Mega Construction Co. v. United States

37 Cont. Cas. Fed. 76,305, 25 Cl. Ct. 735, 1992 U.S. Claims LEXIS 160, 1992 WL 77878
CourtUnited States Court of Claims
DecidedApril 17, 1992
DocketNo. 645-87C
StatusPublished
Cited by4 cases

This text of 37 Cont. Cas. Fed. 76,305 (Mega 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
Mega Construction Co. v. United States, 37 Cont. Cas. Fed. 76,305, 25 Cl. Ct. 735, 1992 U.S. Claims LEXIS 160, 1992 WL 77878 (cc 1992).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge:

On August 20,1985, plaintiff, Mega Construction, Inc., entered into a fixed-price construction contract with defendant, through the United States Postal Service, for the construction of the Main Post Office at Canoga Park, California. The contract price was $2,094,900.00, later amended to $2,316,609.68. On September 9, 1985, the Postal Service issued its Notice To Proceed, and on September 17, 1985, Mega commenced work on the project. Originally planned for completion on October 20, 1986, the parties agreed to extend the completion date several times, adding a total of 118 days to the performance period. In December of 1986, cracks were discovered in the poured concrete floor of the Post Office’s main workroom which, as a result, failed to conform to the contract specifications. Defendant twice ordered plaintiff to replace the cracked slab, and plaintiff refused on both occasions to comply with the contracting officer’s directive. On July 22, 1987, the Postal Service terminated Mega for default.

Following the termination for default, Mega brought suit in this court seeking declaratory judgment that the termination was improper. On December 11, 1987, defendant moved to dismiss for lack of jurisdiction because the contracting officer’s decision failed to make a claim for money damages, a necessary prerequisite to the exercise of the court’s jurisdiction under the Contract Disputes Act, 41 U.S.C. §§ 601-613 (1988). On December 9, 1987, the contracting officer issued a final decision which assessed partial reprocurement costs, bringing this case within the jurisdiction of the court. Defendant’s motion to dismiss was denied. Mega Constr. Co. v. United States, 14 Cl.Ct. 555 (1988). Mega submitted a claim for $2,569,380.58 to the contracting officer on August 30,1988. On September 21, 1988, the contracting officer issued a final decision which assessed $531,495.44 as full excess reprocurement costs against Mega. On November 25, 1988, the contracting officer issued a final decision denying Mega’s claim, except for $31,323.30, which was found due. On May 9, 1989, Mega filed its second amended complaint in which it appealed the contracting officer’s final decision and presented an affirmative claim to the court in the same amount presented to the contracting officer. Defendant counterclaimed on May 19, 1989, alleging that plaintiff owed $531,-495.44 in excess reprocurement costs as determined by the September 21, 1988, fi[737]*737nal decision of the contracting officer. On October 26, 1989, defendant filed an amended counterclaim increasing the reprocurement costs to $559,460.08. This opinion issues following trial.

FACTS

Mega is a corporation organized under the laws of California, doing business in that state as a duly licensed general contractor. Mr. Marvin Kaplan is president of Mega, and his assistant, Mr. Barry Harmon was Mega’s Construction Manager during the contract in question. As the general contractor, Mega was responsible for coordinating and managing the work of the various subcontractors on the job site.

Among the many tasks that Mega performed under the contract was the installation of a poured-concrete (non-prestressed), non-structural, slab on grade measuring approximately 22,000 square feet that was to be the floor of the Canoga Park Main Post Office.1 The contract specifications required a slab four inches thick, with No. 4 steel reinforcing bars (rebar) embedded in a checkerboard pattern, twenty-four inches apart and at least one inch from the upper surface of the slab. As the slab was nonstructural, the rebar was present to prevent cracking as the concrete shrank, not to serve as reinforcement. The contract drawings required Mega to run the rebar through control joints, placed approximately every thirty-seven feet in a north-south direction, and approximately every twenty-nine feet in an east-west direction. A control joint is any purposeful break made in the concrete to control cracking. One type of control joint consists of a galvanized steel stake embedded approximately one inch below the surface of the concrete. After the concrete is poured and cured, the stake acts as a controlled break in the concrete to prevent and contain cracking as the concrete cures. As one structural engineering expert noted at trial, the lines that appear every three to four feet in sidewalks perform the same function, but, for aesthetic reasons, owners normally do not want lines every three to four feet in their floors. Therefore, the steel stakes are used. Control joints may appear in different forms. In Mega’s case, they were called “Key-Kold” joints.

The slab sat atop two inches of sand that covered a layer of 6 MIL plastic vapor barrier. The vapor barrier covered another two inches of sand. The layers of sand rested on approximately five to six feet of compacted fill. After the slab cured, it was to be covered with an asphalt tile. Because the slab was non-structural, its most important feature was its ability to endure the weight of loaded mail carts weighing between 300 and 2000 lbs., as well as substantial foot traffic. The soils engineering firm of R.T. Frankian & Associates specified to the structural engineering subcontractor that designed the floor for defendant, Martin & Kelsen, Inc., that the fill under the slab was to be non-expansive, meaning that it was not to expand if, for example, water seeped into the fill due to heavy rains or a broken pipe. According to Mr. Rudolph Paolini, an architect with the firm of Wagner, Hohns & Inglis, and one of the government’s expert witnesses, a non-expansive soil is composed of a proper mixture of small, medium, and large grains, which is then compacted according to specifications. If water seeps into a properly mixed fill, the large and medium particles will provide space for the water, thereby preventing the fill from expanding and causing the slab on top to shift and crack. If fill is comprised of too many small grains, after compaction, water has no place to seep, and is simply absorbed into the fill like water in a dry sponge. For example, if the fill is five feet deep and experiences a 3 percent expansion, the fill will expand three inches, which in turn, will cause substantial movement, and therefore cracking, in the slab above. Although R.T. Frankian & Associates prescribed that the fill under the slab was to be non-expansive, the evidence of record [738]*738failed to reveal whether R.T. Frankian & Associates, or Martin & Kelsen, performed a soils test prior to installation of the slab to determine whether it was non-expansive. Mega installed and compacted the fill, but the record did not indicate whether it performed a soils test prior to pouring the slab.

The floor of the building’s main workroom, measuring approximately 10,300 square feet, comprised the largest section of the slab. In December of 1986, cracking, and, in at least one area, vertical displacement, was discovered in the main workroom portion of the slab. Differential settlement is a severe form of cracking in which one side of a crack sinks, resulting in a rough, uneven floor. On January 16, 1987, defendant’s architect, Lane Architectural Group (Lane), sent Mr. Gordon Kelsen, of Martin & Kelsen, to inspect the slab. In a January 27, 1987, letter to Mr. Edward Jones, Jr., Lane’s manager for the Post Office project, Mr. Kelsen recommended coring the areas of vertical displacement to obtain a sample of the slab in the hope of determining the cause of the cracking. Mr.

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Bluebook (online)
37 Cont. Cas. Fed. 76,305, 25 Cl. Ct. 735, 1992 U.S. Claims LEXIS 160, 1992 WL 77878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mega-construction-co-v-united-states-cc-1992.