United States ex rel. Endicott Enterprises Inc. v. Star Brite Construction Co.

848 F. Supp. 1161, 1994 U.S. Dist. LEXIS 4240

• Court: District Court, D. Delaware
• Decided: April 5, 1994
• Docket: Civ. A. No. 92-626-JLL
• Status: Published

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

LATCHUM, Senior District Judge.

L INTRODUCTION

On October 28,1992, the plaintiff, Endicott Enterprises, Inc., Va Eneo (“Eneo”), brought this Miller Act, 40 U.S.C. §§ 270a-270d, action against defendants, Star Brite Construction Company, Inc. (“Star Brite”) and Employers’ Insurance of Wausau, A Mutual Company (“Wausau”), to recover amounts due for work it allegedly completed under its subcontract with Star Brite to perform the mechanical work of Star Brite’s prime contract with the United States Government to renovate three airplane hangers at the Dover Air Force Base, Dover, Delaware.

Eneo claims that it justifiably walked off the job because Star Brite repeatedly failed to make progress payments in accordance with the terms of its subcontract. It contends that it is entitled to damages for breach of contract.

Star Brite, conversely, contends that Eneo was behind schedule and had been fully paid when it walked off the job. In addition, it claims that even if Eneo had not been fully paid, it failed to give Star Brite adequate notice of its intention to do so pursuant to the subcontract. It counterclaims for damages it allegedly sustained when Eneo unjustifiably stopped work.

This Court held a nonjury trial from Monday, January 10, 1994 to Thursday, January 13,1994. After carefully considering the sufficiency and weight of the testimony adduced at trial, the demeanor of the witnesses who testified, the exhibits admitted into evidence, and the post-trial memoranda filed by the parties, the Court finds that Star Brite breached the subcontract by failing to pay Eneo adequate progress payments in accordance with the terms of the subcontract and denies Star Brite its counterclaim. The Court enters the following findings of fact and conclusions of law as required by the Federal Rules of Civil Procedure, Rule 52(a).

II. FINDINGS OF FACT

1. This Court finds that Mr. Endicott, Enco’s vice-president and chief witness at trial, was more credible than either Mr. Ly-nardakis or Mr. Smilios, Star Brite’s supervisor and president, respectively, and chief witnesses at trial.

2. In late September of 1991, the United States of America (“government”) and defendant Star Brite entered into three contracts whereby Star Brite agreed to perform alterations and renovations for buildings 779, 793, and 794 at the Dover Air Force Base, Dover, Delaware. (Docket Item [“D.I.”] 1, ¶¶2, 4, 6.) The government agreed to pay Star Brite $689,920.00 for Building 779, $617,-000.00 for Building 793, and $661,000.00 for Building 794. (Id.)

3. In early October of 1991 the defendant Star Brite, as principal, and defendant Wau-sau, as surety, executed a standard government form of payment bond to the government pursuant to the provisions of 40 U.S.C. § 270a. (Id., ¶¶ 3, 5, 7.) These bonds bound the defendants jointly and severally for $344,975.00 for Building 779, $308,500.00 for Building 793, and $330,500.00 for Building 794 if Star Brite failed to make all payments to all persons supplying labor and material for the three buildings. (Id.)

4. On January 3, 1992, Star Brite and Eneo entered into a written subcontract whereby Eneo was to provide all mechanical services and some mechanical materials for the three buildings. (PX 1.)¹ Under this subcontract, Star Brite was to pay progress payments on a monthly basis to ensure that Eneo would have enough money to continue work on the project. (Id, Article 11.2.)

5. Star Brite was entitled to keep a 10% retainage from each progress payment. (Id.)

6. On January 13,1992, Eneo commenced work at the Dover Air Force Base. (PX 2.)

7. Eneo submitted its bill to Star Brite for the work it had completed for a particular month at the end of that month or at the beginning of the next month, and payment by Star Brite was due within two to three weeks after that date. (D.I. 28, pp. 121-122; D.I. 27, pp. 5-6.)

