590 F.2d 893 | Ct. Cl. | 1978
This case comes before the court on defendant’s request for partial review, pursuant to Rule 54(b)(3), of the recommended decision of Trial Judge John P. Wiese, filed November 29, 1977, in accordance with Rule 166(c), on plaintiffs motion and defendant’s cross-motion for summary judgment. Additionally, defendant urges this court to adopt the decision of the Trial Judge as the basis for its judgment in this case as to the remainder of the Trial Judge’s opinion since neither party has filed a request for review thereof by the court, and the time for so filing pursuant to the Rules of the Court has expired.
The sole issue on which review has been requested is whether a bona fide assignee under the Assignment of Claims Act of 1940 (the Act) has standing to seek Wunderlich Act review in its own name. However, in light of the fact that the Trial Judge held, and neither party has excepted, that plaintiff was not a bona fide assignee under the Act and thus lacked standing to seek review of the
Upon consideration of the remainder of the Trial Judge’s decision, without oral argument,
Trial Judge Wiese’s opinion, as modified by the court is as follows:
This is a Wunderlich Act appeal.
A threshold issue in the case centers on the bank’s appearance here as the claimed real party in interest. The bank was not a party in the proceedings below before the Armed Services Board of Contract Appeals (the board). The case, when presented there, had been initiated by, and was prosecuted solely for the use and benefit of the contractor, I. D. Precision Components Corporation. The assignments to the bank, pursuant to which this appeal was later brought, took place after the board proceedings had been
This change in identity of the moving party — from the contractor in the suit below to the bank as the plaintiff in this court — has prompted the Government first to raise a jurisdictional argument with regard to plaintiffs claim. Specifically, the Government contends that, as plaintiff-assignee, the bank is not a bona fide assignee within the meaning of the relevant statute, the Assignment of Claims Act of 1940,
I. The Jurisdictional Issue
A. The facts relevant to the jurisdictional issue are as follows.
Manufacturers Hanover Trust Company entered the picture on December 10, 1965. On that date it issued its first loan to the contractor in the amount of $50,000.
5. Upon information and belief, all loans made to I.D. [the contractor] during the period 1965 through 1968 and thereafter were for the purpose of financing the operations of I.D., including the government contracts which are the subject of this action. As a matter of business practice, plaintiffs representatives would have reviewed and considered all outstanding government contracts as a source of repayment. The proceeds of such contracts are reliable.
Notwithstanding the foregoing, it is clear that the bank had not been assigned any of the proceeds from the two contracts in question during the time those contracts were in performance. Rather, during that time, the right to the subject proceeds had been assigned to another banking institution, the Long Island Trust Company.
The release of the assignments in favor of Long Island Trust Company and their subsequent reassignment to Manufacturers Hanover Trust Company was the second step taken in a new loan transaction, a consolidation loan in the amount of $1,300,000, entered into between the
The indicated second step in this consolidation loan transaction took place in October 1972. At this time, the parties executed a security agreement which, in essence, provided for the assignment to the bank of all the contractor’s receivables. Part of this security agreement contemplated release, by the Long Island Trust Company, of its outstanding right (as assignee) to the proceeds of the two contracts in issue. This planned release was carried out in December 1972,
The Government’s first contention is that plaintiffs claim is jurisdictionally barred since plaintiff is not a bona fide assignee under the Assignment of Claims Act and thus lacks standing to assert the claims in question. In First National City Bank v. United States, 212 Ct.Cl. 357, 548 F.2d 928 (1977), it was held that, in order for a lending institution to achieve the status of an assignee under the Assignment of Claims Act of 1940, it had to be shown that the monies which that institution had advanced to the contractor were actually used in, or at least made available for, the performance of the contract(s) in question. It is precisely this element which is missing from the facts presented here.
That the loan in question (the loan of December 13, 1971) and the assignments related thereto under which plaintiff
The legal proposition that plaintiff advances is a sound one — the Act does not condition the validity of an assignment on a requirement that it be given contemporaneously with the advancement of the funds that it is meant to secure. However, there is a problem with the facts offered in support of the proposition. The terms of the December 13, 1971, loan agreement specified that the proceeds of that loan were to be applied to two basic purposes: part of this money was to be used to discharge old debts (including, among these, $876,100 still due plaintiff) and the remainder, approximately $300,000 was to accrue to the borrower for future use. The significant point is that the amount of old loans still due plaintiff, namely, $876,100, was identified in the credit agreement as comprising an indebtedness all of which had been previously secured by assignments of Government contracts.
