Volmar Construction, Inc. v. United States

41 Cont. Cas. Fed. 77,010, 32 Fed. Cl. 746, 1995 U.S. Claims LEXIS 31, 1995 WL 64196
CourtUnited States Court of Federal Claims
DecidedFebruary 16, 1995
DocketNos. 93-540C, 94-335C
StatusPublished
Cited by16 cases

This text of 41 Cont. Cas. Fed. 77,010 (Volmar Construction, 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
Volmar Construction, Inc. v. United States, 41 Cont. Cas. Fed. 77,010, 32 Fed. Cl. 746, 1995 U.S. Claims LEXIS 31, 1995 WL 64196 (uscfc 1995).

Opinion

OPINION

MILLER, Judge.

This case is before the court after argument on cross-motions for summary judgment. The issue is whether asserted setoffs satisfy the jurisdictional prerequisites for government claims as set forth in the Contract Disputes Act of 1978,41 U.S.C. §§ 601-613 (1988 & Supp. V. 1993) (the “CDA”).

FACTS

The following facts are undisputed, unless otherwise noted. Volmar Construction, Inc. (“plaintiff’), a New York corporation, is a general contractor. On August 21, 1991, plaintiff entered into a firm fixed-price contract with the General Services Administration (“GSA”) for the renovation and restoration of the Alexander Hamilton Custom House. Consequent to several change orders issued over the course of the contract, [749]*749the total price of the contract increased from $4,968,000.00 to $5,817,166.20.

GSA has paid plaintiff in the amount of $5,524,235.20, leaving a contract balance of $292,931.00. Plaintiffs motion for partial summary judgment seeks only $233,731.00, as opposed to the full contract balance, so the motion does not address defendant’s counterclaim of $59,200.00 in liquidated damages stemming from plaintiffs alleged failure to complete certain contract work in a timely manner.1

Plaintiff contends that because it “duly completed all obligations on its part required to be performed under the contract,” GSA owes it $233,731.00. Plf s Proposed Findings of Uncontroverted Fact No. 4 filed Oct. 26, 1994. Defendant disputes plaintiffs characterization of its contract performance, maintaining that GSA properly withheld $278,-231.00 of the $292,931.00 contract balance, thereby entitling plaintiff to no more than $14,700.00.2 Because GSA included the liquidated damages penalty in the $278,231.00 withholding and this amount does not form the basis of plaintiff’s motion, the present dispute devolves to whether GSA properly withheld $219,031.00, ie., $278,231.00-$59,-200.00.

The following five items comprise the $219,031.00 withheld by GSA:

1. GSA withheld $32,096.00 representing credits for deleted work identified in Item Nos. 7,12, and 13 of the Request for Proposal (“RFP”) No. 25, dated January 19, 1994. According to the declaration of Steven Barry, a GSA contract specialist, the parties executed the contract modification with the exception of Item Nos. 7, 12, and 13. Plaintiff rejected these items in its cost proposal dated February 14, 1994, because the items sought credits for work deletions, although the work was never part of the original contract.

For example, in Item No. 7, GSA requested credit for the deletion of the internal wiring of certain light fixtures. In its cost proposal, plaintiff denied this credit because Amendment No. 4, issued prior to the date on which the original contract was bid, deleted the light fixtures referenced in Item No. 7, which, according to plaintiff, signified the elimination of the associated internal wiring requirement. Plaintiff argued in its proposal that GSA cannot exact credits for wiring work allegedly deleted under the contract when the work never was part of the original contract specifications.

2. GSA withheld $165,885.00 representing credits for deleted work contained in Item Nos. 1-7 of RFP No. 26, dated October 4, 1993. According to Mr. Barry, the parties never executed this proposed contract modification. In its cost proposal dated October 19,1993, plaintiff contested the validity, of the credits requested, noting that some of the work deletions, for which GSA sought credit, concerned tasks which were not part of the original contract.

3. GSA withheld $15,750.00 for the cost of repairing freight elevator No. 7. Defendant contends that plaintiff damaged the elevator while the elevator was under its control and that plaintiff had a contractual obligation both to repair the elevator and to pay for any costs associated with such repair.

