Bell/Heery v. United States
106 Fed. Cl. 300
Fed. Cl.2012Background
- FBOP contracted plaintiff to design and build FCI Berlin in Berlin, NH; NH state interference caused unforeseen costs to plaintiff.
- Contract allocated state-permit compliance and related risks to the contractor under FAR § 52.236-7, “Permits and Responsibilities Clause.”
- TDG § 01415(D)(1) required contractor coordination with state officials but did not explicitly obligate FBOP to intercede in NH permit disputes.
- Plaintiff claimed FBOP’s failure to intercede and to authorize compensation constituted breach of contract and implied covenant violations for extra costs.
- Court confronted RCFC 12(b)(6) standards, reviewed incorporated contract documents, and held plaintiff failed to state any claim under all theories (breach, implied covenant, constructive/cardinal change).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TDG 01415(D)(1) imposes a duty on FBOP to intercede with NH officials. | plaintiff argues the clause requires intercession. | FBOP has no duty to intercede; duties lie with plaintiff. | Counts III and related breach claim dismissed. |
| Whether the CDA allows review of contracting officer’s REA denial in this court. | plaintiff seeks direct review of CO denial. | CDA provides no review of CO decisions in court, only direct contract claims. | Counts I and II dismissed. |
| Whether FBOP breached the contract by failing to intercede and compensate for NH permit changes. | TDG(01415) imposes intercession and compensation. | Permits and Responsibilities Clause assigns permit burden to plaintiff; no intercession duty. | Count III dismissed. |
| Whether the implied covenant of good faith and fair dealing supports relief given the contract terms. | implied covenant supports intercession/compensation. | covenant cannot override express contract allocations; Permits clause controls. | Count IV dismissed. |
| Whether constructive or cardinal changes aprt from NH state actions can support relief. | inaction or state actions caused extra work constitutes change. | changes were caused by the state, not FBOP; not a government-induced change. | Counts V–VI dismissed. |
Key Cases Cited
- RNJ Interstate Corp. v. United States, 181 F.3d 1329 (Fed.Cir.1999) (default risk allocation; contract governs risk where parties agree)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard; plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Hills Materials Co. v. Rice, 982 F.2d 514 (Fed.Cir.1992) (permits and responsibilities clause; interpretation against drafter when ambiguous)
- McAbee Const., Inc. v. United States, 97 F.3d 1431 (Fed.Cir.1996) (contract interpretation; plain language governs)
- L.W. Matteson, Inc. v. United States, 61 Fed.Cl. 296 (2004) (permits clause; contractor bears local permit burden)
- Int’l Data Prods. Corp. v. United States, 492 F.3d 1317 (Fed.Cir.2007) (change doctrine requires government-ordered work beyond contract)
- The Redland Co. v. United States, 97 Fed.Cl. 736 (2011) (constructive/cardinal change; government-induced change in work)