8. For the work completed in January, Eneo billed Star Brite $29,000. (PX 46.)

9. Eneo experienced billing problems with Star Brite from the beginning. With respect to the January bill, Mr. Endicott testified that, “And the bill, I believe, was $29,000. They told us that we had only done $2,000 worth of work.” (D.I. 26, pp. 8-9.)

10. Star Brite paid Eneo for January’s work with a check dated February 25, 1992, in the amount of $26,290.00. (PX 13.)

11. For work completed in February, Eneo billed Star Brite $64,887.40 at the end of February or beginning of March. (PX 46.)

12. On March 17, 1992, George Lynar-dakis, Star Brite’s supervisor, sent Eneo a telegram informing them that Eneo was falling behind schedule and directing Eneo to correct the deficiency within 72 hours. (PX 3.)

13. Star Brite sent Eneo a cheek dated March 27, 1992, for $32,500.00 (about one half of the amount due). (PX 14.)

14. In reply to Star Brite’s March 17, 1992 letter, Eneo sent a letter dated April 2, 1992, informing Star Brite that they were not behind schedule and had not been fully paid for the work they had completed. This letter warned that “[y]our blatant decrease of our invoices (which are based on the Government inspectors, Acceptance and Approval, reference Article 11.2 of the agreement) will be tolerated no further reference Article 4.7.1 of the. agreement.” The letter further informed Star Brite of deficiencies in Star Brite’s work which impeded Enco’s progress and requested a meeting. (PX 5.)

15. At the end of March or beginning of April, Eneo invoiced Star Brite another $39,-645.02 for the work completed in March, increasing the total amount invoiced to $133,-532.42. (PX 46.)

16. In an effort to settle matters, Mr. Endicott met with Gus Poniros, who was affiliated in some way with Star Brite and was sent by Star Brite to meet with Mr. Endicott, on or about April 7, 1992. Mr. Poniros surveyed the work Eneo had completed as of that date and the parties came to a settlement evidenced by six sheets of paper in Mr. Endicott’s handwriting. (DX 1.) In exchange for lowering the $133,532.42 to $97,800.00, Eneo received Star Brite’s assurance that: (1) Star Brite would pay RE Micheals Co., a supplier, $10,000.00 on behalf of Eneo the next business day; (2) Star Brite would pay Eneo $25,000.00 the week of the 20th of April; and (3) the set of values breaking down the remaining $132,200.00² were values that Star Brite “could live with” and that Eneo would be paid based on the agreed upon schedule.³ (D.I. 26, p. 178; D.I. 28, p. 116; D.I. 29, p. 113; DX 1.)

17. Based on these assurances, Mr. .Endi-cott changed Enco’s April and May billing to reflect the agreement. (DX 13.)

18. Star Brite paid Eneo $10,000.00 through a check dated April 7, 1992. (PX 15.)

19. Star Brite paid Eneo $25,000.00 through a check dated April 23, 1992. (PX 16.)

20. On April 15, 1992, Star Brite sent another mailgram to Eneo alleging that “sufficient job manning of contracts at Dover AFB, DE has not met the contractual requirements,” that “repeated requests to fully complete all work to date have been ignored,” and that “we have no alternative but to withhold any future payments until daily proper job manning has been accomplished and maintained.” (PX 5.)

21. At the end of April or beginning of May, Eneo billed Star Brite $39,050.00 for April. (PX 46, DX 13.)

22. Star Brite paid Eneo $22,990.00 with a check dated June 1, 1992 ($17,000.00 less than what was due). (PX 17.)

23. Through a letter dated June 5, 1992, Eneo gave Star Brite notice that it had stopped work in accordance with paragraph 4.7.1 of the subcontract and referenced its April 2, 1992 letter. (PX 7.)

24. Through a letter dated June 9, 1992, Star Brite informed Eneo that “the government had approved only 36.55% for the line items included” in Enco’s subcontract which only entitled Eneo to $84,065.00 and that it had already paid $118,980.00. (PX 8.)

