Turner Construction Co. v. United States

33 Cont. Cas. Fed. 74,117, 9 Cl. Ct. 214, 1985 U.S. Claims LEXIS 874
CourtUnited States Court of Claims
DecidedDecember 5, 1985
DocketNo. 562-83C
StatusPublished
Cited by8 cases

This text of 33 Cont. Cas. Fed. 74,117 (Turner Construction 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
Turner Construction Co. v. United States, 33 Cont. Cas. Fed. 74,117, 9 Cl. Ct. 214, 1985 U.S. Claims LEXIS 874 (cc 1985).

Opinion

OPINION

MEROW, Judge:

Introduction

This matter comes before the court on defendant’s motion for summary judgment and plaintiff’s opposition thereto. At issue is whether plaintiff’s claims are time barred.

Facts

On November 6, 1972 plaintiff entered into a $20,873,000 contract with the General Services Administration (GSA) for the construction of an Environmental Control Laboratory in Cincinnati, Ohio.

On March 30, 1978, following the completion of the work required under the contract, plaintiff submitted a detailed statement of claims totalling over $2,000,000 to the GSA contracting officer. Subsequent to the effective date of the Contract Disputes Act, March 1, 1979, plaintiff elected to proceed with its then pending claims under this Act. 41 U.S.C. § 601 note. After several exchanges of correspondence which did not produce a decision(s) by the contracting officer, on December 23, 1982 plaintiff invoked the provisions of 41 U.S.C. § 605(c)(4) and petitioned the General Services Board of Contract Appeals (GSBCA) for an order requiring a contracting officer’s decision(s) on the pending claims by no later than January 31, 1983. The GSBCA ordered a decision(s) on plaintiff’s claims no later than February 15, 1983.

[215]*215On January 31,1983 the GSA contracting officer issued a decision(s) substantially denying plaintiffs contract claims. Plaintiff filed its direct action complaint in this matter, 41 U.S.C. § 609(a)(1), on September 8, 1983.

Discussion

Defendant moves for summary judgment, asserting that plaintiffs claims are time barred. Initially, defendant’s motion relied upon the general six year limitations provision of 28 U.S.C. § 2501, but subsequent briefing has focused on the 12 months limitation provision set forth in the Contract Disputes Act, 41 U.S.C. § 609(a) (1982).1

The Contract Disputes Act contains several provisions with respect to the time within which contracting officer decisions are to be rendered. On a certified claim over $50,000, within sixty days of its submission a contracting officer shall issue a decision or notify the contractor of the time within which a decision will be issued. 41 U.S.C. § 605(c)(2). On claims under $50,-000, decisions shall be issued within sixty days of receipt by the contracting officer of a written request from the contractor that a decision be rendered within that period. 41 U.S.C. § 605(c)(1). The Act requires that decisions by a contracting officer on submitted claims be issued within a reasonable time. 41 U.S.C. § 605(c)(3). The Contract Disputes Act further provides that “[a]ny failure by the contracting officer to issue a decision on a contract claim within the period required will be deemed to be a decision by the contracting officer denying the claim and will authorize the commencement of the appeal or suit on the claim as otherwise provided in this chapter.” 41 U.S.C. § 605(c)(5).

On the facts of the present case it is undisputed that plaintiff did not file suit within twelve months of the date on which it was first authorized to do so under 41 U.S.C. § 605(c)(5). Plaintiff could have initiated a direct access suit in this court on its claims in 1979 by reason of the failure of the contracting officer to issue a decision^) within the applicable time limits of the Contract Disputes Act. Had this suit been so instituted, on the basis of a deemed decision by the contracting officer, the suit could then, at the option of the court, have been stayed to obtain an actual decision by the contracting officer. 41 U.S.C. § 605(c)(5). While plaintiff elected to take board action to obtain an actual decisions) by the contracting officer, pursuant to 41 U.S.C. § 605(c)(4), this was permissive administrative action. An actual contracting officer decision cannot be a mandatory prerequisite for a suit expressly authorized under 41 U.S.C. § 605(c)(5) in the absence of such a decision. See Crown Coat Front Co. v. United States, 386 U.S. 503, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); Nager Electric Co. v. United States, 177 Ct.Cl. 234, 368 F.2d 847 (1966).

Defendant argues that, as plaintiff could have commenced suit in 1979 by reason of the deemed decision which occurs when the contracting officer fails to act, the 12 month limitations period of 41 U.S.C. § 609(a)(3) commenced to run at that time. If this limitations provision covers 41 U.S.C. § 605(c)(5) “deemed” decisions, then plaintiff’s submitted claims became time barred somewhat before suit was commenced in this court.

Two decisions of this court have ruled that the cited 12 month limitations provision, 41 U.S.C. § 609(a)(3), does not apply to a 41 U.S.C. § 605(c)(5) “deemed” decision. See The Vemo Co. v. United States, 9 Cl.Ct. 217 (1985); G & H Machinery Co. v. United States, 7 Cl.Ct. 199 (1985). In line with the result reached in these decisions, it is concluded that, under its express language, 41 U.S.C. § 609(a)(3) applies only to an actual decision issued by a contracting officer. This provision does not apply to a deemed decision which would au[216]*216thorize a direct access suit under 41 U.S.C. § 605(c)(5). Under 41 U.S.C. § 609(a)(3), time commences to run from “the date of the receipt by the contractor of the decision * * This 12 month limit provision contemplates that an actual “receipt” of an actual decision will occur. See Kasler/Continental Heller/Fruin Colnon v.

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Bluebook (online)
33 Cont. Cas. Fed. 74,117, 9 Cl. Ct. 214, 1985 U.S. Claims LEXIS 874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-construction-co-v-united-states-cc-1985.