Haehn Management Co. v. United States

34 Cont. Cas. Fed. 75,469, 15 Cl. Ct. 50, 1988 U.S. Claims LEXIS 95, 1988 WL 53386
CourtUnited States Court of Claims
DecidedMay 31, 1988
DocketNo. 435-86C
StatusPublished
Cited by18 cases

This text of 34 Cont. Cas. Fed. 75,469 (Haehn Management 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
Haehn Management Co. v. United States, 34 Cont. Cas. Fed. 75,469, 15 Cl. Ct. 50, 1988 U.S. Claims LEXIS 95, 1988 WL 53386 (cc 1988).

Opinion

OPINION

NETTESHEIM, Judge.

This contract case is before the court after trial. Defendant has submitted a post-trial brief.

BACKGROUND

On July 8,1986, plaintiff Haehn Management Company (“Haehn”), a prime contractor, filed suit on behalf of itself and its subcontractor CCS Construction Co., Inc. (“CCS”), seeking $381,290.00 in damages under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1982 & Supp. Ill 1985). This litigation, although maintained by Haehn, has been conducted by CCS. Based on the parties’ recommendations, discovery was to be concluded by May 30, 1987, but was extended upon defendant’s [52]*52motion to July 29,1987. See Order entered on June 19,1987. Subsequently, defendant thrice requested additional time, further extending the discovery deadline to August 28, 1987; then to September 28, 1987; and then to October 16, 1987. See Orders entered on July 28, 1987; Aug. 25, 1987; and Sept. 18, 1987. A final extension to November 12, 1987, was granted to defendant over CCS’ objection. See Order entered on Oct. 23, 1987. Defendant later informed the court that a witness, which it previously represented would be made available for deposition, could not attend during the week of November 8-16, 1987. By Order entered on November 9, 1987, defendant was directed to make its witness available on November 23, 1987, either at the office of CCS’ counsel or in the capital of the state in which the witness resides. Trial had been scheduled to commence on December 7, 1987, by order entered on July 31, 1987. The enlargements of time requested by defendant after July 31, 1987, were allowed on the basis that the trial date would not be affected.

At the conclusion of trial, the court adopted a method of disposition approved by the Federal Circuit in Under Sea Industries, Inc. v. Dacor Corp., 833 F.2d 1551, 1554 (Fed.Cir.1987). Essentially, the court issued oral findings pursuant to RUSCC 52(a) that “cover[ed] all the bases,” 833 F.2d at 1554; ordered the prevailing party through CCS to submit findings of fact; and provided defendant an opportunity to submit responsive comments and objections. See Order entered on Dec. 14, 1987. Problems plagued this endeavor. First, the findings filed by CCS on behalf of itself and Haehn largely were ultimate findings of fact. After CCS filed adequate and reasonable findings, defendant obtained an extension to file its responsive pleading. The products of this extension were an unsolicited post-trial brief and findings that included some objections, but, for the most part, were proposed findings that ignored the strong findings based on credibility that the court had entered on the record. CCS has declined an opportunity to respond to what it referred to as “defendant’s belated post-trial brief.” Plf’s Br. filed May 13, 1988.

Defendant’s submissions prevent the utilization of Under Sea, which initially had been appropriate since the cases the parties put forward by pretrial and trial revealed scant contest on the legal issues, and the disputed facts were resolvable by a bench ruling. Since defendant’s post-trial filings go beyond what transpired earlier, the following findings supersede the bench ruling and draw upon the parties’ submissions only as proposed findings and argument. Paragraph 4 of the order entered on December 14, 1987, accordingly, is vacated.

The court is sensitive that defense counsel entered the case two and one-half months before trial. However, defendant can no more avoid the consequences of failure to conduct its discovery within the time prior counsel requested than could a private firm that was required to transfer a case from one of its attorneys to another several months before trial and found that discovery commitments had not been honored.

FACTS

In September 1983 the Department of the Navy, Naval Facilities Engineering Command (the “Navy”), awarded Contract No. N62474-83-C-2123 to Haehn for construction of “Special Project R2-82, Taxiway 13-31 Repairs at the Naval Air Station, Fallon, Nevada.” (The site will be referred to as “Fallon.”) The contract, including the specifications and drawings, was promulgated by the Government.

The contract work included sealing of new joints and cleaning and resealing of existing joints in the concrete pavement of the airfield. The particular requirements were set forth, respectively, in sections 02563 and 02564 of the contract. All the joint sealing work was performed by CCS. Section 02564 called for the use of a cold-applied liquid sealant material. Federal Specification SS-S-200D entitled “Sealing Compounds, Two-Component, Elastomeric, Polymer Type, Jet-Fuel-Resistant, Cold Applied” (July 23, 1969) (the “Specification” or “SS-S-200D”) covered this materi[53]*53al, specifying use of a certain type of material, a Type M (machine-dispensed) fast-curing, two-component, cold-applied liquid sealant conforming to the Specification.1

The Specification describes the material to be used. Per section 3.2.1, Component A (the curing agent) was to be a blend of plasticizers, curing agents, accelerators, gelling agents (thixotrope), and fillers complementing Component B. Per section 3.2.-2, Component B (the base resin) was to be a homogeneous mixture of polymer and filler with the option of added activators, plasticizers, gelling agent (thixotrope), pigments, and inert extenders in a system complementing Component A.

Section 3.4.1 of the Specification provided that “Type M sealant shall conform to the following requirements and conditions,” among others: The mixing ratio of the sealant was to be, by volume, one part Component A to one part Component B plus or minus 5 percent variation, and the sealant had to attain a tack-free condition within three hours after application. Section 4.5 of the Specification prescribed a series of laboratory tests to which the proposed sealant material would be subjected and set forth procedures for conducting the numerous required tests. Eleven tests were specified to be performed, including tests for viscosity, tack-free time, accelerated aging, self-leveling, changes in weight and volume, resilience, artificial weathering, bond, flame-resistance, and flow. Nine standards, corresponding to the tests, were specified in section 3.3 of the Specification. A significant number of these, under color of performance standards, were, in fact, particular physical properties of the proposed material, such as viscosity, resilience, and flame resistance. Their measurements were precise requirements of the Specification.

CCS selected Superior Products, Inc. (“Superior”), to supply the 200D joint sealant material for the project. A manufacturer of various joint sealant materials, Superior manufactured the 200D sealant used on this project under the trade name of “Superseal 200D” and identified as Production Lot No. 131. Superior manufactured a series of individual batches of both Component A and B material in separate vessels to make up Lot 131. Superior’s vessel for mixing Component A had a capacity of 1,000 gallons, and its Component B vessel had a capacity of 427 gallons. The various ingredients in each vessel had to be blended and thoroughly mixed for one-half hour in the case of Component A and one-half to one hour for Component B in order to obtain the formulated product.

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Bluebook (online)
34 Cont. Cas. Fed. 75,469, 15 Cl. Ct. 50, 1988 U.S. Claims LEXIS 95, 1988 WL 53386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haehn-management-co-v-united-states-cc-1988.