Lathan Co. v. United States

36 Cont. Cas. Fed. 75,842, 20 Cl. Ct. 122, 1990 U.S. Claims LEXIS 105, 1990 WL 41117
CourtUnited States Court of Claims
DecidedApril 10, 1990
DocketNo. 64-89 C
StatusPublished
Cited by91 cases

This text of 36 Cont. Cas. Fed. 75,842 (Lathan 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
Lathan Co. v. United States, 36 Cont. Cas. Fed. 75,842, 20 Cl. Ct. 122, 1990 U.S. Claims LEXIS 105, 1990 WL 41117 (cc 1990).

Opinion

OPINION

RADER, Judge.

The Lathan Company (plaintiff or La-than) and NASA entered into a $598,000.00 contract in 1987 for the removal and repair of roofing on a building at the Kennedy Space Center in Florida. During performance, plaintiff discovered thicker roofs than it had expected. Plaintiff maintained that this discrepancy constituted a differing site condition and requested an equitable adjustment. The Contracting Officer (CO) refused this request.

Several months into performance, the roof began to leak during repairs. Concerned about damage to sensitive equipment, NASA rescheduled much of plaintiff’s removal and repair operation.

Upon completion of the contract in March 1988, plaintiff filed an equitable adjustment claim. Plaintiff contended that differing site conditions and NASA’s control of performance caused additional expense. The CO awarded only a fraction of plaintiff’s claim. Lathan subsequently filed an action in this court on February 2, 1989. Plaintiff seeks recovery of $560,-050.00 above and beyond the contract price on the same grounds asserted to the CO. The Government has counterclaimed for $117,797.00.

On October 27, 1989, plaintiff filed a motion for summary judgment or for partial summary judgment on the issues of liability. Genuine issues of material fact require this court to deny plaintiff’s motion. This court has scheduled a trial for September 10-13, 1990.

FACTS

In the fall of 1986, NASA solicited bids for the repair and replacement of seven different sections of roofing on the Vehicle Assembly Building (VAB) at the Kennedy Space Center. The VAB houses flight equipment for the space shuttle.

NASA afforded all prospective contractors the opportunity for pre-bid inspection of the job site. During pre-bid site inspection, several interested bidders asked whether NASA would permit them to cut samples of the roof. A sample is the only sure way to ascertain the composition and thickness of a roof. NASA replied that prospective contractors must submit all such requests in writing.

No prospective contractor ever wrote to NASA to obtain a sample of the roof. However, bidders asked other questions about the composition and thickness of the roof to ascertain the time and expense of removal. NASA advised bidders that the job site consisted of a “built-up” roof on a concrete deck with approximately 3 inches of insulation. NASA further explained that the insulation was wet and that the Government had resaturated the roof in 1974.1 NASA, however, did not give specific thickness measurements.

[124]*124A standard built-up roof consists of three or four layers of roof felt set in hot asphalt, a flood coat of asphalt, and a rock or gravel surface. “Double-poured” roofs, on the other hand, contain two flood coats of asphalt and rock or gravel. Plaintiffs Proposed Findings of Uncontroverted Fact, filed Oct. 27, 1989 (PI. Find.), at MI 11, 15; Defendant’s Statement of Genuine Issues, filed Dec. 6, 1989 (Def. State.), at MI 11, 15. A double-poured roof is, therefore, much thicker than a standard built-up roof.

On April 3, 1987, NASA awarded the re-roofing contract to plaintiff. NASA issued a notice to proceed on April 21, 1987. By June 17, plaintiff advised NASA that the VAB roof was considerably thicker than expected. Plaintiff contended that this discrepancy constituted a differing site condition and therefore requested an equitable adjustment of the contract price. The CO denied this claim on July 16, 1987.

During the early phase of performance, NASA discovered that sections of the VAB roof leaked during repair work. This leakage jeopardized valuable flight hardware. Consequently, in August 1987, NASA ordered a resequencing of plaintiff’s contemplated performance. Specifically, NASA prohibited Lathan from starting work on a new section of the VAB roof until completion of the section already underway.

