Pathman Construction Co. v. United States

33 Cont. Cas. Fed. 74,394, 10 Cl. Ct. 142, 1986 U.S. Claims LEXIS 867
CourtUnited States Court of Claims
DecidedMay 30, 1986
DocketNo. 136-85C
StatusPublished
Cited by6 cases

This text of 33 Cont. Cas. Fed. 74,394 (Pathman Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pathman Construction Co. v. United States, 33 Cont. Cas. Fed. 74,394, 10 Cl. Ct. 142, 1986 U.S. Claims LEXIS 867 (cc 1986).

Opinion

OPINION ON DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

PHILIP R. MILLER, Judge:

This case arises from a contract dispute between plaintiff, Pathman Construction Company, Inc., and the United States. Plaintiff seeks an equitable adjustment of $522,907.28. Defendant moves for dismissal on the ground that the claim is untimely-

I. Statement of the Case

Pathman Construction Company, Inc. contracted with the General Services Administration (GSA) for the installation of interior finishings in the John C. Kluczyn-ski Federal Office Building in Chicago, Illinois. The original contract completion date was August 29, 1974. The project did not achieve substantial completion until September 23,1975, although various activities continued into 1976.

On September 28, 1976, Pathman submitted a claim for equitable adjustment in the amount of $428,608.17, requesting duration-related costs on behalf of itself and its two principal subcontractors. Several meetings with GSA representatives produced no settlement.

On May 10, 1978, the contracting officer acknowledged that plaintiff was entitled to an equitable adjustment and a time extension through March 17, 1975. GSA made a settlement offer for this 148 day extension of $202,000, which plaintiff rejected. The contracting officer informed plaintiff that an audit had been requested to determine cost entitlement and no further action would be taken until its completion. The government audit was conducted from May through July 1978. The audit report was issued August 17, 1978.

Despite numerous inquiries by plaintiff for a. decision, by 1981 no final decision had been issued. On February 16, 1981, plaintiffs attorney submitted a written request for a final decision to the contracting officer, stating that GSA inaction had forced plaintiff to “take steps to insure that [the claim] is handled expeditiously.” No decision was issued however.

On May 6, 1983, plaintiff submitted a request for a final decision that contained the certification required by the Contract Disputes Act (CDA), 41 U.S.C. § 605(a), for claims exceeding $50,000. Several meetings were held during this period in an unsuccessful attempt to settle the claim. To date, no decision has been issued. Plaintiff commenced this suit on March 11, 1985, pursuant to 41 U.S.C. § 609(a).

Defendant moves to dismiss the claim, or in the alternative for summary judgment, contending that this court has no jurisdiction because plaintiff’s suit was not timely filed under either 28 U.S.C. § 2501 or the [144]*144Contract Disputes Act, 41 U.S.C. § 609(a)(3), and that plaintiff has delayed unreasonably in instituting its action. Plaintiff opposes defendant’s motion.

II. Applicability of 28 U.S. C. § 2501

Defendant argues that the claim is barred by the 6-year statute of limitations under 28 U.S.C. § 2501, because contract performance was completed in September 1975 and more than 6 years elapsed before the filing of this suit. Defendant contends that § 2501 applies because plaintiff is proceeding under the disputes clause of its contract, having not made a “conscious and unwavering” election of its remedies under the Contract Disputes Act.

It is settled that a judicial claim under a mandatory disputes clause does not ripen so as to trigger the statute of limitations until a final decision on the claim has been rendered by a board of contract appeals. Nager Electric Co. v. United States, 177 Ct.Cl. 234, 244, 368 F.2d 847, 854 (1966). See also Crown Coat Front Co. v. United States, 386 U.S. 503, 509-10, 87 S.Ct. 1177, 1180-81, 18 L.Ed.2d 256 (1967). Here, there exists no administrative board decision because the contracting officer has not issued a decision that plaintiff may appeal. Plaintiff would be unable to avail itself of this court’s jurisdiction until such time as its administrative remedies had been exhausted. Rather than being barred, plaintiff’s claim would not yet be ripe.1

III. Election of Contract Disputes Act

Plaintiff contends that it did elect to proceed under the Contract Disputes Act and therefore 28 U.S.C. § 2501 is not applicable. Defendant concedes that plaintiff was eligible to elect the CDA because its claim was pending before a contracting officer on the effective date of the Act, March 1, 1979. However, defendant argues that plaintiff did not make an explicit election to proceed under the CDA and mere compli-anee with the certification procedure is insufficient.

Defendant relies on Tuttle/White Constructors, Inc. v. United States, 228 Ct.Cl. 354, 656 F.2d 644 (1981), in which the Court of Claims held that a contractor’s failure to express an election of the CDA was an election to proceed under the disputes clause. But in that case, the contracting officer had requested the contractor to inform him whether or not it elected to have the dispute subject to the CDA. When the contractor filed its notice of appeal to the Armed Services Board of Contract Appeals without any reference to the CDA, and raised no objection when notified that its claim was being processed under the disputes clause, the Court of Claims construed its silence to be an election of the disputes clause remedy before the ASBCA.

In requiring that a contractor make a “conscious and unwavering election”, the court did not mean to require that contractors expressly state their election. It explained {id., 229 Ct.Cl. at 359; 656 F.2d 647): “ * * * had plaintiff not responded to the contracting officer and to the board as it did, it clearly could have done nothing for almost 12 months and then could have availed itself of direct access to this court * * *. In choosing direct access it would of necessity have had to invoke the act.” (emphasis added) The court only demanded conduct necessarily indicative that plaintiff has made a choice between remedies. Here, plaintiff followed procedures that were necessary only under the CDA. Certification and submission of the claim is a clear indication that plaintiff elected to invoke the CDA process.

Because the CDA applies, defendant’s reliance on 28 U.S.C. § 2501 is misplaced. Once a contractor elects its remedies under the CDA, 28 U.S.C. § 2501 is rendered inapplicable. See LaCoste v.

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Bluebook (online)
33 Cont. Cas. Fed. 74,394, 10 Cl. Ct. 142, 1986 U.S. Claims LEXIS 867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pathman-construction-co-v-united-states-cc-1986.