502 F. App'x 934
Fed. Cir.2013Background
- M.E.S., Inc. appeals the Armed Services Board of Contract Appeals’ denial of two equitable-adjustment claims on a Corps contract.
- The Corps awarded a $10.3 million firm-fixed-price contract to design and build a fitness center at McGuire AFB, with a 720-day schedule and a planned completion date of Nov. 4, 2003.
- Project delays occurred due to severe weather and asbestos discovery; the Corps extended the completion date 12 times by 345 days and paid $626,469 in additional compensation.
- Most modifications were bilateral and reserved M.E.S.’s right to request delay/impact compensation and overhead adjustments; at least one modification included home office overhead.
- Construction was substantially completed on Oct. 14, 2004; M.E.S. submitted five equitable-adjustment claims totaling $1,593,949, which the contracting officer denied; the Board sustained two claims and denied three, including the two on appeal.
- The agency’s Board findings and the evidentiary record are the basis for this court’s review under 28 U.S.C. § 1295(a)(10).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government delays/inefficiencies caused cost overruns. | M.E.S. argues delays caused overruns through inefficiencies and cost inflation. | Board found no persuasive evidence linking delays to the increased costs. | Board’s finding is supported by substantial evidence. |
| Whether government-directed acceleration existed. | M.E.S. contends delays entitled it to extended time; government forced earlier completion. | No extension beyond Oct. 14, 2004; no acceleration proven. | No entitlement to additional time or acceleration shown. |
| Whether M.E.S. is entitled to additional home office overhead (Eichleay). | Claims rely on Eichleay/overhead calculation for delays. | Standby/evidence requirements not met; calculation deficient and not substantiated. | Substantial evidence supports denial of Eichleay/overhead damages. |
Key Cases Cited
- Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994) (contractor must prove liability and damages for delays)
- Fraser Constr. Co. v. United States, 384 F.3d 1354 (Fed. Cir. 2004) (constructive acceleration requires government-imposed deadline shorter than entitlement)
- Interstate General Gov’t Contractors, Inc. v. West, 12 F.3d 1053 (Fed. Cir. 1993) (standby/interruptions required for Eichleay analysis)
- Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575 (Fed. Cir. 1993) (standby and interruption requirements for Eichleay damages)
- C.B.C. Enters., Inc. v. United States, 978 F.2d 669 (Fed. Cir. 1992) (home office overhead calculations in contract disputes)