United International Investigative Services v. United States

40 Cont. Cas. Fed. 76,767, 33 Fed. Cl. 363, 1995 U.S. Claims LEXIS 61, 1995 WL 142372
CourtUnited States Court of Federal Claims
DecidedApril 3, 1995
DocketNo. 407-89C
StatusPublished
Cited by5 cases

This text of 40 Cont. Cas. Fed. 76,767 (United International Investigative Services v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United International Investigative Services v. United States, 40 Cont. Cas. Fed. 76,767, 33 Fed. Cl. 363, 1995 U.S. Claims LEXIS 61, 1995 WL 142372 (uscfc 1995).

Opinion

OPINION AND ORDER

FUTEY, Judge.

This government contract case is before the court after a trial on the merits. Plaintiff contracted with defendant to supply security services for an Air Force base. Plaintiff argues that it incurred additional expenses due to changes defendant imposed on the contract. Defendant, however, argues that notwithstanding the fact that plaintiff executed two contract modifications, each constituting a complete accord and satisfaction of plaintiffs claims for further contract adjustments, it did not make any changes to the terms of the contract.

Facts

Because the court issued two detailed opinions reciting the factual basis of this case, only the critical facts will be set forth in this opinion. On August 16, 1985, defendant, the United States Department of the Air Force, issued an invitation for sealed bids on a contract to provide security services at New Boston Air Force Tracking Station, Amherst, New Hampshire. Plaintiff, United International Investigative Services, Inc. (United), submitted a response to the solicitation. Although performance was to begin on October 1, 1985, and run until September 30, 1986, plaintiff was not awarded the contract (No. F19650-86-C00003) until December 18, 1985. Consequently, the term of performance was amended to run from January 1, 1986, until October 1, 1986, and provided defendant an option to renew for fiscal years 1987, 1988, and 1989.

The solicitation was issued under the Service Contract Act (SCA), 41 U.S.C. § 351-58 (1988), and incorporated a Department of Labor (DOL) wage determination establishing minimum hourly wage rates and fringe benefits for various categories of service employees. See, 29 C.F.R. § 4.3. The contract also contained a Performance Work Statement (PWS), which described in detail the services to be performed under the contract and established minimum qualifications for personnel under the contract.

The DOL wage determination included in this solicitation divided employees into two categories: Guard I (unarmed guard) with a minimum wage of $4.99, and Guard II (armed guard) with a minimum wage of $6.43 per hour. Plaintiff implemented the “Guard II” determination since the contract called for armed guard services. On January 1, 1986, a new wage determination established the hourly wage for “Guard II” at $6.69 per hour, an increase of $0.26 per hour. The new wage determination issued by DOL was incorporated as part of the contract by Modification P00002, dated January 29, 1986, and was issued pursuant to the Price Adjustment (multi-year and option contract) provision of [366]*366the contract No. DAR 7-1905(b). Modification P00002 stipulated that the price change would be made pursuant to the Price Adjustment Clause (PAC) of the contract, and would not include compensation for general and administrative costs (G & A), overhead, and profit. Because the effective date of Modification P00002 was January 1, 1986, plaintiff was required to pay employees the higher wages from the commencement of the contract. In May, 1986, the Air Force issued Modification P00004, which provided compensation for the $0.26 per hour minimum wage increase.

A. Count I-Modification P00004

After executing Modification P00004, plaintiff received approximately $25,000 accounting for the increase in wages from $6.43 to $6.69 per hour for security officers. Plaintiff was reimbursed a $0.26 per hour increase only for those positions which plaintiff was paying less than $6.69 per hour, and, as stipulated in Modification P00002, was not compensated for lost G & A, overhead, and profit. Accordingly, defendant maintains that the modification, executed by both parties, properly reimbursed plaintiff and is an effective accord and satisfaction.

Plaintiff, however, argues that the new wage determination should have been included with the solicitation before the contract was awarded on December 18, 1985. Because the wage increase became effective at the beginning of the contract, instead of the beginning of the option year, plaintiff maintains that it is entitled to an equitable adjustment for all hours of the contract price, as well as overhead and profit, under the changes provision of the contract.

At trial, Mr. Guidice, President of United, testified that when he signed Modification P00004 and the attached release,1 he did not “truthfully” believe that this settled all claims.2 Instead, he contends that the agreement was entered into as a result of duress. The government, however, offered convincing evidence that the modification was a complete accord and satisfaction of the issue. Furthermore, the court is persuaded that plaintiff knowingly and without any influence or threat fully released defendant of all future claims associated with Modification P00004.

In consideration of the modification agreed to herein as complete equitable adjustments for the Contractor’s wage increase proposal for adjustment, resulting from wage determination number 78-246 (Rev-8) dated August 21, 1985, for New Hampshire (statewide), the Contractor hereby releases the government from any and all liability under this contract for further equitable adjustments attributable to such facts and circumstances giving rise to the proposal for adjustment.

An accord is reached when one party agrees to supply or perform and the other party agrees to accept, in settlement or satisfaction of an existing claim, something other than what was actually due. Chesapeake & Potomac Tel. Co. of Virginia v. United States, 654 F.2d 711, 716, 228 Ct.Cl. 101 (1981). Satisfaction is.the actual execution and/or performance of the agreement. Id. at 711.

Several elements are necessary in order to effectively execute an accord and satisfaction. There must be proper subject matter, competent parties, meeting of the minds, and consideration. Mil-Spec Contractors, Inc. v. United States, 835 F.2d 865, 867 (Fed.Cir.1987); Robinson Contracting Co., Inc. v. United States, 16 Cl.Ct. 676, 680 (1989). The absence of any of these elements results in a failure of the defense. Westerhold v. United States, 28 Fed.Cl. 172, 175 (1993).

Based on the testimony of both defendant’s and plaintiffs witnesses, the court finds that the parties did indeed negotiate and came to a “meeting of minds” with respect to this modification. The government considered plaintiffs position, but did not agree. Mr. Guidice signed the modification, thoroughly aware that it was intended to compensate him in full for the new wage determination. That is not to say, of course, that Mr. Guidice was pleased with the final dollar amount he received. Nevertheless, if he was determined to seek further compen[367]*367sation at another time, he should have taken some action to reserve his rights.

In general, when a parties’ settlement results in a contract modification, reservations of a right or claim for damage must be manifest and explicit. Cannon Const. Co. v. United States, 319 F.2d 173, 162 Ct.Cl.

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Bluebook (online)
40 Cont. Cas. Fed. 76,767, 33 Fed. Cl. 363, 1995 U.S. Claims LEXIS 61, 1995 WL 142372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-international-investigative-services-v-united-states-uscfc-1995.