*1 concurring: KING, specially Judge, Circuit v. Board Fremaux pending; appeal Comm’rs, 96-1225, 1997 WL No. by opinion in Although I am our troubled **3-4, at *8- LEXIS U.S. Dist. (5th Hosp., v. Memorial Martin 1997) (E.D.La. (applying Mar Mar. *10 Cir.1996), outcome I it controls the believe entering concluding hospital’s tin here, Judge and I therefore concur foreseeable). contract was into an exclusive panel. opinion Smith’s Florida, both court cases from In two district wrongly decid says were of which St. Luke’s broadly and
ed, Parker the courts construed anticompetitive a broad swath immunized Fla. Clin by hospitals. See Central conduct Bd., County Hosp. F.Supp. ic v. Citrus (M.D.Fla.), aff'd, Cir.1989) Hospital Dev. & (unpublished); Dist., Hosp. Corp. v. North Broward Serv. (S.D.Fla.1985). F.Supp. INCORPORATED, MARINE CENTURY
Plaintiff-Appellant, D. sum, appellees are that the we conclude America, STATES of UNITED exclusive immunity. The to Parker entitled Defendant-Appellee. reasonably fore-
nature of the contracts legislature. As to by the Louisiana seeable No. 97-20281. practices, alleged unlawful trade other while court that agree with the district we Appeals, Court of United States may engaged have “cutthroat” North Oaks Fifth Circuit. practices trying and “hardball” business Oaks, it is conduct patients Aug. lure to North 1998. reasonably result is a foreseeable statute. Louisiana
IV. if argues that even North Luke’s St. immunity, Quo to Parker is entitled Oaks not. private it is a actor—is rum—because 46:1055(B) disagree. La. Rev. We Stat. “may hospital districts service provides agreement with a special into services enter hospital manage including ... a any person, ad manage, operate, and ... ment firm hospitals, part hospital or minister a thereof, the commission under the control of dis hospital’s service the benefit of the agreement Because North Oaks’s
trict.” Quorum expressly authorized statute, Quorum operates and because agent the benefit hospital as an and for district, protected Quorum is the service immunity.5 North Oaks’s Parker AFFIRMED. Oaks’s, argument this failed to raise Quo- North Although in its brief St. Luke's hints court. independent before the district may economic interests rum have *2 compensation additional
its claims repair vessel Administration Maritime Transportation Department con- terminated (“MARAD”). MARAD *3 failing in Century’s default of tract because speci- the time within work complete to filed suit Century contract. fied have the seeking to the United against termi- ato converted default for termination convenience; Government’s for the nation the amount to addition payments and for the termi- under Century paid MARAD trial, dis- a bench After contract. nated Century’s demands rejected trict affirm. We prejudice. its suit dismissed trial contest the Century does appeal On contract that determination court’s Despité its for default. terminated properly it entitled Century argues bal- unpaid equal an amount recover contract of the price fixed full ance of unfinished of the completion of cost less the Century’s argu- the contract. work law established to well contrary ment Govern- Under regulations. federal contract fixed-price aof termination ment’s default, the Gov- contractor’s for contractor liable is not ernment Antici- work. or undelivered unperformed recovera- are not profits but unearned pated Government when by the contractor ble contractor’s for the contract terminates the Govern- of the convenience or for contention Century’s additional ment. also work is compensated be should rec- in the is warrant merit. There without Purcell, H. Papleacos, Wade A. Nicholas for lawin basis applicable ord and & Fussell, Wedge, Smotherman Shapiro, this claim rejection court’s Plaintiff-Appellant. GA, Atlanta, Martin, the merits. trial Justice, Dept, Myer, U.S. Glenn Peter Division, Washington, Branch-Civil Torts PROCEDURAL AND I. FACTUAL Defendant-Appellee. DC, for BACKGROUND Century and September contract into entered MARAD cargo renovation repair WASH BARKSDALE, MOUNT BENAVIDES S.S. tanks Before ballast the United Judges. DENNIS, INGTON, public vessel Circuit three Thereafter, issued States. Judge: DENNIS, in (“Mods”) Circuit modifications contract $1,050,000.000, value contract (“Centu- creased Marine, Inc. Century Appellant $8,521,910.000. amount total dismissal the district ry”), appeals When fell behind representative, schedule on the eer’s technical who testified 3, 1993, original May completion date of at trial. MARAD issued three additional Mods Based calculations on the Government’s completion Septem- extended the date until payment a final Mod MARAD made extensions, Despite ber these Cen- Century $409,023.56, com- representing tury fall continued to behind its work sched- pensation performed after the work all ule. When it became evident that progress payment before latest but complete timely, by could not the contract According to the was terminated for default. 