Prestex, Inc. v. United States

31 Cont. Cas. Fed. 71,508, 3 Cl. Ct. 373, 1983 U.S. Claims LEXIS 1630
CourtUnited States Court of Claims
DecidedSeptember 15, 1983
DocketNo. 558-82C
StatusPublished
Cited by24 cases

This text of 31 Cont. Cas. Fed. 71,508 (Prestex, Inc. 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
Prestex, Inc. v. United States, 31 Cont. Cas. Fed. 71,508, 3 Cl. Ct. 373, 1983 U.S. Claims LEXIS 1630 (cc 1983).

Opinion

OPINION

LYDON, Judge:

This government contract case involves review, under the standards of the Wunder-lich Act, 41 U.S.C. §§ 321, 322 (1976), of a decision by the Armed Services Board of Contract Appeals (Board). The Board denied plaintiff’s claim for a refund of $199,-236.65, withheld by the government as liquidated damages for plaintiff’s late delivery of materials under a contract to provide textile fabrics. The matter comes before the court on motions for summary judgment filed by both parties.

Both plaintiff and defendant accept the Board’s findings of fact. Plaintiff, however, challenges certain legal conclusions which the Board drew from those facts. Plaintiff bases its challenge on three primary grounds. Plaintiff asserts that: (1) the government was bound by a preaward oral promise of the government procurement agent to extend the contract’s delivery schedule; (2) the government is equitably estopped from assessing liquidated damages because of plaintiff’s reliance on the procurement agent’s promise; and (3) the delay in delivery occurred without the fault of plaintiff, and therefore liquidated damages cannot be assessed either under the terms of the contract or under relevant case law precedents. It is well established that the findings of fact of the Board are final, if supported by substantial evidence; however, the Board’s legal conclusion can be re-examined by this court. Chemithon Corp. v. United States, 1 Cl.Ct. 747, 750 (1983). As indicated above, neither party contests the Board’s factual findings. Thus, the matters before the court basically involve legal questions.

After consideration of the briefs of the parties, and without oral argument, it is concluded that defendant’s motion for summary judgment should be granted.

I.

Plaintiff is an established textile converter specializing in government contract work and industrial fabrics. As a converter, plaintiff acts as a middleman between the government and producers of textile fabrics. Plaintiff contracts with various textile mills to have fabrics woven to customer specifications. After purchasing the unfinished (or “griege”) goods, plaintiff arranges for a finisher to finish and/or dye the material in accordance with the applicable specifications. When the textile fabrics have been woven and finished and/or dyed, plaintiff then supplies them to the government or an industrial customer.

On October 25, 1972, the Defense Personnel Support Center (DPSC) of the Defense Supply Agency (DSA), Philadelphia, Pennsylvania, issued a solicitation for bids to supply 1,953,000 yards of oxford cloth. Under the terms of the solicitation, the cloth was to be delivered in eight installments beginning in June 1973, and ending in January 1974. This delivery schedule was predicated upon the contract being awarded by December 19,1972. The solicitation provided that, if the contract award was delayed, each delivery date would be extended a number of days equal to the number by which the award was delayed. The solicitation also identified Miss Mary Lipovac (Li-povac) as the government procurement officer and the person to contact for information concerning the solicitation.

In response to the October 25th solicitation, plaintiff submitted a bid which al[375]*375lowed the government until December 20, 1972 to accept. One other bidder responded to this solicitation. The other bid was approximately $500,000 higher than plaintiff’s bid. In order to meet the delivery schedule set forth in the solicitation, plaintiff received commitments from certain textile mills for the supply of the type of unfinished fabric specified by the contract. The commitment of one of these mills was contingent upon plaintiff securing yam supplies for the weaving of the contract fabric. Plaintiff was able to secure commitments for yarn. In addition to its commitments from suppliers, plaintiff made arrangements with certain fabric finishers for the finishing of the contract fabric. The commitments from plaintiff’s yarn and fabric suppliers and its fabric finishers were valid until December 20, 1972.

On December 18,1972, Lipovac contacted plaintiff’s vice president, Paul Graham (Graham), and requested an extension relative to acceptance of plaintiff’s bid, until December 22, 1972. The extension was required in order to enable the DPSC to complete necessary paperwork with respect to Equal Employment Opportunity approvals. As a result, plaintiff’s president, Serge Richards (Richards), contacted the suppliers and finishers in order to request an extension of their commitments to plaintiff. Plaintiff initially encountered some difficulty in getting its fabric and yarn suppliers to extend their commitments because of the seller’s market in textiles which existed at that time. The seller’s market was created by heavy governmental buying to supply the troops in Vietnam and by heavy buying by private industry. Richards was ultimately successful in securing the necessary extensions and a telegram was sent to Lipo-vac extending plaintiff’s offer. Had the award been made on December 22, 1972, plaintiff would have been capable of meeting the contract delivery schedule assuming the commitments of the suppliers remained intact.

On December 21,1972, Lipovac again contacted Graham and requested a further extension to December 26, 1972. This second extension was sought in order to provide sufficient time to give advance notification of the proposed award to the state congressional delegation in accordance with DSA policy. Graham contacted Richards, who in turn contacted plaintiff’s fabric and yard suppliers to get an extension of their commitments.1 As a result of these contacts, plaintiff’s president learned that a further delay on the contract award would lead to delays in delivery from his mill suppliers. Specifically, one supplier indicated that an award delay would lead to delays in deliveries later in the schedule; a second stated that its initial deliveries would be delayed by more than three months; and a third had no responsible official available to give an extension.

After assessing the textile supply situation, Richards telephoned Lipovac and explained to her that an extension of plaintiff’s bid to December 26, 1972, would almost certainly result in supply problems, and therefore delivery delays under the anticipated contract delivery schedule were inevitable. Lipovac then promised Richards that, if he extended plaintiff’s bid to December 26, 1972, plaintiff would receive a post-award extension of the contract delivery schedule. Richards, therefore, extended plaintiff’s offer in reliance on Lipovac’s promise. Neither Graham nor Richards asked Lipovac if the delivery extension promise had been discussed with and approved by the contracting officer. Both Graham and Richards assumed it had been so discussed and approved. In fact, Lipovac had not discussed it with the contracting officer. Neither Graham nor Richards had discussed the matter with the contracting officer before agreeing to the extension. Plaintiff’s subsequent extension acceptance telegram made no mention of Lipovac’s promise.

[376]*376On December 26, 1972, plaintiff was awarded the contract for a bid of $3,925,-530. The contract contained several provisions which are relevant to the present appeal.2

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Bluebook (online)
31 Cont. Cas. Fed. 71,508, 3 Cl. Ct. 373, 1983 U.S. Claims LEXIS 1630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prestex-inc-v-united-states-cc-1983.