25. Eneo wrote a letter dated June 10, 1992 to defendant Wausau to “pay all monies due Eneo by Starbrite Construction” and enclosed a summary of its invoices and the payments they received to date. (PX 9.) This summary showed that Eneo had billed $184,882.42 and that it received a total of $116,780.00.⁴ (PX 46.)

26. Eneo sent defendant Wausau another letter, dated June 19, 1992, which detailed the percentage of work completed in each building and concluded that $162,509.00 to $164,780.00 was due by Star Brite.⁵ (PX 10.)

27. The value of the mechanical work in each of the buildings are: Building 779— $75,629.00; Building 793 — $81,895.00; and Building 794 — $72,476.00.⁶

28. At trial, Mr. Endicott testified that Eneo, as of June 5, 1992, had completed 69.5% of work for Building 779; 76.5% for Building 793; and 58.5% for Building 794.⁷ (PX 47, 48, 49.) Mr. Endicott calculated these numbers from contract progress reports submitted by Star Brite to the government. (D.I. 26, pp. 26-28.) These contract progress reports allocate the work to be completed in each building by line items. Each line item represents a percent of the total value of the contract for that building so that all the line items combined would add up to 100% of the contract price. (Id. at 29.) At trial, Mr. Endicott used these figures to estimate the percentage of work Eneo had completed by identifying which line items and what part of a particular line item Eneo was responsible for.. Then he estimated what percentage Eneo had completed and divided the percentage of the line item Eneo was responsible for by the percentage of the line item completed by Eneo tó determine what percentage of its work it had completed.⁸ Once Mr. Endicott estimated the percentage of the work Eneo had completed, he then multiplied that percentage by the monetary value of the mechanical work for that building to determine the value of the work Eneo completed. (D.I. 26, pp. 30-166.)

29. Star Brite contends that Enco’s use of the contract progress reports it submitted to the government was improper. Star Brite argues that these reports are irrelevant to the subcontract between it and Eneo because the percentages represented on the contract progress reports are percentages of the value of the total contract price between it and the government and not percentages of the subcontract price between it and Eneo.⁹ For instance, it contends that 2% on the contract progress reports for Building 779 represents 2% of $689,000.00 not 2% of $75,629.00. It argues, that Eneo could not have known how much profit and overhead Star Brite allocated to each line item. However, Star Brite’s argument is based on a misunderstanding of how Eneo used the progress reports. Star Brite seems to be under the impression that Eneo actually took percentages of the $689,-000.00 to determine how much it should be paid.¹⁰ However, Eneo does not actually use the $689,000.00 figure. Rather, it takes a ratio and uses the $75,629.00 figure. For instance, Mr. Endicott testified that for building 779, Eneo was wholly or partly responsible for eight (8) of the twenty-seven (27) line items. These line items represented 36% of Star Brite’s contract and Eneo was responsible for about 20.5%, or about two-thirds of the work represented by those line items. Eneo had completed 14.25% out of the 20.5%. (PX 27.) Mr. Endicott did not take 14.25% of $689,000.00 but rather took the ratio of 14.25 to 20.5 to determine what percentage of the mechanical work it completed for building 779. Once Mr. Endicott determined this percentage, he multiplied it by the $75,629.00. In fact, it is undisputed and Eneo does not claim that Eneo is entitled to percentages of $689,000.00 since this amount includes overhead and profit for Star Brite. Eneo is merely using these contract progress reports as a reference to show the relative values of the amount of work it was responsible for and percentage of its work it completed.

30. Star Brite further objects to Mr. En-dicott’s break downs and estimates of the amount of work Eneo completed because they are merely “guesses.” This Court finds that although these numbers are only estimates by Mr. Endicott they are educated estimates. Mr. Endicott was at the buildings several times a week, was in contact with his workers, and even performed some of the work himself, and as noted above, this Court finds Mr. Endicott credible. (D.I. 26, pp. 158-163.)

