Meyers Companies, Inc. v. United States

42 Cont. Cas. Fed. 77,337, 41 Fed. Cl. 303, 1998 U.S. Claims LEXIS 145, 1998 WL 378876
CourtUnited States Court of Federal Claims
DecidedJuly 7, 1998
DocketNo. 96-632C
StatusPublished
Cited by8 cases

This text of 42 Cont. Cas. Fed. 77,337 (Meyers Companies, 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
Meyers Companies, Inc. v. United States, 42 Cont. Cas. Fed. 77,337, 41 Fed. Cl. 303, 1998 U.S. Claims LEXIS 145, 1998 WL 378876 (uscfc 1998).

Opinion

OPINION

MEROW, Judge.

This matter, before the court on defendant’s motion for summary judgment, involves a contract between the plaintiff, Meyers Companies, Inc. (“Meyers”), and the government for the construction of a stone fill dike in the Mississippi River. During performance, Meyers encountered shallow water which delayed work for a significant period. Meyers asserts that it is entitled to an equitable adjustment for the costs incurred during the delay because the shallow water constituted a Type I differing site condition and because the government misrepresented the water depth in the bidding documents and failed to disclose that it would act to lower the water level. As discussed below, it is concluded that plaintiffs differing site conditions claim lacks merit because the existence of prolonged periods of shallow water was reasonably foreseeable and did not differ materially from the indications in the bidding documents. Plaintiffs claim of misrepresentation and nondisclosure is also rejected because it is unsupported. Therefore, defendant’s motion for summary judgment is granted.

BACKGROUND

Unless otherwise noted, the following facts are not in dispute. On May 28, 1991, the United States Army Corps of Engineers, St. Louis District (“Corps”), issued solicitation no. DACW43-91-B-0016 to prospective bidders, including Meyers. The solicitation invited firm, fixed-price bids for the construction of a 10,200 linear foot stone fill dike around Pharrs Island, Missouri, located near Lock and Dam No. 24 on the Mississippi River.

The solicitation provided that construction was to be completed within 150 days after issuance of the Notice to Proceed. Section 2B-3, “Order of Work,” stated that the contractor “shall construct the dike work starting at Station 0 + 00 and shall proceed in the direction of increasing stations.” Def.’s App. 7. Section _2B-1, “Scope,” stated that the work “shall be completed as expeditiously as possible” and “requires steady and uninterrupted progress to minimize loss of stone during construction.” Id.

Section 2B-2 of the solicitation, “River Stage and Weather Limitations,” informed prospective bidders that work could be delayed as a result of low pool stages (water levels) and provided for an extension of the 150-day performance period if such a delay occurred:

In the event low pool stages require the Contractor either to lighten his barges or to suspend operations entirely, the Contracting Officer will determine the extent of the delay to work as a whole, and the time fixed for completion of the contract will be extended for the period of such delay.

Def.’s App. 7.

The bidding package also included drawing 220.1409, “Stage Hydrograph,” containing hydrographs for Lock and Dam No. 24 from 1973 to 1988. A hydrograph depicts the river surface elevation at a particular location according to the National Geodetic Vertical Datum of 1929 (“NGVD”), a standard for measuring elevation similar to mean sea level. According to John Massman, assistant vice-president of Meyers, pool stages below 449 feet NGVD at Lock and Dam No. 24 constitute non-working levels. Massman Aff. ¶ 10, Pl.’s App. 5. The hydrographs in drawing 220.1409 indicate that, during the sixteen years covered, the pool stage often dropped to non-working levels, sometimes for extended periods, during the same time of year when Meyers encountered shallow water. For instance, the pool stage remained below 449 feet for significant periods between September 1973 and May 1974. From early October to early December 1982, the pool [306]*306stage remained below 449 feet and hovered around 445.5 to 447 feet for over half of November. After a short period above 449 feet during December 1982, the pool stage again dropped to non-working levels until late January 1983. The pool stage also dropped to non-working levels during the latter half of November and the first half of December 1983. In 1985, the pool stage remained well below 449 feet for virtually all of October, most of November, and part of December. In 1986, the pool stage ranged from about 445.5 to about 447.5 for nearly all of November and part of December. The hydrographs also show that the pool stage dropped to non-working levels for shorter periods during December 1980, November 1984, December 1984, January 1985, and December 1987.

