Ralph L. Jones Co. v. United States

33 Fed. Cl. 327, 1995 U.S. Claims LEXIS 85, 1995 WL 252274
CourtUnited States Court of Federal Claims
DecidedMay 1, 1995
DocketNo. 93-711 C
StatusPublished
Cited by13 cases

This text of 33 Fed. Cl. 327 (Ralph L. Jones Co. 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
Ralph L. Jones Co. v. United States, 33 Fed. Cl. 327, 1995 U.S. Claims LEXIS 85, 1995 WL 252274 (uscfc 1995).

Opinion

OPINION

HODGES, Judge.

Plaintiff seeks an equitable adjustment of $345,794.65 for extra work performed under a fixed-fee construction management agreement with the United States Department of Housing and Urban Development. Defendant argues that the scope of work related to the construction management agreement was not increased, and if it were, plaintiff cannot show additional costs incurred which would merit an adjustment. We find that the fixed fee should be increased by $30,965.

FACTS

HUD undertook an effort in early 1990 to provide better living conditions in four housing complexes in Tulsa, Oklahoma, that were in various states of disrepair. Ralph L. Jones Company (RLJ),1 a real estate firm that provides construction and management services, entered a temporary emergency contract with HUD in January to stabilize the complexes and to perform minor repairs. HUD decided in the months afterward to undertake a greater rehabilitation, effort and negotiated a cost-plus-percentage-of-cost contract with RLJ to meet these goals. It later realized this type of contract would be illegal. See 41 U.S.C. § 254. A cost-plus-fixed-fee contract was chosen as the vehicle for the project. The scope was roughly defined as “safe, decent, and sanitary.” HUD directed RLJ to renovate four apartment units representing the general spectrum of repairs to serve as a basis for the scope and cost of the renovation effort. The average cost of the repairs for each unit was $4200.

HUD issued a request for proposals for a full-service project management contract. Plaintiff responded with a bid on the contract, including cost and pricing data stating that the contractor would be “paid a renovation and construction management fee of $465.00 per unit based on a total of 720 units, or $334,800.” Plaintiff added:

Unit prices [are] based on an 11.07% average mark-up. Of this, the cost elements to be paid by [plaintiff] will be overhead of 7% for direct cost of salaries for management, supervision and cost control personnel, together with payroll burden, insurance, taxes, vehicle reimbursement for construction manager and profit of 4.07%.

HUD and RLJ agreed to a full-service management contract on June 15 consisting of a cost-reimbursement contract for the rehabilitation effort and a fixed fee for management of the apartments. The construction management fee was not included in the agreement.

In July, RLJ submitted invoices for payment of the construction management fee, but the payments were denied because there was no corresponding provision in the contract. The parties negotiated for the fee in the following weeks, and on August 24 they entered a modification to add the construction management fee. Defendant asserts that plaintiff had knowledge of site conditions and HUD intentions to increase the scope of the renovation effort at that time. Therefore, the fixed fee contemplated the extra work. Plaintiff argues that the modification simply corrected clerical errors and was based on the original scope of the contract.

HUD Project Manager Roy Gardner2 and other HUD officials assured Jones that RLJ would be compensated for any extra management costs. Jones attempted to have the fee increased in November 1991 because the renovation had more than doubled in cost. He suggested that the administrative supervision required had increased at the same rate and should be compensated proportionally. Con[331]*331traeting Officer Ken Beck asked for more specific information to justify the increase. In particular, the contractor was directed to “define in detail the cost incurred due to the changed conditions. A full cost analysis is required. Give actual performance dates, dates of delays and disruptions.”

Jones filed a claim with the Contracting Officer in December 1991. That claim included a breakdown of changes, their costs, and a value for the adjustment to the management fee.3 The adjustment was calculated as a percentage of the cost of the renovation changes equal to the percentage used in the initial cost proposal.

RLJ submitted additional cost information at HUD’s request in September 1992.4 It estimated the hours required for supervision and administration for each change because actual hours and costs were not available. Jones asserted that percentage of costs was the original basis for compensation and should continue to play some role in the equitable adjustment.

HUD’s Oklahoma City Office took control of the contract in the fall of 1992 and requested more information. It could not “find any specific documentation or records supporting [plaintiffs] claimed costs.” The new Contracting Officer, Ernest Worsham, issued a final decision denying the claim in December 1992. He determined that plaintiff had not notified HUD of changes to the contract until the claim was filed and that he could not confirm that any of the estimated costs were allowable or allocable to the contract. The CO denied the claim because there was no showing that changes to the renovation management contract had been made.

There is no doubt that the scope of the renovations was expanded during the term of the contract by HUD’s addition of certain improvements. Plaintiff has been reimbursed for all construction efforts and materials related to the renovations. Plaintiff claims that it should receive an additional $345,794 on its construction management fixed fee because of the greater management responsibilities caused by the increased rehabilitation effort. The management fee was based on a percentage of cost of the original scope of the rehabilitation. Plaintiff seeks a fee adjustment equal to that same percentage of the extra costs of the rehabilitation.

DISCUSSION

The ultimate goal of an equitable adjustment is to do equity. General Dynamics Corp. v. United States, 218 Ct.Cl. 40, 56, 585 F.2d 457 (1978). However, the government contractor seeking an equitable adjustment bears the burden of proving liability, causation, and resultant injury. Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 199, 351 F.2d 956 (1965); Electronic & Missile Facilities, Inc. v. United States, 189 Ct.Cl. 237, 253, 416 F.2d 1345 (1969). It must show that the increased costs arose from work which was materially different from that contemplated by the parties. Mojave Enterprises v. United States, 3 Cl.Ct. 353, 357 (1983); Miller Elevator Co., Inc. v. United States, 30 Fed.Cl. 662, 678 (1994).5 [332]*332The increased costs must be the direct and necessary result of the changes. Johns-Manville v. United States, 12 Cl.Ct. 1, 33 (1987) (citations omitted).

HUD was pleased with RLJ’s performance and interest in the humanitarian aspects of the contract, but plaintiffs quality of performance is not at issue. Our inquiry is whether the scope of the work on which the construction management fee was based changed and whether plaintiff can prove that those changes increased its management costs.

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Bluebook (online)
33 Fed. Cl. 327, 1995 U.S. Claims LEXIS 85, 1995 WL 252274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ralph-l-jones-co-v-united-states-uscfc-1995.