Z.A.N. Co. v. United States

32 Cont. Cas. Fed. 72,875, 6 Cl. Ct. 298, 1984 U.S. Claims LEXIS 1316
CourtUnited States Court of Claims
DecidedSeptember 5, 1984
DocketNo. 432-81C
StatusPublished
Cited by37 cases

This text of 32 Cont. Cas. Fed. 72,875 (Z.A.N. 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
Z.A.N. Co. v. United States, 32 Cont. Cas. Fed. 72,875, 6 Cl. Ct. 298, 1984 U.S. Claims LEXIS 1316 (cc 1984).

Opinion

OPINION

YANNELLO, Judge.

This case comes before the court on defendant’s motion for partial summary judgment. Defendant contends that the portions of the complaint which seek to contest the defendant’s default termination of the contract and assessment of excess repro-curement costs and which seek to assert a claim for a termination for the convenience of the government are untimely and must be dismissed.1 In response, plaintiff interposes, inter alia, the Fulford doctrine. For the reasons stated herein, the defendant’s motion is granted in part and denied in part. Certain portions of the plaintiff’s petition are to be dismissed.

Statement of Facts

The contract here in issue (DAAE07-78-C-0748) was awarded by the U.S. Army Tank Automotive Material Readiness Command on June 1, 1978 and it called for delivery of ring oil seals no later than June 3, 1979.

The contract contained a standard Default clause identical to that found at 32 DAR C.F.R. § 7-103.11 (1980). In general terms, this clause provides that the government may terminate the contract for default when the contractor fails to meet delivery schedules or otherwise perform in conformance with the contract. When the government terminates for default, it may reprocure, and the contractor will be liable for any excess reprocurement costs unless the default was, in short, excusable (that is, beyond the control of, and without the fault or negligence of, the contractor). Upon default termination, the government may take possession of completed items, work-in-progress, or on-site equipment and may compute the payment due therefor; if the parties disagree as to amount, the dispute shall be subject to resolution under the Disputes clause. Finally, the Default clause provides that, if it is later deter[301]*301mined that there was no default, or that any default was excusable, the rights of the parties are governed by the termination for convenience clause if present in the contract; otherwise, the contractor may be entitled to an equitable adjustment.

Plaintiff allegedly experienced difficulties in the administration of the contract and defendant issued a cure letter on May 80, 1979. The contract was terminated for default pursuant to a decision of the contracting officer (CO) issued on June 23, 1979, and received by plaintiff approximately two days later.

This decision set forth the CO’s conclusion that: (1) the contractor had failed to meet contractual delivery dates and was in default; and that (2) the default was not excusable. The decision included a statement that the government might reprocure the items and that, if it did, the contractor would be liable for any excess reprocurement costs. Finally, it contained a statement that this was a final decision subject to appeal pursuant to the Disputes clause of the contract, and noted particularly the possibility of appeal to the Armed Services Board of Contract Appeals.2

The contractor took no action to appeal the decision of the contracting officer, either to the agency or to this court.3

After the default decision was issued, the government reprocured the contract items. As a result, the contracting officer issued a second decision on July 16, 1980, assessing plaintiff the excess cost of the reprocurement. Within 12 months, plaintiff appealed directly to this court, invoking the provision of 41 U.S.C. § 609(a)(1) (1982).

Plaintiff’s Complaint

Plaintiff’s Petition, Count I, suggests that the contractor was not in default and that the CO’s contrary conclusion was improper. Count II asserts that the termination should be converted to one for the convenience of the government either because plaintiff was not in default, or, alternatively, because any default was excusable.4 As a result, the contractor feels itself entitled to compensatory relief. Count III denies liability for excess reprocurement costs, first because there was no default, and then, assuming default for the purposes of argument, because the default was excusable. Finally, in Count IV, plaintiff denies liability for excess reprocurement costs because, it says, the government failed to properly mitigate in connection with the reprocurement.

