Melville Energy Systems, Inc. v. United States

40 Cont. Cas. Fed. 76,802, 33 Fed. Cl. 616, 1995 U.S. Claims LEXIS 129, 1995 WL 390981
CourtUnited States Court of Federal Claims
DecidedJune 30, 1995
DocketNo. 282-89C
StatusPublished
Cited by5 cases

This text of 40 Cont. Cas. Fed. 76,802 (Melville Energy Systems, 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
Melville Energy Systems, Inc. v. United States, 40 Cont. Cas. Fed. 76,802, 33 Fed. Cl. 616, 1995 U.S. Claims LEXIS 129, 1995 WL 390981 (uscfc 1995).

Opinion

OPINION

BRUGGINK, Judge.

This controversy arose out of a contract between plaintiff, Melville Energy Systems, Inc., (“Melville”) and the United States Government, acting through the Army Corps of Engineers (“Corps”). Melville was to replace boilers in five mechanical rooms on McGuire Air Force Base in Wrightstown, New Jersey. The contract was default terminated after substantial work had been performed. Melville sues to recover the unpaid contract balance of $166,264.90, and approximately $147,199.37 more in contract price adjustments. Defendant has counterclaimed, seeking approximately $298,898 as reprocurement damages and the cost of repairs and maintenance it alleges were precipitated by Melville’s abandonment of the work. However, because it has retained $166,264.90 in contract payments as a setoff of these costs, defendant requests a judgment of only $132,633.10.

Trial was conducted on April 4-7, 1995, in Trenton, New Jersey. After considering the evidence at trial, the court concludes that the Corps was justified in its decision to default terminate. Defendant has not, however, proven that it is entitled to affirmative relief. The court also concludes that Melville has not proven that it is entitled to further payment.

FACTUAL BACKGROUND

The contract was awarded to Melville, a family-owned heating and mechanical contractor, on August 14, 1987. After amendment, the total amount of the contract award was $472,000. The Notice to Proceed was issued on September 30,1987. Work was to be completed within one year.

Melville began to experience difficulties immediately upon commencing performance. Delays occurred due to disagreements with the Corps over the need to submit a written, temporary, heat plan, disagreements regarding the sequence of performance and the necessity of having the new boilers on site [618]*618prior to demolition of the old boilers, and Melville’s difficulty in obtaining approval of its boiler submittals. These delays forced, Melville to change its Progress Schedule several times. Moreover, because of its performance difficulties, Melville failed to meet the September 30, 1988, completion date.

John Melville, son of James Melville, President of the company, testified that as of August 1988, the Corps was making an issue of Melville’s failure to install cutoff valves between each module of the new boiler units. On December 28, 1988, the Contracting Officer (“CO”) sent Melville a list of sixty deficient work items. In James Melville’s response of January 25, 1989, he asserted that thirty-three of the items were completed and committed the company to complete a number of the remaining items by the end of the month. Some of the asserted deficiencies were disputed matters of contract -interpretation.

On February 27, 1989, the Authorized Representative of the Contracting Officer (“ARCO”), Joseph Chupa, wrote Melville in response to a pay request. Mr. Chupa declined to make any further payment due to Melville’s asserted failure to make progress in eliminating the list of deficiencies, including failure to install the cutoff valves. The Corps placed a $210,000 value on those deficiencies. The December 1988 deficiency list was attached to Mr. Chupa’s letter.

April 7,1989, was the last day that Melville performed work on the project. Six weeks later, on May 23, 1989, the Corps notified Melville of its belief that no further corrective work had been done to address the December 1988 deficiency list. The record contains no response to this letter from Melville. On September 7, 1989, the Corps sent Melville a cure notice, warning that failure to complete the work would result in termination for default. It is undisputed that Melville performed no work on the project after it received the cure notice.

On January 25, 1989, Melville submitted a claim to the CO seeking $312,464.27, as payment for the unpaid contract balance plus work it asserted to be extra-contractual. By decision of the CO, Melville was default terminated on October 17, 1989. The stated ground for default was Melville’s “failure to complete the remaining work.” On December 1, 1989, the CO issued a second decision, this time asserting affirmative claims on behalf of the government arising out of reprocurement. Damages of $252,895 and credits of $46,003 were assessed against Melville.

DISCUSSION

Validity of the Default Termination

The court must begin with the undisputed fact that when Melville ceased work on the contract on April 7, 1989, its work was incomplete. Although the circumstances surrounding the Corps’ forbearance to exercise its termination rights were not explored in depth at trial, the court finds that the contractor’s decision not to work after April 7, 1989, constituted an apparent abandonment of the contract. Absent some defense, this abandonment gave the Corps ample grounds to terminate Melville for default. Although the legal issues were not clearly articulated in plaintiffs pretrial materials, the evidence adduced by Melville at trial was consistent with an argument that its non-performance was excused by government-caused delay and extra-contractual demands, as well as by defective government-supplied equipment. The same items that arguably excused per-’ formanee are also the basis for Melville’s claim for an equitable adjustment.

Melville was default terminated for “failure to complete the remaining work.” The parties disagreed, however, about which items of work were incomplete. Joseph Sullivan, who at the time of default termination represented Melville’s performance surety, testified for plaintiff as both a fact witness and as an expert. He negotiated with Jane Sobota, Chief of - the Corps’ Contract Administration Section in the Philadelphia District, concerning the precise quantum of work to be completed. The final list of deficiencies at the time of default consisted of approximately forty-six items. In negotiations over what the surety would be asked to complete, Ms. Sobota and Mr. Sullivan agreed to eliminate certain items -from the final deficiency list and make adjustments in others for the purpose of pricing the reproeurement. As Ms. [619]*619Sobota testified, however, this agreement was conditioned on the surety’s taking over the work. Because the surety did not complete the unfinished work, this condition was never satisfied.

Even if the court treats the shortened list of deficiencies as the only items indisputably unfinished, those items constitute a sufficient amount of incomplete work to support a default termination. Mr. Sullivan conceded that eight percent of the value of the contract was unperformed. In his view, this work consisted of such items as cleanup, reconnection of the Energy Management Control System (“EMCS”), installation of insulation in scattered places, provision of as-built drawings and certain testing documentation, and minor repairs. This is more than punch list work. Moreover, the court cannot accept Mr. Sullivan’s eight percent figure. Mr. Sullivan’s list of unfinished work fails to include at least three substantial items on which he and Ms. Sobota “agreed to disagree”: installing the cutoff valves, cleaning soot out of the boiler system in Building 2829, and rerouting an air extractor.

The dispute over the cutoff valves arose toward the end of Melville’s work on the contract. This dispute concerned whether the contract called for cutoff valves to be installed between each of the individual modules of the replacement boiler units.

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Bluebook (online)
40 Cont. Cas. Fed. 76,802, 33 Fed. Cl. 616, 1995 U.S. Claims LEXIS 129, 1995 WL 390981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melville-energy-systems-inc-v-united-states-uscfc-1995.