Weaver-Bailey Contractors, Inc. v. United States

36 Cont. Cas. Fed. 75,801, 19 Cl. Ct. 474, 1990 U.S. Claims LEXIS 36, 1990 WL 10845
CourtUnited States Court of Claims
DecidedFebruary 9, 1990
DocketNo. 137-87C
StatusPublished
Cited by24 cases

This text of 36 Cont. Cas. Fed. 75,801 (Weaver-Bailey Contractors, 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
Weaver-Bailey Contractors, Inc. v. United States, 36 Cont. Cas. Fed. 75,801, 19 Cl. Ct. 474, 1990 U.S. Claims LEXIS 36, 1990 WL 10845 (cc 1990).

Opinion

OPINION

SMITH, Chief Judge.

This case is a direct-access appeal from the contracting officer’s denial of plaintiff’s request for an equitable adjustment, and comes before the court for disposition following a four day trial. The central issue presented is whether the delay in completing the contract was caused in whole or in part by plaintiff, thus precluding recovery, or whether the government was the sole cause of the delay, in which case plaintiff is entitled to compensation. For the reasons set forth below, judgment is for plaintiff.

FACTS

Plaintiff Weaver-Bailey Contractors, Inc. was awarded contract no. DACW-56-84-C0102 by the United States Army Corps of Engineers (the Corps) on July 5,1984, for a firm fixed price of $1,434,023.94. The contract called for Weaver-Bailey to build beaches, breakwaters, parking areas, boat ramps, and other items relating to the improvement of the recreation areas surrounding Arcadia Lake in Edmond, Oklahoma. Most of the work required was earthwork, specifically, cutting slopes in some areas and filling other areas, followed by grading and finishing. Areas which did not immediately border on the lake were to be finished by seeding and sprigging.1 Breakwater areas were to be created by placing material known as rip-rap — loose rock of specified size — on the finished slopes bordering the lake.

Weaver-Bailey began work on the project on August 8, 1984, and work progressed smoothly through the late summer and early fall. The contract specifications, which were prepared by the Corps, estimated the amount of unclassified excavation2 at 132,000 cubic yards (cy). However, in early October, 1984, it became evident that the Corps had substantially underestimated the amount of unclassified excavation; it was later determined that the Corps’ estimate was off by 41%. Thus, as winter was approaching, plaintiff suddenly learned that the total amount of unclassified excavation it was required to perform was not 132,000 cy, but rather 186,695 cy. A modification was issued, and plaintiff was paid approximately $180,000, or $3.29 per cy, for the additional 54,695 cy of unclassified excavation. Plaintiff had originally bid the unclassified excavation portion of the project at $3.42 per cy.

Plaintiff’s planned work schedule was disrupted by the revelation that the earthwork portion of the project had increased dramatically. Plaintiff was forced to concentrate its efforts on completing the earthwork, instead of grading and finishing the slopes and placing rip-rap. Rick Stephenson, plaintiff’s project superintendent, gave uncontroverted testimony emphasizing that Weaver-Bailey could have cona[476]*476pleted the finishing operations in about a month, had the extra earthwork not been required. Once the winter weather set in, it was too late to do the final grading and finishing of slopes, because the changes in soil density and moisture content over the winter would have changed whatever contours plaintiff put on the slopes.

The winter weather also delayed placement of rip-rap. Defendant’s own witnesses, Carl Sparks, J.D. Stahlman, and Dennis Frazier, all testified that it would be unwise, if not contrary to the contract specifications, to place rip-rap on wet or frozen ground. As a result, several areas remained unfinished and unprotected from erosion through the winter months. Weaver-Bailey kept its men and equipment on the job site throughout the winter, but was unable to accomplish much due to the severity of the winter weather. The government refused to allow Weaver-Bailey to demobilize and return to the job site in the spring.

Once spring came, plaintiff was forced to repair many slopes which were damaged by erosion during the winter. Some of the slopes had developed gullies large enough for a man to stand in. The project was finally completed on April 23, 1985. The original contract had called for completion by February 13, 1985, but the government had extended the time for performance by 68 days under paragraph 63 of the contract. Paragraph 63 excuses the contractor from paying liquidated damages for late completion, where time is lost due to inclement weather conditions. However, based upon the testimonial and documentary evidence presented at trial, it is clear that Weaver-Bailey would have completed the project by December 3, 1984. Thus, the government’s underestimate, actually delayed Weaver-Bailey’s completion by 138 days.

DISCUSSION

I. Excusable and compensable delay.

The leading treatise on government procurement law sets forth a concise explanation of the risk allocation scheme contained in the standard contract clauses relating to delays in contract performance: .

[Tjime and cost effect of delays are dealt with separately____ The contractor bears the risk of both time and cost for delays which he causes or which are within his control. Generally he is excused from non-performance because of delays caused by factors for which neither he nor the Government is responsible. The Government is responsible for both the time and cost effect of delays which it causes, which are under its control, or for which it has agreed to compensate the contractor.

J. Cibinic & R. Nash, Administration of Government Contracts 409 (2d ed. 1986).

Thus, not all delays are excusable, and furthermore, not all excusable delays are compensable. Only if the delay was caused solely by the government will the contractor be entitled to both an extension of time within which to perform, and recovery of excess costs associated with the delay. William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984); G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 700 (1984). In order for Weaver-Bailey to recover excess costs for delay in completing contract performance, it must show that the delay resulted solely from the government’s underestimate of the amount of unclassified excavation, and that there were no concurrent delays not caused by the government.

Weaver-Bailey’s delay in completing performance was excusable under paragraph 63 of the contract, which provides in part:

Default (Fixed-Price Construction) (1984 Apr) FAR 52.249-10
(b) The Contractor’s right to proceed shall not be terminated nor the contractor charged with damages under this clause, if—
(1) The delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (i) acts of God or of the public enemy, (ii) acts of the Government in either its sovereign or contractu[477]*477al capacity, (iii) acts of another Contractor in the performance of a contract with the Government, (iv) fires, (v) floods, (vi) epidemics, (vii) quarantine restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually severe weather, or (xi) delays of subcontractors or suppliers at any tier arising from unforeseeable causes beyond the control and without the fault or negligence of both the Contractor and the subcontractors or suppliers.
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Bluebook (online)
36 Cont. Cas. Fed. 75,801, 19 Cl. Ct. 474, 1990 U.S. Claims LEXIS 36, 1990 WL 10845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-bailey-contractors-inc-v-united-states-cc-1990.