31. Eneo billed Star Brite $12,300.00 for the month of May. (DX 13; PX 46.)

32. Eneo completed approximately $1,086.00 worth of work for the month of June.¹¹

33. Using Enco’s calculations from the contract progress reports, this Court concludes that Eneo completed the following amount of work and Star Brite was behind on its progress payments in the following amount as of the end of April:¹²

Building 779: $75,629 X .695 = $ 52,562.00¹³

Building 793: $81,895 x .765 = $ 62,650.00

Building 794: $72.476 x .585 $ 42,398.00

Total due as of June 5, 1992: $157,610.00

May bill: 12,300.00

June bill: 1,086.00

Total value of work as end of April $144,224.00

10% Retainage $ 14,422.00

Total due in late May $129,802.00

Total paid as of June 5, 1992 $116,780.00

Total deficiency $ 13,022.00¹⁴

34. Eneo usually makes about three to three-and-a-half percent profit. (D.I. 28, pp. 128-130.)

35. According to Star Brite, Eneo had only completed $84,065.00 to $101,087.00 worth of work as of June 6,1992. (PX 8, 27.) However, this Court finds that Star Brite’s estimates are unreasonably low. Although Star Brite contends that Eneo was behind schedule, there is no evidence to support this contention other than the March 17,1992 and April 15, 1992 mailgrams sent by Star Brite to Eneo. In fact, there is credible and unbiased evidence to the contrary. Mr. Ron Dooley, the mechanical engineer for the government on the three buildings, testified at trial that Eneo always seemed very timely and he was not aware of any manpower problems with Eneo. (D.I. 28, p. 134.) He also testified that he was “very pleased with the quality” of Enco’s work. (Id. at 135.) Mr. Dooley was involved with “the design of the mechanical systems for the buildings, and coordinated other portions, the architectural and electrical portions of the buildings, and also was involved with any problems that came up on the job, and to do a final inspection on the buildings, when we ultimately accepted them as being completed.” (Id. at 133; emphasis added.) In addition, he was at the buildings one to three times a week. (Id. at 137.) Therefore, if any serious problems arose, Mr. Dooley would have been aware of them. There is a strong inference that if Mr. Dooley was not aware of any delays then there were no delays. The fact that Star Brite contends that Eneo was behind while Eneo was not behind leads this Court to conclude that Star Brite’s estimates of the work Eneo completed would be lower than the actual amount.

A letter dated August 5, 1992 which Star Brite sent to Eneo further demonstrates Star Brite’s tendency to underestimate the amount of work Eneo completed and further erodes Star Brite’s credibility before this Court. (PX 27.) In this letter, Star Brite estimated the amount of work Eneo had completed using the contract progress reports. (Id.) During cross-examination, Mr. Smilios admitted that if the government approved Enco’s work, Eneo would be entitled to be paid for that amount:

A. ... If the government give me the 7 percent, ENCO, he going to deserve the whole thing. But if the government doesn’t give me that, I have to take it from somebody.

Q. So going back to Exhibit 20. Since the government only gave you 6.8 percent, then you dock .5 off of ENCO and .035 off yourself? Is that a correct to look at it?

A. From myself I deducted.

Q. But if the government had given you 7.0 percent on that line item you would have given ENCO .75 percent, correct?

A. I would have given.

(D.I. 29, p. 86.)

However, the percentages Star Brite attributed to Eneo show that Star Brite did not actually give Eneo the full percent of work approved by the government. For instance, for line item 17 of Building 779, of the total 9% this line item represented, Star Brite estimated that it was responsible for 3% and Eneo for 6%. The government had approved 8.3% of this line item. Assuming that Star Brite had completed all of its work, Eneo should have been credited for 5.3% (8.3% - 3%). However, Star Brite only gave Eneo 3.5%. Star Brite also gave Eneo unreasonably low estimates for other line items.¹⁵ (PX 27.)

III. CONCLUSIONS OF LAW

A. Applicable Law

In actions brought under the Miller Act, issues not involving the construction of the Act, such as ordinary contract issues, will be resolved by the law of the state where the contract is performed. United States, for the Usé and Benefit of Greenville Equipment Company, Inc. v. United States Casualty Company, 218 F.Supp. 653, 657 (D.Del.1962); Austin Elcon Corp. v. Avco Corp., 590 F.Supp. 507 (W.D.Tex.1984). Since the contract was performed in Delaware, Delaware substantive law on contracts will apply in this action.