8,1993, September letter dated MARAD ter- denying officer’s decision Centu- minated for default.1 At the time of ry’s administrative claims for additional com- termination, MARAD progress had made pensation, Century rep- payment this final *4 $5,903,135.50. payments Century to of On (1) payment progress for the made resented: 22, 1993, September the Government issued by Century prog- the time of its last between (“Mod 9”) Modification No. 0009 to con- payment ress termination of the contract and adjusted price tract that the contract (2) ($51,532.00); payment of of the balance work,
value of the unfinished and calculated retainage Century deducting owed to after progress payment Century the final to based ($285,539.06)3 procurement the excess cost of completed eventually on its work. MARAD (3) ; payment of funds withheld at the retained another contractor to finish Centu- legal depart- direction of the Government’s ry’s work.2 separate ment until a claim on another con- ($71,952.50). tract was settled
9,Mod admitted as a Government exhibit trial, percentage comple- July Century sets forth the of In a submitted “Re- item, adjusts quest Adjustment tion each Equitable of work the total For and For price by deducting contract the contract val- Conversion of a Termination For Default to a Century’s work, uncompleted Century’s ue of estimat- Termination For Convenience.” $1,260,861.00. Request Equitable Adjustment ed at In present- Mod For percentage completion part based the of in pay- ed administrative claim for additional Century’s percent completion figure on own ments of almost million under the con- $1.3 tract, provided progress payment Century’s in its allegations last re- based on quest prior MARAD' percentage submitted to one week MARAD had underestimated the termination, adjusted figure completion to for with this of finished work items in Mod during accomplished by Century work and that MARAD not was entitled to reproeurement final week of the terminated contract. The retain excess costs of from retainage in Mod 9 of the con- pay- Government’s estimate withheld from the final uncompleted Century Century’s Century tract value of work ment to thorough inspection wrongfully Century a also was based terminated. also assert- on. $21,254 videotaping per- of each item of unfinished work ed a claim for in extra work Volkmann, contracting pursuant Century’s offi- Request Richard formed For Regula required Acquisition ed contractor are still 1. Pursuant to the Federal tions, may, contracting repurchase the Government written notice officer shall the same ser- contractor, default to the terminate against vices the contractor’s account as soon as part fails to whole or in if the contractor in 49.402-6(a), practicable, § 48 C.F.R. and the specified perform in the services within the time any contractor is liable to the Government for any 48 C.F.R. contract or extension. the § acquiring excess costs incurred in services simi- 52.249.8(a)(1)(i). regulations which "Federal lar to those terminated for default. 48 C.F.R. authority upon grant are based 'have 49.402-2(e). § law, and, they applica if force effect ble, they deemed terms of the contract must be Acquisition Regulations, 3.Under the Federal therein, knowledge specifically out even if not set " "the officer shall use all retained charged the contractor.’ General of which is percentages progress payments previously O'Keefe, Eng'g Mach. Works v. & any progress made to the pay- contractor and (Fed.Cir.1993). completed ments due for work before the termi- liquidate Regulations, liability nation to Acquisition contractor's 2. Under the Federal § provided by Government.” the terminat- 48 C.F.R. 49.406. when the services to be dismissing judgment final rendered (RDOs). Finally, Delivery Orders the United against Century’s claims be default termination requested prejudice. for convenience. with termination to a converted con- 1994, the Government’s December In Mo- filed January On administrative a final issued officer tracting Findings Additional Make to Amend tion claims, denying decision