P.J. Maffei Building Wrecking Corp. v. United States

31 Cont. Cas. Fed. 71,307, 3 Cl. Ct. 482, 1983 U.S. Claims LEXIS 1709
CourtUnited States Court of Claims
DecidedJune 15, 1983
DocketNo. 612-81C
StatusPublished
Cited by4 cases

This text of 31 Cont. Cas. Fed. 71,307 (P.J. Maffei Building Wrecking Corp. 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
P.J. Maffei Building Wrecking Corp. v. United States, 31 Cont. Cas. Fed. 71,307, 3 Cl. Ct. 482, 1983 U.S. Claims LEXIS 1709 (cc 1983).

Opinion

OPINION

WIESE, Judge.

I.

In the performance of a contract involving the demolition of the United States Pavilion that had been constructed for the 1964 World’s Fair in Flushing Meadow Park, New York, the contractor (plaintiff here) allegedly encountered differing site conditions and on that account claimed an equitable adjustment in contract price. The contracting officer denied relief and the matter was carried before the General Services Board of Contract Appeals (the board) for resolution. There it was held that the shortfall from the estimated amount of steel recoverable from the building (the salvage value of which represented part of the bid price) was (i) not monetarily redressable under the contract’s “Differing Site Conditions” clause or (ii) otherwise compensable on a theory of Government misrepresentation. Entitlement was established, however, for the added work associated with the removal of unanticipated subsurface timber pilings. As to this last — the so-called “pile claim” — the matter was remanded to the contracting officer for a determination of quantum. The decision on appeal is reported administratively as the P.J. Maffei Building Wrecking Corporation, 80-2 B.C.A. (CCH) ¶ 14,647.

All three issues come up again in the complaint that has been filed in this court. Thus, in Counts I and II, both of which are directed to the steel shortage claim (herein the “steel” claim) the contractor asserts that the board decision is not entitled to finality under the Wunderlich Act, 41 U.S.C. §§ 321-322 (1976) first, because it reflects factual findings that lack substantial evidentiary support; second, because of errors of law. Accordingly, Count I repeats the claim to entitlement under the contract’s “Differing Site Conditions” clause; Count II reasserts the misrepresentation argument. The contractor has moved for summary judgment in its favor; the Government opposes, and by cross-motion seeks our affirmance of the administrative decision.

Counts III and IV of the complaint introduce new matter. Herein the contractor claims the right to proceed in this court (rather than be obliged to continue before the board) to obtain a quantum determination on its previously-decided “pile claim”. Count III asserts this right of “direct access” pursuant to § 10(a) of the Contract Disputes Act of 1978, 41 U.S.C. § 609(a)(1) (Supp. V 1981); Count IV asserts this right ostensibly as a “breach” remedy to the contracting officer’s alleged unwillingness to have proceeded in good faith in the negotiations of the amount due on the “pile claim”. The Government has moved to dismiss Counts III and IV for, respectively, lack of jurisdiction and failure to exhaust mandatory administrative remedies; the contractor opposes.

The court, having heard oral argument and having considered the record in the case together with the briefs of the parties, decides the case in the Government’s favor on all counts. Our reasons are set forth in the section that follows.

II.

The Steel Claim

A. The contract, as has been noted, involved the demolition and removal of the [484]*484pavilion (and restoration of the grounds) that had been built by the United States in connection with this country’s participation in the 1964 World’s Fair. The bid documents contemplated that the construction materials and other equipment to be removed from the building were to become the property of the contractor through an allowance for their value that was to be reflected in the bid price. Determination of the recoverable amount and market value of these “site materials” was a matter each prospective contractor had to evaluate on his own; the contract documents included no ready-made tabulation. Bidders were advised, however, of the availability for examination of some of the building’s drawings at the administrative offices of New York City’s Parks Department. It was through a study of documents obtained from this source, supplemented by site investigation, that the contractor in this case came to the conclusion that the demolition would yield 5,297 tons of steel. An assumed market value for this steel — roughly half-priced as scrap; the remainder as reusable — was included in the bid price.

In the performance of the contract the quantity of steel that was recovered fell short of the contractor’s estimated amount by 1,075 tons — approximately 20 percent. A request for an equitable adjustment to cover the dollar amount of the unanticipated steel shortage was rejected by the contracting officer and, subsequently, by the board.

The thrust of the argument that had been made before the board was that, except for the drawings which the Government had made available for examination at the Parks Department, there was no other feasible means by which a prospective bidder could ascertain the amount of steel that comprised the building’s skeletal structure. Even destructive testing, assuming that had been permissible, might not have given a better answer. Thus, when upon demolition, some steel beams were recovered that were found to be of lesser weight than had been depicted on the drawings, the resulting variance was claimed to constitute a differing site condition for which, by the terms of the contract, an equitable adjustment was promised.

The contract clause in question, paragraph 4 of the General Provisions, entitled “Differing Site Conditions”, assured the contractor of an equitable adjustment in contract price and/or time if, during performance of the work there were encountered “[sjubsurface or latent physical conditions at the site differing materially from those indicated in this contract * * * ”1 The board deemed this language to be inapplicable to the situation before it.

As the board reasoned it, the quoted language could be invoked by a contractor only when relief was sought for a condition different from that which had been “indicated” in the contract. That is to say, the contract had to offer some basis from which a contractor could reasonably infer the subsurface conditions likely to be encountered. Absent any “indication” in the contract, no claim for a changed condition could arise. At the same time, the board also recognized that such contract indications need not be explicit or specific. “[A]ll that is required is that there be enough of an indication on the face of the contract documents for a bidder reasonably not to expect ‘subsurface or latent physical conditions at the site differing materially from those indicated in this contract’.” Foster Construction C.A. v. United States, 193 Ct.Cl. 587, 593, 435 F.2d 873, 875 (1970).

In this case, however, it was concluded that “the contract provided the appellant with no information or estimate of the type or quantity of steel in the building.” P.J. Maffei Building Wrecking Corporation, 80-2 B.C.A. (CCH) ¶ 14,647 at 72,259. There was, as the board had also put it “no [485]*485* * * affirmative representation of the quantity of steel.” Id. Hence, the claim was denied.

The contractor challenges the correctness of the board’s reading of the contract. The argument centers on paragraph 1.2 of the contract’s Special Conditions which reads, in relevant part, as follows:

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Bluebook (online)
31 Cont. Cas. Fed. 71,307, 3 Cl. Ct. 482, 1983 U.S. Claims LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pj-maffei-building-wrecking-corp-v-united-states-cc-1983.