Vepco of Sarasota, Inc. v. United States

38 Cont. Cas. Fed. 76,359, 26 Cl. Ct. 639, 1992 U.S. Claims LEXIS 317, 1992 WL 155553
CourtUnited States Court of Claims
DecidedJuly 8, 1992
DocketNo. 91-1532C
StatusPublished
Cited by3 cases

This text of 38 Cont. Cas. Fed. 76,359 (Vepco of Sarasota, 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
Vepco of Sarasota, Inc. v. United States, 38 Cont. Cas. Fed. 76,359, 26 Cl. Ct. 639, 1992 U.S. Claims LEXIS 317, 1992 WL 155553 (cc 1992).

Opinion

OPINION

NETTESHEIM, Judge.

This case is before the court on defendant’s motion to dismiss for lack of jurisdiction due to a contractor’s purported failure to file a timely complaint under the Contract Disputes Act of 1978 (the “CDA”), 41 U.S.C. § 609(a) (1988). Argument is deemed unnecessary.

FACTS

Unless otherwise noted, the following facts are undisputed. On September 23, 1988, the Tampa Facilities Service Office (“FSO”), United States Postal Service (the “Postal Service”), awarded Contract No. 119986-88-V-0493 for construction of a post office in Osprey, Florida, to Vepco of Sarasota, Inc. (“plaintiff”). The contract required plaintiff to clear trees and other growth from areas designated for the building site, parking and loading facilities, and stormwater retention ponds. Section 02110 of the specifications detailed this site clearing work and stated: “Extent of site clearing is shown on drawings.” The drawings, dated July 25, 1988, indicated that removal of approximately 50 trees was required and denoted the approximate location of those trees, as well as trees that were to remain on the site.

On November 23, 1988, plaintiff forwarded to the Postal Service’s architect and engineer, Curry Smith Jaudon Architects, Inc. (the “A & E”), a letter from plaintiff’s subcontractor, Chambers Construction Co., Inc., noting discovery of trees not shown on the site plans. Plaintiff indicated that, by November 28, 1988, it “would mark all trees in the building and parking areas as either indicated or not indicated on the drawings.” On November 29, 1988, the A & E noted in its field report that it inspected the site to determine the extent of trees located within the building, paving, and drainage areas and that there were approximately 250 trees on the site that were not shown on the tree survey. Additionally, the A & E noted: “The Contractor will start removal of trees which are in the improved areas designated to be removed. They have been instructed not to remove undesignated trees until a determination can be made by Architect and Owner [the Postal Service] as to the size of trees to be removed.” Plaintiff argues in brief that the next day after having completed a portion of the work it notified the A & E that further work could not proceed without authorization for added payment. Also in brief plaintiff maintains that on December 1, 1988, it was verbally instructed to proceed with the removal of all trees in the improved areas and to document time and equipment usage.

In a December 2, 1988 letter, the A & E informed plaintiff:

We have contacted the U.S. Postal Facility concerning the existing trees on site which do not appear on the tree survey or our construction documents. The Postal Facility has instructed our office that all trees within the building area, parking, driveways, sidewalks and retention and swale areas are to be removed.
We will schedule a site visit for the week of December 5, 1988 to verify locations of trees outside of the above mentioned areas which are to remain. You are also instructed to keep a log of all tree sizes removed that have not been [641]*641shown on the tree survey or construction documents.

On December 30, 1988, plaintiff submitted a request for modification of the contract to the Postal Service, attention Marilyn Wong-Wittmer. Ms. Wong-Wittmer was both Project Manager and a Contracting Officer’s Representative. Plaintiff stated: “Per our previous conversations and your instruction to remove additional trees, we directed our site subcontractor to perform the work. Below is a request for modification for a portion of the work____” Plaintiff sought $7,147.43 and a time extension of 14 days for the removal of 375 trees not shown on the site plan provided by the Postal Service.

On December 28, 1988, plaintiff wrote to the A & E regarding a second issue relating to the contract. Plaintiff indicated that its electrical subcontractor had brought to plaintiff’s attention the absence of any provision for electrical service to the irrigation well and the potable water well. Plaintiff noted that in reviewing the problem it was unable to find either a conduit indicated as going to the wells or breakers in the panel designated for supplying power to the wells. In a January 13, 1989 letter, the A & E informed plaintiff that “[cjontract requirements are for complete and fully operable systems____” On January 25, 1989, after subsequent correspondence between the A & E and plaintiff disputing who was responsible for the electrical service at issue, plaintiff sent two letters to the A & E, attention Charles Jaudon. The letters itemized the costs for work relating to “additional electrical requirements” and “the required change of power of the potable well water pump.” Plaintiff estimated the costs for these items to be $2,203.74 and $182.46, respectively.1 In both letters plaintiff asked that the A & E advise plaintiff if the A & E wanted the work to be performed under a modification.

On January 26, 1989, an on-site conference took place. Those present included Contracting Officer Alvis A. Tucker, Ms. Wong-Wittmer, Mr. Jaudon, and representatives of plaintiff. The notes of the A & E’s field report stated the following, in pertinent part:

1. Meeting was requested by the Contractor to review his change order requests for tree removal, power for potable and irrigation well pumps, and misplaced box lobby and work area footings.
2. No agreement was reached regarding the three items in question, therefore the Contracting Officer will issue a letter stating his decision on these items.

On February 17, 1989, Contracting Officer Tucker issued two separate decisions. One denied plaintiff recovery for removal of the additional trees, and the other denied plaintiff recovery for providing electrical service for the two wells at issue. Plaintiff received the decisions on February 21, 1989. The decision relating to the removal of trees, stated that in response to plaintiff’s letter of December 30, 1988, and per the on-site meeting of January 26, 1989, “it is the final decision of the Contracting Officer that the removal of trees on site to accommodate parking and building are the contractor’s responsibility____” The decision relating to the electrical requirements for the irrigation well and potable water well stated that in response to plaintiff's January 25,1989 request for compensation, “it is the final decision of the Contracting Officer that it is the contractor’s responsibility to provide fully operable systems in the completion of the construction of a Post Office____” This decision referenced only the January 25, 1989 request for $2,203.74, not the request for $182.46. Both decisions concluded with a description of the appeal process for a contracting officer’s final decision.

Plaintiff’s Vice President, Gregory M. Pike, stated in his affidavit of April 2,1992, the following:

Despite the seeming finality of the February 17, 1989 Contracting Officer’s decisions denying Vepco’s claim for $7,147.43 for tree removal and for [642]*642$2,386.20 for electrical service, A1 Tucker and Marilyn Wong-Wittmer indicated as early as February 1989 and afterwards that each claim would be reserved and reconsidered after a final accounting.

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Bluebook (online)
38 Cont. Cas. Fed. 76,359, 26 Cl. Ct. 639, 1992 U.S. Claims LEXIS 317, 1992 WL 155553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vepco-of-sarasota-inc-v-united-states-cc-1992.