T.L. Roof & Associates Construction Co. v. United States

38 Cont. Cas. Fed. 76,534, 28 Fed. Cl. 572, 1993 U.S. Claims LEXIS 81, 1993 WL 238858
United States Court of Federal Claims·Decided July 1, 1993·No. No. 90-538C·Published·Cited by 12 cases

Opinion

OPINION

ANDEWELT, Judge.

In this government contract action filed pursuant to the Contract Disputes Act, 41 U.S.C. § 601 et seq. (CDA), plaintiff, T.L. Roof & Associates Construction Company (T.L. Roof), contracted with the United [574] States Army Corps of Engineers (the Corps) to construct a two-story Communications Equipment Facility (CEF) at Fort Huachuca, Arizona. Originally, the date for contract completion was April 5, 1989, but as a result of a series of delays and contract modifications, the project was not completed until October 1989. On March 3, 1989, plaintiff filed a claim with the contracting officer seeking recovery of plaintiff’s costs related to the delay in completing the contract work and to the purchase of material for the “raised-floor system” in the “tempest” area of the CEF. On April 6, 1990, plaintiff submitted a revised claim to the contracting officer. John B. Sneed, one of plaintiff’s two area vice presidents, signed and certified both claims. The contracting officer did not issue a final decision on the revised claim within the time periods set forth in 41 U.S.C. § 605(c), and thus, as authorized thereunder, plaintiff filed the instant action on June 15, 1990. In its complaint, plaintiff seeks an estimated $1.6 million plus interest to cover “delay and disruption damages” that resulted from alleged “acts and omissions” by defendant.

Plaintiff filed a motion for partial summary judgment and defendant responded with a motion to dismiss for lack of jurisdiction or, in the alternative, for partial summary judgment. After oral argument, the court ruled from the bench on certain issues and in a December 15, 1992, order, stated certain of the court’s conclusions. Herein, the court provides some amplification of its prior conclusions and resolves the remaining issues presented in the parties’ motions.1

I.

Under the CDA, this court lacks subject matter jurisdiction over a government contractor’s claim in excess of $50,-000 if the contractor failed to submit a properly certified claim to the contracting officer before seeking relief in this court. Ball, Ball & Brosamer, Inc. v. United States, 878 F.2d 1426, 1428 (Fed.Cir.1989).2 In its motion to dismiss, defendant contends that plaintiff did not submit a properly certified claim to the contracting officer because Sneed was not qualified to certify the claim under the controlling regulation, Federal Acquisition Regulation (FAR) 33.-207(c)(2), 48 C.F.R. § 33.207. FAR 33.-207(c)(2) provides, in pertinent part:

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.

Plaintiff contends that Sneed satisfies the requirements of FAR 33.207(c)(2)(i). Defendant acknowledges that Sneed was “[a] senior company official” with T.L. Roof, but argues that Sneed was not “in charge at the contractor’s plant or location involved.”

In United States v. Grumman Aerospace Corp., 927 F.2d 575 (Fed.Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 330, 116 L.Ed.2d 270 (1991), the Court of Appeals for the Federal Circuit interpreted FAR 33.207(c)(2)(i) as requiring a certifying [575] senior company official to satisfy two requirements. The “certifying senior company official [must] have ... primary responsibility for the execution of the contract” and the official must have “a physical presence at the location of the primary contract activity.” Id. at 580. This court concludes that Sneed satisfies both of these requirements.

First, the evidence submitted by the parties, including deposition testimony, establishes that Sneed had primary authority and responsibility within T.L. Roof for execution of the CEF contract. For example, Sneed had authority to execute subcontracts with no dollar limitation, submit and present claims to the contracting officer, and enter contract modifications. Lance Alley, the CEF project manager, did much of the day-to-day work at the construction site (i.e., negotiated (but did not sign) certain of the modification agreements and prepared initial drafts (but did not sign) the two claims submitted to the contracting officer). Alley, however, was not a senior company official, was supervised by Sneed, and needed Sneed’s authorization before taking various actions, including submitting a claim to the contracting officer. Sneed exercised his responsibility of managing the CEF contract by supervising Alley both at the job site and in frequent conversations over the telephone.3 Viewed in its entirety, the evidence submitted supports a conclusion that Sneed had primary responsibility for the execution of the contract.

Second, Sneed also had “a physical presence at the location of the primary contract activity.” Between July 1987 and October 1989, Sneed visited the contract site approximately 40-50 times for an estimated two to three hours each visit. Defendant contends that this amount of time is insufficient to constitute the required “physical presence.” There is, however, no requirement in FAR 33.207(c)(2)(i) that the senior official be permanently located at the contract site. Sun Cal. Inc. v. United States, 21 Cl.Ct. 31, 34 (1990). FAR 33.207(e)(2)(i) merely requires that the senior official be “in charge at the contractor’s plant or location involved.” Sneed’s physical presence at the contract site was well beyond de minimis, and he was physically at the contract site with sufficient frequency and regularity to be “in charge” at the site.

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T.L. Roof & Associates Construction Co. v. United States, 38 Cont. Cas. Fed. 76,534, 28 Fed. Cl. 572, 1993 U.S. Claims LEXIS 81, 1993 WL 238858 (uscfc 1993).

38 Cont. Cas. Fed. 76,534 (T.L. Roof & Associates Construction Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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