The bidding materials also included drawing 240.1406, “Site Plan,” which depicts riverbed elevations at the project site. The soundings used in the Site Plan were taken during July 1988 and February 1989. For station 30 + 00, the position where Meyers suspended operations due to shallow water, the Site Plan indicates a riverbed elevation of 443 feet NGVD.

Clause 68 of the solicitation contained the standard “Differing Site Conditions” clause set forth in the Federal Acquisition Regulation (“FAR”). This clause provides for an equitable adjustment increasing the contract price when “Type I” or “Type II” differing site conditions are discovered which increase the cost of performance. Type I differing site conditions are defined as “subsurface or latent physical conditions at the site which differ materially from those indicated in this contract.” 48 C.F.R. § 52.236-2(a) (1991). Type II conditions are defined as “unknown physical conditions at the site of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract.” Id.

Clause 84 of the solicitation contained the standard “Changes” clause set forth in the FAR which provides for an equitable adjustment increasing the contract price for changes in the work causing an increase in the cost of performance. 48 C.F.R. § 52.243-4 (1991).

Finally, the solicitation informed bidders of a Corps-sponsored, pre-bid site visit to occur on June 12, 1991. Bidders were also invited to conduct their own unaccompanied site visits prior to bidding. During the June 12, 1991 visit, one prospective bidder expressed concern about shallow water. In response, the Corps directed those present to section 2B-2 of the solicitation which, as discussed above, provides for time extensions for delays caused by low water levels.

Meyers did not participate in the Corps-sponsored site visit or conduct its own visit prior to bidding. An individual who did attend the June 12, 1991 site visit subsequently informed Gerald Stevens, Meyers’ Superintendent/Operator, that he viewed shallow water around station 30 + 00. Also, in October 1991, after contract award, Mr. Stevens and Dale Elsenrath, Meyers’ Quality Control Manager/Assistant Superintendent, took soundings at the work site and determined that the water was “pretty shallow” from about station 30 + 00 to station 45 + 00. Def.’s App. 28-29, 77-78.

Meyers submitted its bid on July 1, 1991. Based on the statement in section 2B-1 of the solicitation that work was to proceed “expeditiously” and required “steady and uninterrupted progress,” and based on the 150-day contract term which, according to Mr. Massman, is relatively short in comparison to the 360-day period used by the Corps in similar projects, Meyers believed at the time of bidding that construction would proceed without prolonged delays due to shallow water. Massman Aff. ¶¶ 6-9, Pl.’s App. 4-5. Though he states that Meyers reviewed the hydrographs prior to bidding, Mr.

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

Related

Com. v. AMEC CIVIL, LLC
699 S.E.2d 499 (Supreme Court of Virginia, 2010)
Metric Construction Co. v. United States
80 Fed. Cl. 178 (Federal Claims, 2008)
Detroit Housing Corp. v. United States
55 Fed. Cl. 410 (Federal Claims, 2003)
Comtrol, Inc. v. United States
49 Fed. Cl. 294 (Federal Claims, 2001)
D.F.K. Enterprises, Inc. v. United States
45 Fed. Cl. 280 (Federal Claims, 1999)
CTA Inc. v. United States
44 Fed. Cl. 684 (Federal Claims, 1999)
Chas. H. Tompkins Co. v. United States
43 Fed. Cl. 716 (Federal Claims, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
42 Cont. Cas. Fed. 77,337, 41 Fed. Cl. 303, 1998 U.S. Claims LEXIS 145, 1998 WL 378876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-companies-inc-v-united-states-uscfc-1998.