Veit & Co. v. United States

56 Fed. Cl. 30, 2003 U.S. Claims LEXIS 67, 2003 WL 1848649
CourtUnited States Court of Federal Claims
DecidedMarch 27, 2003
DocketNo. 01-558C
StatusPublished
Cited by7 cases

This text of 56 Fed. Cl. 30 (Veit & Co. 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
Veit & Co. v. United States, 56 Fed. Cl. 30, 2003 U.S. Claims LEXIS 67, 2003 WL 1848649 (uscfc 2003).

Opinion

OPINION

YOCK, Senior Judge.

This contract case is before the Court on the Plaintiffs Motion for Summary Judgment and on the Defendant’s Cross-Motion to Dismiss and for Summary Judgment. For the reasons set forth below, the Plaintiff’s Motion for Summary Judgment is denied, the Defendant’s Cross-Motion for Summary Judgment is granted, and the Complaint is to be dismissed.

Background

In 1964, the United States Air Force established the 321st Strategic Missile Wing (the “Missile Wing”). The Missile Wing encompassed more than 10,000 square miles of eastern North Dakota and was under the operational control of Grand Forks Air Force Base, also located in North Dakota. The [32]*32purpose of the Missile Wing was to maintain 150 Minuteman Intercontinental Ballistic Missiles during the Cold War years. The Missile Wing was divided into three Strategic Missile Squadrons (“Missile Squadrons”). Each Missile Squadron was further divided into five Strategic Missile Flights (“Missile Flights”). Each Missile Flight comprised 1 launch control facility (“LCF”) and 10 launch facilities (“LFs”).

In connection with the original construction of the Missile Wing, the United States Government (the “Government”) purchased land and obtained easements for the LFs and the LCFs. Each LF was situated upon approximately 1.41 acres of Government-owned land and approximately 100 acres of permanent easements. Each LF included a missile silo, launch facility support building, underground storage tank, gravel parking surface, gravel access road, a hardened UHF antenna, targeting markers, a cathodic protection well, and a perimeter security fence.1 Each LCF covered approximately four to six acres of Government-owned land and several acres of easements. Each LCF consisted of a launch control center, elevator shaft, launch control support building, antennas, underground fuel storage tanks, paved parking surface, paved road, flag pole, basketball goal, helicopter pad, cathodic protection well, water well, sewage lagoon, and a perimeter security fence.2

Another component of the Missile Wing, in addition to 15 LCFs and 150 LFs, was the Outside Cable Communications Plant (the “OCCP”), also called the “hardened intersite cable system.”3 For purposes of the instant case, the chief component of the OCCP, or the “hardened intersite cable system,” was a hardened intersite cable (the “HIC”). The HIC is a black coaxial cable consisting of layers of plastic insulation, metal jackets, and annular spaces surrounding a core of individually insulated strands of copper wire.4 The purpose of the OCCP, or the “hardened in-tersite cable system,” was to provide communications capabilities among the LCFs and their associated LFs. In addition to the land and easements acquired for the construction of the LCFs and the LFs, the Government also obtained easements to lay approximately 1,009 miles of HIC in connection with the OCCP, or the “hardened intersite cable system” (the “OCCP Easements”). The HIC is buried at a depth of 3 to 8 feet within the 16.5-foot wide OCCP Easements.

To comply with Strategic Arms Reduction Treaty limitations upon warheads and launchers, and to comply with the recommendations of the 1995 Defense Base Closure and Realignment Commission, the Department of Defense commenced the process of dismantling particular intercontinental ballistic missile facilities during the 1990s. In the late 1990s, the Air Force proposed to demol[33]*33ish the 150 Minuteman LFs and 15 Minuteman LCFs in the Missile Wing. In April 1999, the United States Army Corps of Engineers, Omaha District, issued solicitation number DACA45-98-B-0071, seeking bids for the dismantlement of the LCFs and LFs. The solicitation stated that “[t]he estimated construction cost of this project is between $20,000,000 and $30,000,000.” (Pl.’s App. at 29.)5

Thirteen bids were received and were opened on May 25, 1999. (Pl.’s App. at 32.) The plaintiff was designated the apparent low, responsive bidder. The Government noted that the plaintiffs bid was approximately 51 percent below the Government estimate of $25,173,259 and contacted the plaintiff prior to contract award to make sure that it “fully understands the scope of work.” Id.; (Defs.App. at 137.)6

Contract No. DACA45-99-C-0052 was awarded to the plaintiff on August 19, 1999. The award included the basic contract, Option Nos. 3 through 6 inclusive (dismantlement of the first 50 LFs and 5 LCFs), and Option 7 (salvage, prepare and ship “Save List”), in the amount of $4,270,604. The plaintiff received a Notice to Proceed on August 31,1999. On March 13, 2000, Option No. 1 was awarded to the plaintiff in the amount of $4,084,784 for dismantlement of another 50 LFs and 5 LCFs. The plaintiff received a modified Notice to Proceed with this work on March 13, 2000. In October 2000, the plaintiff was awarded Option No. 2 in the amount of $3,784,665 for dismantlement' of the final 50 LFs and 5 LCFs.7

According to the contract, at the time that the Government delivered the Notice to Proceed to the contractor, the Administrative Contracting Officer (the “Contracting Officer”) was to turn over to the contractor 1 LCF and 10 LFs. As the contractor completed work on an LCF or placed an individual LF site in “observation status,” the Contracting Officer would turn over an additional LCF or LF, so that the contractor would be able to work continuously on 10 LFs and 1 LCF simultaneously.

Four months after the award of the contract, the plaintiff verbally informed the Government that it desired to salvage all of the HIC within the OCCP, or the “hardened intersite cable system.” The plaintiff reduced its intent to writing more than a year later, by letter dated January 8, 2001, notifying the Government of its intent “to salvage the Hardened Intersite Cable System as part of our salvage rights under this contract.” (Pl.’s App. at 56.) The Government permitted the plaintiff to salvage the HIC within the perimeter fences of the LFs pursuant to the contract and also might have acquiesced in allowing the contractor to salvage the HIC within the perimeter fences of the LCFs.8 By letter dated January 31, 2001, however, the Government informed the plaintiff that “[t]he HICS system between your contract sites is government property and not available for your salvage.” (Pl.’s App. at 57.)

The plaintiff filed a claim with the Contracting Officer by letter dated April 9, 2001. The claim demanded the right to salvage all of the HIC within the OCCP, or the “hardened intersite cable system,” or, in the alternative, $11,856,276, which was the sum that the plaintiff assigned to the salvage value of the copper contained in 2,000 miles of HIC.9 The Contracting Officer denied the claim in a final decision dated July 2,2001.

The plaintiff filed its Complaint in this Court on October 1, 2001, asserting that the Contracting Officer was wrong to limit its salvage rights to only that portion of the HIC that lay within the perimeter fences of the [34]*34LFs and LCFs. The plaintiff seeks specific performance of the contract and an injunction prohibiting the defendant from disposing of, transferring, surrendering or abandoning the HIC or any OCCP Easements on which the HIC is located; in the alternative, the plaintiff seeks damages in excess of $7 million to be proven at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
56 Fed. Cl. 30, 2003 U.S. Claims LEXIS 67, 2003 WL 1848649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veit-co-v-united-states-uscfc-2003.