Questions Presented

Defendant contends that the CO’s 1979 decision which terminated the contract for default was a decision on a claim by the government against the contractor.5 This decision (so the argument runs), not having been appealed either to the agency board or to this court within 12 months of its issuance6, is entitled to finality under the CDA.7 Thus the conclusions reached [302]*302therein regarding default and excusability are not subject to review in any way by this court.8 The government also urges the view that the time limitations attaching to an action in this court are jurisdictional, and not subject to waiver by any party or to extension by the court.

Accordingly, the government asserts that plaintiffs Counts I, II, and III, as they seek review of the conclusions as to default and excusability, are now beyond the court’s jurisdiction and must be dismissed.

While cases in both the Claims Court and the Court of Appeals for the Federal Circuit have examined the finality provisions of CDA, defendant suggests that this may be the first time that such question was addressed in terms of the threshold issue here, namely: the interaction of the finality provision with the provision concerning the nature of the “claim” and the identity of the party asserting such claim (41 U.S.C. § 605(a) and (b)).

At the suggestion of the court, both parties addressed the recent decision issued in D. Moody & Co., Inc. v. United States, 5 Cl.Ct. 70 (1984) (interlocutory appeal denied). While that decision does not control here, it nonetheless represents a comprehensive and scholarly discussion of the Fulford doctrine and adopts it in a factual context not at all dissimilar from that presented here. There the court held that when a contractor timely appeals an assessment of excess reprocurement costs, it may also question a default termination not previously appealed.

As might be expected, plaintiff in the instant case urges the adoption of the rationale of the Moody court. Defendant, on the other hand, urges that the issues presented to the Moody court did not encompass the issue now raised here. The court in Moody addressed the issues of jurisdiction and finality under the CDA, 41 U.S.C. § 605(b) (which in all relevant respects is similar to the finality provisions of the standard Disputes clause) against a background of interrelated contract clauses; in short, finality was viewed against the multiplicity and succession of decisions anticipated in the Default clause and hence, as enunciated in the Fulford doctrine, it was determined that the CO’s decision on the default was not a “final” decision so as to be entitled to finality under the Act.

In the instant case, the focus is on the portion of the CDA, 41 U.S.C.

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

Related

Magnus Pacific Corporation v. United States
133 Fed. Cl. 640 (Federal Claims, 2017)
Sikorsky Aircraft Corp. v. United States
102 Fed. Cl. 38 (Federal Claims, 2011)
Diversified Energy v. TVA
Sixth Circuit, 2003
Deponte Investments, Inc. v. United States
54 Fed. Cl. 112 (Federal Claims, 2002)
Marshall Associated Contractors, Inc. v. United States
39 Cont. Cas. Fed. 76,702 (Federal Claims, 1994)
Boeing Co. v. United States
39 Cont. Cas. Fed. 76,663 (Federal Claims, 1994)
Spalding & Son, Inc. v. United States
37 Cont. Cas. Fed. 76,174 (Court of Claims, 1991)
Nussinow v. United States
37 Cont. Cas. Fed. 76,138 (Court of Claims, 1991)
Sun Eagle Corp. v. United States
37 Cont. Cas. Fed. 76,119 (Court of Claims, 1991)
Cubic Corp. v. United States
36 Cont. Cas. Fed. 75,972 (Court of Claims, 1990)
West Coast General Corp. v. United States
36 Cont. Cas. Fed. 75,773 (Court of Claims, 1989)
Crippen & Graen Corp. v. United States
35 Cont. Cas. Fed. 75,726 (Court of Claims, 1989)
Timberland Paving & Construction Co. v. United States
35 Cont. Cas. Fed. 75,713 (Court of Claims, 1989)
City of El Centro v. United States
35 Cont. Cas. Fed. 75,724 (Court of Claims, 1989)
Claude E. Atkins Enterprises, Inc. v. United States
35 Cont. Cas. Fed. 75,582 (Court of Claims, 1988)
John R. Glenn v. The United States
858 F.2d 1577 (Federal Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
32 Cont. Cas. Fed. 72,875, 6 Cl. Ct. 298, 1984 U.S. Claims LEXIS 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zan-co-v-united-states-cc-1984.