl.Ct. at 214.

(6) Whether separate forums could reach inconsistent results when interpreting the same contract. Space Age Engineering, Inc., 2 Cl.Ct. at 165.

These factors each favor granting the defendant’s motion to transfer this case to the ASBCA. Applying these factors to this case, this court determines that defendant has shown that transfer would satisfy interests of justice and convenience.

With regard to the first and second factors, plaintiff’s claims before this court and the ASBCA involve overlapping issues on the same contract. While the details of issues before this court and the ASBCA differ, as plaintiff suggests, proofs inevitably will overlap. Both suits require presentations of similar evidence on the same contract. One forum, therefore, should hear and decide the issues.

With regard to the third factor, plaintiff initially elected to appeal its claims to the ASBCA, rather than to the Claims Court. Two docketed actions on this contract remain now on ASBCA’s docket. Moreover, the Board has already decided numerous other claims from the same contract.

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

Related

Avant Assessment, LLC v. United States
134 Fed. Cl. 323 (Federal Claims, 2017)
BRC Lease Co. v. United States
93 Fed. Cl. 67 (Federal Claims, 2010)
Ch2m Hill Hanford Group, Inc. v. United States
82 Fed. Cl. 139 (Federal Claims, 2008)
Rockwell Automation, Inc. v. United States
70 Fed. Cl. 114 (Federal Claims, 2006)
Northrop Grumman Corp. v. United States
70 Fed. Cl. 230 (Federal Claims, 2006)
Morse Diesel International, Inc. v. United States
69 Fed. Cl. 558 (Federal Claims, 2006)
Precision Pine & Timber, Inc. v. United States
45 Fed. Cl. 134 (Federal Claims, 1999)
Marshall Associated Contractors, Inc. v. United States
39 Cont. Cas. Fed. 76,702 (Federal Claims, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
36 Cont. Cas. Fed. 75,882, 21 Cl. Ct. 81, 1990 U.S. Claims LEXIS 289, 1990 WL 105557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giuliani-contracting-co-v-united-states-cc-1990.