Libertatia Associates, Inc. v. United States

46 Fed. Cl. 702, 2000 U.S. Claims LEXIS 97, 2000 WL 688282
CourtUnited States Court of Federal Claims
DecidedMay 23, 2000
DocketNo. 93-459 C
StatusPublished
Cited by34 cases

This text of 46 Fed. Cl. 702 (Libertatia Associates, 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
Libertatia Associates, Inc. v. United States, 46 Fed. Cl. 702, 2000 U.S. Claims LEXIS 97, 2000 WL 688282 (uscfc 2000).

Opinion

OPINION AND ORDER

HEWITT, Judge.

Plaintiff, The Libertatia Associates, Inc. (TLA or plaintiff), asks the court to find that defendant, the United States (government or defendant) acted in bad faith in administering and terminating plaintiffs contract and to declare plaintiff entitled to the conversion of the termination for default into a termination [703]*703for convenience.1 Plaintiffs Post Trial Brief (Pl.’s Br.) at 20. Defendant argues that the default termination was justified and should be upheld. Defendant’s Post Trial Brief (Def.’s Br.) at 1. This case is before the court following a full trial on the merits of plaintiffs claim that it was wrongfully terminated for default.

I. Background2

A. Formation of the Contract

On December 9, 1991, the Directorate of Contracting at Fort Rucker, an Army base located in southeastern Alabama, issued an Invitation for Bids for a grounds maintenance contract involving the Cantonment and Family Housing areas on the Army base. Defendant’s Statement of Relevant Facts (Def.’s Facts) at ¶¶ 2, 13. On January 17, 1992, TLA bid on the contract. Plaintiffs Statement of Facts (Pl.’s Facts) at ¶ 1; Def.’s Facts at ¶ 15. The procuring contracting officer requested that TLA verify its bid. Pl.’s Facts at ¶ 2; Def.’s Facts at ¶ 17. After analyzing the number of employees necessary and the amount of time necessary for performance of the contract, TLA verified its bid on February 5, 1992. Pl.’s Facts at ¶ 2; Def.’s Facts at ¶¶ 18-20. On February 12, 1992, TLA was awarded the contract for the period April 1, 1992 through March 31,1993. Pl.’s Facts at ¶1; Def.’s Facts at ¶ 23.3

The contract was a requirements type contract under which delivery orders were to be issued by the government every two weeks. Def.’s Facts at ¶ 26; Defendant’s Exhibit (DX) 10 at ¶ C.5.1.6. The contract contained standard government contract clauses including FAR clause 52.246-4, Inspection of Services — Fixed Price (April 1984). DX 10 at BN 483. The contract also contained clause E.4 which provided for reperformance for work determined to be unacceptable by the government. DX 10 at ¶ E.4.2. The contract also provided that, after reperformance, the Contracting Officer (CO) would “determine what percentage of the area or requirement is unacceptable.” DX 10 at ¶ E.4.2. Further to the same contract provision, the government took deductions from TLA’s invoices when it found areas that remained unacceptable after reperformance.

The contract contained the standard FAR default provision for fixed price service contracts. Def.’s Facts at ¶31 (quoting 48 C.F.R. § 52.249-8 (Apr.1984)). The contract required TLA to submit weekly work schedules that identified when and where each requirement would be performed on each day. DX 10 at ¶ E.4.1, Def.’s Facts at ¶ 32. The contract required TLA to file a specific form by specified times to request inspections. DX 10 at ¶ E.4.1. This provision also stated that “[t]he Contractor’s Chief of Quality Control may accompany the Inspector during inspections and re-inspections.” DX 10 at ¶ E.4.1.

B. Administration of the Contract

The CO for the contract was Linda Smith. Def.’s Facts at ¶38. The Contracting Officer’s Representative (COR) for the contract was A.L. Barnard. Def.’s Facts at ¶ 40. Two other government employees, William McKinzie and Elbert Williams, performed some inspections of TLA’s work under the contract. Def.’s Facts at ¶ 42.