made Fact, asserting that 48-page Century. This payments further had not claims on two case facie prima exhibits, supporting decision, attached (1) a States: by the United rebutted been allegation each in detail rebuts seven performed on work claim conclud- Adjustment, Equitable For Request (2) a $20,583; and in the amount RDOs Century’s “termination ing that due balance” “contract to a not entitled Century “is valid,” and that following resulting from $1,293,218.54 adjustment.” further computation: pursuant September $8,521,910.00 Amount Contract Modified 603, and § Act, U.S.C. Disputes Contract $6,492,159.46 Act, Deducts Admiralty Less-Payments U.S.C. Suits in the the United sued seq., et $714,187.00 performed Less-Work *5 Claims, transferred which of Federal Court $22,345.00 058 Item and credit of Texas.4 Less-Tow District Southern to the case the coun file a not to elected States United The $1,293,218.54 Due Balance Contract dam liquidated Century for against terclaim entered court 4, the district a con against 1997 March On recoverable are ages, which Motion Century’s denying 48 See default. order an terminated tractor 49.402-2(e). Fact. Findings of 49.402-7, 49.402-6(c), Additional Make or §§ Amend C.F.R. judge in to a Century appealed. tried were Century’s claims December presented REVIEW court, Century OF II. STANDARD district In the ad- in its claim the supporting no evidence of fact findings The district Equitable For Request level
ministrative “clearly errone the under reviewed be must to recover was entitled Adjustment 52(a). A P. R. Civ. Fed standard ous” the reprocurement costs excess the “clearly errone to be said fact finding of Century’s from had deducted Government evidence notwithstanding there when, ous” Contracting Of- K of the retainage. Exhibit upon exam reviewing it, court support the only evidence decision, was which ficer’s with the is left evidence entire of the ination reprocurement excess the Government’s mistake that a conviction firm and retainage withheld definite amount costs v. Co. Oil Justiss committed. trial been at has termination, withdrawn was 1057, F.3d Corp., 75 admissibility. Refining Kerr-McGee objected to Cir.1996) (citing (5th United 1062 is- 1997, court 3, district January On 364, Co., 333 Gypsum United lawof conclusions of fact findings sued (1948)). With 525, 92 L.Ed. 395, 68 S.Ct. claims, finding that Century’s rejecting reached legal conclusions respect termination States’ United so facts of the basis on trial court breach justified re novo a de found, will conduct this valid no contract, and that 1034, 1045 Lancaster, F.3d Reich view. con- adjustment an Cir.1995). (5th 1997, 3, the district January Also tract. Avon Corp. v. Steel Bethlehem Act, Circuit. Federal sub- Disputes Contract § 4. Under Inc., Shipyards, appeals of administra- dale jurisdiction ject matter contracts 1992). maritime con- Government involving maritime federal Cir. tive decisions Disputes Act. courts, governed rather Contract district the federal otherwise vests in tracts (now Court of Claims the Court of at 94. Id. than Appeals for Claims) the Court Federal CO INS o supplies perform tor fails to deliver the or to
III. DISCUSSION
specified in the
the services within the time
appeal,
does not contest the
On
§
a ter
contract. 48 C.F.R.
49.402-1. Under
court’s determination that
is not
mination for
the.Government
the contract for
properly terminated
Centu-
costs on undeliv
liable for the contractor’s
Century reurge its
ry’s
Nor does
default.
49.402-2(a).
In con
ered work. 48 C.F.R.
MARAD had
level claim that
administrative
trast,
fixed-price
terminated
retainage
an excessive amount
withheld
Government,
for the convenience of the
Century. Century
payment
from the final
compensate
should
the contractor
settlement
judgment
argues only
district court’s
that the
fairly
actually
and for the
for the work
done
denying its claims for the “contract balance”
preparations
por
terminated
made for the
clearly
and extra work was
erroneous and
contract, including a reasonable
tions of the
(1) Century made
must be reversed because:
profit applicable to that work
allowance for
prima
at trial for its contract
facie case
49.201,
§§
preparations.
48 C.F.R.
claims; (2) MARAD
balance and extra work
consequen
Anticipatory profits
49.202.
Century’s proof
failed to rebut
on these
damages
not be allowed under ei
tial
shall
(3)
claims;
the district court made no ex-
ther a termination for convenience or a ter
claims;
press findings on each of these
mination for default of a
contract.
