Valley View Enterprises, Inc. v. United States

40 Cont. Cas. Fed. 76,920, 35 Fed. Cl. 378, 1996 U.S. Claims LEXIS 61, 1996 WL 189255
CourtUnited States Court of Federal Claims
DecidedApril 18, 1996
DocketNo. 94-440C
StatusPublished
Cited by7 cases

This text of 40 Cont. Cas. Fed. 76,920 (Valley View Enterprises, Inc. 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
Valley View Enterprises, Inc. v. United States, 40 Cont. Cas. Fed. 76,920, 35 Fed. Cl. 378, 1996 U.S. Claims LEXIS 61, 1996 WL 189255 (uscfc 1996).

Opinion

[379]*379OPINION

YOCK, Judge.

This ease comes before the Court on the plaintiffs motion for summary judgment and the defendant’s renewed motion to dismiss or, alternatively, to transfer this case to the Armed Services Board of Contract Appeals (ASBCA) pursuant to 41 U.S.C. § 609(d) (1994). The plaintiff argues that it has been ordered to do work beyond the scope of its contract and that it is not obligated to perform the work unless the contracting officer issues a change order. The defendant maintains that this Court lacks jurisdiction over the plaintiffs Complaint because it raises a matter of contract administration, and thus the plaintiffs claim here is premature. According to the defendant, the proper course for the plaintiff is to perform the work and then seek an equitable adjustment. Alternatively, the defendant seeks to transfer the Complaint to the ASBCA where the plaintiff is pursuing another claim arising from the same contract. After careful consideration of this matter, the Court grants the defendant’s motion to dismiss for lack of jurisdiction, and denies the plaintiffs motion for summary judgment.

Factual Background

On September 22,1992, the Department of the Army, United States Military Academy, awarded Contract No. DAAG60-92-C-0118 to the plaintiff, Valley View Enterprises, Inc. The contract called for the replacement of steam lines located at the United States Military Academy, West Point, New York. The plaintiff maintains that by October 1993, ninety-five percent of the work required by the contract had been completed, and the system was in use. The contract required that the plaintiff furnish, install, and test an underground, insulated heat-distribution system and insulated steel pipe condensate return system consisting of piping and other devices necessary for a complete and operable system.

By letter dated November 29, 1993, the contracting officer advised the plaintiff that the Government had performed an inspection of welds and various lengths of pipe installed by the plaintiff under the contract, which revealed numerous deficiencies in welds and materials not in compliance with contract specifications. The letter indicated that the defendant considered the defects to be sufficiently severe to threaten the integrity of the entire system installed by the plaintiff. The letter further stated that the defendant was considering terminating the contract for default and was providing the plaintiff with ten days in which to respond.

By letter dated April 12, 1994, the contracting officer advised the plaintiff of the results of two independent inspections of the plaintiffs work. The letter indicated that all twenty-three welds selected at random for inspection by radiography failed to meet contract specifications. The letter also detailed other work that the defendant found to be in violation of contract specifications. Moreover, the letter stated:

As previously conveyed to you the U.S. Military Academy considers the defects noted to be extremely serious and indicative of inferior workmanship on the whole project. Accordingly, you are hereby afforded an opportunity to submit, within 20 days, a satisfactory plan as to how your company intends on correcting, at no cost to the Government, the unacceptable work provided under the contract thus far. That plan should include specific approaches for replacement of the unacceptable work in a timely fashion, with as little impact on the Military Academy community as possible.

The letter also advised the plaintiff that failure to provide such a plan might result in termination of the contract for default.

By letter dated May 2, 1994, the plaintiff responded to the contracting officer’s April 12, 1994 letter. In this letter, the plaintiff sought more information on the locations of many of the alleged deficiencies. The plaintiff also stated its belief that the majority of the conditions specified in the contracting officer’s letter were not defects under the contract because they could not be detected under the inspection procedures provided for in the contract. The plaintiff further stated:

[W]e consider your letter of April 12,1994 to be a directive to us to perform work [380]*380clearly beyond the scope of our contract. As such, we consider it a written order for a change within the meaning of the “Changes Clause” of our contract for which we are entitled to an equitable adjustment in our contract amount. Within this context, our plan for performing the work you have directed us to perform is attached hereto.

The letter contained a schedule with procedures for additional testing and replacement of the work in question, indicating that the plaintiff agreed to perform the specified work and intended to finish the additional work prior to the original contract completion date of May 19, 1996. Also in the letter, the plaintiff requested a contracting officer’s decision, under the Disputes clause, of the plaintiff’s contract obligations under Specification Section 15052. The request for a contracting officer’s decision was accompanied by an attempted certification.

On July 12, 1994, more than sixty days after the defendant had received the plaintiff’s letter, the plaintiff filed its Complaint in this Court. The plaintiff’s Complaint cites to 41 U.S.C. § 605(c)(5) (1994), the so-called “deemed decision” section of the Contract Disputes Act of 1978 (CDA), as amended, for its authority to file its Complaint directly with this Court.

On October 17,1994, the defendant rejected the plan submitted by the plaintiff on May 2, 1994, and asked for a revised corrective plan to be submitted by November 4, 1994. On November 4, 1994, the Government recommended that the plaintiff be suspended from further Government contracting for suspected fraud in the performance of this contract. The plaintiff was suspended on November 9,1994.

On January 30, 1995, the plaintiff filed a complaint with the ASBCA concerning the same contract. Valley View Enterprises, Inc. v. Dept. of the Army, ASBCA No. 48246 (filed Jan. 30, 1995). In its ASBCA complaint, the plaintiff appeals the contracting officer’s denial of the plaintiff’s delay claim stemming from the defendant’s refusal to allow the plaintiff onto the job site to complete the plaintiff’s remaining work. The contracting officer explained in her November 23, 1994 denial of the plaintiffs claim that the request was denied “based upon the fact that the entire delay is wholly attributable to the poor performance of Valley View Enterprises.”

Discussion

In the plaintiff’s motion for summary judgment, the plaintiff seeks to have this Court determine that: (1) the contracting officer’s failure to issue a decision constituted a deemed denial of the plaintiffs claim, (2) the contracting officer’s direction to the plaintiff on April 12, 1994, was a directive to perform work beyond the scope of the contract, (3) the plaintiff is not obligated to perform that work at no cost to the Government, (4) the plaintiff is not obligated to perform the work designated in the April 12,1994 letter except by a contract modification issued under the Changes clause, and (5) that the plaintiff has fully complied with the contract.

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Bluebook (online)
40 Cont. Cas. Fed. 76,920, 35 Fed. Cl. 378, 1996 U.S. Claims LEXIS 61, 1996 WL 189255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valley-view-enterprises-inc-v-united-states-uscfc-1996.