Pittman Construction Co. v. United States

30 Cont. Cas. Fed. 70,991, 2 Cl. Ct. 211, 1983 U.S. Claims LEXIS 1797
CourtUnited States Court of Claims
DecidedMarch 31, 1983
DocketNo. 538-81C
StatusPublished
Cited by1 cases

This text of 30 Cont. Cas. Fed. 70,991 (Pittman 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
Pittman Construction Co. v. United States, 30 Cont. Cas. Fed. 70,991, 2 Cl. Ct. 211, 1983 U.S. Claims LEXIS 1797 (cc 1983).

Opinion

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

OPINION

WIESE, Judge.

In proceedings before the General Services Administration Board of Contract Appeals (the board), plaintiff, Pittman Construction Company, a Government prime [213]*213contractor, had sought equitable adjustments on behalf of its electrical and plumbing subcontractors (respectively, Fischbach & Moore, Inc. and Babst Services, Inc.) for delays and disruptions suffered, ostensibly at the Government’s hands, in the construction of the Federal Office Building, Courthouse and Parking Facility in New Orleans, Louisiana. Specifically, relief was sought under both the Changes clause arid the Suspension of Work clause for: (i) uncompensated impact costs incurred as the result of 206 contract changes; (ii) delay costs associated with correction of errors and omissions in the contract drawings; and (iii) costs associated with Government delay in the approval of shop drawings submitted by Pittman. From the board’s denial of relief,1 this appeal followed. The contractor urges that the decision is not entitled to finality under the Wunderlich Act, 41 U.S.C. §§ 321-322 (1976), in that its factual determinations are claimed to be without substantial evidentiary support and its legal conclusions erroneous. Upon evaluation of the board’s decision in light of the record, the parties’ cross-motions for summary judgment and the oral arguments of counsel, it is concluded that no ground for reversal or modification has been demonstrated. The decision is, therefore, affirmed.

Background

On November 13,1972, the United States, acting through the General Services Administration, awarded plaintiff a fixed-price contract in the amount of $25,584,000 for the construction of a Federal Office Building, Courthouse and Parking Facility in New Orleans, Louisiana. Plaintiff, in turn, subcontracted portions of the work to others, including the electrical work to Fisch-bach & Moore, Inc. (“F & M”) and the plumbing work to Babst Services, Inc. (“Babst”). The work began on December 4, 1972 and was timely completed (allowing for time extensions due to change orders and excusable delays) on April 5, 1976.

Following the completion of performance, the instant claims for equitable adjustment were presented to, and rejected by, the contracting officer. The matter was then taken to the board and there the two appeals — one in behalf of F & M, the other in behalf of Babst — were consolidated for purposes of trial and decision.

Trial of the issues consumed 38 days and the decision that followed on December 24, 1980, was equally comprehensive in scope (the record copy of the board’s opinion is 47 pages in length and 31 pages as reproduced in the reports of the Board of Contract Appeals Decisions). Reconsideration was sought and a second opinion, affirming the first in reasoning and result, was issued by the board on May 7, 1981. The appeal to the court followed some months later.

The Contractor’s Claims

A. The Direct Impact Claim: In the course of contract performance, 206 contract change orders had been issued by the Government. Of that number, 152 represented added work and of these 152 there were 11 change orders in excess of $50,000. Only two of the change orders, however, were entirely electrical in their work content and none was entirely mechanical. Five of the change orders resulted in time extensions totaling 102 days.

As to these changes, the contractor contended before the board that they had been excessive in number, had occasioned delay and disruption to the unchanged work and had caused the performance of that work to be more costly than anticipated. For these change-related cost increases to unchanged work — described in this appeal as “direct impact” costs or “impact” costs — an equitable adjustment was sought.

The board denied the requested relief for reasons we come to shortly. For the moment we sketch those particular facts upon which the board had chiefly relied and upon which, in turn, the claim’s present appeal is focused.

[214]*214The evidence shows that in the pricing of the initial changes affecting F & M’s work, the contractor had attempted to distinguish between costs for immediate payment (it identified these as “the usual cost elements such as labor, material and normal markups”) and expenses of more remote attendance (naming specifically, “additional changes in the sequence of work, delays, disruptions, rescheduling, extended overhead, overtime acceleration and/or impact costs * * *.”) As to these last mentioned, the contractor’s pricing proposal contained an express reservation “to make claim for any or all of these related items of costs prior to the settlement of this contract.”

The contracting officer found this proposed two-stage pricing approach unacceptable. Referring to it as an “open-end” arrangement on contract changes, it was his view (so expressed in a letter to the contractor of July 25, 1973) that the modification requests could — and should — be priced in their entirety and preferably from the outset. He offered two alternatives. One was to have the work go forward at the price of the Government’s unilateral estimate leaving the final price determination to a board proceeding; the other was to have the contractor reprice the requested work to allow for the possibilities itemized in the reservation. This second alternative, it was explained, would most likely result in the issuance of a change order on a “price-to-be-determined-later” basis with the pricing to be accomplished either by agreement or else unilaterally at the point when the project was 50 percent complete. Any disagreement on price at this juncture, would, of course, be appealable.

Confronted with these choices, the contractor elected instead to go forward with the work at the price it had originally quoted while, at the same time, relinquishing its attempted reservation of unpriced costs. On this last point, the contractor wrote on July 30,1973, saying, “we will not apply our statement [of cost reservation] to these particular items [referring to the several pending modification requests].” It went on to add — this in response to the contracting officer’s letter disapproving of the attempted reservation of costs: “We will advise further on your 25 July letter at a future date.”

Nearly a full year later (June 4, 1974), the contractor transmitted to the Government the first of several letters that had as their common theme concern over performance delays and disruptions attributable (so the letters claimed) to the extensive number of changes in the work. The letter stressed that the costs being incurred because of these interruptions were not then fully determinable; hence, cost consideration would have to be taken up upon the conclusion of performance.2 There were four letters of this same import written (all between June 4, 1974 and February 14, 1975) and together they served as the bases for the contractor’s argument before the board (and again here) that the Government had been put on notice that impact costs had not been covered in the forward pricing of the change orders and therefore survived as a separate claim for which the contractor was now due further compensation.

The board, as we have said, rejected this claim. The decision rested on two grounds.

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30 Cont. Cas. Fed. 70,991, 2 Cl. Ct. 211, 1983 U.S. Claims LEXIS 1797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittman-construction-co-v-united-states-cc-1983.