Nine Delivery Orders were issued under the contract. On March 11, 1992, Delivery Order one was issued for the period of April [704]*7046 — 17, 1992. Def.’s Facts at ¶45. TLA’s performance was judged by the COR and Mr. McKinzie to be 31% unsatisfactory. DX 104. On April 14, 1992, Delivery Order two was issued for the period of April 20 — May 1, 1992. Def.’s Facts at ¶ 55. TLA’s performance was judged by the COR and Mr. McKinzie to be 35% unsatisfactory. DX 104. On April 28, 1992, Delivery Order three was issued for the period of May 4 — 15, 1992. Def.’s Facts at ¶ 59. TLA’s performance was judged by the COR and Mr. McKinzie to be fully satisfactory. DX 104. On May 8, 1992, Delivery Order four was issued for the period of May 18- — 29,1992. Def.’s Facts at ¶ 62. TLA’s performance was judged by the COR to be virtually satisfactory, except for a defect resulting in a $21.76 deduction from the $5,473.98 order. DX 104. On May 27, 1992, Delivery Order five was issued for the period of June 1 — 12, 1992. Def.’s Facts at ¶ 64. TLA’s performance was judged by the COR, Mr. McKinzie and Mr. Williams to be 11% unsatisfactory. DX 104. On June 8, 1992, Delivery Order six was issued for the period of June 15 — 26, 1992. Def.’s Facts at ¶ 70. TLA’s performance was judged by Mr. McKinzie and Mr. Williams to be 11% unsatisfactory. DX 104.

On June 9,1992, Delivery Order seven was issued for the period of June 29 — July 10, 1992. Def.’s Facts at ¶ 75. For the first week of Delivery Order seven, 21% of the work ordered was not completed to the satisfaction of the government. Plaintiffs Exhibit (PX) 148. The second week of Delivery Order seven, 11% of the work ordered was not completed to the satisfaction of the government. PX 148. TLA’s performance under Delivery Order seven was judged by the COR and Mr. McKinzie to be 15% unsatisfactory.

On July 8, 1992, representatives from TLA and government contracting staff at Fort Rucker met at a Performance Evaluation Meeting to discuss TLA’s performance and the possibility of a termination for default. Def.’s Facts at ¶¶ 79-81; DX 39. In addition to certain government concerns about violations by TLA employees of safety procedures, TLA’s performance on Delivery Order five and six were discussed at this meeting. DX 39.

On July 9, 1992, Delivery Order eight was issued for the period of July 13-24, 1992. Def.’s Facts at ¶ 86. For the first week of Delivery Order eight, 3% of the work ordered was not completed to the satisfaction of the government. PX 148. The. second week of Delivery Order eight, 26% of the work ordered was not completed to the satisfaction of the government. PX 148. TLA’s' performance under Delivery Order eight was judged by the COR to be 19% unsatisfactory. DX 104.

Just as the performance of Delivery Order eight was beginning, on July 14, 1992, the CO issued a Cure Notice to TLA regarding its failure to complete Delivery Order seven. Def.’s Facts at ¶ 82; PX 65. This cure notice gave TLA ten days to correct the noted failures in its performance. Def.’s Facts at ¶83. On July 14, 1992, TLA requested a clarification on the Cure Notice regarding what would constitute objective proof of performance. Def.’s Facts at ¶ 84; PX 64. On July 16, 1992, the CO advised TLA that it must complete all areas contained in Delivery Order eight. Def.’s Facts at ¶ 85; PX 71.

Delivery Order nine was issued on July 17, 1992 for the period of July 27 — August 7, 1992. Def.’s Facts at ¶ 92. Just as the performance of Delivery Order nine was beginning, on July 28, 1992, the CO issued a forbearance notice stating that TLA had failed to complete Delivery Order eight and requiring TLA to cure other violations of the contract. Def.’s Facts at ¶ 90; PX 87. The CO selected as the end date of the forbearance period the last day covered by Delivery Order nine.

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Bluebook (online)
46 Fed. Cl. 702, 2000 U.S. Claims LEXIS 97, 2000 WL 688282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/libertatia-associates-inc-v-united-states-uscfc-2000.