Molony & Rubien Construction Co.

618 F.2d 119, 25 Cont. Cas. Fed. 83,048, 219 Ct. Cl. 616, 1979 U.S. Ct. Cl. LEXIS 41

• Court: United States Court of Claims
• Decided: February 2, 1979
• Docket: No. 379-77
• Status: Published

Opinion

This case is before the court on cross-motions for summary judgment. It is a Wunderlich review case (41 U.S.C. § 321) and the trial judge has certified under our Rule 166(b) that the dispute involves only questions of law. The decision of the Armed Services Board of Contract Appeals, Appeal of Molony & Rubien Construction Co., ASBCA No. 20652, 76-2 BCA If 11,977 (1976), denied claimant, a construction contractor, an additional equitable adjustment for increased overhead costs resulting from the government’s 29 change orders. At the time the change orders were negotiated, the claimant asked for and was allowed equitable adjustments including overhead of 10 percent for labor and 5 percent for material and equipment, using a standard claim form the government provided. It told the board that these percentages were insufficient. The original contract signed by the parties contained a waiver and release clause as then usual, under which a contractor was deemed to waive any right to increases in the amount of equitable adjustment for any change order not set forth in the claim. The ASBCA held that the waiver and release clause barred entitlement to any additional compensation for the work performed by plaintiff.

This court, on consideration of the record and the briefs and arguments of counsel, determines that the said board decision is not arbitrary or capricious, is not contrary to law, is supported by substantial evidence, and it is therefore binding on the parties here. We adopt the opinion of the board as our opinion, but without printing the same among our opinions as it is published already and readily accessible.

Accordingly, the plaintiffs motion for summary judgment is denied, the defendant’s motion for summary judgment is granted, and the petition is dismissed.