Sun Cal, Inc. v. United States

36 Cont. Cas. Fed. 75,896, 21 Cl. Ct. 31, 1990 U.S. Claims LEXIS 262, 1990 WL 94817
CourtUnited States Court of Claims
DecidedJuly 10, 1990
DocketNo. 558-85C
StatusPublished
Cited by18 cases

This text of 36 Cont. Cas. Fed. 75,896 (Sun Cal, 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
Sun Cal, Inc. v. United States, 36 Cont. Cas. Fed. 75,896, 21 Cl. Ct. 31, 1990 U.S. Claims LEXIS 262, 1990 WL 94817 (cc 1990).

Opinion

OPINION

ANDEWELT, Judge.

This government contract action involves a lease and construction contract (No. GSA-9B-82445) originally between the United States General Services Administration (GSA) and C-D Investment Co. (C-D). The contract covers an office building (LAX 7) at 5720 West 98th Street, Los Angeles, California. On October 25, 1984, GSA terminated the contract for default. Plaintiffs, Sun Cal, Inc. (Sun Cal), d/b/a Sun Properties, Inc., and Sun Cal Investments No. 9, Ltd. (SCI 9), which had acquired C-D’s interests in LAX 7, disputed the termination. On March 1, 1985, plaintiffs filed a certified claim with the contracting officer seeking $12,098,800 in lost income under the lease and $339,547.98 in construction-related damages. In a May 1, 1985, final decision, the contracting officer denied plaintiffs’ claim in its entirety. Plaintiffs filed the instant suit pursuant to the Contract Disputes Act, 41 U.S.C. § 601, et seq. (CDA).

Pursuant to the parties’ request, on March 11, 1987, Judge Seto ordered that trial take place in distinct phases. After the case was transferred to this judge, the parties continued to support the process [33]*33outlined in Judge Seto’s order. The first trial phase, which has been completed, focused on whether defendant had properly established a new construction completion date prior to terminating the contract for default. In its pretrial brief, defendant challenged for the first time this court’s jurisdiction. It contended that this action should be dismissed because an assignment occurred in violation of 41 U.S.C. § 15 and 31 U.S.C. § 3727 (hereafter the Anti-Assignment Acts). In its post-trial brief, defendant added two additional jurisdictional challenges. It contended that plaintiffs had never filed a properly certified claim with the contracting officer and that, in any event, plaintiffs lacked privity of contract with the United States.

This decision initially will address the jurisdictional issues. After concluding that this court possesses jurisdiction, the court will discuss the merits of the action.

I.

A prerequisite to this court’s subject matter jurisdiction over a contract claim under the CDA is the contractor’s submission to the contracting officer of a properly certified claim. Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426, 1428 (Fed.Cir.1989). Defendant contends that the claim submitted herein was jurisdictionally defective in a number of ways.

First, defendant contends that the claim was not certified by a qualified person. Section 605(c)(1) of the CDA states the following requirements for a claim over $50,000:

For claims of more than $50,000, the contractor shall certify that the claim is made in good faith, that the supporting data are accurate and complete to the best of his knowledge and belief, and that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable.

While the CDA does not define which individuals may certify a claim for a contractor, the Federal Acquisition Regulations (FAR) do. FAR 33.207(c)(2) provides:

If the contractor is not an individual, the certification shall be executed by—
(i) A senior company official in charge at the contractor’s plant or location involved; or
(ii) An officer or general partner of the contractor having overall responsibility for the conduct of the contractor’s affairs.

48 C.F.R. § 33.207(c)(2) (1988). In Ball, the Court of Appeals for the Federal Circuit concluded, in effect, that for contracts subject to FAR, this court has jurisdiction to review a contracting officer’s decision on a claim in excess of $50,000 only if the person certifying the claim qualifies under this regulation.

As explained below, plaintiff SCI 9, a Texas limited partnership, is properly considered the contractor herein. Plaintiff Sun Cal is the general partner of SCI 9. Under Texas law, “[a] limited partnership acts only through its general partner.” Tomlin v. Ceres Corp., 507 F.2d 642, 648 (5th Cir.1975). Hence, Sun Cal is the appropriate entity to act for limited partnership SCI 9 in the submission of a claim under SCI 9’s contract. The claim presented herein was certified by Douglas J. Duffy, Vice President and Chief Financial Officer of Sun Cal. Both Duffy and the President of Sun Cal, Stanley R. Castleton, appeared as witnesses at trial and were subject to cross examination by defendant. Their testimony was supplemented by post-trial affidavits.

The record makes clear that Duffy’s involvement with the contract extended well beyond the typical financial concerns of a Chief Financial Officer. Castleton gave Duffy overall authority and responsibility for the affairs of SCI 9. Duffy not only was responsible for financing the lease improvements but also had full authority and responsibility for the completion of the tenant improvements required under the lease, including negotiating changes and amendments to the lease such as changes in the construction schedule. The evidence viewed in its entirety indicates that Duffy was the Sun Cal official responsible for completion of the contract and that he qual[34]*34ified under both provisions of 48 C.F.R. § 33.207(c)(2). First, while he was not located permanently at the lease site, Duffy spent sufficient time there to qualify as “[a] senior company official in charge at the ... location involved.” Second, in any event, he qualified as “[a]n officer or general partner of the contractor having overall responsibility for the conduct of the contractor’s \i.e., SCI-9’s] affairs.”

Defendant contends that this second conclusion, that Duffy had “overall responsibility for the conduct of the contractor’s affairs,” is inconsistent with the bylaws of Sun Cal. Article V, 117 of the bylaws provides that the president, among other duties, “shall have general and active management of the business and affairs of the corporation.” Article V, II8 defines the duties of the vice president as follows:

8. Vice President. The Vice President, unless otherwise determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and have the authority and exercise the powers of the President. He shall perform such other duties and have such other authority and powers as the Board of Directors may from time to time prescribe or as the President may from time to time delegate.

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Bluebook (online)
36 Cont. Cas. Fed. 75,896, 21 Cl. Ct. 31, 1990 U.S. Claims LEXIS 262, 1990 WL 94817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sun-cal-inc-v-united-states-cc-1990.