B. Notice

When a contract expressly states that a contractor or subcontractor give notice of its intention to stop work, the contractor or subcontractor must do so or it will be held in breach of contract. Fabrizio v. Fabrizio, 48 A.2d 375, 133 Conn. 108 (1946); Arthur L. Corbin, Corbin on Contracts § 692, at 269-271 (1960). Article 4.7.1 of the subcontract between Eneo and Star Brite requires that before Eneo stops work on the project it must wait seven days after a bill is due and then give an additional seven days written notice of its intention to stop work. (PX 1, Article 4.7.1.) Star Brite argues that Eneo failed to give this written notice and thus breached the subcontract. However, this Court finds that Eneo did give sufficient written notice before it stopped work on the project.

According to Star Brite, when Mr. Endi-cott met with Mr. Poniros he had agreed that Eneo had only completed $97,800.00 worth of work as of the end of March and that there was a deficiency of only $38,500.00. By paying $35,000.00 (approximately, $38,500.00 minus the 10% retainage), Star Brite contends that it paid in full what was due through to the end of March. When Eneo walked off the job in June, it argues that only the April invoice was due and that Eneo failed to give an additional written notice for the April invoice, apart from the notice Eneo had given in early April concerning the February bill.

However, Star Brite fails to recognize that a third part of the agreement, and the reason Mr. Endicott agreed to the lower $97,800.00 figure, was an assurance from Star Brite that it would pay Eneo according to the new schedule. The $25,000.00 and $10,000.00 payments did not wholly cure the nonpayment from the January, February and March invoices. The April 2nd letter provided Star Brite sufficient notice of the fact that if they failed to make payments according to the April 7th agreement, Eneo would stop work. On June 5, 1992, Star Brite had more than two months’ notice and time to cure the default, and was well aware of the fact that if it underpaid on Enco’s invoices again, Eneo would stop work on the buildings.

C. Breach of Contract

Star Brite asserts that even if Eneo had given notice pursuant to Article 4.7.1, Eneo breached the subcontract. However failure to pay a progress payment justifies suspension and termination¹⁶ of the subcontract by a subcontractor. Corbin on Contracts § 692 at 269-271, n. 34 & 36. Star Brite repeatedly failed to pay Eneo progress payments in accordance with the terms of the subcontract.

D. Damages

In a breach of contract case, the amount of damages a plaintiff is entitled to is measured by what is necessary to place the plaintiff in the same position that he would have been in if the contract had been performed. Reiver v. Murdoch & Walsh, P.A., 625 F.Supp. 998, 1009 (D.Del.1985); American General v. Continental Airlines, 622 A.2d 1, 8 (Del.Ch.), aff'd, 620 A.2d 856 (Del.1992); J.J. White, Inc. v. Metropolitan Merchandise Mart, 48 Del. 526, 107 A.2d 892, 894 (Super.1954). In this case, Eneo is entitled to the value of the work they have completed minus any payments they have already received and in addition, lost profits.

The plaintiff also seeks interest. Under the Miller Act, whether to allow prejudgment interest is a matter of federal law. U.S. for Use of Seminole Sheet Metal v. SCI, Inc., 828 F.2d 671, 677 (11th Cir.1987); United States ex rel. Ga. Elec. Supply Co. v. United States Fidelity and Guar. Co., 656 F.2d 993, 997 (5th Cir. Unit B 1981). See F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 127, 94 S.Ct. 2157, 2164, 40 L.Ed.2d 703 (1974) (“scope of the remedy” under Miller Act is matter of federal law). However, since the Miller Act does not explicitly address prejudgment interest, it is treated as incorporating state law on this issue. Seminole Sheet Metal, 828 F.2d at 678.