(4)
findings
implied
no such
can be
49.201, 49.202, 49.402-2;
§§
See
C.F.R.
implied finding
supported by
is not.
Co.,
States,
Mega. Constr.
Inc. v. United
evidence.
(1993);
Fed. Cl.
G.L. Christian &
States,
Assocs. v.
160 Ct.Cl.
A.
“Contract Balance” Claim
(1963),
denied,
cert.
375 U.S.
Century contends that it made out a
(1963).
444,
anticipated
perform
failure to
its contractual
Century’s
B.
Claim For Extra Work
49.401(a).
obligations.
The
48 C.F.R.
right
Century argues
Government
that
the district
has the
to terminate
legally
findings
if the contrac-
court’s
and conclusions are
for default
“extra
performed
which
orders
no ex-
made
the court
insufficient
court
The
fractures.
repair weld
work”
work
extra
addressing its
finding
press
“there
that
conclusion
legal
reached
by
also
finding
implied
claim, and that
adjustment
equitable
for an
sup-
valid basis
is not
no
issue
extra work
court
Century’s gen-
rejecting
contract.”
by
evidence.
ported
adjustment, which
for
eral
52(a)
Rules
Federal
Rule
claim, the dis-
work
the extra
encompassed
ac
all
“[i]n
provides
Procedure
of Civil
Century was
impliedly found
court
trict
...,
jury
without
upon the facts
tried
tions
any other
for
compensation
entitled
not
and
specially
facts
find the
shall
the court
work.
extra
there
of law
its conclusions
separately
state
”
findings
findings
of fact
of
of
12-page
articulation
court’s
district
The
The
on ....
sufficiently
court to
this
law allows
of law
and conclusions
fact
and conclusions
and
bases
factual
legal
and
state
adequately
factual
ascertain
detailed
decision, thereby providing a
denial of
court’s
the district
court’s
for
legal
district
bases
appellate
work, thereby pro-
predicate
sufficiently
extra
definite
Century’s claim
Dallas,
F.2d
City
predicate for
v.
sufficiently
Chandler
definite
viding
review.
52(a)
Cir.1992).
“exacts
(5th
But Rule
im-
The court’s
appellate review.
proper
tracing
slavish
claim is
nor
detail
extra work
punctilious
neither
denial
plied
evidence,
witness
particularly
issue
issue
the claims
fully supported
Reli
Corp. v.
Navigation
percentage
Burma
forth
sets
witness.”
which
Mod
(5th
orders;
M/V,
delivery
ant
for unfinished
Seahorse
completion
Herzog, 2
decision,
v.
Cir.1996)
Schlesinger
pro-
(quoting
which
contracting officer’s
Cir.1993));
(5th
also United
see
denial
135, 139
MARAD’s
F.3d
reasons
vides detailed
Inc.,
Assocs.,
work;
Realty
and the
Northside
claims
Cir.1973) (“
(5th
‘Courts
contracting offi-
Volkmann,
5n.
testimony
F.2d
or
exegetics,
parse
testified
indulge in
who
representative,
need
technical
cer’s
hy
videotaped
nuance
each
every fact and
inspected
personally
declaim
he
Shrimp Co.
King
re-
”)
he
(quoting
work
pothesis.’
Century’s unfinished
Gulf
Cir.1969)).
Wirtz,
90% of
drafted
searched
Billy
if the
is satisfied
the assistance
rule
The
decision
officer’s
a clear
reviewing
testi-
employee who
give the
findings
Greer,
another
*7
the decision.
basis
understanding of the
at trial.
fied
at 656.
F.3d
Navigation, 99
Burma
argument
reject
doing, we
so
spe
a
to make
judge fails
a
If a trial
is
decision
contracting officer’s
the
that
fact,
re
the
particular
a
finding on
used as
cific
cannot be
therefore
“pleading” and
court
the
that
may assume
im-
viewing court
trial court’s
evidentiary support
its
with
finding consistent
a
made
claim
impliedly
plied denial
find
implied
Act,
long as the
holding so
Disputes
general
Contract
the
work. Under
In re
the evidence.
make
supported
ing
required
not
contracting officers
Corp.,
made, they
Servs.
