Peterson Builders, Inc. v. United States

40 Cont. Cas. Fed. 76,853, 34 Fed. Cl. 182, 1995 U.S. Claims LEXIS 198, 1995 WL 631463
CourtUnited States Court of Federal Claims
DecidedOctober 26, 1995
DocketNo. 91-1406C
StatusPublished
Cited by1 cases

This text of 40 Cont. Cas. Fed. 76,853 (Peterson Builders, 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
Peterson Builders, Inc. v. United States, 40 Cont. Cas. Fed. 76,853, 34 Fed. Cl. 182, 1995 U.S. Claims LEXIS 198, 1995 WL 631463 (uscfc 1995).

Opinion

OPINION

BRUGGINK, Judge.

Trial on Count I of this action was held in Washington, D.C. between October 17-24, 1995. A bench ruling in favor of the Government was entered at the conclusion of trial. This written order takes the place of that bench ruling.

This action arises out of a contract between Peterson Builders, Inc. (“PBI”), a manufacturer of wooden hulled ships, and the Government, acting through the Naval Sea Systems Command (“NAVSEA”). The contract, signed on June 29,1982, called for PBI to design and build a new type of mine sweeper, called the MCM. The original agreement called for PBI to be paid its costs, plus an incentive fee, for designing and building the first of these ships, the MCM-1. Follow-on contracts for other MCM ships were separately awarded at a later time. In July 1985, the parties executed Modification P00011 (“Modification”), which converted the contract to one for costs, plus an incentive fee, but subject to a fixed cap.1

A six count complaint was filed on September 5, 1991. The action was transferred to this judge on February 10,1995. Counts II, III, V and VI of the complaint have been previously dismissed. Count IV is still pending. Count I asserts that the Modification to the MCM-1 contract should be set aside and the contract should revert to a cost-plus basis because it was negotiated on the basis of a mutual mistake of fact. Specifically, PBI alleged that both parties believed that the [183]*183detail design of the ship was substantially complete in July 1985 and that, based on this belief, the parties entered into a modification capping the allowable costs under the contract. According to PBI this belief was erroneous, and the detail design underwent numerous changes after the cap was imposed. Ultimately the cost at completion exceeded the cap by $8,721,497.55. See Stip. 267.

In order to prevail at trial PBI had to show four things:

1. that in negotiating the Modification, the Navy and PBI were mistaken in their belief regarding a fact;
2. that the mistaken belief constituted a basic assumption underlying the Modification;
3. that the mistake had a material effect on the bargain; and,
4. that the Modification did not put the risk of that mistake on PBI.

Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed.Cir.1994) (citing Atlas Corp. v. United States, 895 F.2d 745, 750 (Fed.Cir.), cert. denied, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990)). After considering the evidence and stipulations, the court finds that PBI has failed to establish three of these elements: the first, the second and the fourth.

1. The parties did not share a mistake of fact in July 1985.

PBI alleges that the parties jointly were under the impression in July 1985 that the detail design2 for the MCM-1 was essentially complete and that the ship was defined in “construction detail.”3 PBI does not assert that the parties were ignorant about the then-current state of government-initiated changes. An effort had been made to identify those changes and bring them into pricing negotiations. What is alleged is that the detail design was not as stable in the summer of 1985 as the parties assumed. PBI contends that the numerous contract modifications and resulting design changes which took place after the Modification was negotiated in July 1985 demonstrates that this assumption was incorrect.

A mistake on the part of one party will not provide a basis for rescission, particularly where the mistake is based on an unwarranted assumption of the party who should have known better in light of its experience. McNamara Constr. of Manitoba, Ltd. v. United States, 206 Ct.Cl. 1, 10, 509 F.2d 1166, 1171 (1975). While the court is prepared to assume that PBI officials believed that the detail design was stable enough in the summer of 1985 to negotiate a price cap, the court finds that the assumption that the detail design was complete was an unreasonable one. Mr. John Soderlund, a Vice President of PBI at the time, testified that changes in detail design normally continue throughout construction and testing and that a design cannot be viewed as complete until after acceptance. Furthermore, it has been stipulated that all of the difficulties encountered in the construction and testing of the MCM-1 following the Modification were typical of those encountered in designing a lead ship. Stip. 228; see also Stip. 226. In Mr. Soderlund’s view, only the “construction detail” was substantially complete. He stated that although the Navy, in his view, committed to making no more unnecessary or cosmetic changes, he recognized that there was always the possibility of changes prompted by safety concerns or changes that were “mission critical.” He referred to the design process as “evolutionary.” Mr. Peterson himself explained that changes in the [184]*184construction drawings, and hence, in the detail design, can occur after an attempt is made to install equipment. At the time of the Modification, there was very little equipment installed in the MCM-1 hull.

This is consistent with the testimony of Mr. Sidney Tronic, the Procurement Contracting Officer, and Mr. Frank Sheridan, Assistant Deputy Commander for Contracts at NAVSEA. Yes, they wanted to avoid making any more contract drawing changes; yes, Admiral E.B. Fowler, Commander of NAVSEA, had initiated the negotiation process on the assumption that all known changes would be captured; and yes, Mr. Everett Pyatt, Assistant Secretary of the Navy, had rejected the first attempt at an agreement because it did not capture all the outstanding changes as of June, 1985. But to say that the construction detail design accounted for all known changes, is not to say that the detail design was essentially complete.

Further, while the parties stipulated that there were hundreds of contract changes and modifications after the July 1985 Modification, there is no proof that the resulting changes to the detail design were inconsistent with the assumption that the parties shared: namely that contract changes would be limited to the non-cosmetic. PBI did not establish that the subsequent changes were in categories beyond those anticipated, namely those predicated on equipment installation, acceptance testing, “mission critical” considerations, or safety concerns. The only changes on which there was testimony fall into the latter two categories: the need to redesign the fuel tanks and the need to install a halón fire suppression system in the engine room.

It follows that, even if PBI officials believed the detail design to be stable, Navy officials did not share that assumption. In part, that is due to the relative differences in the amount of detailed knowledge held by the parties. Although the Navy had a great deal of knowledge regarding the state of development of the ship, it was ultimately dependent on PBI for most of that information.

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Related

Peterson Builders, Inc. v. United States
41 Cont. Cas. Fed. 77,074 (Federal Claims, 1997)

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Bluebook (online)
40 Cont. Cas. Fed. 76,853, 34 Fed. Cl. 182, 1995 U.S. Claims LEXIS 198, 1995 WL 631463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peterson-builders-inc-v-united-states-uscfc-1995.