Under Delaware law, a party is entitled to prejudgment interest when the amount of damage is calculable, and such interest has been awarded in breach of contract cases. F.E. Myers Co. v. Pipe Maintenance Services, Inc., 599 F.Supp. 697, 704 (D.Del.1984); Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del.Super.Ct.1992). Such interest is calculated from the date payment is due. Citadel Holding Corp., 603 A.2d at 826. Where the underlying obligation to make payments arises out of a contract, a Court should look to the contract to determine when interest begins to accrue. Id. When the contract does not specify an interest rate, 6 Del.Code § 2301(a) states that, “the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due.” Del.Code Ann. tit. 6, § 2301(a) (1993).

Eneo is entitled to a total of $43,002.00.¹⁷ However, Star Brite was not obligated to pay Eneo this entire sum at the same time. Interest on $13,022.00, the amount due for April, will run from May 22,1992.¹⁸ Interest on $12,300.00, the amount due for May, will run from June 26, 1992. Interest on $1,086.00, the amount due for June, will run from July 24, 1992. Interest on $2,172.00, the lost profit, will run from June 5, 1992. In addition, Star Brite was allowed to retain 10% of the progress payments until the project was approved by the government. Since Eneo had justifiably stopped work on June 5, 1992 and other subcontractors, whom Eneo had no control over, finished their work, this Court, in its discretion, will hold that Eneo is entitled to interest on $14,422.00, the 10% retainage for the work as of the end of April, as of June 5, 1992.

As to postjudgment interest, under 28 U.S.C. § 1961, a party is entitled to post-judgment interest on any money judgment in a civil case recovered in a district court from the date of entry. 28 U.S.C. § 1961 (Supp. 1992). Therefore, Eneo is entitled to post-judgment from the date of this judgment until the date of payment, “at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment.” Id.

IV. CONCLUSION

The Court will enter a final judgment as follows:

(1) Judgment will be entered in favor of plaintiff Eneo and against defendants Star Brite and Wausau on its claim for breach of contract for the following amounts:

(a) $43,002.00;

(b) prejudgment interest on $13,022.00 beginning May 22, 1992 to the date of this judgment, at the rate specified in 6 Del. Code § 2301(a);

(c) prejudgment interest on $12,300.00 beginning June 26, 1992 to the date of this judgment,, at the rate specified in 6 Del. Code § 2301(a);

(d) prejudgment interest on $1,086.00 beginning July 24, 1992 to the date of this judgment, at the rate specified in 6 Del. Code § 2301(a);

(e) prejudgment interest on $16,594.00 beginning June 6, 1992 to the date of this judgment, at the rate specified in 6 Del. Code § 2301(a);

(f)postjudgment interest on $43,002.00 plus all accumulated prejudgment interest beginning the date of this judgment to the date of full payment, at the rate specified in 28 U.S.C. § 1961.

(2) Judgment will be entered in favor of plaintiff Eneo and against defendants Star Brite and Wausau on Star Brite’s counterclaim for breach of contract.

1 . All plaintiff's exhibits will be referred to as "PX" and all défendant, Star Brite’s, exhibits will be referred to as "DX.”

2 . The parties broke down the remaining $132,-200 ($230,000 — $97,800) of Enco’s subcontract as follows:

Building 779 Building 793 Building 794

Demo $ 3,000.00 $ 3,000,00 $ 5,000.00

Insulation $10,000.00 $ 7,000.00 $ 5,000.00

Boiler $16,000.00 $16,000.00 $16,000.00

Air Handler $ 7,000.00 $ 9,000.00 $ 8,000.00

Reg $ 1,200.00 $ 500.00

Fan $ 3,500.00 $ 3,500.00 $ 3,500.00

Sheetmetal $ 5,000.00

Exhaust $ 5,000.00

Plumbing 5,000.00

Total work to be done $49,500.00

* $39,700.00 $43.000.00

Total value of job $75,629.00 $81,895.00 $72,476.00**

On DX 1, Mr. Endicott had a sum of $48,500.00. However, this is a mathematical error.

DX 1 does not specifically state this number. However, the subcontract was for $230,000.00, and $230,000.00 subtracted by $75,629.00 and $81,895.00 is $72,476.00.

