Placeway Construction Corp. v. United States

35 Cont. Cas. Fed. 75,709, 18 Cl. Ct. 159, 1989 U.S. Claims LEXIS 180, 1989 WL 103815
CourtUnited States Court of Claims
DecidedSeptember 8, 1989
DocketNo. 382-87C
StatusPublished
Cited by12 cases

This text of 35 Cont. Cas. Fed. 75,709 (Placeway Construction 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
Placeway Construction Corp. v. United States, 35 Cont. Cas. Fed. 75,709, 18 Cl. Ct. 159, 1989 U.S. Claims LEXIS 180, 1989 WL 103815 (cc 1989).

Opinion

OPINION

LYDON, Senior Judge:

This action under the Contract Disputes Act of 1978, Pub.L. No. 95-563, 92 Stat. 2383, 2385-88 (1978) (codified at 41 U.S.C. [161]*161§ 605(c)(1), 609(a)(1) (1982)) (the CDA), comes before the court on defendant’s motion to dismiss plaintiff’s complaint, because plaintiff failed to obtain certification and/or a final decision from the contracting officer (CO) as specified by the CDA, for claims it presented to the contracting officer, and now seeks to litigate in this court.

Plaintiff opposes defendant’s motion, contending that, under the circumstances of this case, certification was not required. Plaintiff does not address the final decision of the CO issue in any meaningful way. Certification under the CDA for contract claims in excess of $50,000 is a jurisdictional requirement for filing complaints in this court. The same jurisdictional requirement exists for a final decision by the CO.

After consideration of the submissions of the parties, and following oral argument, the court concludes that defendant’s motion has merit.

Facts

On January 31,1983, Placeway Construction Corporation (Placeway) entered into a construction contract with the United States Coast Guard to build thirty-one units representing Phase I of the Brick Village Family Housing on Governors Island, New York. Valued at $3,844,000, the contract was scheduled for completion within 365 calendar days of its execution. A notice to proceed with construction was issued on February 25, 1983. During the course of construction, various modifications resulted in extending the contract completion date to June 27, 1984. Undisputed facts reveal that plaintiff substantially completed the contract on December 10, 1984, about six months after the scheduled completion date.

On May 28, 1986, Placeway submitted a letter to the CO which read as follows:

We are submitting herewith for you [sic] review and payment our claim for compensation due our firm as follows:
—Balance due on contract ........... $297,226.12 [balance due claim]
—Additional work per enclosed claims 1 thru 31...........$287,047.89 [additional work claim]
—Extended overhead expenses, not including suppliers and subcontractors ........... $119,585.91 [extended overhead claim]
Total $703,859.92
We are also requesting an adjusting of the contract performance time of 187 calendar days to allow for various delay reasons as outlined.

Attached to plaintiff’s May 28 letter was a thirty-one-item breakdown of the additional work claim and an explanation of how the amount of the extended overhead claim was computed. None of the above three claims was certified in accordance with 41 U.S.C. § 605(c)(1) (1982).

On September 4, 1986, the CO denied plaintiff’s claims in a letter defendant maintains was not a “final decision” pursuant to the CDA. Materials before the court indicate that defendant originally denied the claims because it anticipated receiving claims from contractors on other projects supposedly caused by plaintiff’s delay in performing the contract and it intended to offset amounts found due the Government from plaintiff against amounts found due plaintiff from the Government. On September 8, 1986, plaintiff responded to the CO’s letter of September 4, 1986, taking issue with the contents of said letter and requesting reconsideration of the determinations reached by the CO.

Responding to plaintiff’s request of September 8, 1986, the parties met informally on October 21, 1986, ostensibly to consider further plaintiff’s claims. Plaintiff alleges in its briefs that defendant stated in that meeting “the matter would be reviewed further, after which a further written communication could be expected.” To date, the record before the court indicates that defendant has not communicated with plaintiff in writing nor called a “promised,” informal administrative conference to examine further plaintiff’s disputed claims. Conversely, the record also reveals that, to date, plaintiff has failed to submit certified claims to the CO.

[162]*162On June 26, 1987, plaintiff filed a six-count complaint in this court seeking “declaratory relief” and monetary damages of $634,429.98.1 Plaintiff in its complaint seeks the following:

Count I. A declaratory judgment directing defendant to pay plaintiff for the work plaintiff states it already has performed on the contract, and rejecting defendant’s reasons for withholding the payments.
Count II. A money judgment of $297,-226.12, plus interest dating from February 21, 1985, which plaintiff alleges is the difference between the payment of $3,659,622.12, the amount it already has received from the Coast Guard and the “adjusted contract price” of $3,956,-848.24. Plaintiff claims that it is entitled to the difference owed because it “substantially completed” the Governors Island project within the specified time, barring excusable delays—some of which plaintiff maintains were caused by defendant—that extended the contract’s completion date.
Count III. An equitable adjustment of $50,000, plus interest dating from May 28, 1986, which plaintiff avers represents the amount the CO wrongfully withheld from plaintiff’s contract price. Plaintiff alleges that the deficiency was caused by using a misleading wage-rate schedule.
Count IV. An equitable adjustment of $27,366, caused by costs of performance increases plaintiff incurred as a result of site conditions that it maintains differed materially from those recorded in the contract drawings.
Count V. A favorable adjustment of $140,251.95 to cover extra or additional work and costs resulting from “changes, constructive changes and defective specifications” plaintiff states were precipitated by the CO’s actions.
Count VI. Costs of performance increases, which plaintiff states are owing due to extended overhead costs amounting to $119,585.91, plus interest from May 28, 1986.

Counts I and II were the same as the “balance due claim” sent to the CO on May 28, 1986. Counts III, IV and V were included in the “additional work claim” sent to the CO on May 28, 1986. Count VI is the same as the “extended overhead claim” sent to the CO on May 28, 1986.

Discussion

Defendant maintains that Count I should be dismissed because plaintiff seeks a declaratory judgment, a remedy the Claims Court is without jurisdiction to grant. The remaining Counts, defendant asserts, exceed the $50,000 statutory limit set by the CDA and, therefore, must be certified before the court can properly entertain those claims.

Defendant states, quite correctly, that both the CDA and the contract’s language “unequivocally” require a contractor to certify any claim over $50,000. See Schlosser v. United States, 705 F.2d 1336, 1339 (Fed.Cir.1983).

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Bluebook (online)
35 Cont. Cas. Fed. 75,709, 18 Cl. Ct. 159, 1989 U.S. Claims LEXIS 180, 1989 WL 103815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/placeway-construction-corp-v-united-states-cc-1989.