Howell v. United States

51 Fed. Cl. 516, 2002 WL 70443
CourtUnited States Court of Federal Claims
DecidedJanuary 17, 2002
DocketNo. 97-849 C
StatusPublished
Cited by10 cases

This text of 51 Fed. Cl. 516 (Howell v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howell v. United States, 51 Fed. Cl. 516, 2002 WL 70443 (uscfc 2002).

Opinion

OPINION AND ORDER

TURNER, Judge.

This case involves contract claims against the United States. In 1990, the Farmers Home Administration (FmHA) awarded to plaintiff a series of ten indefinite-quantity services contracts for the mowing and maintenance of properties owned by the FmHA in various counties throughout Florida. Plaintiff contends that the contracts had “guaranteed minimum” clauses which required payments to him when no services were ordered. Defendant contends that the contracts contained no obligation for payment when services were not performed; defendant also asserts the affirmative defense of accord and satisfaction. A trial was held in Gainesville, FL, on February 13-14,2001; after post-trial briefing, final argument was conducted on September 21, 2001. We conclude that plaintiff is entitled to judgment in the principal amount of $8,998.16.

I

Although this case involves ten separate contracts, except for items particular to specific counties (e.g., number of properties, number of acres held in each area and price), the contracts are identical. Consequently, as was done at the trial, see Tr. (2/13/01) at 108-09, we hereafter refer to Contract 60-421-E-1-C0058 (“C0058” or “the Chipley contract”) as representative of the terms found in each contract.1 DX 202/49-102.

In July 1990, FmHA began to seek proposals on minor maintenance and mowing/bush hogging services for vacant FmHA farm properties located in ten counties in Florida between October 1, 1990 and September 30, 1991. DX 202/59. Each proposal provided an estimated number of FmHA properties in [518]*518that county, along with an estimated number of acres for mowing. DX 202/68. In August 1990, plaintiff Wade Howell, a sole proprietor doing business as Howell Construction, submitted offers for services in the ten counties. DX 202/59. On September 17,1990, Betty C. McMurtry, the Contracting Officer (CO), accepted these offers and awarded to plaintiff the ten contracts at issue. DX 202.

Section B.2 (the Price Schedule) of each contract is a document partially created by the CO and completed by an offeror. The CO would estimate the number of properties to be covered by the contract in each county, as well as the total number of acres each contract represented.2 Tr. (2/13/01) at 53-54 (Browning). Then, an offeror would fill in the price bid for each of the services listed on the Price Schedule. Tr. (2/13/01) at 52-53 (Browning). The CO then accepted an offer based on the Price Schedules submitted, and the Schedule of the winning offeror became part of the contract. Tr. (2/13/01) at 63-64 (Browning).

During the contract year (October 1, 1990 through September 30, 1991), mowing services were ordered on five properties covered by three of these contracts, one property under Contract C0058 (Chipley), two properties under C0060 (Live Oak) and two properties under C0063 (Quincy). Tr. (2/13/01) at 103-04 (Howell); DX 202/63, 202/168, 202/318.

After the close of the contract year, plaintiff became convinced that defendant owed him for potential services that he had not been called upon to perform. On August 7, 1992, plaintiff submitted an invoice in the amount of $93,288 for services he believed were called for in the remaining seven contracts with respect to which he was not called upon to perform any services. DX 210/3-9. In that invoice, plaintiff claimed that he was entitled to an amount equaling one “Initial Service”3 for each property and two mowings for the total acreage listed in Section B.2 of the contracts when awarded.4

On September 22, 1992, CO McMurtry wrote to plaintiff refusing payment on the invoice as submitted but stating that “in Section 1.3, the Government established that it would order a minimum quantity....” DX 209/2. CO McMurtry calculated the required mínimums as follows: C0053 (Blountstown), $200; C0059 (Leesburg), $200; C0061 (Marianna), $1,000; C0062 (Plant City), $200; C0064 (Tallahassee), $1,000; C0066 (Bonifay), $2,000; and C0067 (Bronson), $500, for a total of $5,100. DX 209. No explanation for the methodology used to calculate such minimum guarantees has been provided. The CO stated that she was “prepared to approve and to process a claim for those minimum delivery quantities that are guaranteed under the above noted contracts.” DX 209/2. Thereafter, on April 9, 1993, plaintiff submitted an invoice for $5,100, on which he marked “per Mrs. McMurtry instructions.” DX 210/2. In response, a U.S. Treasury check in the amount of $5,100 was issued to and cashed by plaintiff. DX 211/5.

At trial, defendant maintained that this payment of $5,100 represented the satisfaction of an agreement between the parties to settle all of plaintiffs claims under the ten contracts. Tr. (2/13/01) at 27-31. Plaintiff denied that he had ever agreed to accept $5,100 as payment in full for the $93,288 he invoiced to the government in August 1992. PI. Br. (7/30-1) at 8-10.

On December 16, 1997, plaintiff filed the complaint initiating this case, claiming $135,249.40 representing the amounts invoiced to the FmHA in August 1992 on the seven contracts for which no work was per[519]*519formed, plus the estimated additional amount due under the three contracts for which mowing had been ordered, less the $5,100 that he had already been paid. DX 217.

II

A standard mowing-service contract format, in use by the FmHA for several years, formed the basis for these contracts. Tr. (2/13/01) at 51 (Browning). For the 1990-91 contract year, a new provision, C.7, was added to the contract. Tr. (2/13/01) at 85-86 (Howell). Section C.7 provided: “Additional mowing of the farm acreage will be decided by the COR [Contracting Officer’s Representative] but shall not be less than twice during the 12-month contract period.” DX 202/71. According to the testimony of plaintiff, CO McMurtry inserted this provision because in prior years, not all CORs would order at least two mowings per year of each property, and adding this provision would ensure that a minimum level of caretaking service was performed for each property. Tr. (2/13/01) at 85-86 (Howell). Both witnesses who were employees of FmHA agreed that semi-annual mowing was the minimum required to maintain the property. Tr. 57 (Browning); Tr. 288 (McLeod).

The contracts purported to be “indefinite-quantity” contracts, incorporating FAR clause 52.216-22. DX 202/86. Section 1.3 stated:

(a) This is an indefinite-quantity contract for the ... services specified, and effective for the period stated, in the Schedule. The quantities of ... services specified in the Schedule are estimates only and are not purchased by this contract.
(b) Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. The Contractor shall furnish to the Government, when and if ordered, the ... services specified in the Schedule up to and including the quantity designated in the Schedule as the “maximum.” The Government shall order at least the quantity of ... services designated in the Schedule as the “minimum.”

DX 202/86.

Interestingly, there are two portions of the contracts labeled “Schedule.” First, Part I of each contract is called “The Schedule,’ and includes Sections A, B, C, E, F, G, and H. DX 202/59, 202/66. Sections B.l and B.2 collectively are called the “Price Schedule.” DX 202/66. Section B.l states:

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Bluebook (online)
51 Fed. Cl. 516, 2002 WL 70443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-united-states-uscfc-2002.