John Massman Contracting Co. v. United States

37 Cont. Cas. Fed. 76,084, 23 Cl. Ct. 24, 1991 U.S. Claims LEXIS 145, 1991 WL 65312
CourtUnited States Court of Claims
DecidedApril 26, 1991
DocketNo. 564-88C
StatusPublished
Cited by19 cases

This text of 37 Cont. Cas. Fed. 76,084 (John Massman Contracting 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
John Massman Contracting Co. v. United States, 37 Cont. Cas. Fed. 76,084, 23 Cl. Ct. 24, 1991 U.S. Claims LEXIS 145, 1991 WL 65312 (cc 1991).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on defendant’s motion for summary judgment. For the reasons discussed below, the court grants defendant’s motion.

FACTS

On July 21, 1983, defendant, acting through the U.S. Army Corps of Engineers (Corps), awarded a firm, fixed-price contract to plaintiff, John Massman Contracting Company, for scour protection work at Lock and Dam No. 10, located on the Mississippi River near Guttenberg, Iowa. Plaintiff previously had performed scour protection work at Lock and Dam No. 5 of the same project. Scour protection involves the underwater placement of stone, in appropriate locations, to combat the erosive effect of water flow moving down the river and through the lock and dam. This permits the Corps to exercise some degree of control over river flow, by opening and closing gates in the dam wall, in order to maintain adequate water levels for navigation and environmental purposes. River flow, measured in cubic feet per second (cfs), is subject to wide and frequent variations, primarily and directly influenced by weather conditions, e.g., rain and ground/snow melt. The contract specified a performance period of 200 calendar days. The original contract completion date was February 27, 1984, however, defendant issued fourteen modifications, seven of which consisted of time extensions. As a result, the contract period was extended to 1,311 days, with a final contract completion date of September 30, 1987.

[27]*27Plaintiff began work on September 9, 1988 and continued until December 9, 1983 when the winter season required a shutdown of operations. Special provision 1A-8.2 in the contract specified that plaintiff would not be permitted to work during the winter months when navigation was closed because of river freezing. Tables attached to the contract indicated previous closing dates of the navigation seasons from 1950 to 1982, typically December through March, although the dates varied from year to year depending on the weather. Other tables included in the contract documents stated guidelines established by the Corps that governed, based on river flow, the number of dam gates that could be closed simultaneously. Contract provision 1A-8.1 stated that the number of gates that could be closed at a time was limited, but that the Corps would close as many gates as possible, in accordance with its guidelines, to facilitate plaintiff’s scour protection work. The contract documents did not identify the flow volumes at which scour protection work could be performed efficiently, nor did they specify the number of gate closures required for performance of the work. Instead, the contract noted that these tables, along with a third table indicating the approximate average monthly flow for Lock and Dam No. 10, were to be used by the contractor only as guides for scheduling operations.

On November 29, 1983, the contracting officer’s authorized representative sent a notice to plaintiff that it was behind schedule, and requested a revised project completion schedule. The letter also stated that if the contractor felt it was behind schedule due to unusually high river flows, it could request a time extension under General Provision 5(d) of the contract titled TERMINATION FOR DEFAULT—DAMAGES FOR DELAY—TIME EXTENSIONS (DAR 7-602.5). On December 6, 1983, plaintiff did formally request a time extension of 63 calendar days to compensate for high flows. The contracting officer’s findings of fact determined that plaintiff had suffered a loss of efficiency when it worked on days when less than two roller gates could be closed, and that a 217 calendar day time extension was fair and reasonable—a 62 day work extension plus 155 days covering the normal winter shutdown period and for months when the flows normally would preclude the Corps from closing at least two dam gates. On January 12, 1984, the parties mutually executed Contract Modification P00002 granting plaintiff the time extension, but no adjustment in price. Consequently, the resident engineer issued a directive acknowledging that defendant would recognize the need for additional time when river flows exceeded 33,000 cfs, thereby preventing closure of at least two roller gates which was necessary for the contractor to work efficiently.

