Record Steel & Construction, Inc. v. United States

62 Fed. Cl. 508, 2004 U.S. Claims LEXIS 275, 2004 WL 2364874
CourtUnited States Court of Federal Claims
DecidedOctober 19, 2004
DocketNo. 03-2274C
StatusPublished
Cited by22 cases

This text of 62 Fed. Cl. 508 (Record Steel & Construction, Inc. 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
Record Steel & Construction, Inc. v. United States, 62 Fed. Cl. 508, 2004 U.S. Claims LEXIS 275, 2004 WL 2364874 (uscfc 2004).

Opinion

OPINION AND ORDER

LETTOW, Judge.

This contract case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”) and for partial summary judgment pursuant to RCFC 56, along with plaintiffs cross-motion for partial summary judgment. Plaintiff, Record Steel and Construction, Inc. (“Record Steel”), is an Idaho corporation seeking to recover additional costs it allegedly incurred in connection with its performance of a design-build contract pursuant to which it designed and constructed a dormitory at Offutt Air Force Base in Bellevue, Nebraska. Record Steel brings this action pursuant to the Contract Disputes Act1 based on a claim for [510]*510equitable adjustment in an amount not less than $188,380. Record Steel avers that it was subject to a constructive change or incurred extra work due to a directive of the United States Army Corps of Engineers (“Corps of Engineers”) requiring over-excavation and placement of re-eompaeted fill to support the dormitory’s foundation. In addition to money damages, Record Steel seeks a declaratory judgment that a performance evaluation issued after completion of Record Steel’s work be corrected to reflect accurately Record Steel’s performance under that contract.

The crux of the parties’ dispute is whether the contract at issue required over-excavation. Record Steel interprets the contract to provide unambiguously that over-excavation was a design recommendation rather than a design requirement. In the alternative, Record Steel maintains that the contract was ambiguous respecting whether over-excavation was required, that the ambiguity was latent, and that it should therefore be construed against the government. By contrast, the government argues that the contract expressly and unambiguously required Record Steel to over-excavate the foundation. Additionally, the government contends that this court does not possess jurisdiction over claims for declaratory relief and that Record Steel’s claim seeking a corrected performance evaluation must therefore be dismissed. The parties have fully briefed their positions, and a hearing was held on August 30, 2004. For the reasons that follow, the government’s motion for summary judgment is denied, Record Steel’s cross-motion for partial summary judgment as to liability is granted in part and denied in part, and the government’s motion to dismiss is denied.

BACKGROUND2

On October 15, 1999, the Corps of Engineers issued a solicitation for a “Design/Build Multiple Award Task Order Contract (MA-TOC) for Construction Services Primarily on Air Force Bases in the states of Washington, Oregon, Idaho, Montana, Wyoming, Colorado, North Dakota, South Dakota, Nebraska, Minnesota, Kansas, Missouri, Iowa, and Wisconsin.” PFUF 1f 1; App. 1. In the following month, Record Steel submitted a proposal in response to that solicitation. PFUF 112; App. 2. On February 16, 2000, the government awarded Record Steel an indefinite-delivery, indefinite-quantity contract pursuant to the MATOC. PFUF HH 3-4; App. 2. Thereafter, on June 9, 2000, the Corps of Engineers awarded Task Order No. 1 under that contract to Record Steel, which task order involved the design and construction of a dormitory at Offutt Air Force Base at a basic award price of $8,799,428. PFUF HU 5-6; Compl. H 4.

The steps leading up to the award of Task Order No. 1 engendered the contractual language that divides the parties. A Request for Proposals (“RFP”) was issued that provides in Section 01005, “Structural Requirements,” subparagraph 1.7.1, “Design Parameters,” in pertinent part: “Parameters used for foundation design, including overexcavation and compaction requirements ... shall be in accordance with the Final Foundation Analysis report provided.” PFUF HH 8-10; App. 12. That report was attached to the RFP, where it is labeled “Foundation Analysis Report” (“Report”). PFUF H11; App. 15. In a section entitled “Subsurface Recommendations,” the Report states in part:

An analysis of undisturbed sample test data indicated that settlement governs the allowable bearing pressure of footings at this site. The settlement analysis predicted a footing movement greater than two inches with a nominal 2000 psf excess soil [511]*511load on in situ material. Due to the anticipated column loads for a multi-story building, it is believed that improving the site is more viable than reducing the bearing pressure to a very low value.... The recommended improvement program is outlined below.
(b) Four (4) feet of material should be excavated from below the bottom elevation of all building footings.
(c) Over excavation and replacement should extend a distance of at least four (4) feet beyond the outer edge of footings.

PFUF H12; App. 19-20. As the Report further explained, “[b]ased on consolidation testing, Standard Penetration Test results and experience with engineered fill, total settlement is not expected to exceed 1-inch if the over excavation and replacement program outlined above is followed. Differential settlement is not expected to exceed 0.5 inch.” PFUF U13; App. 21. Finally, the RFP specified that “[t]he criteria specified in this RFP are binding ... and in case of any conflict, after award, between the RFP criteria and Contractor’s submittals, the RFP criteria will govern unless there is a written and signed agreement between the Contracting Officer and the Contractor waiving a specific requirement.” PFUF 1117; App. 29.

In response to the RFP, Record Steel submitted its price proposal by letter dated January 14, 2000. PFUF 1119; App. 43. In that letter, Record Steel stated that it “understand[s] that in the case of any conflicts after contract award between the requirements stated in the RFP and our proposal, the RFP shall govern.” PFUF 1120; App. 43. However, in the same letter plaintiff also informed the Corps of Engineers:

We would like to note that the borings taken for this project do not cover the area on the northern site and intend to incorporate new borings into our design if awarded this project. We feel confident that over excavation for foundations will not be required. Should over excavation for the building foundations be required [Record Steel] will perform this work at no additional cost to the Government.

PFUF ¶ 21; App. 43. Subsequently, in response to the Request for Final Revised Proposals issued by the contracting officer, Record Steel submitted a revised proposal dated March 12, 2000, in which Record Steel repeated the two statements just quoted. PFUF ¶¶ 22-24; App. 44.

On June 9, 2000, the date on which Record Steel was awarded Task Order No. 1, the contracting officer held a pre-design meeting with Record Steel. PFUF ¶ 25; App. 70. Prior to that meeting, Record Steel had employed a geotechnical firm, Great Plains Testing Laboratories (“Great Plains”), which concluded that over-excavation would not be required as a matter of sound engineering design. PFUF ¶ 27; App. 54. At the predesign meeting, the parties discussed whether over-excavation would be necessary, and they agreed that Record Steel would again retain Great Plains to conduct a field investigation of the site and provide further information to both Record Steel and the Corps of Engineers demonstrating whether or not over-excavation would be necessary. PFUF 1127; App. 54.

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Cite This Page — Counsel Stack

Bluebook (online)
62 Fed. Cl. 508, 2004 U.S. Claims LEXIS 275, 2004 WL 2364874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/record-steel-construction-inc-v-united-states-uscfc-2004.