Kunz Construction Co. v. United States

34 Cont. Cas. Fed. 75,243, 12 Cl. Ct. 74, 1987 U.S. Claims LEXIS 53
CourtUnited States Court of Claims
DecidedMarch 30, 1987
DocketNo. 83-84C
StatusPublished
Cited by15 cases

This text of 34 Cont. Cas. Fed. 75,243 (Kunz Construction 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
Kunz Construction Co. v. United States, 34 Cont. Cas. Fed. 75,243, 12 Cl. Ct. 74, 1987 U.S. Claims LEXIS 53 (cc 1987).

Opinion

OPINION

WHITE, Senior Judge.

The plaintiff, Kunz Construction Company, constructed for the Government a Cancer Treatment Facility at Lackland Air Force Base, San Antonio, Texas, pursuant to contract No. DACA63-82-C-0084.

The plaintiff sues in the present action for the additional sum of $29,178.40, over and above the contract price. The complaint alleges that the cost of performing the contract was increased as a result of changes in the original contract requirements ordered by the contracting officer during the progress of the work.

The Facts

The facts, as found by the court on the basis of the evidence in the record, will be set out in this part of the order.

On March 5,1982, the United States (acting through a contracting officer of the U.S. Army Corps of Engineers) and the plaintiff entered into contract No. DACA63-82-C-0084 (the contract). Under the contract, the plaintiff agreed to construct a Cancer Treatment Facility at Lack-land Air Force Base in San Antonio, Texas, and was to be paid $1,035,089 for the work. The Cancer Treatment Facility was to be an addition to Wilford Hall, an Air Force hospital that was already in existence at Lackland Air Force Base.

The construction work contemplated by the contract was later performed by the plaintiff.

Although the Cancer Treatment Facility contains a number of rooms, changes in the contract requirements with respect to only one room, BA-109, are involved in the present litigation. Room BA-109 is a lead-lined room designed for radiation therapy. The controversy between the parties arose in connection with the electrical work required in room BA-109.

Drawing Sequence No. 25 was one of the contract drawings relating to the electrical work that was to be performed in room BA-109. This drawing required (among other things) the installation of a floor duct and four conduits in room BA-109. It was not clear from the drawing, however, just where the floor duct was to be placed.

On May 17, 1982, the plaintiff submitted to the Government a Request for Information (RFI) form, seeking clarification on where the electrical floor duct in room BA-109 should be located. The Government’s Authorized Representative of the Contracting Officer responded to the plaintiff’s RFI on May 28, 1982, by means of a hand-written note on the RFI. This note directed the plaintiff to locate the duct according to a revised version of Drawing Sequence No. 25.

The revised version of Drawing Sequence No. 25 clarified the location of the [76]*76duct, and it also extended the length of the duct and required that a partition be installed in it. In addition, the revised drawing added a requirement relative to the installation of 6-foot and 20-foot wire tails at certain electrical connections in room BA-109, and a further requirement relative to the installation of additional conduits in room BA-109.

On August 26, 1982, the Government sent a written notice to the plaintiff concerning the addition of still more conduits of varied specified sizes in room BA-109.

Most of the additional electrical work required by the Government in BA-109— i.e., the lengthening of the floor duct, the installation of a partition in the duct, the installation of wire tails at certain connections, and the installation of additional electrical conduits—was actually performed by the plaintiffs electrical subcontractor, Consolidated Service Company. That company, on September 24, 1982, submitted a bill to the plaintiff in the amount of $6,836.50 for the extra work. The bill consisted of $5,650 as direct costs and $565 as overhead at the rate of 10 percent, making a subtotal of $6,215, plus $621.50 as profit at the rate of 10 percent, thus making the subcontractor’s total claim $6,836.50.

Previous Proceedings

By means of a letter dated December 13, 1982, the plaintiff submitted to the contracting officer a claim in the net amount of $17,770, based upon the extra costs allegedly incurred in performing the additional electrical work required by the Government in room BA-109. For the plaintiff’s own costs, the claim included $378 for materials and labor supplied by the plaintiff, $9,750 as “job impact costs,” and $71 as insurance and payroll tax expenses; it added overhead and profit of $3,084 allegedly due the plaintiff; and it added the electrical subcontractor’s bill, rounded off as $6,837. As a partial setoff, the claim proposed a reduction of $2,350 in the original contract price because of the deletion of a door operating system from the original contract requirements. Thus, the net amount of the claim was $17,770.

The contracting officer issued a final decision in a letter dated February 15, 1983. The decision rejected the plaintiff’s claim for additional compensation. The contracting officer’s decision, however, had been preceded by unilateral Modification No. P00005, which the contracting officer issued on January 11, 1983. This modification, in effect, allowed the plaintiff a total of $2,234 with respect to the additional electrical work in room BA-109. The figure of $2,234 included $1,754 for the electrical subcontractor’s claim, $354 for the materials and labor furnished by the plaintiff itself, $71 for the plaintiff’s insurance and payroll tax expenses, $24 for the coordination supplied by the plaintiff, and $31 for the plaintiff’s overhead and profit, at the rate of 10 percent for each. Nevertheless, because of credits which the contracting officer allowed the Government due to the deletion of other work from the requirements of the contract, Modification No. P00005 resulted in a net decrease of $178 in the contract price.

The plaintiff received the contracting officer’s final decision on February 22, 1983.

Thereafter, the plaintiff filed the present action in the Claims Court on February 21, 1984.

On October 10, 1985, the defendant filed a motion which (among other things) asked the court to dismiss the complaint in this case for lack of prosecution. The motion to dismiss was denied by the court in an unpublished order dated January 8, 1986. The court concluded, after a careful review of the proceedings up to that date, that the plaintiff had not been guilty of the sort of inordinate delay which would justify the dismissal of the complaint for lack of prosecution.

On March 11, 1986, the defendant filed a motion for a partial dismissal of the complaint, insofar as it sought compensation for additional costs allegedly flowing from a change made by the Government in the contract requirement with respect to the thickness of plaster in room BA-109. The motion for partial dismissal was based upon the ground that the plaintiff had not submitted its claim regarding the thickness [77]*77of the plaster to the contracting officer before filing its complaint with the court.

In its response to the motion for partial dismissal, the plaintiff admitted that it had failed to submit the plaster claim to the contracting officer before filing the complaint with the court. In view of the plaintiffs admission, the court granted the defendant’s motion for partial dismissal in an unpublished order dated May 9, 1986.

The case was subsequently tried on the merits in San Antonio, Texas, beginning October 27 and ending October 31, 1986. The parties submitted post-trial briefs for the consideration of the court, the final brief having been filed on March 3, 1987.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
34 Cont. Cas. Fed. 75,243, 12 Cl. Ct. 74, 1987 U.S. Claims LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kunz-construction-co-v-united-states-cc-1987.