Lakeview Construction Co. v. United States

36 Cont. Cas. Fed. 75,933, 21 Cl. Ct. 269, 1990 U.S. Claims LEXIS 331, 1990 WL 121674
CourtUnited States Court of Claims
DecidedAugust 23, 1990
DocketNo. 488-89C
StatusPublished
Cited by2 cases

This text of 36 Cont. Cas. Fed. 75,933 (Lakeview 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
Lakeview Construction Co. v. United States, 36 Cont. Cas. Fed. 75,933, 21 Cl. Ct. 269, 1990 U.S. Claims LEXIS 331, 1990 WL 121674 (cc 1990).

Opinion

OPINION

BRUGGINK, Judge.

Once again the court is faced with the question of whether a complaint should be dismissed, not for lack of merit, but for failure to comply with certification requirements of the Contract Disputes Act, 41 U.S.C. §§ 601-13 (1988) (“CDA”). The case arises out of a written contract entered into between plaintiff Lakeview Construction Co. (“Lakeview”) and the United States, acting through the Department of the Navy, for the repair of certain buildings at Camp Pendleton Marine Corps Base. Defendant has moved pursuant to RUSCC 12(b)(1) for dismissal of the action. It contends that subject matter jurisdiction is absent because the plaintiffs claim did not satisfy the certification and submission requirements of Section 6 of the CDA. 41 U.S.C. § 605(a), (c)(1). The matter has been fully briefed and orally argued. For the reasons expressed herein, the motion is granted.

I. FACTUAL BACKGROUND1

Lakeview recites in its complaint that during the course of performance, it performed certain change order work at the Navy’s request. For each of the 22 modifications to the contract brought about by those change orders, Lakeview reserved its right to claim impact and delay costs. It is those claimed impact and delay costs that are the subject of this action. The issue is whether the paperwork submitted in connection with those costs satisfies the requirements of the CDA.

On July 17, 1987, Lakeview submitted a thirteen page letter, with attachments, signed by Robert C. Baumgarten, counsel for Lakeview. Attached to the letter is a certification by Robert F. Fuller, Sr., President of Lakeview. The letter is addressed to the Resident Officer in Charge of Construction (“ROICC”), not the Contracting Officer (“CO”). Nowhere in the letter does counsel for Lakeview demand a decision from the CO. The letter contains the following information on the first page:

Subject: Delay and Impact Claim
Documents
Transmitted: Volume I: Claim Narrative
Volume II: Exhibits 1-49 including CPM As-Builts Standard Form 1411

The body of the letter begins with an extensive description of events. It then sets forth five categories of costs, both in a narrative fashion and in terms of an itemized breakdown of expenses. The last page of the letter includes the following information:

SUMMARY
I. Inefficiency Costs $ 705,477.92
II. Extended Overhead $ 768,133.16
III. Approved-Unissued Changes $ 55,599.00
IV. Balance Owing on Prime Contract $ 45,478.00
V. Subcontractor Claims $ 159,413.07
TOTAL CLAIM $1,734,101.15
____Accordingly, please expeditiously review this proposal at all appropriate levels____ Below is the Certification of this proposal by the Contractor as required by the Contract Disputes Act. (Emphasis added.)

On September 10, 1987, R.L. Schultz, the Deputy ROICC at Camp Pendleton, wrote Lakeview a letter with respect to the July 17 document. It recites, in relevant part, the following:

We have received and are reviewing the request submitted by your consul [sic], enclosure (1), in your behalf for additional compensation and time for completion for work performed under the subject contract. As there is not, or never has been any question of entitle[271]*271ment to an equitable adjustment to the contract for delay and impact costs, we are processing your request as a request for change order not as a claim per the Disputes Clause of your contract. The only question being one of quantum of adjustment.
There is additional information required to allow a fair assessment of your requests by the ROICC____

The letter concludes with a number of specific requests for information or documentation.

On November 16,1987, counsel for Lake-view responded by letter to the Navy’s letter of September 10. The stated subject of the letter is, once again, the “Claim of Lakeview Construction.” Throughout Lakeview’s response, the letter of July 17 is referred to as a claim. After responding on an item-by-item basis to the requests for additional information, the letter concludes:

In summary, I hope that the information provided by this letter is informative and responsive to your requests. Since by your correspondence you have identified the issue in this claim as one of quantum, I believe that much progress in establishing that figure can be established through a well conducted audit, and I encourage you to take all necessary steps to immediately initiate that procedure.

The November 16 letter did not take issue with the Navy’s position that the July 17 letter would not be treated as a claim. The Navy conducted an audit and issued a report on October 7, 1988. The report questioned approximately one million dollars of the more than $1.7 million sought in the July 17, 1987 letter. On December 1, 1988, representatives of the parties met, at which time Lakeview was presented with an “as-built” schedule prepared by the Navy. Lakeview was further requested to explain the asserted delays identified on the schedule.

On January 20, 1989, counsel for Lake-view wrote the Navy a response to the questions raised during the December 1 meeting and in the as-built schedule. The letter refers to the July 17 materials as “Lakeview’s 17 July, 1987 Cost Proposal.” In the context of one of the costs claimed by Lakeview, the fees for the law firm of Corona & Prager, the January 20 letter makes the following statement:

During the course of the 1 December meeting, comment was made that this line item cost may be, in part, related to the preparation or pursuit of a claim against the Government: this is not an accurate assessment. At the time that the firm of Corona and Prager was retained, and continuing to this day, the dialogue and working relationship with the Navy has been open and productive to the extent that it has always been the position of Lakeview that a settlement will be amicably reached with the Government. As stated earlier, a Contracting Officer’s Final Decision has neither been requested nor issued; likewise no unreasonable offer has been made to Lakeview so as to constitute a dispute. There has never been, therefore, a circumstance to warrant the incurring of costs incident to preparation and/or prosecution of a claim against the Government. (Emphasis added.)

The letter discussed other items as to which the parties had not reached agreement, and closed with a request for a complete copy of the government audit for the expressed purpose of pointing out factual errors. The letter also referenced an analysis prepared for Lakeview as a response to the Government’s as-built schedule. The parties had previously exchanged computer diskettes with the information reflected in the schedule.

On March 21, 1989, Baumgarten wrote a letter addressed to the ROICC.

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36 Cont. Cas. Fed. 75,933, 21 Cl. Ct. 269, 1990 U.S. Claims LEXIS 331, 1990 WL 121674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lakeview-construction-co-v-united-states-cc-1990.