3 . Mr. Endicott testified that:

A: ... The agreement that was made at this time was also that we would be paid for these items, as we completed these items, we would get paid for them. And at the end of that month, when we submitted this bill, based on what old Gus [Mr. Poniros] wanted to break it down as, and when we submitted the bill on that, we were not paid for that. So they did not live up to the initial agreement. They fulfilled part of it, but they did not fulfill all of it.

Q: The question was, you said they made no payments that they were required to malee. In fact, they did malee the two payments explicitly as you and Mr. Poniros agreed?

A: But they did not make the final payment.

Q: Did they make those two?

A: I look at it as, we sat down; we discussed three items; they fell down on the third one.

(D.I. 28, p. 116.)

4 . The summary sheet actually totalled the amount received as $107,780.00. However, this was a mathematical error since the actual total of the column labelled "amount received” is $116,780.00. (PX 46.)

5 . Star Brite contends that Eneo conditioned their return to work on Star Brite paying $184,-883.00. Star Brite argues that this demand was unreasonable, and thus Eneo breached the subcontract. Whether this demand was unreasonable or not is immaterial since the facts clearly contradict Star Brite's contention. The June 5th letter mentioned no amount and although the June 9 th letter to Wausau stated that $184,-883.00 was due, the June 19th letter stated only $162,509.00 to $164,780.00 was due. (PX 7, 9, 46, 10.)

6 . Although many numbers were presented at trial, this set of numbers is the set agreed to by the parties at the April 7th meeting.

7 . Mr. Endicott testified to two sets of numbers at trial — one based on the numbers Star Brite submitted and one based on the numbers the government approved. This Court adopts the latter since both parties agree that Eneo is entitled to be paid based on what is approved and accepted by the government.

8 . For example, Mr. Endicott testified to the following numbers for Building 779:

LINE ITEMS % OF JOB TOTAL % FOR WHICH ENCO RESPONSIBLE % COMPLETED BY ENCO (STAR BRITE) % COMPLETED BY ENCO (GOVT)

4. Selective Demolition 2.5 .5 .5 .5

5. Fire Service Piping, Etc. 7.0 1.0 1.0 1.0

16. Plumbing Fixtures & Sewer Line_4.0 4.0 3.5 2.1

17. Support Anchors, Etc. 8.0/9.0 8.0/9.0 7.0 8.3

18. Metal Ductwork, Etc. 1.5 1.5

19. Heat Exchangers. Etc. 2.0 1.0 .25

20. Air Handling Units, Etc. 4.0 2.5 2.0 2.05

21. HVAC Controls, Etc. 3.0 1.0 14.9 14.25

TOTAL 19,5/20.5 14.9 14.25

% OF WORK COMPLETED BY ENCO (STAR BRITE) = 14.9%/19.5% = 76.4%

% OF WORK COMPLETED BY ENCO (GOVT) = 14.25%/20.5% = 69.5%

(PX 47.)

9 . In an effort to counter Star Brite’s argument that the contract progress reports are irrelevant to the subcontract. Eneo argues that the subcontract terms actually require that payments to Eneo he based "on how much of Enco’s work had been accepted and approved by the government under the government’s contracts with Star Brite.” Both parties present arguments concerning the interpretation of the subcontract terms concerning how Eneo was to be paid. However, on closer examination, the dispute between the two parties is essentially a factual one. Both parties agree that Eneo was entitled to be paid for all work which was accepted and approved by the government. What they disagree on is the value of the work completed by Eneo. Star Brite contends that under the terms of the subcontract, Eneo was required to submit a schedule of values and because Eneo failed to do so both parties "simply took an overview of the contract trying to determine what percentage of the work had been completed as a whole as opposed to breaking it down to each line item.” (D.I. 33, p. 23.) On the other hand, Eneo contends that both parties agreed to use the government contract progress reports as a schedule of values. This Court sees no difference between these two approaches. They are both subjective estimates of the amount of work that was completed and the value of that work. Star Brite merely states a total value. Eneo details how it arrived at that number, but still uses estimates. It is a matter of credibility, and this Court finds Enco's methodology and testimony more credible.