As a result of the contract modification, the revised contract completion date became October 1, 1984. On August 24, and September 6, 1984, plaintiff, citing Special Provision 1A-6.4, requested a time extension in order to schedule its operations to take advantage of the most favorable river stages which existed during October and November. Plaintiff specifically asked for the extension at no additional cost. On September 14, 1984, the parties mutually executed modification P00006 which extended the contract completion date 31 calendar days to November 1,1984. The modification contained no adjustment to the contract price, and stated that “[t]his modification constitutes compensation in full on behalf of the contractor ... for all costs and markups directly or indirectly attributable to the changes ordered herein, for all delays related thereto, and for performance of the changes within the time stated.”

On September 10, 1984, plaintiff requested another delay because its stone suppliers could not furnish sufficient quantities of stone for Lock and Dam No. 10 before mid-October 1984. Both parties mutually executed Contract Modification P00008 on December 21, 1984, allowing an additional 38 calendar days for performance. This modification again specified that there would be no change in the contract price, and included the “compensation in full” clause.

Once the stone supply became available, plaintiff resumed work and completed rock [28]*28fill operations despite river flows exceeding 33,000 cfs, and productivity levels below 50%. Because flows were not expected to decrease, both parties agreed that plaintiff should halt further operations and demobilize for the winter. On January 8, 1985, both parties executed modification P00010 which granted plaintiff a 295 calendar day extension because of high river flows. The revised contract completion date was September 30,1985, and the modification again included the provision that there would be no increase or adjustment to the contract price.

On August 30, 1985, plaintiff mobilized to resume work at Lock and Dam No. 10, but once again could not work because of high river flows. On September 10, 1985, plaintiff, citing past time extensions and the continuation of extraordinarily high river flows, asked defendant to terminate the contract for convenience. After reviewing the contractor’s costs, defendant, on March 25, 1986, informed plaintiff that terminating the contract was not in the government’s best interest. Instead, because high flows had persisted, on April 21, 1986, defendant granted plaintiff a time extension of 365 days under Contract Modification P00011. Modification P00011 contained the same “compensation in full” provision as three of the previous four time extensions, however, plaintiff, in a letter dated April 30, 1986, for the first time objected to the contract modification, stating that it did not want to waive its right to compensation for costs, and would not sign an agreement including such a phrase. On May 30, 1986, defendant informed plaintiff that it would not delete the provision from the contract modification, but that plaintiff could consider the modification a unilateral change to the contract and seek further remedies under the contract disputes clause.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pontchartrain Partners, LLC
Armed Services Board of Contract Appeals, 2025
Mil-Mar Century Corp. v. United States
111 Fed. Cl. 508 (Federal Claims, 2013)
Resource Conservation Group, LLC v. United States
96 Fed. Cl. 457 (Federal Claims, 2011)
Los Angeles Unified School District v. Great American Insurance
234 P.3d 490 (California Supreme Court, 2010)
Agredano v. United States
82 Fed. Cl. 416 (Federal Claims, 2008)
Metric Construction Co. v. United States
80 Fed. Cl. 178 (Federal Claims, 2008)
La Gloria Oil & Gas Co. v. United States
72 Fed. Cl. 544 (Federal Claims, 2006)
Conner Brothers Construction Co. v. United States
65 Fed. Cl. 657 (Federal Claims, 2005)
Detroit Housing Corp. v. United States
55 Fed. Cl. 410 (Federal Claims, 2003)
D.F.K. Enterprises, Inc. v. United States
45 Fed. Cl. 280 (Federal Claims, 1999)
CTA Inc. v. United States
44 Fed. Cl. 684 (Federal Claims, 1999)
Meyers Companies, Inc. v. United States
42 Cont. Cas. Fed. 77,337 (Federal Claims, 1998)
H.B. Mac, Inc. v. United States
41 Cont. Cas. Fed. 77,028 (Federal Claims, 1996)
Hardwick Bros. v. United States
41 Cont. Cas. Fed. 76,972 (Federal Claims, 1996)
McLain Plumbing & Electrical Service, Inc. v. United States
39 Cont. Cas. Fed. 76,593 (Federal Claims, 1993)
Reliance Insurance v. United States
38 Cont. Cas. Fed. 76,494 (Federal Claims, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,084, 23 Cl. Ct. 24, 1991 U.S. Claims LEXIS 145, 1991 WL 65312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-massman-contracting-co-v-united-states-cc-1991.