XXX Construction Co. v. United States

35 Cont. Cas. Fed. 75,631, 16 Cl. Ct. 491, 1989 U.S. Claims LEXIS 37, 1989 WL 22473
CourtUnited States Court of Claims
DecidedMarch 15, 1989
DocketNo. 110-82C
StatusPublished
Cited by8 cases

This text of 35 Cont. Cas. Fed. 75,631 (XXX 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
XXX Construction Co. v. United States, 35 Cont. Cas. Fed. 75,631, 16 Cl. Ct. 491, 1989 U.S. Claims LEXIS 37, 1989 WL 22473 (cc 1989).

Opinion

OPINION

RADER, Judge.

In this action under the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1982 & Supp. Ill, 1985), plaintiff, XXX Construction Company, Inc. (plaintiff or XXX Construction), seeks payment for reclaiming 116 acres of Forest Service land. In 1980, the Government awarded plaintiff a contract to perform reclamation work on 45 acres in the Rogue River National Forest. After completing its contract work, plaintiff claimed to have actually worked on 165 acres. The contracting officer, however, denied plaintiff’s claim for an adjustment. The contracting officer reasoned that plaintiff should have understood the need to work on as many as 165 acres to reclaim the 45 acres. Plaintiff appealed to this court.

The case is now before the court on cross-motions for summary judgment. This court grants plaintiff’s motion for summary judgment. Plaintiff’s damages request, however, is not reasonable. The court awards damages according to the formula in the contract.

FACTS

The parties do not contest any material facts. In August 1980, the United States Forest Service (Forest Service or Service), requested bids for windrow reclamation and land clearing on 175 acres in the Rogue River National Forest, Jackson County, Oregon. The 175 acres consisted of three units of land — Snowshoe (106 acres), Cat-hill (15 acres), and Gypsy Fork (54 acres). The Snowshoe and Gypsy Fork units needed windrow reclamation. The Cathill unit required clearing.

The Forest Service uses the brush field reclamation process to start new areas of forest and to provide sites for experimental planting. When clearing land under this process, the Service erects windrows to protect against wind erosion. Windrows are long piles of dead brush, uprooted ground vegetation, and debris. The windrows range in height from two to five feet above average ground level. After several years, the Forest Service reclaims land by scattering the windrow debris over the cleared area. This redistribution of the windrows restores the land to its original contours.

In this case, the windrows covered 30 acres or about 25% of the cleared land. In August 1980, the Service issued a request for bids to redistribute the windrows on the Snowshoe and Gypsy Fork units. The request also included the clearing of 15 acres in the Cathill unit.

After a month, the Forest Service received two offers, including plaintiff’s bid of $110.00 per acre. Both bids exceeded Forest Service estimates. Therefore, the Service asked the bidders to submit new bids based on 45 acres of work, rather than the entire 175 acres. XXX Construction gained the contract for 45 acres with a bid of $91.00 per acre.

On September 22, 1980, the Service issued a purchase order to XXX Construction for “Machine Site Preparation by windrows reclamation and/or land clearing” on 45 acres. The purchase order stated that plaintiff would be paid $91.00 per acre for a total contract price of $4095.00. Attached [493]*493to the purchase order were 13 pages of specifications. The purchase order and the attached specifications established the contract between the parties.

The specifications included five pages of typewritten instructions discussing the nature of the brush field reclamation project, a detailed summary sheet describing each unit, two drawings of land profiles before and after windrow redistribution, and four pages of maps identifying each of the units. These specifications provided maps and descriptions of the entire 175 acres. At no point, however, did the specifications state which 45 acres were to be worked.

On September 29, 1980, the Service began erecting survey flags to designate the boundaries of the project. The next morning plaintiff’s employee began work with the bulldozer. XXX Construction performed windrow reclamation and land clearing work as directed on all three units of the National Forest. Plaintiff’s driver strictly followed the flags set out by the Service. According to these directions, plaintiff’s driver did not work 10 of the 175 acres which the Service considered too steep for safe labor. Otherwise, plaintiff completed work on the 165 acres. As work on the project was nearing completion on October 16, 1980, XXX Construction’s employee told the Forest Service personnel that the work covered more than 45 acres. Plaintiff’s driver completed the project on schedule three days later.

When plaintiff learned of the actual acreage worked, it complained to the contracting officer. In a letter dated October 27, 1980, plaintiff’s secretary stated:

I have just finished discussing the ground covered with my tractor driver and he has advised me that the district instructed him to do the full 175 Acres as we originally bid, (except for approximately 10 Acres deleted), not the 45 Acres which the district represented was all that was to be done when they [contracted with] us.

The letter further demanded payment for work performed on 165 acres.

A dispute arose between the parties. XXX Construction claimed entitlement to payment for the entire 165 acres on which it had performed work. Defendant consented to pay only for 45 acres of work. This 45 acres included the land actually reclaimed from beneath the windrows, plus the land cleared in the Cathill unit.

In response to plaintiff’s complaint, the Forest Service remeasured the windrows and determined that they covered 34.4 acres, rather than 30. Thus, defendant agreed to pay plaintiff for 49.4 acres. On November 14, 1980, the Forest Service prepared a contract modification to reflect this revision. The letter accompanying the modification directed plaintiff that the Government would not process payment for the entire project until it received signed copies of the modification, the final pay estimate, and the contract release forms. XXX Construction’s representative signed and returned the contract modification on December 1, 1980, without comment.

On December 3, 1980, plaintiff returned the contract release form. On the contract release, in handwriting, plaintiff specifically reserved a “claim for acres worked and unpaid for as set forth in letter to contracting officer Arnold J. Windmer dated 10/27/80.” Upon receipt of payment for 49.4 acres, plaintiff submitted a claim for payment on the additional 116 acres.1

The contracting officer denied plaintiff’s claim on February 27, 1981. The contracting officer concluded that XXX Construction was only entitled to payment for the acres actually covered by the windrows and “the area immediately adjacent to the windrows____” Plaintiff then filed this action [494]*494in the United States Court of Claims, this court’s predecessor. On October 15, 1988, this court received this case, with its pending motion, for resolution.

Based on these undisputed facts, plaintiff claims entitlement to payment for work performed on 165 acres, representing the 150 acres over which the windrow debris was redistributed and 15 acres of clearing in the Cathill unit. Plaintiff argues that the contract was ambiguous. Moreover, according to plaintiff, this ambiguity should be construed against the Government.

In support of its motion for summary judgment, defendant asserts that plaintiff has already received full payment for 49.4 acres, which represents the area actually covered by the windrows (34.4 acres), plus the Cathill unit work.

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Bluebook (online)
35 Cont. Cas. Fed. 75,631, 16 Cl. Ct. 491, 1989 U.S. Claims LEXIS 37, 1989 WL 22473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xxx-construction-co-v-united-states-cc-1989.