Grad Partnership v. United States

30 Cont. Cas. Fed. 70,545, 1 Cl. Ct. 616, 1982 U.S. Claims LEXIS 2300
CourtUnited States Court of Claims
DecidedNovember 22, 1982
DocketNo. 20-82C
StatusPublished
Cited by3 cases

This text of 30 Cont. Cas. Fed. 70,545 (Grad Partnership 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
Grad Partnership v. United States, 30 Cont. Cas. Fed. 70,545, 1 Cl. Ct. 616, 1982 U.S. Claims LEXIS 2300 (cc 1982).

Opinion

OPINION

MEROW, Judge:

This matter comes before the court on defendant’s motion for partial summary judgment filed August 13, 1982, and plaintiff’s opposition and cross-motion filed October 13, 1982.1

STATEMENT OF FACTS

The essential facts in this matter, as disclosed by the exhibits submitted by the parties, are not in dispute. In April 1974 the General Services Administration (GSA) entered into contract No. GS-00B-03414 with plaintiff covering architectural and engineering services plaintiff was to provide in connection with the Social Security Administration Administrative Headquarters Expansion Project, Baltimore, Maryland.

Oh June 24, 1977 plaintiff submitted a claim for extra compensation stemming from asserted delay encountered during the working-drawing phase of the contract and from additional items of work performance which were asserted to be beyond the original scope of the contract. The claim submitted was in the amount of $579,892, consisting of $452,555 for extended time costs and $127,337 for additional work items.

After an audit by GSA of plaintiff’s claim and negotiations between the parties, a settlement was reached which provided additional compensation of $106,000 for the claimed additional work items and which also provided that the delay portion of the claim would be severed and resubmitted after the combined effects of the working-drawing phase and the construction phase could be evaluated. The additional $106,000 fee was paid to plaintiff under amendment No. 6 to the contract, issued November 21, 1978.

On March 1, 1979 the Contract Disputes Act of 1978 (CDA or Act), 41 U.S.C. §§ 601-613 (Supp. IV 1980), came into effect.

On May 8, 1979 plaintiff submitted “our combined Working Drawing and Construction Phase claim for additional costs arising from delay and consequent prolongation of the project.” The total amount of the claim was $878,500. Plaintiff urgently requested “prompt and immediate action by GSA in auditing and negotiating this claim.”

On June 6,1979 plaintiff’s claim was submitted to GSA’s Construction Audit Division and the ensuing GSA audit report was published on March 12, 1980. On May 7, 1980 the parties negotiated with respect to plaintiff’s claim and certain agreements were reached which resulted in the submission of a revised claim of $754,412 on November 17, 1980. Further negotiations occurred on December 15-16, 1980 and on January 28, 1981, which resulted in an agreed settlement of $430,000, subject to the required GSA processing of the agreement which the GSA negotiators informed plaintiff would take two to three months before payment could be made. Plaintiff’s letter dated February 5,1981 to GSA, stated (in part):

[618]*618This letter will confirm the acceptance by the SSA/Metro West Architects & Engineers of $430,000 in full and final settlement of their delay claim for the Working Drawing and Construction Phases dated May 8, 1979, and modified November 17, 1980.

Upon the request of GSA, on April 6, 1981, plaintiff sent a letter to the GSA project executive, stating:

This is to certify that to the best of our knowledge and belief costs and/or pricing data submitted in writing to the contracting officer and/or his representatives in support of our request for additional fee are accurate, complete and current as of the date of the final negotiation — January 28, 1981.

On January 13, 1982 plaintiff filed its petition in this matter asserting, in the first count, that defendant had not paid the $430,000 settlement amount within 90 days and that such action constituted denial of the delay claim which authorized suit for $1,250,000 in delay costs in this court under 41 U.S.C. § 609(a)(1). Alternatively, in the second count of the petition, plaintiff seeks recovery of the unpaid $430,000 settlement amount under 28 U.S.C. § 1491.

On March 5, 1982 the GSA contracting officer issued a final decision on contract No. GS-OOB-03414, holding plaintiff responsible for $475,000 in delay and acceleration costs stated to have been suffered by the government on the project as a result of plaintiff’s “negligence in the design of the Metro West Building.”

On April 29, 1982 defendant filed its answer and counterclaim in this matter, asserting that plaintiff is indebted to defendant in the amount of at least $475,000 and that the $430,000 payment due plaintiff “has been set off against that debt.” Defendant pleaded as a first affirmative defense that the court lacks jurisdiction over the subject matter of plaintiff’s claim, and as a second affirmative defense that plaintiff's first count is barred by an accord and satisfaction.

On June 8,1982 plaintiff filed its reply to defendant’s counterclaim, denying any liability for $475,000, noting that it had, on April 22, 1982, noticed an appeal of the contracting officer’s March 5, 1982 decision to the GSA Board of Contract Appeals, and noting that defendant had been informed of plaintiff’s intention to consolidate this appeal with the instant litigation and withdraw the appeal from the GSA Board of Contract Appeals without prejudice.

On June 18, 1982 the GSA contracting officer mailed a copy of an amendment (No. 17) to contract No. GS-OOB-03414 to plaintiff, stating as follows:

Enclosed for your signature is a copy of Amendment No. 17 in the amount of $430,000.00, representing the January 28, 1981 negotiated settlement of your revised claim dated November 17, 1980. Your claim as originally submitted on June 24, 1977, was partially paid in the form of Amendment No. 6 to your contract issued on November 21,1978. Your claim for delay costs and other additional design services was then resubmitted on May 8, 1979, and subsequently revised and resubmitted on November 17, 1980. Please sign and return the original and two copies of this amendment.
As you are aware, a Contracting Officer’s Final Decision was issued March 5, 1982, finding you responsible for the $475,000 damages suffered by the Government due to delay and acceleration costs incurred by the exterior masonry contractor (issued as Change Order 6-35MW, RCP 6-10MW).
Therefore, we are withholding payment of this Amendment No. 17 pending resolution of your appeal of the Final Decision under GSBCA Docket No. 6631.

Proceedings before the GSA Board of Contract Appeals have been stayed pending disposition of the motions filed in this matter by the parties.

DISCUSSION

Contract No. GS-OOB-03414 predated the effective date of the CDA such that, under section 16 of the Act, plaintiff has an election whether to proceed under the CDA [619]*619“with respect to any claim pending then [March 1, 1979] before the contracting officer or initiated thereafter.” 41 U.S.C. § 601 (note).

With respect to count one of the petition, plaintiff seeks to exercise an election to proceed under the CDA with respect to a delay cost claim of $1,250,000.

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Related

Miya Bros. Construction Co. v. United States
34 Cont. Cas. Fed. 75,237 (Court of Claims, 1987)
Grad Partnership v. United States
31 Cont. Cas. Fed. 72,051 (Court of Claims, 1984)
J.F. Shea Co. v. United States
31 Cont. Cas. Fed. 71,811 (Court of Claims, 1983)

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Bluebook (online)
30 Cont. Cas. Fed. 70,545, 1 Cl. Ct. 616, 1982 U.S. Claims LEXIS 2300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grad-partnership-v-united-states-cc-1982.