Concerned about delays, the CO issued a notice to cure in November 1987. NASA demanded assurances that plaintiff would alleviate a series of problems. The CO issued a second cure notice on December 10, 1987. The CO informed plaintiff that the Government would seek recovery of any additional costs resulting from delay, defects in performance, and damage to NASA equipment.

After several meetings, plaintiff agreed to implement additional changes in its method of performance. In return, NASA agreed not to terminate the contract for default.

In March 1988, plaintiff substantially completed performance. Thereafter, on March 25, plaintiff filed with the CO a certified claim for an equitable adjustment in the amount of $461,864.43. Plaintiff later amended its claim to reflect an equitable adjustment request of $560,050.00. Plaintiff based its claim on differing site conditions. Further, plaintiff claimed that NASA’s resequencing orders changed the contract.

The Government subsequently filed a counterclaim for $122,545.00. The Government contended that plaintiff breached its contractual obligation to protect NASA equipment, prevent leakage during repair, and complete the job on time.

On September 13, 1988, the CO issued a final decision. Plaintiff received $128,-288.00. The CO awarded NASA $30,000.00 on its counterclaim. The CO set off NASA’s award against plaintiff’s equitable adjustment. Thus, NASA paid plaintiff $98,288.00 over and above the contract price.

Plaintiff filed this action with the United States Claims Court on February 2, 1989. Plaintiff claims relief under the differing site conditions clause of the contract.2 Plaintiff further seeks recovery on the grounds that the resequencing of work by NASA either hindered performance or constructively changed the contract.

DISCUSSION

This court may grant summary judgment where there is no genuine issue as to any material fact and the movant is entitled to judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Sweats Fashions v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987). The court uses summary judgment to avoid unnecessary litigation and wasteful use of judicial resources. Barmag Barmer Maschinenfabrik AG v. Murata Mach. Ltd., 731 F.2d 831, 835 (Fed.Cir.1984).

[125]*125When deciding whether summary judgment is appropriate, this court resolves factual disputes against the movant. Mingus Constructors v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). However, bald assertions and speculation do not create an evidentiary conflict sufficient to defeat a summary judgment motion. Barmag, 731 F.2d at 836.

Conclusiveness of Contracting Officer’s Decision

To support its summary judgment motion, plaintiff relies on the final decision of the CO. See Plaintiff's Motion for Summary Judgment, filed Oct. 27, 1989 (Pl.Mot.), Exhibit (Ex.) 2. The CO held “that a condition differing from the Contractor’s claimed expectation existed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Castillo v. United States
Federal Claims, 2023
Cheung v. United States
Federal Claims, 2019
Menendez v. United States
Federal Claims, 2018
Lucier v. United States
Federal Claims, 2018
Baley v. United States
134 Fed. Cl. 619 (Federal Claims, 2017)
Gazpromneft-Aero Kyrgyzstan LLC v. United States
132 Fed. Cl. 202 (Federal Claims, 2017)
James v. United States
130 Fed. Cl. 707 (Federal Claims, 2017)
Baistar Mechanical, Inc. v. United States
128 Fed. Cl. 504 (Federal Claims, 2016)
East Coast Repair & Fabrication, LLC v. United States
199 F. Supp. 3d 1006 (E.D. Virginia, 2016)
Phipps v. United States
126 Fed. Cl. 674 (Federal Claims, 2016)
Meridian Engineering Company v. United States
122 Fed. Cl. 381 (Federal Claims, 2015)
Thomas v. United States
122 Fed. Cl. 53 (Federal Claims, 2015)
Old Veteran Construction, Inc. v. United States
121 Fed. Cl. 346 (Federal Claims, 2015)
Stathis v. United States
120 Fed. Cl. 552 (Federal Claims, 2015)
Allen v. United States
119 Fed. Cl. 461 (Federal Claims, 2015)
Tpl, Incorporated v. United States
118 Fed. Cl. 434 (Federal Claims, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
36 Cont. Cas. Fed. 75,842, 20 Cl. Ct. 122, 1990 U.S. Claims LEXIS 105, 1990 WL 41117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lathan-co-v-united-states-cc-1990.