International Business Investments, Inc. v. United States

35 Cont. Cas. Fed. 75,668, 17 Cl. Ct. 122, 1989 U.S. Claims LEXIS 90, 1989 WL 56325
CourtUnited States Court of Claims
DecidedMay 31, 1989
DocketNo. 542-87C
StatusPublished
Cited by7 cases

This text of 35 Cont. Cas. Fed. 75,668 (International Business Investments, Inc. 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
International Business Investments, Inc. v. United States, 35 Cont. Cas. Fed. 75,668, 17 Cl. Ct. 122, 1989 U.S. Claims LEXIS 90, 1989 WL 56325 (cc 1989).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This action is before the court on parties’ cross-motions for summary judgment. The question at bar is whether a contract for guard and supervisory services was ambiguous, thus qualifying plaintiff for an equitable adjustment. Plaintiff alleged that the contractual usage of the terms “contract representative” and “shift supervisor” within similar contract specifications supported its interpretation that both positions were to be filled by one person. Defendant disagreed, stating that the terms of the contract clearly required two separate individuals to fill two different positions.

FACTS

On July 26, 1983, the United States, acting through the Department of Navy, awarded plaintiff, International Business Investments, Inc. (IBI), a small business set-aside contract for security guard services at the Naval Underwater Systems Center (NUSC) installation in Newport, Rhode Island. The contract price, with twelve modifications, amounted to $2,637,676.20. The proposed services included continuous, around-the-clock surveillance of a 191-acre installation accessed by one main gate and two secondary gates.

Neither the contract specifications nor amendments to the specifications contained a comprehensive list of personnel necessary to perform the contract. Various references, however, were made to a superintendent and a shift supervisor. At the onset of performance, plaintiff interpreted these references as requiring only one person to act in both capacities. Soon thereafter, plaintiff was notified by defendant that plaintiff’s interpretation was inconsistent with the contract. Defendant maintained that the contract required the hiring of two different individuals and ordered plaintiff to comply with this interpretation. Plaintiff did so under protest. Upon contract completion, plaintiff filed a claim with the contracting officer for an equitable adjustment to the contract price. Plaintiff contended that its bid price contemplated the hiring of only one individual to perform the dual functions of superintendent and shift supervisor and that defendant’s order constituted a change to the contract entitling it to an upward equitable adjustment to its contract price. The contracting officer denied plaintiff’s claim in a final decision dated July 2,1987. Plaintiff then filed a claim for $77,813.51 in this court. Defendant’s response was a motion for summary judgment, to which plaintiff cross-moved.

DISCUSSION

The Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), grants this court jurisdiction to review plaintiff’s contract claim. Since the contracting officer allowed plaintiff to bring a direct action to this.court, plaintiff has exhausted its administrative remedies as required under the Contract Disputes Act (CDA), 41 U.S.C. § 605(a) (1982), and thus its complaint is properly before the court. The CDA also mandates that the court adjudicate the matter de novo, i.e., the legal conclusions made by the contracting officer bear no weight on the court’s present determination. While it is apparent that the court has jurisdiction in this matter, the action requested by plaintiff in its cross-motion is far less clear. Plaintiff, in rather inconsistent pleadings, argued that defendant’s motion for summary judg[124]*124ment was inappropriate because factual issues were in dispute; yet in the same brief and on the same facts as presented in defendant’s motion, plaintiff argued that the pending matter was devoid of any disputed factual issues and that summary judgment should be awarded in plaintiff’s favor. Due to plaintiff’s apparent confusion, the court must preliminarily determine whether the case is ripe for summary judgment.

Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. RUSCC 56(c). A genuine issue of material fact is present if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the suit, and its materiality is determined by the substantive law applicable to the case. Id. Defendant has the burden of establishing that there are no genuine issues in dispute and that it is entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). As the party opposing the motion, plaintiff has the burden of providing sufficient evidence, not necessarily admissible at trial, that a genuine issue of material fact indeed exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Any evidence presented by plaintiff is to be believed and all justifiable inferences drawn in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09.

Plaintiff argued that defendant’s motion for summary judgment was inappropriate because there was a factual dispute over whether defendant agreed to plaintiff’s interpretation of the contract requirements. Plaintiff alleged that one of its agents telephoned the contracting officer’s office, spoke to a government official, and received the go-ahead to hire only one person to act simultaneously as superintendent and shift supervisor. Plaintiff did not, however, identify the government official or specify his or her title. Defendant denied the existence of any oral agreement, but argued alternatively, that if such an agreement was made, the government spokesperson was not authorized to bind the government. Plaintiff contended that this open-ended question constituted a genuine issue of material fact which would defeat summary judgment.

While it may be true that a factual discord exists between the parties, plaintiff’s mere inference that it spoke to an unnamed governmental agent is not enough to bar summary judgment in this instance. Avia Group Int’l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1560 (Fed.Cir.1988). Plaintiff must produce sufficient evidence to show that the agreement, assuming that it actually took place, would affect the outcome of the suit. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. For that to happen, plaintiff must identify the government official who purported to confirm plaintiff’s interpretation of the contract so that the authority of that official to bind the United States contractually may be ascertained. The United States may only be bound to contracts, and changes or interpretations thereof, made by government officials possessing the requisite con tracting authority. Thus, only an agreement made by an authorized agent would have any bearing in this proceeding. Miami Metro. Bldg. Corp. v. United States, 180 Ct.Cl. 503, 514 (1967) (citing Wilber Nat’l Bank v. United States, 294 U.S. 120, 123-24, 55 S.Ct. 362, 363-64, 79 L.Ed. 798 (1935)).

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Bluebook (online)
35 Cont. Cas. Fed. 75,668, 17 Cl. Ct. 122, 1989 U.S. Claims LEXIS 90, 1989 WL 56325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-business-investments-inc-v-united-states-cc-1989.