Sanders-Midwest, Inc. v. United States

35 Cont. Cas. Fed. 75,548, 15 Cl. Ct. 345, 1988 U.S. Claims LEXIS 199, 1988 WL 87564
CourtUnited States Court of Claims
DecidedAugust 25, 1988
DocketNo. 764-85C
StatusPublished
Cited by9 cases

This text of 35 Cont. Cas. Fed. 75,548 (Sanders-Midwest, 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
Sanders-Midwest, Inc. v. United States, 35 Cont. Cas. Fed. 75,548, 15 Cl. Ct. 345, 1988 U.S. Claims LEXIS 199, 1988 WL 87564 (cc 1988).

Opinion

OPINION

MEROW, Judge:

Defendant has moved for summary judgment on two of three counts set forth in plaintiffs amended complaint and to dismiss the remaining count on jurisdictional grounds. Plaintiff opposes defendant’s motions. Defendant’s motions are granted for the reasons stated below.

Facts

On February 12, 1983, plaintiff entered into a contract with the United States Postal Service (USPS) to perform certain mechanical work required for the construction of a general mail and vehicle maintenance facility in Phoenix, Arizona. Plaintiff’s bid of $4,498,155 for the contract was the lowest of the 13 bids submitted in response to the invitation for bids. Plaintiff’s bid made no provision for state and local taxes. The government had originally estimated that the work would cost $6,549,900 to perform. However, the highest bid submitted for the work was only $5,880,000.

A pre-construction conference was held on February 16, 1983, after the contract was awarded to plaintiff. The parties agree that contract paragraph 29 (Federal, State and Local Taxes) was discussed at the conference. Subparagraph 29(a) provides: “Except as may be otherwise provided in this contract, the contract price includes all applicable Federal, state and local taxes and duties.” In response to a question by plaintiff, the parties both state that plaintiff was told that it was responsible for all applicable taxes.

More than a year and a half later, by letter dated October 26, 1984, plaintiff wrote the USPS that only recently had it come to plaintiff’s attention that its assumption that the project was exempt from state and local taxes may have been in error. In that letter, the plaintiff requested that, pursuant to subparagraph 29(e) of the contract, the government provide it with evidence establishing that the project it was working on was exempt from state and local taxation. Subparagraph 29(e) provides: “Unless there does not exist any reasonable basis to sustain an exemption, the Postal Service upon the request of the contractor shall, without further liability, furnish evidence appropriate to establish exemption from any Federal, State or local tax * *

By memorandum of November 5, 1984, the government responded that the issue of state tax exemption was covered under clause 29 of the General Provisions of the contract and that each contractor “by virtue of clause 29, paragraph (a) was to include all applicable federal, state and local taxes and duties in his contract price.” The memorandum also noted that, according to the “Arizona Privilege Sales Tax Bulletin — Contracting,” paragraph 3, “[cjontracts performed for the United States government are taxable in the same manner as contracts performed for individuals.” 1 The USPS stated it did not have [347]*347any evidence the project plaintiff was working on was exempt from state and local taxes and, in addition, the USPS noted that all of plaintiffs contract modifications had included the “applicable” taxes from which plaintiff was now stating it had assumed its project was exempt.

Subsequently, by letter of December 5, 1984, plaintiff informed the USPS that the contractor had been “audited by the State of Arizona for Sales Tax” on the project. Plaintiff requested either a Tax Exempt Certificate from the government or, in the alternative, an adjustment to the contract price for the amount of the taxes since those taxes were not included in its bid.

In support of this request, plaintiff cited to 111.02 of Section 01100 of the General Requirements of the contract, which states:

DIVISION I — GENERAL REQUIREMENTS

SECTION 01100 — MISCELLANEOUS REQUIREMENTS

1.02 STATUS OF U.S. POSTAL SERVICE: For the Contractor’s information the Postal Service is “... an independent establishment of the executive branch of the Government of the United States ...” (39 U.S.C. 201) and, as such, has the same status as other federal departments and agencies insofar as the applicability of federal, state and local taxes and local requirements for building permits are concerned.

By letter dated January 9, 1985, the contracting officer furnished documentation to plaintiff stating that plaintiff was the contractor of record on the contract, that plaintiff and its subcontractors were “agents” of the USPS for purposes of the project, and that the Postal Service should be treated for federal, state and local tax purposes in the same manner as other federal government agencies.

By letter dated January 2, 1985, plaintiff submitted a certified claim to the contracting officer for $107,355.28. The claim stated that plaintiff had been assessed sales tax on the contract in that amount for the period of April 1, 1983 to January 31, 1984. Plaintiff claimed that no amount of state sales tax had been included in its bid based upon the contractor’s assumption that work performed for the USPS was exempt from all state and local taxation. Plaintiff indicated it had relied on a number of contract provisions to support that assumption. The contracting officer issued his final decision denying the claim on February 22, 1985, concluding that the claim was without merit. The contracting officer relied on General Provisions 29 and 6 of the contract.2 Based on these provisions, the contracting officer concluded that the contractor was responsible “for determining which taxes will be applicable to its performance and including an appropriate amount in its bid and resulting contract price” and “for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof.” He continued that, “[a]ny failure by the contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the Postal Service.” With regard to paragraph 1.02, relied upon by plaintiff, the contracting officer stated that section “indicates that the Postal Service is entitled to any exemptions that would be available to other federal agencies. * * * [It] does not represent that your purchases for performance on the project would be exempt.”

Plaintiff submitted a second, supplemental certified claim to the contracting officer on August 21, 1985. Relying on the rea[348]*348soning set forth in its earlier claim, plaintiff sought an additional $35,454.17, which amount included the interest assessed by the state for untimely payment of sales tax, additional sales tax payments made subsequent to the filing of its earlier claim, and projected tax payments for the duration of the contract. The contracting officer issued his final decision denying this claim on October 22, 1985, based on grounds set forth in his earlier decision.

Plaintiff then timely filed its complaint in the Claims Court, requesting a judgment of $142,809.45 plus interest. Plaintiffs complaint and amended complaint contain three counts. Count 1 alleges that the invitation to bid and the contract misstated or otherwise failed to disclose the contractor’s obligation with respect to the payment of sales tax. Count 2 alleges that the government has been unjustly enriched because it has neither directly paid the sales tax to the state of Arizona nor indirectly paid the tax through the contract.

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Bluebook (online)
35 Cont. Cas. Fed. 75,548, 15 Cl. Ct. 345, 1988 U.S. Claims LEXIS 199, 1988 WL 87564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-midwest-inc-v-united-states-cc-1988.