The record indicates that on October 15, 1993, Contracting Officer Kin Moy first told plaintiff to provide GSA with a restoration plan for the damaged elevator. Plaintiff responded on November 1, 1993, stating that the October 15 letter erroneously presumed that plaintiff was solely liable for all damage caused. Plaintiff, however, “agree[d] to participate in its fair share to correct the damage once a determination ha[d] been made between users as to responsibility and prorated [as to] cost.”

[750]*750On November 30, 1993, the contracting officer sent plaintiff another letter reminding plaintiff of its responsibility and noting that a failure to respond by December 8, 1993, would result in GSA’s “backcharg[ing] any extra costs to ... [plaintiff].” On December 3, 1993, plaintiff reiterated that it had not been given full control over the elevator and noted that there were at least seven different types of users. Based on a total repair estimate of $21,000.00, plaintiff offered a credit of $3,000.00 representing its share of the damage as one of the seven users.

In a letter dated March 3, 1994, GSA denied plaintiff’s credit proposal and noted that, based on limited elevator usage by other parties, plaintiff should bear 75 percent of the total .costs of repair, resulting in the $15,750.00 charge. The letter further stated, in effect, that plaintiffs acceptance of the charge would be the basis of the issuance of a credit RFP to plaintiff. Plaintiff disputes the charge, contending that GSA improperly allocated responsibility for the elevator damage.

4. GSA withheld $20,000.00 because certain work associated with the basement and rotunda areas of the project site was not completed, as required by the contract. Defendant asserts that GSA has determined that, as of this date, it is entitled to only $300.00 of the retained amount, representing the cost of an exit light that plaintiff failed to install in the rotunda area. By letter dated June 27, 1994, GSA requested that plaintiff furnish the light. Although plaintiff does not dispute that it failed to install the exit light, plaintiff does dispute the Government’s entitlement to $300.00.3

5. GSA withheld $5,000.00 for the cost of repairing deficiencies in the painting of 'the project site. GSA reported these deficiencies to plaintiff as early as October 1993 and requested plaintiff to take corrective action. Plaintiff attempted to remedy the situation in the spring of 1994, but the same problems later resurfaced, as GSA informed plaintiff in letters dated September 7 and October 20, 1994.

Plaintiff denies responsibility for the alleged painting deficiencies and claims that the cost of the required repairs does not exceed $300.00. In a December 29, 1994 letter to Contracting Officer Moy, plaintiff contested GSA’s allegations that it had failed to exercise proper quality control procedures, citing a report indicating that a number of factors beyond plaintiff’s control had contributed to the paint problems, including both the condition of the plaster and improper temperature control throughout the building.

Defendant contends that GSA apprised plaintiff of each of the items underlying its withholding. Plaintiff disagrees, claiming that GSA only apprised it of the liquidated damages claim, pursuant to the June 21,1994 contracting officer’s final decision.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

L-3 Communications Integrated Systems, L.P.
Armed Services Board of Contract Appeals, 2017
Estes Express Lines v. United States
123 Fed. Cl. 538 (Federal Claims, 2015)
Tidewater Contractors, Inc. v. United States
107 Fed. Cl. 779 (Federal Claims, 2012)
Precision Pine & Timber, Inc. v. United States
62 Fed. Cl. 635 (Federal Claims, 2004)
United Partition Systems, Inc. v. United States
12 A.L.R. Fed. 2d 867 (Federal Claims, 2004)
Dodson Livestock Co. v. United States
48 Fed. Cl. 551 (Federal Claims, 2001)
Witherington Construction Corp. v. United States
45 Fed. Cl. 208 (Federal Claims, 1999)
Johnson Controls World Services, Inc. v. United States
43 Cont. Cas. Fed. 77,463 (Federal Claims, 1999)
Blinderman Construction Co. v. United States
42 Cont. Cas. Fed. 77,210 (Federal Claims, 1997)
J & E Salvage Co. v. United States
41 Cont. Cas. Fed. 77,079 (Federal Claims, 1997)
Haustechnik v. United States
40 Cont. Cas. Fed. 76,886 (Federal Claims, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
41 Cont. Cas. Fed. 77,010, 32 Fed. Cl. 746, 1995 U.S. Claims LEXIS 31, 1995 WL 64196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volmar-construction-inc-v-united-states-uscfc-1995.