Spirit Leveling Contractors v. United States

36 Cont. Cas. Fed. 75,770, 19 Cl. Ct. 84, 1989 U.S. Claims LEXIS 279, 1989 WL 152573
CourtUnited States Court of Claims
DecidedDecember 15, 1989
DocketNo. 320-86C
StatusPublished
Cited by55 cases

This text of 36 Cont. Cas. Fed. 75,770 (Spirit Leveling Contractors 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
Spirit Leveling Contractors v. United States, 36 Cont. Cas. Fed. 75,770, 19 Cl. Ct. 84, 1989 U.S. Claims LEXIS 279, 1989 WL 152573 (cc 1989).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This action is before the court on cross motions for summary judgment. Plaintiff claimed additional costs associated with its performance in a contract with the Soil Conservation Service (SCS). The contract provided for sediment removal and dike restoration required for emergency watershed protection along Greene’s Wash in Pinal County, Arizona. Plaintiff sought recovery based on three different types of damage allegedly sustained by plaintiff: (1) increased costs for sediment removal in the amount of $28,200.18; (2) increased costs for dike restoration in the amount of $36,-320.18; (3) extension of twenty-nine calendar days in contract time and the remission of liquidated damages in the amount of $13,320.00 assessed against plaintiff for failure to finish the project in the allotted performance time. Plaintiff’s first claim for relief (First Claim) was founded upon what emerges as six separate causes of action raised in its complaint:

1. Defective estimates, plans and specifications caused differing site conditions and gross quantity variations.
2. Flooding, an Act of God, caused differing site conditions.
3. Increased sediment removal and dike restoration constituted a differing site condition under the contract.
4. Plaintiff’s reliance upon defendant’s estimates and alleged misrepresentations, which the contracting officer acknowledged in his award to plaintiff, created an estoppel effect on defendant from refusing plaintiff’s claims.
5. Defendant entered into an implied-in-fact contract with plaintiff in accepting plaintiff’s bid built upon cubic yard assessments. This implied contract intimated that plaintiff was only obligated for contract performance according to the approved unit price if the actual work did not exceed the estimated amount of work upon which plaintiff based its bid.
6. Defective plans, estimates and specifications, differing site conditions, change or constructive change in conditions and course of performance and conduct of defendant resulted in delays, disruption and additional costs for total earthmoving operations.

In plaintiff’s second claim for relief (Second Claim), plaintiff sought recovery under a total cost theory of recovery for a breach of contract, arising from huge expenditures due to defective specifications, differing site conditions, misrepresentations and delay and disruption damages. Plaintiff impugned such discrepancies to defendant, maintaining that due to the voluminous damages plaintiff incurred, it had become virtually impossible for plaintiff to calculate reparations owed to it by defendant.

Plaintiff’s third claim for relief (Third Claim) attributed plaintiff’s failure to complete the contract within the extended contract period to government misrepresentation of the quantity of work to be performed by plaintiff, as well as: 1) defective estimates; 2) defective plans and specifications; 3) differing site conditions; and 4) change or constructive change in contract performance due to defendant. Plaintiff sought an extension of the contract time and compensation in the form of liquidated damages.

Defendant opposed government liability with a cross-motion directed at all plaintiff’s allegations.

FACTS

As a result of severe flooding in Pinal County, Arizona, in October 1983, the [88]*88Greene’s Reservoir Control District (GRCD) applied to the SCS for assistance in repairing flood damage. Pursuant to Section 216 of the Emergency Flood Control Act of 1950, Public Law 81-516, and Section 403 of the Agriculture Credit Act of 1978, Public Law 95-334, the SCS reviewed the type and extent of damages and approved the GRCD request for assistance.

In December 1983, SCS personnel began to gather data to design and prepare a contract for the restoration of the damaged area. The crew took survey shots with a level and surveying rod on the approximate center line of Greene’s Wash at roughly 300 foot intervals. From these survey shots, the engineers established the design grade for the restoration project. The SCS conducted a further layout survey on February 7, 1984. This survey was taken at approximately 100 foot intervals along Green’s Wash for the purpose of setting the cut stakes at the lateral limits of the area to be excavated.

Mr. Arthur N. Luhtala, an SCS design engineer on the project, prepared the project’s plans as well as cubic yard estimates of the quantities of dike restoration and sediment removal. Mr. Luhtala estimated 146,460 cubic yards of sediment removal and 95,090 cubic yards of dike restoration based upon the December 1983 surveys. However, as was discussed at the site showing, the quantity of dike restoration was not to be calculated in cubic yards due to the exigent nature of the job. Furthermore, the Bid Schedule in the contract provided for payment for sediment removal and dike restoration on a linear foot basis. Construction Specifications 216-5 & 216-6.

Additionally, during the pre-bid conference it was indicated that certain dike restoration sites would not have to be totally removed and replaced but simply repaired. The plans did not specify, however, which sites would have to be entirely reconstructed. Therefore, Mr. Luhtala, in formulating his estimates on dike restoration, considered as a factor that certain dike restoration sites would only have to be repaired as opposed to totally removed and replaced. The decision of which sites would receive which treatment was to be a field determination defined during contract performance. However, plaintiff was not notified during prebid nor preconstruction meetings that such determinations would be revealed at a later date.

During contract performance, four modifications to the contract were issued. Modification # 1 was issued May 15, 1984 and permitted plaintiff to utilize additional borrow and disposal areas at no extra cost to defendant. Plaintiff signed and accepted this modification on May 24, 1984. On September 10, 1984, plaintiff also signed and accepted a second modification which added a new bid item entitled “obstruction removal” for a lump sum price of $637.12. Modification #3, issued on October 12, 1984, extended the completion date fourteen days due to weather-related delays. On November 6, 1984, modification # 4 further extended the completion date twenty-four calendar days due to similar weather-related problems.

On December 14, 1984 and on January 17, 1985, plaintiff submitted three certified claims to the contracting officer. Two of these claims were granted on May 22,1985. Plaintiff appealed the denial of its third certified claim to this Court. The contracting officer’s final decision on this claim had not allowed liquidated damages for certain alleged extra dike restoration and sediment removal. Plaintiff’s claim had articulated that discrepancies in conditions and variations had been the result of heavy rains and flooding.

In contrast to plaintiff’s certified claim, the crux of plaintiff’s pending motion for summary judgment focused upon the defendant’s plans, specifications and estimates, as opposed to weather conditions. Plaintiff asserted before this court blatant and wrongful misrepresentation by the SCS, as well as deliberate withholding of vital superior knowledge, negligence and breach of warranty on defendant’s part. Defendant argued that this court lacks proper jurisdiction to decide these claims, inter alia,

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Cite This Page — Counsel Stack

Bluebook (online)
36 Cont. Cas. Fed. 75,770, 19 Cl. Ct. 84, 1989 U.S. Claims LEXIS 279, 1989 WL 152573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spirit-leveling-contractors-v-united-states-cc-1989.