Jo-Bar Manufacturing Corp. v. United States

535 F.2d 62, 22 Cont. Cas. Fed. 80,291, 210 Ct. Cl. 149, 1976 U.S. Ct. Cl. LEXIS 10
CourtUnited States Court of Claims
DecidedMay 12, 1976
DocketNo. 418-74
StatusPublished
Cited by17 cases

This text of 535 F.2d 62 (Jo-Bar Manufacturing Corp. 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
Jo-Bar Manufacturing Corp. v. United States, 535 F.2d 62, 22 Cont. Cas. Fed. 80,291, 210 Ct. Cl. 149, 1976 U.S. Ct. Cl. LEXIS 10 (cc 1976).

Opinion

PeR Curiam :

This case comes before the court on defendant’s motion, filed March 8, 1976, requesting that the court adopt, as the basis for its judgment in this case, the recommended decision of Trial Judge Harry E. Wood, filed January 28, 1976, pursuant to Rule 166(c) on plaintiff’s motion and defendant’s cross-motion for summary judgment, plaintiff haying failed to file a request for review thereof by the court and the time for so filing pursuant to the Rules of the court having expired. Upon consideration thereof, without oral argument, since the court agrees with the decision, as hereinafter set forth, it hereby grants defendant’s motion and affirms and adopts the decision as the 'basis for its judgment in this case. It is therefore concluded that the decision of the Armed Services Board of Contract Appeals denying plaintiff’s claim for an equitable adjustment in contract price pursuant to the Changes clause, as not properly asserted prior to final payment, was neither arbitrary, capricious, unsupported by substantial evidence, nor legally erroneous and, accordingly, plaintiff’s petition seeking reversal of that decision is hereby dismissed.

OPINION OF TRIAL JUDGE

Wood, Trial Judge:

In this contract action, plaintiff seeks review, under Wunderlich Act standards,1 of a decision of the Armed Services Board of Contract Appeals2 denying plaintiff’s claim for an equitable adjustment in contract price on the ground that plaintiff’s claim thereto wras not asserted [152]*152prior to final contract payment, and was therefore barred by the time limitations contained within the contract’s Changes clause.3

Plaintiff here contends that in consequence of an admittedly incomplete technical data package furnished to it prior to bidding, it performed work, and incurred costs, neither contemplated in bidding on, nor included in its bid price for, the contract work; that it gave proper and timely notice to defendant of its claim to an equitable adjustment in contract price; and that the administrative decision denying the claim as untimely is not entitled to finality. Defendant, of course, urges that the administrative decision should be upheld.

The relevant facts found by the Board, or otherwise established by the administrative record, are briefly stated below. For reasons hereinafter appearing, it is concluded that plaintiff is not entitled to recover.

On December 30, 1970, defendant, acting through the Defense Supply Agency, Defense 'Construction Supply Center, Columbus, Ohio, issued an invitation for bids covering some 462 engine lubrication pump assemblies to be manufactured in accordance with certain specified, government-furnished drawings. Plaintiff responded to the IFB January 27, 1971, and, on April 8,1971, was awarded a contract to furnish the said pump assemblies at a unit and total contract price of $66.13 and $30,552.06, respectively.

In October 1971, when plaintiff was ready to assemble the various components making up the pump assembly, it discovered that assembly drawings were missing from the technical data package. It is here conceded that defendant failed to furnish to plaintiff a complete technical data package, and that plaintiff was not chargeable with knowledge of the missing drawings prior to bidding on the contract in suit.

On October 1, 1971, Mr. Matheny, a government industrial specialist, had been assigned to plaintiff’s plant for “surveillance and [technical] assistance purposes.” On discovery of the missing drawings, plaintiff discussed them with Mr. Matheny and with Mr. Fruth, a government engineer at the [153]*153Defense Construction Supply Center in Columbus, and defendant forwarded the missing drawings to plaintiff December 30,1971.

The administrative record contains vague, ambiguous and to a degree conflicting evidence concerning what plaintiff did (or did not) do, prior to final contract payment, about the costs allegedly incurred in complying with the assembly drawings furnished to it December 30,1971.

Plaintiff’s chief executive officer, its sole witness, testified that on receipt of the missing drawings she told both Mr. Matheny and Mr. Fruth plaintiff “would be” claiming additional compensation in consequence of those drawings. As the Board accurately observed, 'however, that same witness also testified that the government representatives to whom she had spoken about a price adjustment had “indicated to her that [plaintiff] should file a claim for whatever additional costs were involved.”

Both Mr. Matheny and Mr. Fruth flatly contradicted plaintiff’s testimony. Mr. Fruth denied any conversation with plaintiff concerning additional costs. Mr. Matheny testified he 'had no conversation with plaintiff’s chief executive officer concerning additional costs at the time the missing drawings were furnished to plaintiff.

The Board found that plaintiff had failed to establish that it had asserted a claim to an equitable adjustment under the contract prior to final contract payment. In so finding, the Board gave careful consideration to what it termed the sole item of “credible evidence * * * which even remotely resembles the assertion of a claim”: Mr. Matheny’s recollection of a conversation with some representative of plaintiff, approximately a year after plaintiff’s receipt of the missing drawings, during which the comment that plaintiff “would have to get more money” or was “going to ask for more money” was made.

The Board noted Mr. Matheny’s limited authority, and that Mr. Matheny had explained to plaintiff’s chief executive officer, shortly after October 1,1971, that his contractual assignment was limited to technical assistance. The Board concluded that the general comment he recalled (and to which he had attached no particular significance) did not [154]*154constitute a valid and proper claim under the Changes clause, 'but “at its best was an expression of an indefinite intent to seek a price adjustment as distinguished from a demand predicated upon an express contractual right.”

In any event, following plaintiff’s- receipt of the missing drawings, it did complete the contract in due course. During contract performance there were several contract modifications, including one of June 6,1972, by which plaintiff agreed to a minor reduction in unit and total contract prices, in exchange for a government extension of the contract delivery date. In February 1973, plaintiff submitted invoices to defendant, at a unit price of $66.13, covering the 462 engine lubrication pump assemblies. On March 16, 1973, defendant made a final contract payment of $30,348.78 to plaintiff.4

On April 20, 1973, plaintiff forwarded to the contracting officer a written claim for $38,734.08 for “additional time and costs necessary to incorporate drawings and dimensions not originally included with the basic bid package * * 5 The Board found no evidence that an intent to assert the claim was made in writing prior to April 20, 1973, and plaintiff does not, and cannot, challenge that finding.

On June 11, 1973, the contracting officer denied plaintiff’s formal written claim on the ground that, not having been asserted until after final payment, it was untimely under the terms of the Changes clause. Plaintiff timely appealed the contracting officer’s decision.

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Bluebook (online)
535 F.2d 62, 22 Cont. Cas. Fed. 80,291, 210 Ct. Cl. 149, 1976 U.S. Ct. Cl. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jo-bar-manufacturing-corp-v-united-states-cc-1976.