Triax Co. v. United States

35 Cont. Cas. Fed. 75,697, 17 Cl. Ct. 653, 1989 U.S. Claims LEXIS 145, 1989 WL 81650
CourtUnited States Court of Claims
DecidedJuly 21, 1989
DocketNo. 626-85C
StatusPublished
Cited by5 cases

This text of 35 Cont. Cas. Fed. 75,697 (Triax Co. 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
Triax Co. v. United States, 35 Cont. Cas. Fed. 75,697, 17 Cl. Ct. 653, 1989 U.S. Claims LEXIS 145, 1989 WL 81650 (cc 1989).

Opinion

ORDER

NAPIER, Judge.

On August 5, 1982, the Naval Facilities Engineering Command (hereinafter referred to as “Navy”) awarded a firm-fixed-price housing renovation contract to the Triax Company (hereinafter referred to as “Triax”). Contract No. N62467-80-C-0099 was designated as one for small business concerns, such as Triax, and called for the renovation of 486 military housing units in 111 buildings located at the Naval Air Station in Millington, Tennessee.

The firm-fixed-price of the contract at the time of award was $4,688,400. Triax’s bid was the overall lowest of 15 bids, and amounted to 58 percent of the Navy’s estimate for the job. The three lowest bids differed by less than 4.5 percent. Triax specialized in housing renovation projects and had successfully performed them for the Army, Navy and Air Force in the past.

Approximately 2 years before award of the contract, on June 23, 1980, a design contract was entered into between the Navy and the architectural firm Walk Jones & Frances Mah, Inc. (hereinafter referred to as “Walk Jones”). Under this contract Walk Jones was responsible for designing and preparing plans and specifications for the repairs and renovations to the 486 housing units in the subject contract (also referred to as “Wherry Housing Contract”). Accordingly, Walk Jones conducted a walk-through of the housing units to determine the necessary repairs.

A list of repairs was prepared for each individual unit. At the time of the survey, the units were occupied. Necessary repairs were categorized as typical work and atypical work. Typical work was defined as repairs that would be necessary for each unit, i.e., recurring repairs. Atypical repairs were identified as those which were not necessarily repetitive, but often unique for an individual unit. Upon completion of its survey, Walk Jones submitted its estimate for the Wherry Housing Contract repairs in the amount of $13,732,000. The firm determined that this is what it would cost the Navy under plaintiff’s contract to prepare the units for acceptable minimum standards of habitability.

A subsequent review conference between Walk Jones and the Navy disclosed that the scope of work that the Navy could afford to include on the Wherry Housing contract would be limited by budget constraints. Consequently, the Navy determined that the scope of work would have to be reduced. At the review conference Navy personnel also informed Walk Jones that their repair survey did not include some items needing repair. Rather than require Walk Jones to conduct another survey to address these deficiencies, the Navy decided that its personnel would inspect each individual unit before construction began and include additional repairs under the contract pursuant to the “Changes” clause.

The Navy had contracted earlier with the Mitchell Construction Company (hereinafter referred to as “Mitchell”) on a similar housing renovation project in Memphis, the Johnson & Conway contract. During the design stage of the Wherry Housing Contract, Navy personnel discussed with Mr. Mitchell the effectiveness of the system that the parties had used to add work items onto the basic Johnson & Conway contract. Conversations with Mitchell indicated that [655]*655the contractor had experienced difficulties in scheduling and performing the added work items in the manner that they were added to the contract. Because of its prior experience with the Navy’s system of directing changes, Mitchell advised the Navy that such a system would create hardships for a contractor. Specifically, Mitchell explained that if the Navy’s prior system of invoking changes was used on the forthcoming Wherry Housing contract, there would be attendant problems.

Approximately 8 months before the solicitation was released for plaintiff’s contract, Navy personnel again reviewed the design work performed by Walk Jones. Upon completing his review, Ken Fulmar, the Navy’s project manager under the contract at issue, requested that a Title II inspector be brought on board upon contract execution to estimate unit-prices for the anticipated flood of changes which were to be implemented later by change order.

Plaintiff did not include estimates in its bid for possible changes to the basic contract. Two of Triax’s employees, Roger Durst, Project Manager, and Lyle Goodwin, Executive Vice President, conducted a pre-site inspection at the project site before submitting Triax’s bid. Triax personnel, however, did not arrange for a formal site inspection with Navy personnel.

At the preconstruction conference, which took place 2 weeks after award of the contract and was attended by representatives of both Triax and the Navy, Fulmar informed Triax that there would be some changes to the contract, particularly atypical work changes. Fulmar did not quantify the anticipated changes.

The Navy introduced the Form A and Form B change order system at the outset of contract performance. At that time, Fulmar represented that the Form A and Form B system had worked smoothly on a previous contract, referring to the Johnson and Conway contract. Triax was to be given a list of Form A work items the day before work was to begin on a given unit. Work items added through Form B were to be initiated during actual construction work. Forms B were filled out in order to add those work items missed on the Form A pre-inspection. Unlike Form A work items, there was no pre-inspection for Form B jobs. At the time, Triax accepted use of the Forms A and Forms B as a way to add changes to the basic contract.

The Form A pre-inspections, which allowed the Navy to ascertain necessary Form A changes, were open for Triax personnel to attend. On occasion Triax personnel would work together with Navy personnel to record items on Forms A. Triax personnel requested receipt of Forms A a week or two in advance to allow Triax to schedule the work. According to the testimony of Hershel McConnell, Title II Inspector on the project, who reported to Ken Fulmar, Triax was not notified of Form A changes earlier due to his own personal reasons.

During contract performance, Triax workers discovered Form B work and notified the Government on a form proposed by the Navy, which had been used on the Mitchell contract. Approximately 6 months into the contract, this procedure was changed at Triax’s request to indicate that the Navy addressed the Form to Triax. In either case, not until the Navy authorized the work was it to be performed by Triax.

Roger Durst of Triax was originally assigned as project manager on the contract. Triax intended, however, for James Vallett to replace Durst as project manager once Vallett completed another ongoing project.

On November 1, 1982, physical demolition of the first set of units began. At the time the first increment of houses was given to Triax, it also received more than 1,000 additive Form A work items to complete in these units. On November 4,1982, Durst notified the Navy that the additive work items were having an adverse impact on the project.

Throughout the period of performance, Triax experienced difficulties with hired laborers, such as inefficient, inexperienced crew, a high rate of attrition, and labor shortages. A thorough review of the record, however, indicates that Triax’s difficulties in this area are customary and [656]*656typical in the construction industry. Triax hired and paid its workers in accordance with the Fair Labor Standards Act and the then-existing Davis-Bacon wage rates.

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Cite This Page — Counsel Stack

Bluebook (online)
35 Cont. Cas. Fed. 75,697, 17 Cl. Ct. 653, 1989 U.S. Claims LEXIS 145, 1989 WL 81650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triax-co-v-united-states-cc-1989.