Warchol Construction Co. v. United States

30 Cont. Cas. Fed. 71,088, 2 Cl. Ct. 384, 1983 U.S. Claims LEXIS 1773
CourtUnited States Court of Claims
DecidedApril 21, 1983
DocketNo. 27-81C
StatusPublished
Cited by18 cases

This text of 30 Cont. Cas. Fed. 71,088 (Warchol Construction Co. 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
Warchol Construction Co. v. United States, 30 Cont. Cas. Fed. 71,088, 2 Cl. Ct. 384, 1983 U.S. Claims LEXIS 1773 (cc 1983).

Opinion

OPINION

LYDON, Judge:

This direct access government contract case is before the court on defendant’s mo[385]*385tion for summary judgment. Defendant seeks to dismiss plaintiff’s complaint for damages, based on differing site conditions and improper assessment of liquidated damages on the ground that plaintiff failed to properly certify these claims to the contracting officer as required by the Contract Disputes Act, 41 U.S.C. Sec. 605(c)(1) (Supp. II, 1978). Plaintiff, in answer to defendant’s motion, argues that the certification requirement, supra, does not apply under the circumstances of this case, and that, therefore, defendant’s motion should be denied and the matter set down for trial on the merits of the claims presented in the complaint. For reasons which are set forth below, it is concluded that defendant’s motion for summary judgment is granted and plaintiff’s petition is to be dismissed without prejudice for want of subject matter jurisdiction.

I.

On March 9,1979, plaintiff entered into a contract with the defendant, acting through the United States Postal Service (Postal Service), to build a new postal facility in Hinsdale, Illinois, for the fixed price of $1,479,000. During contract performance, the plaintiff encountered site conditions which it claimed differed from those listed on the survey and topographic map provided by the Postal Service. Plaintiff claimed that actual ground elevations present at the site differed from those which were shown on these contract documents.

Believing it encountered differing site conditions, plaintiff, on or about September 25, 1979, sought a change order for additional earthwork performed (removal of excess dirt), in the amount of $46,719, and a 30-day time extension. On October 25, 1979, plaintiff sought authorization from the Postal Service to haul off-site surplus dirt, which it claimed was unforeseen work, at a unit cost of $5.78 per cubic yard and requested a 30-day time extension. No total dollar amount of claim was stated in this letter. On November 7, 1979, plaintiff wrote the Postal Service explaining that the basis of its October 25, 1979 proposal was that the existing contour shown on the contract survey differed from the condition existing at the site.1 On January 21, 1980, the contracting officer denied plaintiff’s differing site condition claim by a final decision which advised plaintiff of its appeal rights.2 Plaintiff was advised in the January 21,1980 decision that its claim was denied because: “ * * * Information available to us establishes that you did not promptly notify the Contracting Officer in writing, per Clause 7 of the General Provisions, prior to accomplishing extensive excavation and site development. Such action prejudiced the position of the United States Postal Service by preventing a true determination of undisturbed site elevations and prevented redesign of the site development.”

On April 4, 1980, plaintiff submitted to the Postal Service a written proposal for a change order in the amount of $13,235.00 for additional costs incurred for asphalt paving due to the delay resulting from the differing site condition which was the subject of the January 21, 1980 decision of the [386]*386contracting officer. Plaintiff also requested a 150-day time extension. In a supplementary letter dated April 23, 1980, plaintiff explained its April 4, 1980 letter in pertinent part as follows:

Your letter of October 11, 1979 directing us to proceed with site preparation and to submit proposal for extra work was responded by our proposal letter of October 25, 1979 and even before then a proposal was submitted by us last September 25, 1979 regarding the excess dirt. As of this writing, we have not received the proper change order for the proposals submitted.
In accordance with your instructions, we are re-scheduling the work involved and all extra costs and delays will be the responsibility of the United States Postal Service.
The delay caused by non issuance of the change order prohibits us from installing the asphalt paving as originally scheduled and resulted on [sic] additional expense. Please process the change order as per our letter of April 4, 1980.

By letter dated April 30,1980, the contracting officer denied plaintiff’s request for additional compensation for asphalt paving. This letter, however, did not indicate it was a final decision nor did it advise plaintiff of its appeal rights.

On January 19, 1981, plaintiff filed a petition in the United States Court of Claims seeking damages in the amount of $46,719.00 based on its encountering differing site conditions during contract performance. This claim was the subject of plaintiff’s September 25, 1980 change order proposal, discussed, supra. The petition did not allege any damages resulting from delay. The government filed its answer on March 20, 1981 and . by order dated March 23, 1981 the court instituted pretrial proceedings. On May 5,1981 plaintiff requested that pretrial proceedings be suspended while it pursued additional claims before the contracting officer. Plaintiff’s request was granted and proceedings were suspended.

On January 21, 1981, plaintiff sought from the contracting officer a change order in the amount of $8,259.62, along with a proper time extension, for hauling off-site, excavated material from plumbing trenches. Plaintiff’s request referred to the previously mentioned October 25, 1979, proposal. In effect, the January 21, 1981 letter placed a dollar amount on the October 25, 1979 proposal.

Completion of the contract was late, and plaintiff was deemed liable for liquidated damages pursuant to the terms of the contract. The government retained as liquidated damages the amount of 10 percent of the total contract price of $1,479,000, or $147,900. Plaintiff had made various requests for time extensions and had urged that any delay encountered in performing the contract was not due to its fault or negligence and thus it was not changeable with liquidated damages and therefore it was entitled to payment of the retained $147,900.

On June 4, 1981, plaintiff met with the contracting officer to negotiate various unresolved contract issues. The results of the June 4, 1981 meeting were embodied in a letter from the contracting officer to the plaintiff dated August 14,1981. The letter stated that as to the $46,719.79 issue, labeled “Remove Additional Spoil,” it was not subject to decision at the June 4,1981 meeting because said claim was presently pending in the United States Court of Claims. The letter further stated that both the “Paving Increase” request for $13,235.00 and the “Plumbing Excess Dirt” request for $8,259.62 were denied. Finally, the letter stated that the completion of the contract was 314 days late and that, at $550 per day, the liquidated damages were equal to $172,-700.00. Consequently, the letter stated, the government refused to return any portion of the 10 percent being retained by the government as liquidated damages ($147,-900.00) nor any amounts it had agreed to pay plaintiff in settlement of other issues totaling $18,383.06. The letter requested that plaintiff show specifically the reason for the delays and why the 314 days of liquidated damages should be reduced.

[387]*387Shortly thereafter, on August 19, 1981, plaintiff wrote to the contracting officer seeking corrections of what it believed were errors in the August 14,1981 letter.

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Bluebook (online)
30 Cont. Cas. Fed. 71,088, 2 Cl. Ct. 384, 1983 U.S. Claims LEXIS 1773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warchol-construction-co-v-united-states-cc-1983.