Sperry Corp. v. United States

33 Cont. Cas. Fed. 74,234, 9 Cl. Ct. 488, 1986 U.S. Claims LEXIS 908
CourtUnited States Court of Claims
DecidedFebruary 5, 1986
DocketNo. 116-84C
StatusPublished
Cited by4 cases

This text of 33 Cont. Cas. Fed. 74,234 (Sperry Corp. 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
Sperry Corp. v. United States, 33 Cont. Cas. Fed. 74,234, 9 Cl. Ct. 488, 1986 U.S. Claims LEXIS 908 (cc 1986).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge:

This action is before the court on cross-motions for summary judgment. At issue is a decision by the Armed Services Board of Contract Appeals (ASBCA or the Board) brought under the Wunderlich Act, 41 U.S.C. §§ 321 and 322 (1982), which denied the contractor’s claim, plaintiff here, for equitable adjustment for alleged constructive changes in the government’s application of certain test procedures and decisions having to do with the purchase of two additional option items. This court will cite facts as necessary to support its conclusions but not all of the facts as found by the Board which are artfully set out in its [489]*489decision, Sperry Rand Corp., 83-2 BCA ¶ 16,841. On the basis of the administrative record, the parties’ briefing and oral argument, the court concludes that as a matter of law the Board’s decision is erroneous.

FACTS

This case involves negotiated fixed-price incentive contract No. F19628-74-C-0098 executed on January 25, 1974 by plaintiff Sperry and defendant the United States, acting through the United States Air Force which required plaintiff to design, fabricate, test and deliver one LORAN-D Ground Chain (Chain 1), an advanced state-of-the-art aid to navigation systems.1 The contract called for a significant amount of testing by plaintiff, lasting throughout the course of the contract, plus a significant amount of paperwork analysis and review, with “hands-on” effort by Air Force personnel to verify that the equipment offered met the contractual requirements and to learn to operate the equipment.2 The tests were designed by plaintiff and approved by defendant who participated in or observed most, if not all, of the tests.

The contract also contained option provisions permitting defendant to purchase up to three additional ground chains, at set prices if purchased within a time frame set out in the contract. Defendant gave notice on July 14, 1978, that it wished to exercise its option for chains 2 and 3. Plaintiff responded by stating that by the terms of the contract defendant had 120 days from the date of acceptance of Chain 1 within which to exercise its option and that in plaintiff’s opinion the 120-day option period had passed.3 Because of defendant’s need for the chains plaintiff agreed to supply chains 2 and 3 under protest and seek an equitable adjustment at a later date to cover their increased costs and time of performance. Plaintiff subsequently delivered chains 2 and 3 to defendant as well as a claim for equitable adjustment. Defendant does not agree with plaintiff that the 120-day option period had expired prior to its ordering of Chains 2 and 3 because, according to defendant, Chain 1 was not accepted until March 20, 1978, within the 120-day option period. The contracting officer denied plaintiff’s claim on that basis and the ASBCA upheld the decision of the contracting officer. Plaintiff thereupon filed an appeal with this court pursuant to the Wunderlich Act, supra.

The Board found that the contract gave defendant the authority to exercise the options at the pre-arranged price, for Chains 2 and 3 at any time during performance of the contract but no later than 120 days after final acceptance of Chain 1 and that Chain 1 was accepted on March 20, 1978. The option was exercised on July 14, 1978, within the 120-day option period. From this issue confusion abounds. The following contractual terms and conditions bear upon the issue and are very possibly the chief causes of the mischief:

From the Schedule
SECTION E—SUPPLIES/SERVICES & PRICES
1. The Contractor shall design, fabricate, test and deliver the equipment, data, and services below in accordance with the documents set forth in Section F:
0001 LORAN Ground Chain, Tactical, Transportable, 1 each (Basic with Technical Alternate 2 Configuration)
* * * * * *
[490]*490SECTION I—INSPECTION AND ACCEPTANCE4
Items
0001 Inspection at origin. Final inspection and acceptance upon successful completion of DT & E Field Test at destination.
SECTION F—DESCRIPTION/SPECIFICATIONS
Through Section F of the Schedule the following language was added to Task 1 of the SOW (Statement of Work).
Location of DT & E. Field testing of the first chain is to be accomplished in S.E.U.S. (Southeastern United States) such that the location of the monitor and primary service area would be the Eglin AFB, FL area. The three transmitter sites would have to be located in S.E.U.S. such that they provide 400 mile base legs, with the open side of the TRIAD facing the Gulf of Mexico. Test sites to be selected for the DT & E testing in S.E. section of the U.S. shall be on Government-owned property.
Refurbishment and Restoration After DT & E. Upon successful completion of the DT & E field test (sic), the contractor shall restore the sites to the condition they were in prior to the test. Also, the contractor shall refurbish and restore, including replacement if necessary, all elements of the chain to a deliverable condition including any material and fixtures and other aspects which may have been damaged in disassembling the chain.
Design Deficiencies. During or subsequent to DT & E the contractor shall correct any design deficiencies.

From the General Provisions

TITLE AND RISK OF LOSS (1968 JUN)

(a) Unless this contract specifically provides for earlier passage of title, title to supplies covered by this contract shall pass to the Government upon formal acceptance, regardless of when or where the Government takes physical possession.

* * * * sfc Hfi

MATERIAL INSPECTION AND RECEIVING REPORT (1969 DEC)5

At the time of each delivery of supplies or services under this contract, the Contractor shall prepare and furnish to the Government a Material Inspection and Receiving Report in the manner and to the extent required by ASPR Appendix I, “Material Inspection and Receiving Report.”

From the Special (or Other) Provisions

5. ORDER OF PRECEDENCE.

In the event of an inconsistency in this contract, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following descending order: 1) Schedule (excluding Statement of Work, the Specifications, and Contract Data Requirements List); 2) General Provisions; 3) the other provisions of the contract whether incorporated by reference or otherwise; 4) Statement of Work; 5) Contract Data Requirements List; 6) the Specifications ...; 7) The Contractor’s Technical Proposal as described in Section F.

From the Statement of Work

5.0 Delivery

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Related

Sperry Corporation v. The United States
845 F.2d 965 (Federal Circuit, 1988)
Brutoco Engineering & Construction, Inc. v. United States
34 Cont. Cas. Fed. 75,249 (Court of Claims, 1987)
Gevyn Construction Corp. v. United States
33 Cont. Cas. Fed. 74,851 (Court of Claims, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
33 Cont. Cas. Fed. 74,234, 9 Cl. Ct. 488, 1986 U.S. Claims LEXIS 908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sperry-corp-v-united-states-cc-1986.