Kalamazoo Contractors, Inc. v. United States

41 Cont. Cas. Fed. 77,077, 37 Fed. Cl. 362, 1997 U.S. Claims LEXIS 64, 1997 WL 76783
CourtUnited States Court of Federal Claims
DecidedFebruary 16, 1997
DocketNo. 96-31C
StatusPublished
Cited by10 cases

This text of 41 Cont. Cas. Fed. 77,077 (Kalamazoo Contractors, 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
Kalamazoo Contractors, Inc. v. United States, 41 Cont. Cas. Fed. 77,077, 37 Fed. Cl. 362, 1997 U.S. Claims LEXIS 64, 1997 WL 76783 (uscfc 1997).

Opinion

OPINION

HORN, Judge.

This case comes before the court on defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) for lack of jurisdiction over the subject matter or, alternatively, pursuant to RCFC 12(b)(4) for failure to state a claim upon which relief may be granted. Plaintiffs one count complaint alleges breach of contract against the defendant, the United States, acting through the General Services Administration (GSA), for defendant’s alleged failure to pay a portion of the amount allegedly due under a contract, subsequent to the plaintiffs performance. After submission of briefs in the case, both parties waived oral argument.

FACTS

On or about September 4, 1992, GSA began soliciting bids for various phases of construction work to be done on the Federal Building in Kalamazoo, Michigan, specifically identified as Project No. RMI 91009. One phase of the construction work involved the removal and replacement of a hydraulic elevator. On December 21,1992, plaintiff Kalamazoo Contractors Inc. (Kalamazoo), a Michigan corporation, with its principal place of business located in Kalamazoo, Michigan, submitted a bid in the amount of $104,892.00 on the elevator improvement project. Plaintiffs bid was accepted by the defendant on April 21, 1993, and the parties entered into contract number GS-05P-92-GBC-0073. The contract at issue underwent several modifications, with associated cost adjustments, at the request of the defendant. The modifications and the cost adjustments are as follows:

Modification # Cost Adjustment
CE-5002 ($5,866.00)
CE-5003 $3,573.00
CE-5004 $3,009.00
CE-5005 $4,235.00
CE-5006 $2,342.45
CE-5008 $2,257.00
CE-5009 $ 789.25

[364]*364The final contract price, including the above modifications and cost adjustments, was increased to $115,231.70.

The documents in the record reflect that on December 16,1994 the contracting officer, W.R. Sonenberg, issued a letter which indicated that liquidated damages in the amount of $60.00 per day, for 186 days of delay, totaling $11,160.00, were to be assessed against the plaintiff under the contract at issue, and withheld from plaintiffs invoice requesting payment in the amount of $28,-567.60. The December 16, 1994 letter from the contracting officer states:

SUBJECT: Kalamazoo, Michigan, Federal Building & Courthouse, “Elevator Improvements”, GS05P92 GBC0073, RMI91009
Enclosed is Payment Voucher No. 4 for the subject solicitation in the amount of $2,628.90. Although your invoice request was in the amount of $28,567.60, the Contracting Officer’s Representative recommends assessing $11,160.00 for liquidated damages due to (186) days of delay.
FAR 52.212-5 states “If the contractor fails to complete the work within the time specified in the contract, or any extension, the contractor shall pay to the Government as liquidated damages, the sum of $60.00 (Sixty Dollars) for each day of delay.” As a result, the liquidated damages total is $11,160.00.
At this time, you are given ten (10) days after receipt of this letter to provide this office with any documentation to the contrary you may have regarding this matter.

On December 21, 1994, in response to the contracting officer’s December 16, 1994 letter, the plaintiff sent a letter to the contracting officer asserting that liquidated damages are not appropriate in the instant case. According to the plaintiffs letter, the delays in performance had been caused by contract modifications, and had been approved by Mr. Sonenberg’s office. Plaintiffs December 21, 1994 letter states:

RE: Kalamazoo, Michigan, Federal Bldg & Courthouse “Elevator Improvements”, GS05P92 GBC0073, RMI91009
This is in response to your letter which I received December 17,1994, regarding the recommendation by the COR for liquidated damages due by Kalamazoo Contractors, Inc.
In your letter to Representative Fred Upton dated October 20, 1994, paragraph (6) states that the COR has informed your office that no time extension is applicable. I would like to call to your attention several GSA Forms 1137 (need for contract modification) which describe proposed modifications that were sent to me. I submitted those proposals, along with a statement for an extension of time, as was necessary. Those forms were returned to the COR as requested. I received signed approved PDL’s from your office.
I received a PDL for CM-5003 dated August 25, 1994, which I received August 31, 1994. This contract modification was for increasing the width of Door # 2 from 3' to 3'6" to meet codes. In form 1137, item # 14 requested an extension of 40 days after your approval for this. This extends the contract time until October 10, 1994. This was approved by your office, signed by you.
I received a PDL for CM-5005 dated August 25, 1994, which I received August 31, 1994. This contract modification was for supplying electrical power for the elevator being installed. There was not sufficient power to operate the new elevator as shown on the blueprint. In form 1137, item # 14 requested an extension of 42 days after your approval. This extends the contract time until October 12, 1994. This too was approved by your office and signed by you.
Your punchlist requests that I complete CE-5006 and CE-5007. They are both dated in item # 13, December 1, 1994. CE-5006 requests an extension of 42 days after approval. CE-5007 requests an extension of 10 days after your approval. I have not received any response to these requests as of this date.
In your letter to Representative Fred Upton, in paragraph (5), you state that with construction contracts, it is not uncommon to incur change orders because of ADA requirements, latent conditions, and un[365]*365foreseen site, conditions, as has been the case with this contract.
Furthermore, I faxed a letter (followed by hard copy) to the COR’s attention dated October 14, 1994, requesting an inspection for substantial completion. As specified by the COR, to meet substantial completion per memo he faxed to me, the following three items must be met.
1) Elevator in operation
2) Door # 2 in operation 8) Door # 3 in operation
Although my request for inspection was dated and faxed on October 14, 1994, the inspection was not done until November 2, 1994.
I feel the attached documentation does prove to the contrary that liquidated damages are not in order on this contract.

In a letter dated February 7, 1995, Mr. Sonenberg, the contracting officer responded to the plaintiffs December 21, 1994 letter by indicating that he considered the delays to be a result of the plaintiffs untimely actions, and, therefore, he considered the delays not to be excusable. Mr. Sonenberg reaffirmed his position that the assessment of liquidated damages was fair and reasonable under the circumstances.

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Bluebook (online)
41 Cont. Cas. Fed. 77,077, 37 Fed. Cl. 362, 1997 U.S. Claims LEXIS 64, 1997 WL 76783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalamazoo-contractors-inc-v-united-states-uscfc-1997.