Metcalf Construction Co. v. United States
102 Fed. Cl. 334
Fed. Cl.2011Background
- Metcalf commenced performance on a Navy design-build housing contract on December 31, 2002, with 32 contract modifications extending completion from March 5, 2005 to October 17, 2006 and ultimately to March 2, 2007.
- The 212-unit Kaneohe Bay project arose from an April 5, 2001 Navy RFP that was split into base and option components; Metcalf was awarded the base item contract on October 22, 2002 after prior protests and debriefings.
- NTP was due by November 21, 2002, but a GAO bid protest delayed action; Navy instructed Metcalf to suspend actions pending protest disposition before award and performance.
- The Navy modified the contract repeatedly, including an option to 212 units, with final contract price around $49.95 million; Metcalf contends costs exceeded $76 million while Navy-paid amounts total about $49.05 million.
- Metcalf filed suit November 5, 2007 alleging bad-faith conduct and delay/impact damages; court addressed jurisdiction, standing, cardinal-change theories, differing-site-conditions, and various contract-claim theories, ultimately denying liability but granting extensions for certain delays.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under the Tucker Act and CDA | Metcalf alleged contract-based money damages against the United States. | Navy argues CDA jurisdiction and proper contractual remedies exist under the Changes and Differing Site Conditions clauses. | Court has Tucker Act jurisdiction and CDA jurisdiction over pleaded claims. |
| Whether Metcalf’s cardinal-change theory was tried with consent | Cardinal change theory arises from the same facts as the global/differing-site-condition claim. | No express or implied trial-consent to a new cardinal-change theory; amendment denied. | Denied; cardinal-change theory not tried with consent; Second Amended Complaint denied. |
| Differing site conditions and related extension | Expansive soils and chlordane issues evidenced a differing site condition requiring equitable adjustment. | No valid differing-site-condition existed or, if one did, Navy acted promptly or compensated appropriately. | Navy violated FAR 52.236-2(b) by delaying investigation; Metcalf entitled to a 306-day extension; no direct recovery of site-condition costs as damages. |
| Chlordane remediation obligations and related conduct | Contract implied remediation was not required; Navy actions on chlordane imposed costs on Metcalf. | Contract required testing/remediation under environmental requirements; Navy paid some costs; no breach. | Navy did not breach; contractor reasonably obligated to manage disposal/remediation under contract; limited reimbursement occurred. |
| Interference with design revisions and approvals of substitutions | Navy improperly rejected qualified substitutes and constrained Metcalf’s prerogatives as design-builder. | Rejections were based on comparability/equivalency with predecessors and contract requirements. | No breach; Navy could deny substitutions not deemed comparable; no bad-faith breach found. |
Key Cases Cited
- Int'l Tech. Corp. v. Winter, 523 F.3d 1341 (Fed. Cir. 2008) (four-element test for site conditions claims)
- Kinetic Builders, Inc. v. Peters, 226 F.3d 130 (Fed. Cir. 2000) (substantial completion requires usable facility per contract terms)
- Precision Pine & Timber, Inc. v. United States, 596 F.3d 817 (Fed. Cir. 2010) (good-faith/fair-dealing breach requires targeted reappropriation of benefits)
- Ace Constructors, Inc. v. United States, 499 F.3d 1357 (Fed. Cir. 2007) (cardinal-change concept and limits in contract disputes)
- Scott Timber Co. v. United States, 333 F.3d 1358 (Fed. Cir. 2003) (new claims may be adjudicated if arising from same operative facts)
- England v. The Swanson Grp., Inc., 353 F.3d 1379 (Fed. Cir. 2004) (claim defined as a written demand for money in a sum certain)