Utility Contractors, Inc. v. United States

32 Cont. Cas. Fed. 73,446, 8 Cl. Ct. 42, 1985 U.S. Claims LEXIS 992
CourtUnited States Court of Claims
DecidedApril 22, 1985
DocketNo. 416-82C
StatusPublished
Cited by28 cases

This text of 32 Cont. Cas. Fed. 73,446 (Utility Contractors, Inc. 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
Utility Contractors, Inc. v. United States, 32 Cont. Cas. Fed. 73,446, 8 Cl. Ct. 42, 1985 U.S. Claims LEXIS 992 (cc 1985).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge:

This is a government contract case which comes before the court pursuant to the Contract Disputes Act of 1978. Plaintiff seeks $1,743,366 on three alternative theories for reimbursement of increased costs resulting from water damage to permanent work on the “Joe Creek” Canal Lining Project. Defendant filed a Motion for Summary Judgment on all three counts which is opposed by plaintiff. Thereafter, plaintiff filed a Partial Cross-Motion for Summary Judgment on Count III of its Complaint, which defendant opposed. Oral argument was heard on both motions. After careful consideration of the documentary evidence and oral arguments, the court grants Defendant’s Motion for Summary Judgment and denies Plaintiff’s Partial Cross-Motion for Summary Judgment on Count III of the Complaint.

FACTS

Plaintiff, Utility Contractors, Inc., is a Kansas corporation with principle offices in Wichita, Kansas. On February 16, 1978 defendant, through the Corps of Engineers, awarded formally-advertised Contract No. DACW 56-78-C-0073 to plaintiff for the construction of approximately a two and one-half mile span of channel lining and other improvements on Joe Creek in Tulsa, Oklahoma.

The project was the result of several years of extensive studies by the Corps beginning in 1969, the purpose of which was to eliminate flood damage which occurred periodically during severe rainstorms. The project was intended to collect all rainwater in the area and channel it through the city and into the Arkansas River without causing damage. Joe Creek, an active regularly flowing stream, was designated as a major artery for the operation of the flood control system.

The contract required plaintiff to perform channel and drainage excavation. Fill and backfill were also required, as well as placement of riprap on the bottom and slope of the channel for 2,000 feet at the lower end of the project and placement of concrete channel lining, with subdrainage system, for approximately 8,900 feet at the upper end of the project. These improvements were intended to provide a straightened, widened channel, with riprap or concrete surface that, by providing decreased resistance to water flows, would permit increased velocity of water flow which, in turn, would increase channel capacity without overflowing its banks. The completed project span was designed to be capable of carrying, without overflow, up to and including the 100-year frequency flood.1 The contract also required the construction of a concrete transition section in order to lower the elevation of the channel. This section would follow the natural creek bed as effected by erosion.

[45]*45The contract price was set at $6,489,-249.65 with completion to be within 945 days of receipt of notice to proceed. The project was completed on December 5, 1980, within the contract performance date as extended by 33 days by the contracting officer. The completed project was accepted by defendant and on November 11, 1981 defendant paid plaintiff the amount due and owing except for $100 retainage.

Plaintiffs claims arise out of certain weather related events that occurred during performance of the contract, i.e., heavy rainstorms occurred on June 8 and 20 and July 7, 1979 that caused the normal stream flows to overtop temporary cofferdams built by plaintiff to keep the construction area dry, as required by the terms of the contract. This over-topping caused damage to permanent concrete work and permanent and temporary excavation and fine grade filter material then in place. Less severe storms on May 12, 1979 and May 2 and June 17, 1980 caused similar results although with less damage to concrete and filter material. There were other rainstorms throughout the construction period but did no, or only minor damage to the permanent work, and are not at issue here. Plaintiff and its “Monday morning quarterback” engineers and heavy construction designers claim that the damage occurred because defendant failed to include in the contract detailed specifications and procedures for the protection of the permanent work during the construction phase. Plaintiff also blames the design of the transition section for many of its problems.

Paragraph 12, the Permits and Responsibility Clause of the General Provisions (construction contract), and the Damage to Work Clause, 118, of the Construction Special Conditions place the risk of loss for all pre-completion damage to permanent work on plaintiff with the exception of damage caused by flood or earthquake. Accordingly, plaintiff was required to replace, at its own expense, all damage to permanent work, except that which fell, in the judgment of the contracting officer, within the defined flood or earthquake exceptions, and provided the damage was not due to plaintiffs negligence or failure to use good engineering and construction procedures. Such damages would be reimbursed by defendant. This contract also defined “flood” in the Control of Water During Construction Section of the Technical Provisions, II 7.4.

Prior to the June 8, 1979 rainstorm, the first storm which resulted in heavier than normal damage, there had been several smaller storms which caused some damage to the project. The parties, in discussing these initial events at the time they occurred, agreed that plaintiff was responsible for those losses pursuant to the contract since the water flows had not reached the defined “flood” level.2 However, after the first major storm, on June 8, 1978, plaintiff notified defendant that it would make a claim to recover the cost of repair and replacement of the permanent work. Thereafter, plaintiff filed with defendant a claim for each of the subsequent events despite the fact that at no time during the performance period of the contract did the water flows reach the defined “flood” elevation.

After each of the above-mentioned larger losses of concrete, defendant’s representatives visited the construction site to observe the losses of concrete. On each occasion plaintiff complained about the defects of the transition section and filter-material design and indicated that it would file a claim under the contract. However, at no time prior to June 8, 1979 did plaintiff attempt to implement sufficient measures to protect the unfinished permanent work from storm damage.

After June 8, in an attempt to assist plaintiff from additional losses, plaintiff contends that defendant directed plaintiff [46]*46to work on placing concrete slopes and bottoms at specified locations rather than replacing concrete directly in the transition section, and to excavate and place rock and other materials at various locations in the bottom of the channel, which plaintiff did. However, plaintiff admittedly sought to mitigate damages by implementing its own measures. Without defendant’s direction, advice or assistance, plaintiff placed at exposed edges of concrete riprap, steel plate cut-off walls, backfill, and, at the leading edge of the transition section, compacted dirt from the area. Plaintiff, also on its own initiative, placed gabions at exposed upstream edges of concrete and compacted clay at exposed side edges. These measures helped prevent some further losses of concrete but were not completely effective. Plaintiff also retained its own engineering design consultant after the three major events that caused damage to permanent work and large losses of concrete. At the consultant’s suggestion, plaintiff requested a change to permit the use of coarse-graded in lieu of the fine-graded filter material as required by the contract.

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Bluebook (online)
32 Cont. Cas. Fed. 73,446, 8 Cl. Ct. 42, 1985 U.S. Claims LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utility-contractors-inc-v-united-states-cc-1985.