Mortgage
fact, but, if
Texas
findings of
specific
Cir.1985);
v.
Gilbert
pro-
1068,
12
any subsequent
1075 n.
in
binding
not be
“shall
(5th Cir.),
1389,
However,
605(a).
1393
Sterrett,
F.2d
§
509
41 U.S.C.
ceeding.”
373, 46
951, 96 S.Ct.
denied, 423 U.S.
Act
Disputes
cert.
nothing in
Contract
the
there
(1975).
contracting offi-
288
L.Ed.2d
the use
prohibits
that
in
as evidence
conclusions
findings
cer’s
factual
According to the
Cupey
proceeding.5
novo
de
subsequent
a
law, Century and conclusions
findings
States,
Home, Inc. v. United
Nursing
Bajo
delivery
ten valid
the
compensated for
been
609(a)(1),
action
the
where
Court),
§
that,
U.S.C.
41
provides
Disputes Act
Contract
5. The
claim,
in accordance
proceed de novo
on a
"shall
a decision
contracting
renders
officer
41 U.S.C.
appropriate court.”
directly on the
bring
rules
may
an action
a contractor
609(a)(3).
Federal
Court of
United
in the
Claims
(formerly the United
Claims
(1996) (“[T]his
contract and the
unpaid
balance of the
court
36 Fed. Cl.
completing the unfinished work under
by a con
cost of
and law decided
the facts
reviews
that a default-
the contract.
It is well settled
to other evidence be
tracting officer similar
it[.]”).
anticipated but
v.
cannot recover
Accord Lathan Co.
United
ed contractor
fore
(1990) (“This
judgment
States,
profits. Accordingly,
court
unearned
20 Cl.Ct.
[contracting
findings
AFFIRMED.
officer’s]
court is
may weigh the
of the district
would
other evi
conclusions as it
States,
dence.”).
Wilner
See
BARKSDALE,
HAWKINS
RHESA
(Fed.Cir.1994) (en banc)
1397, 1403-04
concurring:
Judge, specially
Circuit
overruling pre-Contraets Dispute
(expressly
judgment being AF-
I concur in the
holding
contracting offi
that a
precedent
Act
that,
FIRMED,
would do so on the basis
but
strong presump
“constitutes
cer’s decision
findings of
pursuant
to the district court’s
...
evidentiary admission
albeit
tion or an
law,
underly-
and the
fact and conclusions of
rebuttal,”
cautioning
subject
but
(es-
they
ing
upon which
are based
evidence
“suggest[] that a contract
opinion does
pecially, modification No. 009 and the Gov-
place in ...
ing
final decision has no
officer’s
contacting
response
written
ernment
officer’s
Claims”).
litigation in the Court of Federal
adjustment),
request
finder-of-faet,
Therefore,
in its role as
presented in this
Marine’s claims
contracting
may give the
offi
district court
fail,
primary claim that it
to include its
weight,
cer’s administrative determinations
paid
performed.
which it
was not
for work
Constr.,
Mega
not deference.
29 Fed. Cl.
claim,
Concerning
primary
the refer-
Corp.
Camera
v. Nation
Universal
Cf.
concerning an-
majority opinion
Bd.,
474, 493-94,
ences
al Labor Relations
340 U.S.
profits
(1951)
ticipated but unearned
seem wide
(holding
novo
Accordingly, we conclude that preclude Disputes Act does not Contract decision as use of the officer’s *8 of the ultimate matters at issue in a evidence proceeding, provided subsequent de novo given or a rebuttable that it is not deference In the Matter of: Charles presumption of correctness. ENGLAND, Debtor. IV. CONCLUSION PRITCHARD, Gregg Appellee, J. Having reviewed the record consid- Century’s arguments, ered all of conclude we commit
that the district court did not TRUSTEE, Appellant, finding fact in error of law or clear error of rejecting and in prejudice. As for claims with PALMER, P.C., Appellant. PALMER & argument, “contract balance” we conclude Wesley R. In the Matter of: there is no basis in law for a defaulted ENGLAND, Debtor. contractor to recover the difference between