The subcontract terms do require Eneo to submit a schedule of values (PX 1, Article 11.5), but there is no evidence that Eneo ever submitted a schedule of values for January through March or that Star Brite ever required one. However, even if Eneo had submitted a schedule of values, there would still be a factual dispute concerning the amount of work and the value of the work completed by Eneo. This dispute is the crux of this case.

It should also be noted that Star Brite itself used the government contract progress report line items in its schedule of values as evidenced by a telefax sent to Eneo by Star Brite on March 27, 1992. (PX 18.)

10 . In a letter dated August 5, 1993, Mr. Smilios used the contract progress reports to determine the percentage completed by Eneo and multiplied that percentage by the total contract price for the building. (PX 27.)

11 . The government’s contract progress reports for the week of May 30, 1992 to June 5, 1992 show that .05% of the line items which Eneo was responsible for was completed for Building 779 during that period. (PX 20.) Assuming that all of the .05% was Enco’s work, the bill for that period for Building 779 would be .05%/20.5% x $75,629.00 = $184.00. For Building 793, the progress reports show that .2% of the line items Eneo was responsible for was completed during that period. (PX 22.) Assuming again that all of the .2% could be attributed to Enco's work, the bill would be ,25%/18.16% x $81,895.00 = $902.00. Since 0% of the line items which Eneo was responsible for was completed for Building 794 (PX 24), the most that Eneo could have received for June would be $1,086.00.

12 . Although the parties presented evidence only of the work completed as of June 5, 1992, the crucial date to determine if Star Brite was overdue is the last day of April, since there was a lag between the time Eneo completed the work and the time Eneo was entitled to payment for that work. When Eneo stopped work on June 5, 1992, only invoices for the work completed as of the end of April would have been overdue. Star Brite did not have to pay for the work completed in May until late June, and for the work completed in June until late July.

13 . These numbers are rounded to the nearest dollar.

14 . Star Brite contends that Mr. Smilios had offered Eneo “by phone” another $10,000.00 for past performance. However, Mr. Smilios clearly stated at trial that this $10,000.00 would be in exchange for Enco’s delivery to the job site of "the majority of the materials for the boiler rooms (D.I. 27, p. 195.) Since Star Brite has repeatedly emphasized, and Eneo agrees to, the fact that when Eneo stopped work on the buildings, none of the work in the boiler rooms had been completed, this $10,000.00 could not have been offered for past performance.

15 . The following represent the line items for which Star Brite failed to give Eneo credit for:

Line % given to % ’ S.B. Item/total % % S.B. re- % Eneo re- % Gov’t ap- Eneo by should have

Building_of contract sponsibility sponsibility proved_S.B._given_

793_14/9%_3%_6%_8.65%_3.75%_5.65%

793_15/3%_1%_2%_2.95%_1%_1,95%

794_4/1%_.25%_.15%_.95% ,6%_.1%_

794_13/12%_4%_8%_9%_4%_5%_

(PX 20, 22, 24, 27.)

In addition, Star Brite failed to credit Eneo for the line item entitled "selective demolition” in each building although in their telefax to Eneo on March 27, 1992, they acknowledged that Enco was responsible for some part of that line item. (PX 18.)

16 . Article 7.1.1 states that: "The Subcontractor may terminate the Subcontract ... for nonpayment of amounts due under this Subcontract for 60 days or longer ...”

17 . As of June 5, 1992, Eneo had completed $157,610.00 wortít of work. (See Findings of Fact #33.) Since Star Brite had paid $116,-780.00 as of June 5, 1992, there is a deficiency of $40,830.00. In addition, Eneo is entitled to lost profit at a profit of 3%. Three percent of $72,-390.00 ($230,000.00 - $157,610.00) is approximately $2,172.00.

18 . Eneo submitted its bills for a particular month at the end of .that month or the beginning of the next month. Star Brite was then required to pay within two to three weeks after that date. (See Findings of Fact # 7.) Since there is no definite date the payment was due, this Court, in its discretion, chose the fourth Friday of the month.