Kaeper Machine, Inc. v. United States

74 Fed. Cl. 1, 2006 U.S. Claims LEXIS 354, 2006 WL 3412257
CourtUnited States Court of Federal Claims
DecidedNovember 16, 2006
DocketNo. 05-183C
StatusPublished
Cited by2 cases

This text of 74 Fed. Cl. 1 (Kaeper Machine, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaeper Machine, Inc. v. United States, 74 Fed. Cl. 1, 2006 U.S. Claims LEXIS 354, 2006 WL 3412257 (uscfc 2006).

Opinion

OPINION GRANTING THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

FIRESTONE, Judge.

This case comes before the court on the cross-motions of the parties pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). In this action, the plaintiff, Kaeper Machine, Inc. (“Kaeper” or “plaintiff’) seeks reimbursement for the costs it incurred in its effort to provide the government with armored suspension housing assembly units (“armored housing units”) for tank recovery vehicles under a Defense Supply Center Columbus (“DSCC”) purchase order. The government contends that Kae-per is not entitled to any costs because the purchase order lapsed when Kaeper failed to deliver the armored housing units on the specified delivery date. Kaeper contends that the purchase order did not lapse but instead became an irrevocable option contract after Kaeper proceeded with the work to the point of substantial performance. Kaeper further contends that the government violated the Federal Acquisition Regulations (“FAR”) with respect to the cancellation or termination of a purchase order, 48 C.F.R. § 52.213—4(f) (2006) when it failed to obtain Kaeper’s acceptance of the cancellation or process the cancellation as a termination for convenience. Kaeper argues, in the alternative, that the government should be estopped from denying the existence of a contract. For the reasons set forth below, the government’s motion is GRANTED and Kaeper’s motion is DENIED.1

BACKGROUND

The following facts are not disputed unless otherwise noted. On February 20, 2004, the DSCC issued purchase order SP0750-04-M-9839 (“the purchase order”) to Kaeper for the production of 146 armored housing units for use in United States Army M88 Tank Recovery Vehicles. The armored housing units are “other than commercial items.” The unit price was $858 for a total price of $125,268. Under the terms of the purchase order, the 146 armored housing units were to be delivered by August 23, 2004. Although the DSCC issued the purchase order, the purchase order specified that the Defense Contract Management Agency (“DCMA”) would administer the purchase order.2 Pl.’s Ex. 1.

On February 26, 2004, Kaeper subcontracted performance of the purchase order to Euclid Machine, Inc. (“Euclid”), located in Eastlake, Ohio. Pl.’s Ex. 5. The government learned of the subcontract with Euclid in July 2004 when Kaeper requested that the contracting officer change the inspection and delivery point from another facility to Euclid’s facility. Pl.’s Ex. 7. In an electronic message dated July 22, 2004, a representative of DCMA informed Betty Lavery, the procuring contracting officer, that Euclid would be manufacturing the units. “Just to give you a heads-up—Kaeper Machine (1HFX2) has an association with Euclid Machine and Mr. Oh. DCMA received a request to change the inspection point on order SP0750-04-M-9839 from Kaeper Machine to Euclid Machine.” Pl.’s Ex. 8. The reason for the concern was revealed in another electronic message dated that same day to in-house counsel at DSCC, in which Ms. Lavery explained that Euclid had provided nonconforming armored housing units to the government in the past and that she believed that Euclid would provide Kaeper the 40 non-conforming armored housing units that she had cancelled on a prior purchase order with Euclid. Pl.’s Ex. 8. Ms. Lavery sent another electronic message that same day to Donald Lushbaugh, item manager at DSCC, stating: “WILL YOU PLEASE PUT A FREEZE CODE ON THIS STOCK?” Pl.’s Ex. 8. In an electronic message dated the following day, Mr. Lushbaugh replied: “I [3]*3have issued a ‘WATCHDOG’ to the receiving Depot to place material into ‘L’ upon receipt. Once the report is issued I will direct some assets for testing.” Pl.’s Ex. 8. On July 26, 2004, Steve Haschak, the DCMA contracting officer for the purchase order, denied Kae-per’s request to change the inspection and delivery point to Euclid.

On August 4, 2004, after Euclid became involved, Kaeper requested that the delivery date of 100 of the 146 armored housing units be changed from August 23, 2004 to October 11, 2004. Pl.’s Ex. 9. On August 18, 2004, Kaeper offered a $1,989 reduction in the $125,268 total price for the purchase order in exchange for the extension to October 11, 2004. PL’s Ex. 10. On August 19, 2004, in response to Mr. Haschak’s message regarding Kaeper’s offered reduction, Ms. Lavery instructed DCMA to issue a modification extending the delivery date. PL’s Ex. 10. On August 27, 2004, the government modified the purchase order by extending the final delivery date for all of the units to October 11, 2004,3 and by reducing the total price by $1,989 from $125,268 to $123,279. PL’s Ex. 2.

On September 14, 2004, Ed Takacs, the government’s quality assurance representative, performed his first inspection of the armored housing units manufactured by Euclid under the purchase order. Euclid had completed 46 of the 146 at that point. Based on his observations, Mr. Takacs explained to Mr. Oh, Euclid’s owner, that the armored housing units did not conform with the purchase order specifications and thus would be useless in the field. The parties disagree as to the extent of the problems Mr. Takacs encountered during his inspection. The plaintiff contends that the problem was limited to the calibration of a piece of Euclid’s inspection equipment—the dial bore gage. PL’s Response to Def.’s Proposed Findings of Uncontroverted Fact 1110. The government contends that, in addition to problems with the calibration with the dial bore gage, the thread gage—which is a standard used to ensure that the corresponding threaded hole on a manufactured item is of the correct size—did not fit into the threaded bolt holes on the armored housing units. Def.’s Proposed Findings of Uncontroverted Fact 1112.

On September 20, 2004, Mr. Takacs issued a written Corrective Action Request (“CAR”) to Euclid, which reflected what Mr. Takacs had told Mr. Oh in person on September 14, 2004. Mr. Oh responded to the written CAR on September 22, 2004. Recognizing that Mr. Oh did not understand the reason for the CAR, Mr. Takacs issued a follow-on CAR on September 23, 2004. Mr. Oh responded to the September 23, 2004 CAR on Friday, September 24, 2004. Sometime the following week (the plaintiff states that it was on Thursday, September 30, 2004), Mr. Takacs visited Euclid and gave Mr. Oh a “calibration check off list” (the plaintiff calls it an “Audit Checklist” and contends that it returned the completed “Audit Checklist” to Mr. Takacs the following day. PL’s Proposed Findings of Uncontroverted Facts U10).

On October 5, 2004, Mr. Takacs visited Euclid to see if Mr. Oh had remedied the calibration issues. Mr. Takacs and Mr. Oh went through the calibration checklist together and Mr. Takacs explained to Mr. Oh where Euclid had failed. Mr. Takacs issued a written CAR to Euclid that day, stating that the calibration system was rejected for the following reasons:

A) There was no way to show that the calibrated tools were calibrated against certified equipment having known traceability to a national or internationally recognized standard.

B) There was no way the supplier was able to ensure that the required environmental conditions are suitable for the calibration on the calibrated inspection equipment.

C) Calibration integrity is not protected and maintained during handling, transportation, preservation and storage of inspection, measuring and test equipment.

PL’s Ex. 11.

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74 Fed. Cl. 1, 2006 U.S. Claims LEXIS 354, 2006 WL 3412257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaeper-machine-inc-v-united-states-uscfc-2006.