M.G. Construction, Inc. v. United States

67 Fed. Cl. 176, 2005 U.S. Claims LEXIS 235, 2005 WL 1845409
CourtUnited States Court of Federal Claims
DecidedAugust 4, 2005
DocketNo. 04-473C
StatusPublished
Cited by4 cases

This text of 67 Fed. Cl. 176 (M.G. Construction, 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
M.G. Construction, Inc. v. United States, 67 Fed. Cl. 176, 2005 U.S. Claims LEXIS 235, 2005 WL 1845409 (uscfc 2005).

Opinion

OPINION

HORN, Judge.

The plaintiff, M.G. Construction, Inc., is an Oregon corporation based in Salem, Oregon. The ease arises out of a United States Air Force roof repair and construction contract at the Francis E. Warren Air Force Base in Cheyenne, Wyoming. Initially, when the complaint in the case was filed, only count one of the plaintiffs complaint had been submitted to the contracting officer. The remaining five counts had not been presented to the contracting officer. See 41 U.S.C. § 605(a) (2000) (“All claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.”). Therefore, those claims not previously submitted to the contracting officer were dismissed by the court without prejudice. The plaintiff subsequently brought those claims to the agency for a contracting officer’s review and final decision. On March 3, 2005, the contracting officer issued a final decision denying all of the plaintiffs claims. The plaintiffs fourth amended complaint presents seven claims. The parties have filed cross-motions for partial summary judgment on count one, the largest claim contained within the plaintiffs fourth amended complaint.

FINDINGS OF FACT

On February 16, 2001, the United States, acting through the United States Air Force, issued Solicitation No. F48608-01-R-001 for Project No. GHLN 01-1004, referred to as the Roof Requirements Contract for the Air Force Space Command at Francis E. Warren Air Force Base in Cheyenne, Wyoming. The contract was a Small Business Administration (SBA) 8(a) set-aside.1 The solicitation, [178]*178incorporated into the contract, required bidders to “[p]rovide all labor, means, operations, materials, sales tax, accessories and incidentals necessary for performing all operations required for repairing or replacing existing roofing on various base buildings ____” In addition, the bidders were instructed to refer to the Bid Schedule for a complete breakdown of bid items and to provide a proposal for each bid item in the Bid Schedule. The bidders also were instructed that the work encompassed the demolition and removal of existing roofing, including all “[r]elated or incidental work which is manifestly necessary or customary to finish the project and provide a complete installation,” as necessary. In this regard, the solicitation provided that, “[tjhe description for each [bid] item is a ‘scope description,’ incomplete and abbreviated, and does not detail the full range of materials and processes needed to complete the required work.”

The solicitation required bidders to complete “Part I-The Schedule, Section B, Supplies or Services and Prices/Costs.” Therefore, the plaintiff was required to provide a unit price per square foot for the individual Contract Line Item Numbers (CLINs), for example, to Remove Aggregate Surfacing (CLIN 0001AA). The Air Force estimated the quantity of aggregate surfacing that might need to be removed at 200 square feet and included this figure in CLIN 0001AA. M.G. Construction bid $1.50 per square foot to remove aggregate surfacing pursuant to CLIN 0001AA. The Bidding Schedule also required the plaintiff to bid prices for a series of other demolition tasks, including CLIN 0001AC, Remove BURS2 (5-ply max) & 2" Insulation (2" Mopped), for which the plaintiff bid $0.80 per square foot, on a government estimate of 23,333 square feet, and Remove Underlayment/Vapor Barrier, CLIN 0001AH, for which the plaintiff bid $15.00 per square.

In providing specifications for the construction and repair of the roofing system, the solicitation, incorporated into the contract language, stated that “[t]he entire roofing system, excluding aggregate surfacing, shall be finished in one operation .... ” The solicitation also provided that “[t]he Government will identify work to be accomplished by the Delivery Order method.” Pursuant to the contract, delivery orders placed against the contract included CLIN 0001AC (BURS removal), but not CLIN 0001AA (aggregate surfacing removal). The contract specified that any and all changes to the contract must be enacted solely through the contracting officer.

On June 29, 2001, the plaintiff contractor entered into a contract (Contract No. F48608-01-D-0008) with the United States Air Force to perform the roofing work at Francis E. Warren Air Force Base, Cheyenne, Wyoming. The basic contract period lasted for one year from its award date. The contract required M.G. Construction to remove, repair, and replace existing roofs on select Air Force base buildings. Section 1 of the solicitation, incorporated into the contract, contained twenty-one contract line item numbers, or “CLINs,” which detailed the assorted tasks required to complete the roofing project and the prices plaintiff had bid for those CLINs. The CLINs were divided into three categories, specifically, demolition, install EPDM (Ethylene Propylene Diene Monomer) membrane and install insulation for EPDM roofing.

M.G. Construction was asked to perform the demolition of BURS, which, according to the BURS installation specifications found in [179]*179the solicitation, entailed the removal of the roof aggregate surfacing, the multiple plys of the roofing membrane, and the insulation. For selected buildings, the solicitation contemplated “partial roof replacement,” without the necessity of demolishing the entire roof for a complete roof replacement, as required on other buildings. The plaintiff also bid different monetary amounts for removing and replacing various parts of the roof without full BURS removal, such as aggregate surfacing (CLIN 0001AA), sealant (CLIN 0001AL), insulation (CLINs 0001AF, 0001AG), and flashing (CLIN 0001AJ).

The parties have filed cross-motions for partial summary judgment only with respect to the first claim of the plaintiffs fourth amended complaint. The plaintiff claims, and the government acknowledges, that it removed 243, 100 square feet of surface aggregate (gravel), and that the plaintiff was paid at the BURS removal rate ($.80 per square foot under CLIN 0001AC). Plaintiff claims that it also should have been paid under the separate aggregate surfacing removal rate ($1.50 per square foot under CLIN 0001AA), for a total of $2.30 per square foot. Plaintiff seeks $364,650.00 for count one (243, 100 square feet times $1.50 per square foot).

DISCUSSION

The parties have filed cross-motions for summary judgment on the plaintiffs fourth amended complaint pursuant to RCFC 56. RCFC 56 is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ. P.) and is similar both in language and effect. Both rules provide that summary judgment “shall be rendered forth with if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” RCFC 56(c); Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H.

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Cite This Page — Counsel Stack

Bluebook (online)
67 Fed. Cl. 176, 2005 U.S. Claims LEXIS 235, 2005 WL 1845409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mg-construction-inc-v-united-states-uscfc-2005.