Orbas & Associates v. United States

40 Cont. Cas. Fed. 76,831, 34 Fed. Cl. 68, 1995 U.S. Claims LEXIS 161, 1995 WL 495219
CourtUnited States Court of Federal Claims
DecidedAugust 16, 1995
DocketNo. 94-135C
StatusPublished
Cited by2 cases

This text of 40 Cont. Cas. Fed. 76,831 (Orbas & Associates 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
Orbas & Associates v. United States, 40 Cont. Cas. Fed. 76,831, 34 Fed. Cl. 68, 1995 U.S. Claims LEXIS 161, 1995 WL 495219 (uscfc 1995).

Opinion

ORDER

TIDWELL, Judge:

This case is before the court on the parties’ cross motions for summary judgment filed pursuant to RCFC 56. For the reasons set forth below, the court grants defendant’s motion for summary judgment and denies plaintiffs cross motion.

FACTS

On September 15, 1992, Orbas & Associates (Orbas) contracted with the United States Navy to build a Fixed Aircraft Start System at the Naval Air Station in Miramar, California. The contract was to be completed by June 12,1993, for a price of $1,460,500. The contract, in part, required Orbas to construct a pre-fabricated metal air compressor building.

On December 9, 1992, Orbas issued to the Navy a Request for Information, seeking col- or and finish details for the building. Following this Request, Orbas also indicated that the design plans did not depict any wall or roof insulation or liner panels. Orbas stated that it could install any of these items for an additional cost. The Navy’s Resident Officer in Charge of Construction responded that the contract required insulation of the building and referred Orbas to contract specification section 13121, subparagraph 2.1.3, which called for factory-insulated panels.

On January 20, 1993, Orbas asserted that because the contract drawings did not show insulation, there was a conflict between the plans and the specifications. Orbas stated it should therefore be compensated for installing insulation because this constituted a change to the original contract. On January 28, 1993, the Resident Officer in Charge of Construction reiterated that the contract required factory-insulated panels, and that under Federal Acquisition Regulation (FAR) 52.236-21, in situations where specifications conflict with plans, the specifications control. Orbas did not dispute that the contract incorporated FAR 52.236-21.

Between February 3, 1993, and March 9, 1993, Orbas and defendant exchanged correspondence discussing the availability of a supplier who could provide factory-insulated panels conforming to the contract specifications and whether such insulation constituted a contract requirement in the first place. Finally, on March 9,1993, Orbas submitted a request for a variance in the contract, asking that the contract be changed to permit use of field installed insulation. The Navy approved the request and permitted Orbas to use either factory-installed panels or field-installed insulation with lower grade specifications.

On March 23,1993, Orbas submitted to the contracting officer a claim in the amount of $46,167.85, and request for a 75-day time extension for the supply and installation of insulated panels to the pre-engineered metal building. On May 20, 1993, the contracting officer denied the claim in its entirety. Or-bas then filed suit in this court on March 7, 1994.

In its complaint, Orbas alleged two claims arising from the contract. First, Orbas sought relief in the amount of $46,167.85 plus interest for supplying and installing insulation to the pre-engineered metal building. Second, Orbas sought $51,400 which the Navy withheld from a progress payment for [70]*70Orbas. The Navy alleged that the $51,400 represented liquidated damages in addition to costs for deleted contract work, non-performance of equipment tests, and failure to deliver operation manuals. The parties, however, settled the second claim, and thereafter plaintiff dismissed it voluntarily. Thus, only the first claim for the supply and installation of insulation remains at issue.

DISCUSSION

Summary judgment is appropriate when there exist no disputed genuine issues of material fact, and the moving party is entitled to a judgment as a matter of law. RCFC 56(c). A genuine issue of material fact is present if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The burden of proof rests upon the party opposing the motion to prove by sufficient evidence that a genuine issue of material fact positively remains. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Any evidence presented by the non-movant is to be believed and all justifiable inferences drawn in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09.

When there are motions for summary judgment by both parties, the court must scrutinize each participant’s motion on its own merits. “Accordingly, this court must draw all reasonable inferences against the party whose motion is under consideration.” Robinson Contracting v. United States, 16 Cl.Ct. 676, 680 (1989); see Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). When parties have moved for summary judgment, the court is not required to grant judgment as a matter of law for one party or the other; it may deny both. Mingus, 812 F.2d at 1391.

At the threshold the court must address whether its jurisdiction over this suit is proper. Lack of subject matter jurisdiction constitutes a defect that cannot be waived. Spirit Leveling Contractors v. United States, 19 Cl.Ct. 84, 89 (1989) (citing Hambsch v. United States, 857 F.2d 763, 765 (Fed.Cir. 1988)). “[I]t is well settled that a federal court, whether trial or appellate, is obliged to notice on its own motion the want of its own jurisdiction.” Id.

Plaintiff filed suit in this court pursuant to the Contract Disputes Act (CDA), 41 U.S.C. § 609(a)(1). The law is well settled that claims brought under the CDA must be in writing and submitted to the contracting officer for a decision. 41 U.S.C. § 605(a). Santa Fe Engineers, Inc. v. United States, 818 F.2d 856, 858 (Fed.Cir.1987). SMS Data Products Group, Inc. v. United States, 19 Cl.Ct. 612, 615 (1990) (citing Paragon Energy Corp. v. United States, 645 F.2d 966, 227 Ct.Cl. 176, 183-84 (1981)). This court “has jurisdiction only where and to the extent that the government has waived its sovereign immunity, and any waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” Overall Roofing & Constr. Inc. v. United States, 929 F.2d 687, 688 (Fed.Cir.1991) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)).

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40 Cont. Cas. Fed. 76,831, 34 Fed. Cl. 68, 1995 U.S. Claims LEXIS 161, 1995 WL 495219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orbas-associates-v-united-states-uscfc-1995.