Malissa Co. v. United States

35 Cont. Cas. Fed. 75,750, 18 Cl. Ct. 672, 1989 U.S. Claims LEXIS 235, 1989 WL 139261
CourtUnited States Court of Claims
DecidedNovember 16, 1989
DocketNo. 102-86C
StatusPublished
Cited by9 cases

This text of 35 Cont. Cas. Fed. 75,750 (Malissa 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
Malissa Co. v. United States, 35 Cont. Cas. Fed. 75,750, 18 Cl. Ct. 672, 1989 U.S. Claims LEXIS 235, 1989 WL 139261 (cc 1989).

Opinion

OPINION

SMITH, Chief Judge.

Plaintiff Malissa Company entered into a cost-reimbursement services contract with the United States Department of Energy Strategic Petroleum Reserve in 1978. The complaint alleges, inter alia, that the government breached the contract in 1981 by withholding money due plaintiff under the contract. After several counts of the complaint were dismissed for lack of subject matter jurisdiction, Malissa Co. v. United States, 11 Cl.Ct. 389 (1986), a trial on the merits was held as to the remainder of the complaint. For the reasons set forth below, judgment is for the defendant.

INTRODUCTION

This decision is in some ways a difficult one for this court to issue. After hearing and deciding the government’s motion to dismiss, conducting a week-long trial, and reviewing extensive post-trial briefs, replete with voluminous copies of various records, the court is still left with no clear picture of what money, if any, is owed to this plaintiff by the government. Immediately after the trial, the court indicated to the parties that a settlement of $6000—to —$10,000 might be appropriate. This was so because plaintiff’s accounting system provided no clear evidence of an amount that might be due.

Further, the court’s sense of the evidence indicated that some amount, in that range, might indeed be due the plaintiff. While that amount might have been a fair settlement, the court is forced by its sacred oath, when deciding a case, to allow only what plaintiff has legally proven. On the most thorough review of all the trial evidence and post-trial submissions, the court unfortunately can find absolutely no basis [673]*673for any of plaintiffs claims. Whether this is due to the absence of any basis for those claims, or to the plaintiffs inability to produce coherent financial records, or to present them at trial, this court cannot decide. While in the final result, it does not matter whether the plaintiff has no case, or merely has failed to provide any proof of one, the current situation leaves the court with a strong feeling that much time has been spent with little benefit to the administration of justice.

From everything the court has seen, the defendant has attempted to help plaintiff define any real claims, but to no avail. Courts, it must always be remembered, are not workers of miracles or magic. They cannot, under our adversary system, be given hundreds or thousands of raw documents and be expected to extract both an answer, and a question. This is the parties’ duty. And, in this case, no matter how hard the court has tried to find a basis for recovery by plaintiff, it has failed.

FACTS

On October 16, 1978, plaintiff Malissa Company, Inc. (Malissa) entered into a subcontract with the Small Business Administration (SBA), under which Malissa was to provide mail processing, document preparation, telecopying, word processing and keypunch services for the Department of Energy Strategic Petroleum Reserve (DOE).1 At the end of the initial ten-month contract period, DOE exercised a one-year renewal option. In 1980, DOE exercised a second one-year renewal option; the second renewal term ended on September 30, 1981, and there were no further renewals.

Over the course of contract performance, Malissa submitted 104 invoices to DOE for payment for services allegedly provided. The contracting officer (CO) questioned whether some of the payments already made on earlier invoices were allowable under the contract, and requested that the DOE Inspector General perform an audit of the contract prior to payment of Malis-sa’s final invoices. On December 12, 1981, Malissa sent a demand letter to the CO, asking that the remaining invoices be paid.

The DOE Inspector General conducted an audit of the contract, and issued a report on September 30, 1982 (hereinafter “the 1982 audit”); the report reflected the Inspector General’s view that $22,301 had been overpaid to Malissa. The over-payments fell into three categories: (i) du-plicative or unsubstantiated items; (ii) hours claimed in excess of hours worked; and (iii) wages for workers’ annual vacation leave and sick leave. DOE delayed payment on the final invoices, and requested that Malissa explain the $22,301 in over-billings. Malissa disputed the findings in the audit, and the parties were unable to resolve the matter.

A final audit was conducted by the DOE Inspector General in 1984 (hereinafter “the 1984 audit”), after which the Inspector General reported that of the $604,701 billed under the contract, only $571,683 of the costs were allowable. Like the 1982 audit, the 1984 audit revealed unsubstantiated billings and unallowable billings for sick and annual leave. The $33,018 discrepancy was recouped by DOE by offsetting the amounts claimed under the still unpaid invoices against the overpayments already made under earlier invoices.

The CO issued a final written decision on September 15, 1984, incorporating the findings of the 1984 audit, and denying Malissa the $33,018 sought. Malissa responded in a July 10, 1985 letter that “we totally disagree with the [ajudit findings,” but it did not submit any documents to back up its position.

PROCEDURAL HISTORY

Malissa filed its complaint2 in this court on February 18,1986, asserting jurisdiction [674]*674under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1982). The complaint prayed for judgment in the amount of $18,083,018, itemized as follows: (1) $33,018 for payments withheld under the contract; (2) $17,500,000 for a “lost” mail processing contract, allegedly “fraudulently” awarded to another firm, “which [Malissa] had a good chance to. obtain”; (3) $500,000 for mental anguish; and (4) $50,-000 in attorneys’ fees.

The government filed a motion to dismiss, or in the alternative, for summary judgment, on all counts of the complaint. The court granted the motion in part. Malissa Co. v. United States, 11 Cl.Ct. 389 (1986). The government argued that the court could not take jurisdiction over the $33,018 claim, on the ground that the July 10, 1985 letter from Malissa to the CO did not constitute a request for a final CO decision; such a request is a jurisdictional prerequisite for a suit in this court under the CDA. The court rejected the government’s argument, and ruled further that if the December 12, 1981 letter from Malissa to the CO were considered Malissa’s request for a final CO decision, the CO’s failure to issue a decision within sixty days did not trigger the running of the twelve month limitations period under the CDA. 11 Cl.Ct. at 390-91.

The court dismissed with prejudice the $17,500,000 claim for damages for loss of a future contract, for the reason that lost profits on such a contract were too speculative in nature and lacked the requisite nexus to the alleged breach of contract for the court to entertain the claim. 11 Cl.Ct. at 391-92. Malissa voluntarily withdrew its $500,000 claim for damages for mental anguish. Finally, the court dismissed the $50,000 claim for attorneys’ fees as premature. Plaintiff filed a cross-motion for summary judgment as to liability, which motion was denied by the court on March 27, 1987. Thus, the $33,018 claim remained for trial on the merits.

DISCUSSION

I. The Burden of Proof

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Bluebook (online)
35 Cont. Cas. Fed. 75,750, 18 Cl. Ct. 672, 1989 U.S. Claims LEXIS 235, 1989 WL 139261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malissa-co-v-united-states-cc-1989.