J.F. Allen Co. & Wiley W. Jackson Co. v. United States

37 Cont. Cas. Fed. 76,268, 25 Cl. Ct. 312, 1992 U.S. Claims LEXIS 613
CourtUnited States Court of Claims
DecidedFebruary 19, 1992
DocketNo. 578-87C
StatusPublished
Cited by4 cases

This text of 37 Cont. Cas. Fed. 76,268 (J.F. Allen Co. & Wiley W. Jackson 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
J.F. Allen Co. & Wiley W. Jackson Co. v. United States, 37 Cont. Cas. Fed. 76,268, 25 Cl. Ct. 312, 1992 U.S. Claims LEXIS 613 (cc 1992).

Opinion

[314]*314OPINION

HORN, Judge.

BACKGROUND

The plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, filed this action to recover from the United States alleged damages arising out of the joint venture’s construction contract with the United States Army Corps of Engineers (Corps). The jurisdiction of this court is uncontested under 28 U.S.C. § 1491 (1988), and the Contract Disputes Act of 1978, 41 U.S.C. § 609 (1988). The issues described in this Opinion originally were presented to the court on the plaintiff’s motion for partial summary judgement on what the parties have denominated the “section-skipping requirement,” the defendants’s motion for summary judgement on the whole case (the section-skipping requirement and the damages on the second issue presented, denominated the “low grout take” issue), and the defendant’s alternative motion in limine to preclude the plaintiff from using the “total cost” method to calculate damages related to the low grout take issue. The plaintiff claims that the imposition of the section-skipping requirement, which is more fully defined below, constituted a constructive change or breach of contract. The defendant has conceded liability on the low grout take issue, but disputes the damages to which plaintiff might be entitled.

The case arises out of a contract executed between the Corps and the plaintiff for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. Performance of the contract required the plaintiff to complete foundation drilling and grouting at the dam. The present dispute stems from the drilling and grouting operations performed by the plaintiff’s subcontractor, Pennsylvania Drilling Company, Inc. (Penn Drilling).

In its complaint, the plaintiff alleges that: (1) contrary to paragraphs 5.1 and 5.1.2 of Section 20 of the plaintiff’s contract with the Corps, authorized representatives of the Corps and the contracting officer issued orders prohibiting simultaneous drilling and grouting in adjacent one-hundred foot sections, which orders constituted a constructive change or, alternatively, a breach of contract, entitling the plaintiff to recover for the increased costs and lost profits associated with this alleged change in the drilling sequence; and (2) because of the low grout take, which occurred in performance of the contract, the plaintiff is entitled to an equitable adjustment, pursuant to the Differing Site Conditions and Variations in Quantity clauses in the contract.

After the plaintiff’s motion for partial summary judgment, the defendant’s motion for summary judgment and the defendant’s alternative motion in limine had been briefed and argued, the plaintiff filed a motion for enlargement of time to file a motion for summary judgment on the issue of the low grout take. The plaintiff claims that it was prompted to file this motion by the discussion that had ensued at the oral argument. The defendant filed its opposition to plaintiff’s motion for enlargement of time to file a motion for summary judgment, arguing that the plaintiff should not be allowed to raise new issues so far along in the proceedings, especially after oral argument had been held and post-argument briefs had been filed by both parties.

The plaintiff, however, was allowed to file a supplemental brief in opposition to defendant’s motion for summary judgment, which essentially is a restyled version of the arguments the plaintiff would have made in a motion for summary judgment. In its supplemental brief, the plaintiff claims that as a matter of law, the contracting officer had not correctly computed the amount of damages the plaintiff was entitled to as result of the differing site conditions which resulted in the low grout take.

On November 28, 1989, the defendant filed its response to plaintiff’s supplemental brief in which it stated that the plaintiff had “... finally raised a genuine issue of material fact as to whether it may be able to establish allowable costs in addition to those already paid.” The defendant, there[315]*315fore, requested that its motion for summary judgment on the issue of low grout take be withdrawn, without prejudice. The court, hereby, grants the defendant’s request to withdraw its motion for summary judgment on the low grout take/differing site conditions issue. Accordingly, the issues remaining for the court’s consideration are those involving the change encountered by the plaintiff in the drilling and grouting sequence (the section-skipping requirement), on which both parties have requested summary judgment, and the defendant’s request for a ruling at this time to prohibit the plaintiff from using the total cost method to calculate damages.

After careful consideration of the briefs filed by the parties, the oral argument held on the cross-motions for summary judgment and the motion in limine, and for the reasons stated below: (1) the plaintiff’s motion for partial summary judgement on the section-skipping requirement or alternative breach of contract claim is DENIED; (2) the defendant’s motion for summary judgment on the section-skipping requirement is GRANTED; and (3) the defendant’s alternative motion in limine is DENIED.

FACTS

Based on the documentary evidence submitted by the parties, the facts of the case appear to be as follows. The plaintiff, J.F. Allen Company and Wiley W. Jackson Company, a joint venture, entered into a contract (No. DACW59-83-C-0053) with the United States Army Corps of Engineers (Corps) for the construction of the Stonewall Jackson Lake Dam, West Fork River, Lewis County, West Virginia. The contract executed by the parties contains the basic General Provisions found in construction contracts issued by the Corps (May 1983 Edition), e.g., General Provision 3, Changes, General Provision 4, Differing Site Conditions. The contract also contains the June, 1982 edition of the Variations in Estimated Quantities Subdivided Items.

A portion of the plaintiff’s contract calls for the construction of a grout curtain beneath the dam.1 The contract specifies that this grout curtain is to be constructed in accordance with Section 20 of the technical provisions of the contract entitled “Foundation Drilling and Grouting and Drainage Holes.”2 The plaintiff subcontracted with Crown Pressure Grouting Company to perform the drilling and grouting work required by the contract. Subsequently, it appears that the plaintiff entered into a replacement subcontract with Pennsylvania Drilling Company, Inc. (Penn Drilling). The present dispute stems from the drilling and grouting operations performed by Penn Drilling during the construction of the grout curtain.

Penn Drilling began drilling and grouting on January 6, 1986, and completed operations on June 4, 1986. The drilling and grouting work performed by Penn Drilling took place in a gallery, or tunnel, inside the dam. Pursuant to paragraph 5.1 of the technical provisions of the contract, drilling and grouting was to be completed “by zones, using the split spacing, stage grouting method as described herein.” Furthermore, the technical provisions specify that the dam gallery was to be divided into sections no longer than one-hundred feet in length.

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Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,268, 25 Cl. Ct. 312, 1992 U.S. Claims LEXIS 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jf-allen-co-wiley-w-jackson-co-v-united-states-cc-1992.