Valcon II, Inc. v. United States

38 Cont. Cas. Fed. 76,355, 26 Cl. Ct. 393, 1992 U.S. Claims LEXIS 294, 1992 WL 153497
CourtUnited States Court of Claims
DecidedJuly 2, 1992
DocketNos. 90-296 C, 91-1137
StatusPublished
Cited by8 cases

This text of 38 Cont. Cas. Fed. 76,355 (Valcon II, 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
Valcon II, Inc. v. United States, 38 Cont. Cas. Fed. 76,355, 26 Cl. Ct. 393, 1992 U.S. Claims LEXIS 294, 1992 WL 153497 (cc 1992).

Opinion

OPINION AND ORDER

JAMES T. TURNER, Judge.

These consolidated actions arise from a fixed-price contract between plaintiff (“Val-con”) and the National Aeronautics and Space Administration (“NASA”) to construct an addition to the Systems Integration and Mock-up Laboratory at the Johnson Space Center in Houston, Texas. In No. 90-296 C, Valcon claims delay damages related to construction of the roof and fireproofing of an electrical equipment room.1 Valcon also requested attorney fees pursuant to the court’s equitable powers. The government filed a motion for partial summary judgment and a motion to dismiss plaintiff’s claim for attorney fees on April 3, 1992. The government contends that the delay claims are barred by [395]*395the doctrine of accord and satisfaction. The government also contends that Val-con’s request for attorney fees should be dismissed as lacking a jurisdictional base or as premature. Oral argument was conducted on June 29,1992. We conclude that the government’s motion for partial summary judgment should be granted and that the government’s motion to dismiss Val-con’s request for attorney fees should be denied.

I

On April 1, 1987, NASA and Valcon entered the contract in suit. During the course of performance, numerous modifications were made to the contract, including several that relate to the delay claims at issue here.

Roofing Delay

On October 26, 1987, NASA’s agent issued a document requesting Valcon to delay purchasing roofing materials while NASA considered changing the specifications. Thereafter, further correspondence had the effect of delaying Valcon’s ability to begin building the roof.

On April 27, 1988, NASA issued unilateral Modification No. 26C which directed Val-con to proceed with the work described in Facility Change Request (FCR) 17788-18 which was attached to the modification. FCR 17788-18 requested certain additional items of roofing work including an additional walkway, revised flashing, an additional cleat to secure parapet flashing, a revised expansion joint, increased insulation, walkway padding under each lightning rod base, and fastening for full sheets of roofing.

Several days later, Valcon responded to the modification with a demand for payment for the additional roofing work and a demand for reimbursement for the additional time. Valcon assessed the time cost at $47,727 for 106 additional days, beginning on April 28, 1988, the day it received Modification No. 26C. In a letter dated July 12, 1988, Valcon again requested compensation for the roofing delay in the amount of $450.25 per day for 106 days, totalling $47,726.50. Both of these written requests specifically referenced Modification No. 26C.

On September 22, 1988, the parties entered a bilateral modification to the contract, Modification No. 33S, which increased the contract price by $22,061.93 for the extra work detailed in FCR 17788-18. The modification did not specifically address Valcon’s claim concerning extra days. Modification No. 33S contained a release which stated:

In consideration of the modification agreed to herein as complete and equitable adjustment for all work identified in claim for the expenses for extra work dated February 11,1988, [FCR 17788-18] the contractor hereby releases the Government from any and all liability under this contract for further adjustment attributable to such facts and circumstances giving rise to the claim for the expenses for the extra work, [FCR 17788-18].

Then, on December 19, 1988, Valcon resubmitted its claim for compensation for the 106-day delay associated with the additional roofing work and, on April 6, 1989, added 39 days to its “time charge” invoice, bringing the new total to $65,286.25.2

Fireproofing Delay

On August 2, 1988, a representative of the contracting officer directed Valcon to [396]*396fireproof an electrical equipment room at the project. In response, Valcon notified NASA that it considered this a direction for extra work not required by the contract. A week later, Valcon sent an itemized list of costs to NASA. Valcon noted that its costs for the additional work would be $1,533.49 and that the addition would require three extra days.

On August 19, 1988, NASA issued FCR 17788-25 which was a formal request for the changed work requested by the contracting officer’s representative. FCR 17788-25 directed Valcon to “[ujpgrade the construction of the north and west walls of the electrical equipment room, Room 110, to achieve a 2 hour fire rating.”

FCR 17788-25 was incorporated into a bilateral modification to the contract, Modification No. 34S. Modification No. 34S stated that for the work requested in FCR 17788-25, the contract price was to be increased by $1,533.49. It did not expressly address Valcon’s request concerning extra days required. Modification No. 34S also included a release which provided:

In consideration of the modification agreed to herein as complete and equitable adjustments for all work identified in FCR 17788-25 dated August 19, 1988, the contractor] hereby releases the Government from any and all liability under [the] contract for further adj[us]tment attributable to such fa[et]s or circumstances giving rise to FCR 17788-25 dated August 19, 1988.

Nonetheless, on April 6, 1989, Valcon submitted an invoice in the amount of $16,209 for time costs from September 22, 1988 through October 28, 1988.3

In August 1989, Valcon submitted a claim to the contracting officer requesting, inter alia, compensation for the delays associated with the additional roofing work and fireproofing work. The contracting officer denied both claims. Hence, on April 5, 1990, Valcon filed its complaint in No. 90-296 C. The claims that are the subject of the government's motion for partial summary judgment include: (1) “[c]harges for labor relating to a delay requested by NASA to work performed on the roof— $65,286.25” (paragraph lO.h of plaintiff’s complaint) and (2) “[c]harges for performing fire proofing in the electrical equipment room—$16,209.00” (paragraph lO.k of plaintiff’s complaint).

II

In its amended answer, the government asserted the affirmative defense of accord and satisfaction in response to the delay claims. Specifically, the government contends that the general releases that were a part of the bilateral modifications barred Valcon from raising the claims for roofing and fireproofing delays. Valcon contends that the bilateral modifications and the releases contained in these modifications do not extend to its claims for delay.

“Accord and satisfaction denotes ‘one of the recognized methods of discharging and terminating an existing right’ and constitutes ‘a perfect defense in an action for the enforcement of a previous claim, whether that claim was well founded or not.’ ” Chesapeake & Potomac Tel. Co. v. United States, 228 Ct.Cl. 101, 108, 654 F.2d 711, 716 (1981) (quoting 6 Arthur L. Corbin, Corbin on Contracts § 1276 (1962)). An accord is a contract between two parties for the settlement of an existing claim, id.; a satisfaction is the execution or performance of the settlement agreement. Id. A

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Bluebook (online)
38 Cont. Cas. Fed. 76,355, 26 Cl. Ct. 393, 1992 U.S. Claims LEXIS 294, 1992 WL 153497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valcon-ii-inc-v-united-states-cc-1992.