Titan Pacific Construction Corp. v. United States

35 Cont. Cas. Fed. 75,693, 17 Cl. Ct. 630, 1989 U.S. Claims LEXIS 136, 1989 WL 78828
CourtUnited States Court of Claims
DecidedJuly 18, 1989
DocketNo. 747-87C
StatusPublished
Cited by7 cases

This text of 35 Cont. Cas. Fed. 75,693 (Titan Pacific Construction 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
Titan Pacific Construction Corp. v. United States, 35 Cont. Cas. Fed. 75,693, 17 Cl. Ct. 630, 1989 U.S. Claims LEXIS 136, 1989 WL 78828 (cc 1989).

Opinion

ON CROSS MOTIONS FOR SUMMARY JUDGMENT

OPINION

HARKINS, Senior Judge:

Titan Pacific Construction Corporation, in a complaint filed December 7, 1987, seeks review of a decision of the Armed Services Board of Contract Appeals (ASBCA or Board) on appeals under a Navy contract awarded by the Naval Facilities Engineering Command, OICC Trident.1 Plaintiff invokes the Claims Court Tucker Act jurisdiction and Wunderlich Act standards.2 The contract, awarded June 7, 1977, is not subject to the Contract Disputes Act of 1978.3 Review in the Claims Court of a decision of a contract appeals board is an appellate anomaly that results from enactment of the Contract Disputes Act of 1978 and the creation of the Claims Court in the Federal Courts Improvement Act of 1982. The standards and procedures applicable to this appellate function are those developed in the former Court of Claims. These procedures provide for the transfer to the court of the administrative record, and review of that record under the standards established by the Wunderlich Act and the Supreme Court in a trilogy of decisions. The Claims Court may not take new evidence or redetermine the facts; the issues are formed in motions for summary judgment.4

Plaintiff’s contract was for the relocation of ordinance facilities at the Naval Torpedo Station (now Naval Undersea Warfare Station), Indian Island Annex, Keyport, Washington. The contract price was $7,928,200. The work included the construction of several new buildings and a 0.7 million gallon reservoir with an access road, alterations and additions to existing structures, installation of a utility system, and relocations, improvements and extensions of approximately 9 miles of roads. Earth work for the project consisted of clearing, grubbing, and stripping of approximately 120 acres of dense forest, approximately 150,000 cubic yards of excavation, and approximately 100,000 cubic yards of fill.

The project was divided into three distinct phases, each with separate completion dates and different per day amounts for liquidated damages. Phase I was to be completed within 90 calendar days, Phase II within 390 calendar days, and Phase III within 600 calendar days, of the notice of award. The notice of award was June 11, 1977, and the completion date for Phase III initially was February 12, 1979. The sequence of work in Phase III was in stages 1 and 2. Stage 1, was earthwork and road[633]*633work relative to six designated roads; stage 2 was all other Phase III work.

The contract was on standard forms and the general provisions included Standard Form 23-A clauses for Changes (1968 Feb), Differing Site Conditions (1968 Feb), Disputes (1964 Jun), Suspension of Work (1968 Feb), and Termination for Default — Damages for Delay — Time Extensions (1969 Aug). For monitoring and control purposes, the Critical Path Method (CPM) was specified.

The Navy, during contract administration, increased the contract price to $8,302,-351. The completion date for Phase I was extended from July 20,1977, to October 20, 1977, The Phase I work was accepted on March 27, 1978 (158 days late), and liquidated damages of $3,950 were assessed. The completion date for Phase II was extended from July 17,1978, to July 21,1978. The work was accepted on October 30, 1978, (101 days late), and $8,787 in liquidated damages were assessed. The Phase III work was extended from February 12, 1979, to May 20, 1979. The work was accepted as substantially complete on February 7,1980 (263 days late), and liquidated damages of $214,871 were assessed.

In its appeals to the ASBCA, plaintiff sought a total of 899 days for excusable delays, equitable adjustments in the amount of $6,850,874.32 and return of $232,510 withheld as liquidated damages. The appeal to the ASBCA was limited to entitlement issues. The administrative record submitted to the court includes transcripts of a 21-day hearing held during the latter part of 1984, and was contained in 21 boxes of materials and exhibits shipped directly from archival storage.

The ASBCA opinion, dated January 28, 1987, comprises 73 pages; it is a comprehensive and detailed analysis of the facts and law applicable to the claims plaintiff submitted to the Board. The opinion includes 151 findings of fact. The Board determined that as to Phase I, there were no excusable delays in the 120 days claimed, and that the $3,950 in liquidated damages was properly assessed. As to Phase II, the Board denied claims for time extensions amounting to 516 days, found that the Navy had contributed to the 101 calendar days delay to the revised completion date, that fault of the plaintiff and its subcontractors precluded compensation for delay damages, and set aside the $8,787 assessed in liquidated damages.

On the Phase III claims, the Board extended the completion date to September 29, 1979, allowed 121 calendar days delay for Phase III earthwork and 51 calendar days delay for completion of Phase III buildings. The assessment of liquidated damages for Phase III work for the period May 20, 1979, to September 29, 1979, was set aside. Plaintiff’s claims in this court are concerned only with review of the Board’s decision relative to Phase III work.

Wunderlich Act Review Standards

The motion papers reflect confusion as to the standards applicable and the scope authorized in a review of the administrative record before the Board on claims under the Disputes clause. Plaintiffs complaint states that relief is sought “exclusively” under 41 U.S.C. § 321 and plaintiff’s motion states its appeal on questions of fact is limited to the “substantial evidence” standard. Plaintiff, however, contends that some of the Board’s findings present mixed questions of fact and law, and that the court is free to make an independent review of the Board’s factual and legal conclusions. Defendant argues that plaintiff’s “mixed fact and law” issues are predicated on assumptions of fact rejected by the Board, and that plaintiff seeks to retry the Board’s findings.

The Wunderlich Act, codified in two sections, applies to contract provisions relating to the finality of Board decisions on disputes arising under the contract on issues of fact and questions of law. Administrative determinations of disputes of fact are conclusive and binding in a judicial review unless the decision is “fraudulent or capricious or arbitrary or so grossly erroneous as to imply bad faith, or is not sup[634]*634ported by substantial evidence.”5 A Board’s decision on a question of law, however, is not final and is not binding in subsequent judicial review.6

The term “substantial evidence” as applied to factual issues is a term of art that has been given content in numerous decisions. The standard on which an administrative record is to be judged goes to the reasonableness of what the agency did on the basis of the evidence before it.7 In Koppers, the Court of Claims collected the precedents and established guidelines for application of the “substantial evidence” requirement.8 The guidelines applicable to, and limitations on, the judicial review of the Board’s decision may be summarized to include the following:

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Bluebook (online)
35 Cont. Cas. Fed. 75,693, 17 Cl. Ct. 630, 1989 U.S. Claims LEXIS 136, 1989 WL 78828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/titan-pacific-construction-corp-v-united-states-cc-1989.