Kirkham Constructors, Inc. v. United States

39 Cont. Cas. Fed. 76,597, 30 Fed. Cl. 90, 1993 U.S. Claims LEXIS 218, 1993 WL 479713
CourtUnited States Court of Federal Claims
DecidedNovember 22, 1993
DocketNo. 93-256C
StatusPublished
Cited by3 cases

This text of 39 Cont. Cas. Fed. 76,597 (Kirkham Constructors, 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
Kirkham Constructors, Inc. v. United States, 39 Cont. Cas. Fed. 76,597, 30 Fed. Cl. 90, 1993 U.S. Claims LEXIS 218, 1993 WL 479713 (uscfc 1993).

Opinion

ORDER

NETTESHEIM, Judge.

This matter is before the court on defendant’s motion to dismiss for lack of jurisdiction pursuant to RCFC 12(b)(1). Plaintiff has opposed. The issue to be decided is whether plaintiffs claim was properly submitted to the contracting officer under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1988 & Supp. IV 1992) (the “CDA”). Argument is deemed unnecessary.

FACTS

Kirkham Constructors, Inc. (“plaintiff’), entered into contract No. F04684-90-C-0027 with the Base Contracting Division, Vanden-berg Air Force Base (“the Air Force”), on July 2, 1990. The initial contract called for the remodeling of an enlisted dining facility on the base. Several modifications issued on the original contract, however, which increased the cost of the project and delayed its completion.

Although the change orders executed for the adjustments to the contract compensated plaintiff for the direct costs of the adjustments, overhead and related delay costs were left unresolved. In Change Orders Nos. P00006 and P00007, the Air Force acknowledged this status in a July 9, 1991 amendment by stating: ‘While actual costs of changed work have been agreed to by government and contractor representatives, no agreement can be reached regarding contractor claimed costs for ‘extended overhead’ and alleged government delays.”

By letter dated March 18, 1992, plaintiff requested an equitable adjustment of $133,-745.00 for “the impact on unchanged work caused by the numerous Change Orders is[92]*92sued during this project.” On April 30,1992, plaintiff sent another request for an equitable adjustment “for unabsorbed home office overhead and field office cost caused by the defective specification and the failure of the Government to provide timely direction.” Plaintiffs claims were, as follows:

Unabsorbed Overhead $ 33,068.00
Supervision $ 36,173.00
Telephone $ 1,149.00
Chemical Toilet $ 238.00
Trailer $ 890.00
R.P. Richards $ 21,978.00
Subtotal $ 93,496.00
KOI Profits & Bonds (10/2)% $ 11,407.00
Total Requested $104,903.00

On July 17,1992, Contracting Officer Capt. Joseph L. Eversole advised plaintiff that the documentation supporting its request for an equitable adjustment was “not sufficient nor accurate enough to grant an adjustment.” Plaintiff treated this letter as a denial of its claim for adjustment dated April 30, 1992, and on July 20, 1992, requested a final decision from the contracting officer regarding the claim. Attached to the request was a “Certification of Claim,” signed by Dale Kirkham, plaintiffs President, certifying that the claim was made in good faith, that the supporting data were accurate and complete, and that the amount requested accurately reflected the amount for which the Air Force was liable.

On February 9, 1993, plaintiff appealed to the Armed Services Board of Contract Appeals (the “ASBCA”) to direct the Air Force to issue a final decision regarding its claim. On March 19, 1993, however, the contracting officer issued a final decision, which subsequently was withdrawn without explanation on March 22, 1993. By letter dated March 31, 1993, the ASBCA directed the Air Force to issue a final decision regarding plaintiffs claim. No subsequent decision has been rendered.

Plaintiff filed its complaint in the Court of Federal Claims on April 28, 1993. Plaintiff alleges that the withdrawal of the March 19, 1993 contracting officer’s decision was tantamount to a denial of its claim and asserts that this denial has resulted in damages totaling $104,903.00.

Defendant’s motion to dismiss for lack of jurisdiction makes three contentions:

1) Plaintiffs July 20, 1992 letter was not a proper “claim” under the CDA, because it did not identify the actual amount requested or assert a basis for the Government’s liability;

2) The certification of the claim was improper because it did not reference the supporting documentation that the contractor purported to be certifying; and

3) Since the contracting officer’s July 17, 1992 letter stated only that the contractor had not properly substantiated its request for an equitable adjustment, this letter demonstrates that the parties had not reached an impasse on the claim. Therefore, no amount was in dispute at the time the claim was submitted, as required by Dawco Construction, Inc. v. United States, 930 F.2d 872, 878 (Fed.Cir.1991), thereby rendering plaintiffs claim invalid.

Plaintiff responds that its claim satisfies all the requirements of the CDA. Citing, United States v. General Electric Corp., 727 F.2d 1567, 1569 (Fed.Cir.1984), plaintiff asserts that, when viewed together, a series of correspondence may comply with the CDA’s requirements. Similarly, plaintiff argues that its certification fulfills the requirements of the CDA, when considered in conjunction with its prior correspondence of April 30, 1992. Plaintiff also points to Transamerica Insurance Corp. v. United States, 973 F.2d 1572, 1576-77 (Fed.Cir.1992), as not requiring an express request for a contracting officer’s final decision. Such a request may be made implicitly so long as it puts the Government on notice of specific claims.

In its reply brief, defendant again contends that plaintiffs claim lacked the specificity required by the CDA According to defendant, plaintiffs April 30, 1992 letter “provides a vague assertion that the request for an equitable adjustment was based upon ‘defective specification and the failure of the Government to provide timely direction,’ but provided no further justification for the claim.” Defs Br. filed Oct. 18, 1993, at 5. Further, since plaintiffs certification did not specifically reference any other documents, [93]*93the certification did not provide a rationale for the claim or request a sum certain. Defendant also reasserts its contention that the contracting officer’s July 17,1992 request for clarification is not consistent with the parties having reached an impasse before a claim is submitted, as required by Santa Fe Engineers, Inc. v. Garrett, 991 F.2d 1579, 1582 (Fed.Cir.1993).

DISCUSSION

Prior to addressing the parties’ arguments, an analysis of the purpose of the requirements presently in dispute is instructive. The CDA claim submission and certification requirements are not intended to be a substitute for trial on the merits. Even a cursory survey of recent cases addressing these requirements shows that these requirements were meant to screen out unwarranted or inflated claims. See Fischbach & Moore Int’l Corp. v. Christopher,

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39 Cont. Cas. Fed. 76,597, 30 Fed. Cl. 90, 1993 U.S. Claims LEXIS 218, 1993 WL 479713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkham-constructors-inc-v-united-states-uscfc-1993.