Hunt Construction Group, Inc. v. United States

48 Fed. Cl. 456, 2001 WL 92399
CourtUnited States Court of Federal Claims
DecidedFebruary 2, 2001
DocketNo. 99-138C
StatusPublished
Cited by4 cases

This text of 48 Fed. Cl. 456 (Hunt Construction Group, Inc. 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
Hunt Construction Group, Inc. v. United States, 48 Fed. Cl. 456, 2001 WL 92399 (uscfc 2001).

Opinion

OPINION

MILLER, Judge.

This case is before the court after argument on cross-motions for summary judgment. The issue to be decided is whether a special notice in a solicitation which stated that “Sales and use tax exemptions should be sought where applicable” is sufficient to obligate the Government to reimburse a successful offeror for those exemptions upon completion of its contract.

FACTS

In May 1996 the Department of Veterans Affairs (‘VA”) issued a Solicitation for Proposals (the “Solicitation”) for construction of an Ambulatory Care Clinic Addition in Phoenix, Arizona (the “Project”). The Solicitation contained two important references to tax exemptions. First, on the page immediately following the Table of Contents, a “Special Notice” was printed on green paper. This piece of paper was blank except for the title “SPECIAL NOTICE” and text that read:

I. Sales and Use Taxes:

(a) Sales and use tax exemptions should be sought where applicable.

— END —

Second, on page 01001-20, the Solicitation included a standard clause from 48 C.F.R. (FAR) § 52.229-3 (1999), “Federal, State, and Local Taxes,” which stated, in relevant part, that “[t]he contract price includes all applicable Federal, State, and local taxes and duties,” and “[t]he Government shall, without liability, furnish evidence appropriate to establish exemption from any Federal, State, or local tax when the Contractor requests such evidence and a reasonable basis exists to sustain the exemption.”2

The Hunt Construction Group, Inc. (“plaintiff’), was one of six offerors on the Project. Plaintiffs representatives, Robert S. Ayles-worth, Jr., and James Linyard, reviewed the Solicitation. After discussing the two tax exemption provisions, Messrs. Aylesworth and Linyard researched and found that the only applicable exemption to state and use [458]*458taxes in Arizona was for the purchase of permanent building materials. Thus, on June 27, 1996, Messrs. Aylesworth and Lin-yard submitted on behalf of plaintiff a bid that reflected their assumption that, pursuant to the Special Notice, they would not have to pay state and local sales and use taxes on permanent materials.3 Indisputably, plaintiffs experience with Arizona State exemptions was consistent with this assumption, and this was plaintiffs first federal construction contract. On July 19,1996, plaintiff submitted its best and final offer (the “BAFO”), which also omitted the applicable sales and use taxes, in the amount of $25,503,000.00.

Another offeror, McCarthy Brothers Company (“McCarthy”) also submitted an offer on June 27, 1996. The McCarthy offer contained the following qualification:

1) In accordance with the special notice contained the RFP submittal package dated May 21, 1996, McCarthy has sought out appropriate sales and use tax exemptions for this project.
We have not included any such tax for the permanent materials purchase by McCarthy as agent for the VA’s account. To obtain this benefit, the VA must sign an Agency Agreement similar to the attached form in accordance with A.A.C.R. 15-5-629.B. simultaneous with signing the contract. McCarthy has utilized the arrangement successfully on several projects.

McCarthy also provided a form of agency agreement with its proposal.

On July 12, 1996, Contracting Officer Francis E. Sullivan wrote McCarthy regarding its offer. After discussing other aspects of the offer, the contracting officer stated:

Your offer on Item 17 states, “see the attached Qualifications.” I consider the qualifications not in compliance with Federal Acquisition Regulation (FAR) 14.404-2(d)(6) — limiting the rights of the Govemment. You are requested to remove your qualifications.

On July 19, 1996, McCarthy submitted a BAFO, with the following explanation:

6. We remove our qualification on Item 17.
7. Our original price for this work was $27,198,000. We now make a final and best offer as follows of $26,695,000 on the same basis as our original proposal (without sales tax on permanent materials.) [sic ] which can be further amended by you if you select any of the following alternates.
1. Add $496,000 if the VA is unwilling to sign the Arizona Revenue Department Hospital Agency Agreement concurrent with the contract so as to take advantage of the sales tax exemption on permanent materials.

In the course of evaluating the offerors’ prices, Contracting Officer Sullivan added $496,000.00 to McCarthy’s offer. He had no communications with plaintiff concerning any aspect of McCarthy’s offer.

Plaintiff was the low offeror and was awarded Contract V101DC0138 on August 27, 1996. Plaintiff immediately began to work on the project and several months later, on January 10, 1997, wrote the contracting officer requesting that the VA sign an agency agreement so that plaintiff could obtain the tax exemption for the purchase of permanent materials. VA counsel contacted plaintiff on February 16, 1997, expressing concerns about the arrangement. Plaintiff wrote to the VA on February 26, 1997, and March 10, 1997, in an effort to assuage the VA’s concerns about the agency agreement and provided potentially acceptable agency agreements. On April 9, 1997, Contracting Officer Sullivan advised plaintiff that its request was “not in the interest of the Government,” explaining:

Federal Acquisition Regulation (FAR) Subpart 29.303(a) states “Prime contractors and subcontractors shall not normally [459]*459be designated as agents of the Government for purposes of claiming immunity from State or local sales or use taxes...”. Although you have presented legal issues which have bearing within the State of Arizona, you have not presented any federal agency that has allowed the use of the Agency Purchase program.

On May 22, 1998, plaintiff submitted a claim for reimbursement of state sales taxes on the purchase of permanent construction materials. On June 30,1998, the contracting officer issued a final decision denying plaintiffs claim. Plaintiff originally estimated its total tax expense on this project at $1,089,000.00 and included $417,000.00 in its offer for taxes that would not be covered by exemptions. Plaintiff now seeks the difference between these amounts — $672,000.00— for exemptions that plaintiff was unable to obtain and thus did not account for in its offer.

DISCUSSION

1. Provisions in the solicitation

The central issue in this case is the interpretation of the two tax exemption provisions in the Solicitation. The first clause, the Special Notice, was printed on the first page of the solicitation on green paper, while the rest of the Solicitation was printed on white paper. The Special Notice states that “[s]ales and use tax exemptions should be sought where applicable.” The second clause, FAR § 52.229-3, included in the compendium of reprinted FAR provisions, states that “[t]he contract price includes all applicable Federal, State, and local taxes and duties” and that “[t]he Government shall, without liability, furnish evidence appropriate to establish exemption from any ... State, or local tax when the Contractor requests such evidence

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Bluebook (online)
48 Fed. Cl. 456, 2001 WL 92399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-construction-group-inc-v-united-states-uscfc-2001.