P.R. Burke Corp. v. United States

47 Fed. Cl. 340, 2000 U.S. Claims LEXIS 159, 2000 WL 1171979
CourtUnited States Court of Federal Claims
DecidedAugust 16, 2000
DocketNo. 96-232C, 96-445C
StatusPublished
Cited by6 cases

This text of 47 Fed. Cl. 340 (P.R. Burke Corp. 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
P.R. Burke Corp. v. United States, 47 Fed. Cl. 340, 2000 U.S. Claims LEXIS 159, 2000 WL 1171979 (uscfc 2000).

Opinion

OPINION

BUSH, Judge.

This consolidated matter is before the court on the United States’ motion for partial summary judgment, and involves two contracts for the repair and improvement of Sewage Treatment Plants Two and Three at the Marine Corps Base at Camp Pendleton, California. Prior to the commencement of work, the parties failed to agree on the proper sequence of work to perform the demolition and improvements to Sewage Treatment Plant Two. The parties’ stalemate resulted in a significant delay to the commencement of actual performance. This delay at the start of the project forced P.R. Burke Corporation (“Burke”) to accelerate its performance to meet the contract-mandated completion date and thereby incur additional costs.

Burke asserts that it is entitled to recover its additional costs because the Government [342]*342caused the initial delay by unreasonably denying Burke’s proposed sequence of work and failing to furnish proper direction to Burke. The Government moves for partial summary judgment on this claim, contending that the Government’s rejection of Burke’s proposed sequence of work was proper under the terms of the contract. According to the Government, Burke should bear sole responsibility for the costs that resulted from the delay since Burke’s unreasonable interpretation led to the parties’ impasse. Because the subject of the motion for partial summary judgment is the interpretation of contract language and whether ambiguity existed in the contract — questions of law — the court’s determination of the Government’s motion is appropriate. The court concludes that Burke’s interpretation is unpersuasive, and even assuming that Burke’s interpretation was acceptable, Burke failed to inquire into a patent ambiguity. Therefore, the court grants the Government’s motion for partial summary judgment.

BACKGROUND

I. Contract Provisions

On September 27, 1994, the United States, acting through the Department of the Navy, awarded Burke two fixed-price contracts for the repair and improvement of Sewage Treatment Plant Two (“STP 2”) and Sewage Treatment Plant Three (“STP 3”) at Camp Pendleton. Contract No. N68711-91-C-2175 (contract 2175 or contract) covered the work on STP 2, and obligated Burke to complete its work on October 7, 1995 for a total price of $2,930,374. Contract 2175 required both the demolition of existing structures and the installation of new ones to improve the treatment capabilities of STP 2. The project description in contract 2175 sets forth the following requirements:

the furnishing of all labor, approved materials, and equipment required for the demolition of the existing chlorine contact tank, trickling filter, imhoff tank, and mechanical equipment within the existing primary sludge pump station; sludge bed rehabilitation work; new aerated grit chamber and grit washer/hopper; new sludge pumps in the existing sludge pump station; two new trickling filters (using existing cleaned rock media) with flow splitter box and pump station; new secondary sludge pump station; new secondary clarifier; new chlorine contact tank; new solids contact basin and appurtenances; new sludge bed recycle pumps in existing wet well; new operationsAaboratory building; and all the necessary appurtenances to make the facilities fully operational.

Def.’s App. at 14.

In performing its work, Burke was required to adhere to scheduling requirements set forth in paragraph 1.5 of section 01010 of the contract. The relevant portions of this section read:

b. The plant shall remain in operation during the entire construction period and the Contractor shall conduct his operations so as to cause the least possible interference with the normal operations of the activity.
c. The contractor shall be responsible for pumping out basins and pipelines of sewage or sludge so as to perform the work. This shall also include temporary pumping to maintain operation of the facility.

Def.’s App. at 17. The Index of Drawings included in the contract contains a Note which further specifies: “PLANT SHALL REMAIN OPERATIONAL AT ALL TIMES. CONTRACTOR TO SUBMIT CONSTRUCTION SCHEDULING AND BYPASS PLANS FOR CONTRACTING OFFICER’S APPROVAL.”1 Pursuant to these contract provisions, the Government retained the right to approve Burke’s schedule.

Contract 2175 also contains drawings and specifications. Drawing C-l provides an overhead drawing of the areas of STP 2 to be repaired. Pl.’s App. at 44. This drawing [343]*343indicates both the existing location of various structures and the planned location of the structures that Burke was to construct. In particular, this drawing depicts both the location of the existing trickling filter and the location of the two new trickling filters that Burke was to construct.2 The southern trickling filter appears largely in the same area as the existing trickling filter. In addition, portions of the trickling filter pump station and chlorine contact tank that Burke was required to construct appear in the same location as the existing trickling filter. Another drawing, Drawing D-3, specifies in its note 5 that “EXISTING TRICKLING FILTER MEDIA WILL BE REMOVED, SELECTED AND CLEANED (SEE TRICKLING FILTER SPECIFICATIONS) FOR USE IN THE NEW TRICKLING FILTERS. EXCESS MEDIA SHALL BE DISPOSED OF ACCORDING TO LOCAL REGULATIONS (SEE SPECS.)” Pl.’s App. at 42. Specification 11365-2.1.5.3 governs the type of trickling filter media used in the new trickling filters and states in part: “[c]rushed stone/slag from the existing STP-2 trickling filter shall be utilized to the greatest extent possible.” Def.’s Supp.App. at 5.

II. Summary of Facts

After award, yet prior to commencing its work, representatives from Burke met with the Navy on October 24, 1994 to discuss the intended sequencing of Burke’s work. On October 28, 1994, Burke submitted its demolition plan to the Navy. This plan’s scope states that the “[sequencing of operations is to work on the [sic] all the demolition concurrently. As excavation is done and the existing piping is removed, new piping will be installed.” Def.’s App. at 49. As part of its plan, Burke also submitted a Contractor’s Request for Station Utility Service Interruption, requesting that the Government interrupt the water and sewage services to STP 2 for the duration of the planned contract work. The effect of this plan would have been to shut down the existing trickling filter. According to Patrick R. Burke, the President and owner of P.R. Burke Corporation, Burke requested the effective shutdown of STP 2 with the realization that the Government would reject it, yet with the hope that the Government would respond with written direction detailing a project schedule that was consistent with the plans and specifications.

As Burke expected, the Contracting Officer, Jeffrey Allen, in a letter dated November 10, 1994, rejected Burke’s intended schedule on the basis that Burke’s plan to demolish existing structures concurrently and prior to constructing new operable structures would fail to maintain the continuous operation of STP 2. The Contracting Officer provided a suggested sequence of events, and requested that Burke submit a new sequence of work. The Government’s suggested sequence provided for demolition of the imhoff tanks as well as for construction of the northern trickling filter and its placement on-line prior to demolition of the existing trickling filter.

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Bluebook (online)
47 Fed. Cl. 340, 2000 U.S. Claims LEXIS 159, 2000 WL 1171979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pr-burke-corp-v-united-states-uscfc-2000.