P.R. Burke Corp. v. United States

58 Fed. Cl. 549, 2003 U.S. Claims LEXIS 340, 2003 WL 22838766
CourtUnited States Court of Federal Claims
DecidedNovember 25, 2003
DocketNos. 96-232C, 96-445C
StatusPublished
Cited by6 cases

This text of 58 Fed. Cl. 549 (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, 58 Fed. Cl. 549, 2003 U.S. Claims LEXIS 340, 2003 WL 22838766 (uscfc 2003).

Opinion

OPINION AND ORDER

LETTOW, Judge.

These consolidated cases concern contracts for improvements to sewage treatment facilities on the Marine Corps Base at Camp Pendleton, California. Before the Court is a motion by the government for partial summary judgment, pursuant to Rule 56 of the Rules of the Court of Federal Claims (“RCFC”), respecting four of ten counts presented in No. 96-445C.1 The plaintiff, P.R. Burke Corporation (“Burke”), alleges that it performed additional work and incurred further expenses when the Department of the Navy (“Navy”) modified the construction to be performed under the contract and concomitantly refused to grant time extensions for the modifications. The pending motion represents the second such motion for partial summary judgment in No. 96-445C; the Court previously granted summary judgment to the government on count one, P.R Burke Corp. v. United States, 47 Fed.Cl. 340 (2000) (“Burke F), and the Court of Appeals for the Federal Circuit affirmed. P.R. Burke Corp. v. United States, 277 F.3d 1346 (Fed.Cir. 2002) (“Burke IF). The pending motion has been fully briefed, and a hearing was conducted on November 10, 2003.

Background

On September 27, 1994, Burke and the Navy entered into Contract Number N68711-91-C-2175 (“Contract”) under which Burke was to repair, demolish, or construct various facilities at Sewage Treatment Plant Number Two (“Plant 2”) at Camp Pendelton. Compl. ¶¶ 4-5; Motion at 1-2. Burke’s work under the Contract was to be completed within 360 days after notice to proceed was given. Contr. § 00720, ¶ 1.1(c); App. at 1. The basic facts and a description of the general contractual framework underlying this case were set forth in the opinions issued by this Court and by the Federal Circuit in Burke I and Burke II. Those opinions particularly addressed Burke’s claim for compensation arising from delays associated with the Navy’s rejection of Burke’s initially proposed demolition and construction plan (“Plan 1”), specifically the delays from October 24 through October 31, 1994, and November 10 through December 27, 1994. See Burke II, 277 F.3d at 1359.

Under the Contract, Burke was required to submit a demolition and construction plan, including a time schedule for the progress of the project, before commencing its work. See id. at 1351. Burke submitted Plan 1 early in October 1994, but this plan was rejected because it entailed shutdown and demolition of a key portion of Plant 2 prior to construction of a replacement component, notwithstanding a contractual requirement that “[t]he plant shall remain in operation during the entire construction period.” Contr. § 01010, ¶ 1.5(b); App. at 13.2 The [551]*551Navy’s rejection of Plan 1 delayed the start of work on the project until Burke submitted an acceptable demolition plan. Burke II held that the Navy’s rejection of Plan 1 was reasonable, placing sole responsibility on Burke for any expenses related to the ensuing delay due to its failure to abide by the requirements of the Contract. 277 F.3d at 1356-61. Accordingly, for purposes of the present motion, Burke may neither support nor sustain any of its claims of increased costs based on the delays caused by the Navy’s rejection of Plan 1.

The currently pending motion by the government focuses on developments following the Navy’s rejection of Plan 1, ie., events that occurred during the last days of 1994 and the early part of 1995. When the Navy rejected Plan 1, it called for Burke to submit a new plan and provided a suggested sequence for Burke’s progress that would entail constructing one of the new trickling filters before demolishing the sole trickling filter that was an existing part of Plant 2. On December 29, 1994, Burke submitted a second demolition and construction plan (“Plan 2”). App. at 47. Plan 2 contained a new time schedule and proposed sequence for completion of the project as well as a new price schedule, forecasting that the project would be completed on July 6, 1996, rather than October 7, 1995, as originally contemplated by the Contract. Id. A week later, on January 5, 1995, Burke sent a letter to the Navy indicating that Burke “want[ed] to start work right away to clear and grub.” App. at 201. However, Burke’s letter also indicated that, due to the weather, it could not actually start at that time and that Burke was anticipating that the Navy would issue design changes involving the clearing and grubbing work. Id. Burke apparently did not begin work on-site at that time.

Shortly thereafter, three relevant events occurred on January 9, 1995. First, Burke met with the Navy to discuss the project, and the Navy indicated it had identified problems with the time schedule set out in Plan 2. See App. at 48. Later, by letter dated January 19, 1995, the Navy formally accepted Plan 2 but rejected the associated time schedule. Id.

Second, the Navy issued a Suspension of Work Notice (“Suspension”) pursuant to Federal Acquisition Regulation (“FAR”) [48 C.F.R.] § 52.212-12,3 instructing Burke not to commence work clearing and grading the area immediately north of the existing trickling filter. App. at 202. By its terms, the Suspension was to be in place for thirty days. Id. However, by a subsequent letter dated January 18, the Navy lifted the Suspension. App. at 212. Burke received this notice on January 23. Id.

Third, also on January 9, 1995, the Navy issued Modification P00001 (“Modification 1”), which changed several aspects of the work Burke was to carry out. App. at 204. Modification 1 described the changes to be made in the construction to be performed as follows:

a. Move Solids Contact Basin directly adjacent to Secondary Sludge Pump Station to provide truck access to the sludge beds.
b. Move Trickling Filter Pump Station away from existing Trickling Filter in accordance with the attached drawing.
c. Eliminate excavation, backfill, and fence removal as well as add shoring to new Trickling Filters.
d. Move power pole away from existing Imhoff tank and place away from critical clearing and grubbing.

Id. Modification 1 was accompanied by drawings reflecting the changes in the project design. Id. at 209-211. The modification also included a “[¡justification” for each of the changes:

a. Required to move solids contact basin to provide truck access to the sludge beds.
b. It is necessary to move trickling filter pump station away from existing filter to keep the existing trickling filter on fine during the construction of the trickling filter pump station.
[552]*552c. It is necessary to eliminate indicated excavation and fence removal to protect several trees and minimize the environmental impact of this construction.
d. Moving the power pole is required to avoid interference during construction and eliminate a potential safety hazard.

Id. at 204.

The second and third changes in Modification 1 (items b. and c.) are significant to this case.

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Cite This Page — Counsel Stack

Bluebook (online)
58 Fed. Cl. 549, 2003 U.S. Claims LEXIS 340, 2003 WL 22838766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pr-burke-corp-v-united-states-uscfc-2003.