Robert Irsay Co. v. United States Postal Service

36 Cont. Cas. Fed. 75,946, 21 Cl. Ct. 502, 1990 U.S. Claims LEXIS 377, 1990 WL 145425
CourtUnited States Court of Claims
DecidedOctober 4, 1990
DocketNo. 90-103C
StatusPublished
Cited by2 cases

This text of 36 Cont. Cas. Fed. 75,946 (Robert Irsay Co. v. United States Postal Service) 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
Robert Irsay Co. v. United States Postal Service, 36 Cont. Cas. Fed. 75,946, 21 Cl. Ct. 502, 1990 U.S. Claims LEXIS 377, 1990 WL 145425 (cc 1990).

Opinion

OPINION

HORN, Judge.

This case arises under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1988). Plaintiff, The Robert Irsay Company, seeks a price adjustment to a contract entered into with the United States Postal Service. Plaintiff alleges that the Postal Service wrongfully withheld payment of $23,085.23, to which it was entitled.

Defendant filed a Motion to Dismiss, pursuant to Rule 12(b)(1) of the Rules of the United States Claims Court (RUSCC), alleging lack of jurisdiction and contending that the plaintiff had failed to file a claim within the meaning of the Contract Disputes Act. Based on a review of the submissions of the parties, the oral argument held on September 13, 1990, and a review of the relevant facts and legal precedent, the defendant’s Motion to Dismiss is, hereby, GRANTED.

BACKGROUND

On January 29, 1986, plaintiff entered into a contract with the Postal Service to replace exhaust fans at the Chicago Main Post Office (Contract No. 169958-86-V-0008). On April 30,1986, Irsay advised the contract manager of the unforeseen presence of lead lining in some of the exhaust fan ductwork and indicated that:

This situation, not contemplated at the time of contracting, has and will continue to have an adverse effect on our performance of this part of our contract work.
If we are forced, because of this lead coating and lead lining situation, to resort to dismantling these fans using wrenches, chisels and sawcuttings, we anticipated, [sic] that the cost of performing this work will be severely impacted as well as extending the time required to accomplish this work.
At the present time, we are trying to determine, what must be done with respect to this problem of getting the work done while protecting the health and welfare of our (and your) personnel. With this in mind, and to insure that our work crews are not subjected to health hazards as a result of airborne lead and other metal fumes we have brought in Environmental Consultants (see attached letter) to conduct text on this work environment.
In the meantime, until we have the results of these tests, and some clear direction in the manner in which we could proceed, we have discontinued the use of cutting torches for this work, and are proceeding with the work using alternate methods.
Accordingly, by this letter, you are advised, that this unknown condition is having an adverse effect on our cost of performing this work, and the time for its performance and when these additional costs are known, we will submit our proposal for these additional costs.

The contract was subsequently modified on November 25, 1986 to provide for the disposal and replacement of existing duct work and other related equipment. Despite the earlier communication on April 30, 1986, which advised the government of the presence of the lead lining, no specific mention of the problem with the lead lining was included in a subsequent November 25, 1986 contract Amendment-Modification, which read as follows:

Description of Amendment/Modification Remove and dispose of existing/furnish and install new ductwork, exhaust hoods, equipment roof curbs, etc., as per Contractor’s proposal dated October 8, 1986. Pursuant to the above, the contract price is increased by $127,300.00 from $558,-269.00 to $685,569.00 and the contract completion date is extended by 135 calendar days from October 27,1986 to March 10, 1987.
The Contractor hereby agrees that this consitutes [sic] complete and final settlement for all present claims and a waiver of all further claims against the U.S. Postal Service incidental to the above changes.

[504]*504The modification is explicit in that it was intended to constitute complete and final settlement for all present claims and a waiver of further claims against the Postal Service incidental to the changes described in the modification.

The additional costs, which the plaintiff now attributes to the lead lining, were not reported to the Postal Service until three letters were submitted to the contract manager, Mr. Wm. Lawler, not to the contracting officer, Mr. Dennis L. Bryan, on April 4, 1988, on April 6, 1988, and on March 2, 1989.

The April 4, 1988 letter was sent to Mr. W. Lawler (the contract manager), and reported labor costs of $18,128.00:

Gentlemen:
We are submitting this letter, covering the problem we incurred in the removel [sic] of the existing exhaust fans, due to the unexpected lead lining that was inside of the equipment.
Due to this condition, we were forced to do basically double the man hours in the removel [sic] of this equipment. We submit our additional labor costs of the lead lining and its removel [sic] for your consideration and change order issue.
— Area System Removal Est.Hrs. Act.Hrs. Added Cost
Pent #2 TR-1 4/16/87 30 85 1707.00
Pent #4 TR-2 10/20/86 36 64 956.00
Pent # 3 TR-3 8/8/86 38 80 1435.00
# 12 N.E. TR-4A,B 1/20/87 40 110 2392.00
#12 N.W. TR-5A,B 6/20/86 45 90 1537.00
Pent #2 TR-6A,B 7/10/87 36 96 2050.00
# 12 S.W. TR-7A,B 11/10/86 48 120 2460.00
# 12 S.W. TR-8A,B 6/18/86 50 142 3144.00
323 787 $15,681.00
Additional Supervision 40 hrs. 1,447.00
Lead removel [sic] from site 1,000.00
Total $18,128.00
If any further data or information is required, so as to conclude this additional cost, please do not hesitate to contact us.

The April 6, 1988 letter, which was also sent to the attention of Mr. Wm. Lawler (the contract manager), reported costs of $4,957.23:

Gentlemen:
With reference to our letter of April 30, 1986, we submit this letter requesting our added costs for the equipment and supplies to correct the problem that prevailed at the subject site. Attached please find the survey and report we obtained covering the condition. The recommendations and corrective measures outlined by the C-Tek Company covering industrial hygiene were pursued and followed.
Our costs for this equipment and materials is attached as follows:
Breakdown
C-Tek Survey Cost......................................$ 717.00
Air Pumps — 3M Company.............................$2,286.28
[505]*505Masks, Face Pieces--------------------------------------$ 399.00
$3,402.67
Material and Equipment Mark-up — 21%---------$ 714.00
$4,117.23
Labor Costs — Mr. Paulsen with C-Tek — 10 hrs @ $48.00............................................$ 480.00

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36 Cont. Cas. Fed. 75,946, 21 Cl. Ct. 502, 1990 U.S. Claims LEXIS 377, 1990 WL 145425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-irsay-co-v-united-states-postal-service-cc-1990.