J. Parr Construction & Design, Inc. v. United States

37 Cont. Cas. Fed. 76,167, 24 Cl. Ct. 228, 1991 U.S. Claims LEXIS 420, 1991 WL 172490
CourtUnited States Court of Claims
DecidedSeptember 5, 1991
DocketNo. 501-89C
StatusPublished
Cited by6 cases

This text of 37 Cont. Cas. Fed. 76,167 (J. Parr Construction & Design, 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
J. Parr Construction & Design, Inc. v. United States, 37 Cont. Cas. Fed. 76,167, 24 Cl. Ct. 228, 1991 U.S. Claims LEXIS 420, 1991 WL 172490 (cc 1991).

Opinion

OPINION

SMITH, Chief Judge.

This case arises under a contract between the United States Coast Guard (Coast Guard) and J. Parr Construction & Design Company, Inc. (Parr)1 for the restoration and repair of a lighthouse off the coast of Louisiana. On the basis of overwhelming evidence presented in conjunction with highly qualified and credible expert government witnesses, the court has no option but to dismiss the plaintiff’s complaint. The evidence clearly tells the story of a contractor who was unable to adequately perform the job. While the court sympathizes with this small individual contractor, it must find that there was no basis for his abandonment of the job for the expressed reasons of safety. While there was clearly a sufficient basis for a default termination because of abandonment, there was also an adequate basis in both poor work quality and in a failure to comply with environmental regulations. The evidence also clearly shows that the government got nothing of value from the contractor’s performance. While it is undoubtedly the case that the contractor lost a very significant amount of money and apparently his business on this job, the government cannot be made responsible for any of this loss. In a free economy it is vital that entrepeneurs bear the sole risk of their investments or contractual undertakings.

FACTS

I. The Lighthouse

The lighthouse, which was constructed in the 1890’s, consists of an iron skeleton structure surmounted by a parapet and a lantern. The lantern is accessible from below by a spiral stairway enclosed in a cast iron cylinder. Below the lantern room is a circular room called the watchroom. Replacement of the floor plates in this room was at the heart of several of the disputes in this case. The lighthouse is located on an uninhabited island at the [230]*230north end of the Chandeleur Island chain approximately thirty miles off the Louisiana coast in the Gulf of Mexico. The island is part of the Breton National Wildlife Refuge. Photographs of the lighthouse tower and pertinent parts of the tower structure are reproduced and labelled below for the benefit of the reader. [See Appendix.]

II. The Contract

On August 26, 1986, the Coast Guard and Parr entered into a firm-fixed-price construction contract in the amount of $88,-840.00. Under the contract, Parr was to restore and repair the lighthouse. The contract required that Parr commence work within 30 calendar days after receipt of the notice to proceed (NTP) and to complete the work no later than 120 calendar days after receipt of the NTP.

Approximately one week before the bid opening date, in late July 1986, Mr. Parris, president of Parr, participated in a site visit which the Coast Guard District Civil Engineering Office conducted. The Coast Guard issued the NTP effective December 2, 1986. A pre-construction conference was held on December 2, 1986. The NTP required work to commence on December 3, 1986, with a completion date of March 3, 1987. Parr had begun working before December 2, 1986.

Almost immediately upon beginning the job various problems were encountered. The window frames in the lantern room were warped and after removing the first nine glass panels the last one shattered due to the pressure created by the frame. When the steel flooring plates in the watch room (the room just below the lantern) were removed the spiral staircase and its surrounding cast iron cylinder was alleged by Mr. Parris to have lurched out of place. A corrosion problem also developed in regard to the metal collar which leveled the steel flooring plates in the watch room. The collar, which was attached to the outside wall, was found to have largely rusted away.

On December 9, 1986, Parr stopped work on the project because some of the cast iron sockets which held the tie-rods or tension rods in place had been cracked when the rods were removed on the fifth or uppermost level of the iron skeleton supporting the lighthouse. These rods were to be replaced under the terms of the contract. On December 10, 1986, in response to a request from Parr, the Coast Guard authorized Parr to install safety chains and come-alongs to replace the tie-rods until a more permanent solution was devised. In a letter to the Coast Guard dated December 13,1986, Mr. Parris indicated that as of December 12, 1986, the date the chains and come-alongs were installed, Parr deemed the tower safe.

Parr had been using an air-hammer for the task of tie-rod removal as the ends of the rods were rusted to the connecting pins. On December 12, 1986, the Coast Guard instructed Parr during a site inspection not to remove more than two tie-rods at a time, as Paragraph 2.1.1 of the contract specified. However, sometime after December 12, 1986, Parr removed the remaining six tie-rods on the fifth level, causing a number of the pad-eyes (a type of flange which was part of the original socket casting on the main supports) to break off. (The pad-eyes had a hole through them. A metal rod or pin went through the hole and one end of the tie-rod was attached to this pin. The other end was attached to a similar arrangement on the other side of the section.) From this breaking off of the pad-eyes, Mr. Parris concludes that the lighthouse was unsafe to work on. This is so, he contends, because it calls into question the structural integrity of the other cast iron members and hence the whole tower.

On December 17, 1986, the Contracting Officer sent Parr by certified mail a cure notice for deficiencies in contract performance. The cure notice itemized Parr’s deficiencies: employees listed by Parr as general laborers were doing the work of welders and sheet-metal workers, in violation of the Davis-Bacon Act; there existed at the job-site no sanitary or food preservation provisions, in violation of Occupational Safety and Health Administration (OSHA) [231]*231regulations. In addition, the Contracting Officer notified Parr that work performance was unsatisfactory and “that should the Government terminate the contract for default, Parr would be liable for any excess reprocurement costs.”

On December 22,1986, Parr wrote to the Contracting Officer and informed her that the job had been shut down on December 20, 1986, due to the deterioration of the cast iron sockets. The sockets were attached to the four main supports or legs of the tower. The pad-eyes or flanges were part of the socket casting. There were eight connecting points on the upper sockets for the eight upper ends of the tie-rods and a similar arrangement for the bottom of the tie-rods. Only the upper socket pad-eyes broke in the effort to remove the tie-rods. Parr indicated that it was unsafe to work until the sockets were repaired and the tie-rods were replaced.

On December 29, 1986, Mr. Parris telephoned the Coast Guard and notified it that the remaining six cast iron sockets had been broken when Parr had removed the fifth level tie-rods connected to those sockets. Parr informed the Coast Guard that it was on “stand-by” waiting to hear from the Coast Guard regarding how to repair the cast iron sockets. Project Engineer Lt. Virginia Holtzman-Bell of the Coast Guard responded to those concerns by assuring Mr. Parris that the lighthouse was safe to work on and that work should continue. Before responding to Parr, Lt. HoltzmanBell conferred with Coast Guard engineers and technicians who had discussed the absence of the tie-rods at the fifth level and determined that this did not jeopardize the safety of the structure.

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Bluebook (online)
37 Cont. Cas. Fed. 76,167, 24 Cl. Ct. 228, 1991 U.S. Claims LEXIS 420, 1991 WL 172490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-parr-construction-design-inc-v-united-states-cc-1991.