Griffin & Dickson v. United States

35 Cont. Cas. Fed. 75,627, 16 Cl. Ct. 347, 1989 U.S. Claims LEXIS 26, 1989 WL 15915
CourtUnited States Court of Claims
DecidedFebruary 24, 1989
DocketNo. 57-86C
StatusPublished
Cited by2 cases

This text of 35 Cont. Cas. Fed. 75,627 (Griffin & Dickson 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
Griffin & Dickson v. United States, 35 Cont. Cas. Fed. 75,627, 16 Cl. Ct. 347, 1989 U.S. Claims LEXIS 26, 1989 WL 15915 (cc 1989).

Opinion

OPINION

RADER, Judge.

This case, arising under the Wunderlich Act, 41 U.S.C. §§ 321-322 (1982), requires this court to determine the finality to be accorded a decision of the Department of Agriculture Board of Contract Appeals (AGBCA or Board). The plaintiff, Griffin & Dickson, sought from the Board adjustments of $371,345.53 on a channel improvement contract with the Soil Conservation Service. After more than ten years of litigation before the Board, the AGBCA dismissed the plaintiff’s appeal with prejudice for failure to comply adequately with the Board’s pretrial order on proof of costs. The entire proceeding before the AGBCA is an unfortunately deficient model of fair and expeditious administration of justice on the part of the Board, and a similarly deficient model of dedication to litigative obligations on the part of the parties1. This case was transferred to this court for decision on October 17, 1988.

FACTS

In October 1971, the plaintiff entered into a contract with the Soil Conservation Service to improve the channels of Denton Creek in Wise County, Texas. The contract initially specified a price of $396,-071.30 and a completion date of November 23, 1972. After changes, the total contract price was ultimately increased to $454,-951.35. The contract work was completed and accepted by the Government on January 4, 1974.

On April 24, 1974, the plaintiff submitted four claims to the contracting officer total-ling $371,345.53. The claims sought additional compensation for alleged differing site conditions and work delays caused by the Government’s refusal to permit night work. On November 4, 1974, the contracting officer denied all four claims.

A few months later, Griffin & Dickson timely appealed the contracting officer’s final decision to the AGBCA. The Board, in its decision dismissing the appeal with prejudice, describes the ensuing proceedings:

After a number of years during which there have been several evidentiary proceedings on the issues of entitlement, pretrial conferences, unsuccessful settlement negotiations, and numerous conference calls, there are still issues that remain to be tried. There have been considerable delays in the proceedings, some of which have resulted from the need for the Government to appoint new counsel several times due to changes in employment (there have been four different attorneys assigned to this matter over the years), and some of which resulted from inaction or untimely action by Appellant’s counsel.2

Griffin and Dickson, AGBCA No. 74-104-4, 86-1 BCA (CCH) 1118,601 at 93,374 (Opinion) [1985 WL 17213], The AGBCA’s [350]*350ruling contains no further explanation for over ten years of unresolved litigation before the Board. Indeed, after ten years, the litigation remained mired in pretrial proceedings.

On December 13, 1984, the Board, by letter, ordered the Government’s counsel to submit a suggested proof of costs statement or initiate an audit of plaintiff’s books and records. The Government submitted its proposed proof of costs order on January 14, 1985. On January 25, 1985, the Board adopted the order and directed the plaintiff’s counsel to submit its own proof of costs by February 8, 1985.

The plaintiff maintains that “unanticipated difficulties,” including “the inability to find all of plaintiff's records, the magnitude of the task and the fact that plaintiff initially thought only entitlement was involved in the hearings, major construction within the offices of the plaintiff’s counsel, plaintiff’s accountant’s obligations with other clients on tax matters during this period and the illness of one of the plaintiff’s partners,” prevented compliance with the two-week deadline. PI. Findings filed Oct. 6, 1986, II15. When the deadline had passed for the plaintiff to respond to the Board’s order, the Government, on May 3, 1985, requested the Board, pursuant to Rule 25(b) of AGBCA rules, to dismiss the plaintiff’s appeal for failure to prosecute3. The Board, by a 7 May 1985 letter, served the Government’s motion on the plaintiff and simultaneously afforded the plaintiff until May 15, 1985, to “fully comply with the Pretrial Order on Proof of Costs issued on January 25, 1985 or show good cause why this appeal should not be dismissed for failure to prosecute.”

Meanwhile, on May 6, 1985, the plaintiff mailed its proof of costs document to the Board which was received on May 10,1985. Thus, the plaintiff met the May 15 deadline extended by the Board’s May 7 letter. The plaintiff’s document consisted of 41 pages, including 37 pages of schedules with exhibits. The total amount shown in this proof of costs submission was $410,061.96.

On July 23, 1985, the Government, at the Board’s request, responded to the plaintiff’s Proof of Costs submission. Charging that the plaintiff’s document was not “a sufficient substitute for the appellant’s Books and records, and moreover, that the appellant failed to comply with the letter or intent of the Board’s Order,” the Government renewed its motion to dismiss the action. At that point, the Board, by order dated July 25, 1985, afforded the plaintiff ten days “to explain to the Board how its Proof of Costs is in full and proper compliance ... and why the Government’s Motion to Dismiss should not be granted.”

The plaintiff responded on August 7, 1985, with a Memorandum of Compliance. The plaintiff’s Memorandum explained:

Appellant has chosen to prove its equipment costs for each major piece of machinery or equipment utilized in the job by means other than its books of account and other financial records, as permitted under Paragraph 1(b) as a small contractor____ Appellant’s financial records do not reflect Appellant’s actual equipment costs. For example, the books do not reflect, in most instances, the actual acquisition cost of a particular piece of equipment because other equipment was traded in by Appellant, and only the difference is recorded on Appellant’s books, i.e., Appellant’s 88B dragline had an actual cost of $160,000.00, but only $126,-765.00 is recorded on Appellant’s books because used equipment was traded in by Appellant. Nor do the books show, for [351]*351example, the cost of the dragline bucket on the 88-B, any mobilization, or all of the transportation costs. Further, Appellant’s books do not show any repair costs on any of the equipment____ Based upon the Appellant’s years of experience in operating the type of machinery and equipment involved, the Appellant has determined that the method of proof utilized in its proof of costs will establish the equipment ownership costs and operations expense of the machinery and equipment in a more accurate and equitable manner.

Appellant’s Memorandum of Compliance, filed August 7, 1985, at 2-3.

The plaintiff reiterated that “under the terms of the Board’s Show-Cause Order, Appellant had complied with same.” Appellant’s Response to the Government’s Motion, filed August 7, 1985, at 2. With regard to the tardiness of its original proof of costs submission, the plaintiff • apologized and noted that “[a]ppellant’s counsel was of the erroneous belief, founded upon prior experience with the Government’s counsel, that Government’s counsel having previously been late in his responses to the Notices or orders of this Honorable Board would exhibit some reciprocal understanding to Appellant."

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Related

Griffin & Dickson v. United States
36 Cont. Cas. Fed. 75,894 (Court of Claims, 1990)

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Bluebook (online)
35 Cont. Cas. Fed. 75,627, 16 Cl. Ct. 347, 1989 U.S. Claims LEXIS 26, 1989 WL 15915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-dickson-v-united-states-cc-1989.