Given these facts, plaintiff cannot avail itself of the benefits of the Assignment of Claims Act of 1940. The assignments it received were not given to secure loans relating to the present contracts, or, for that matter, to any other previously unsecured Government contract loans. Logically, these assignments can now only be linked to the "uncommitted” portion of the December 13, 1971, loan — meaning, the approximate amount of $300,000 which accrued to the contractor for his unrestricted use. What application was made of this uncommitted money is not revealed.
The same reasons which bar plaintiff from claiming the status of a bona fide assignee in its own right also preclude its claiming that status through derivation from the prior assignee — the Long Island Trust Company. Nothing in the facts would permit the court to say that Long Island Trust Company originally funded the contracts in question; similarly, there is nothing in the facts to suggest that it was plaintiff that provided the funds which, in turn, were given in repayment of the debts due Long Island Trust Company. Absent proof on each of these essential points, there exists no basis for considering plaintiff a reassignee.
Finally, nothing can be made of plaintiffs contention that the Government waived any imperfections in the assignments through its acknowledgement, in February and June 1974, of the notice of assignment which plaintiff had forwarded more than a year earlier. No intervening course of dealing between plaintiff and Government is alleged; indeed, nothing more is claimed than that the Government belatedly acknowledged receipt of plaintiffs letter. It is difficult to see how through such action alone, in itself nothing more than administrative routine, the legal equivalency of waiver has been established.
Such considerations were not present in this case. Plaintiffs notice of assignment was transmitted in December 1972 — literally years after contract performance had been completed and final contract payments had been made.
There are no facts that would establish plaintiffs waiver argument and no reason, apart from such absent facts, to require such a result as a matter of law. Plaintiff was not a bona fide assignee under the Assignment of Claims Act of 1940 and no lack of timely action on the part of the Government can now change that status. Therefore, since plaintiff is not a bona fide assignee, it lacks standing to assert the claims in question.
A. On the merits of the appeal, plaintiff fares no better. The contracts, as noted, involved the manufacture of artillery shell boosters. This device, which is assembled to a fuse, has a two-fold function: first, it serves as a safety mechanism that delays the arming of the shell and thereby prevents its premature firing; second, it houses the primer (or detonator) which, when activated by the fuse, initiates the process which produces the explosion of the artillery shell.
The contracts prescribed several tests which the boosters had to meet.
In the course of performance, it developed that the Government’s inventory of M-500 series fuses as well as its inventory of 76 mm guns were rapidly being depleted. This, in turn, dictated that a different fuse and weapon
Both of these substitutes found their way into the change order in question in this case — Engineering Order A60509 which was issued unilaterally by the Government on September 1, 1966.
From the Government’s point of view, the engineering order was not viewed as one that would necessitate any changes in the contractor’s method of production. The purpose of the order, so stated in its text, was simply "to delete testing requirements which required use of M500A1 or M501A1 Mechanical Time Fuzes.” However, the contractor allegedly saw the matter differently. The imposition of a distance requirement (namely, explosion at 400 feet), in lieu of the earlier requirement (where explosion could occur either in the air or upon ground impact — each without a specified distance limitation) was taken by the contractor as the equivalent of an arming time requirement. It was this interpretation of the change, joined with the belief that the boosters then being produced would not be able to satisfy the 400-foot requirement, that prompted
B. What defeated the contractor’s case before the board and what compels affirmance of that result here is that the contractor’s proof failed to establish that, absent the production changes which it introduced, the boosters would not have been able to pass the revised ballistic test. On this essential point, the proof was sparse and not enough to prevail. To begin with, the testimony established that the contractor did not actually know the arming time of the booster when subjected to the high spin rates achieved at weapon velocities. Rather, what triggered the contractor’s response to the change order was the fact that the booster mechanism exhibited a slowness to arm, occasionally up to a minute and a half, when subjected to the 2,000 rotations-per-minute (r.p.m.) spin test that was conducted on each booster assembly as part of the normal production sequence. And this, coupled with the fact that the contractor had deliberately geared its production to achieve what it considered to be a slow arming mechanism (this in order to assure success at the 200-foot impact non-function test) led to the conclusion that product improvement would be necessary in order to meet the assumed changes in ballistic criteria set out in the change order. Such then was the sum of the contractor’s proof on this point.
That the contractor had based its judgment on a set of erroneous assumptions was made plain. The Government’s testimony brought out that the 2,000 r.p.m. spin test was not intended, nor under these contracts mechanically so designed, to determine the arming speed of the booster mechanism. Its purpose was only to insure that the assembly would arm; not the time in which it did so. That testimony went on to say that any hesitancy to arm that might have been observed during the 2,000 r.p.m. spin test was a rare occurence and then generally due to unusual high friction drag that ordinarily would be traceable to excessive foreign matter, improper finishes on a part, oversized parts, or even malassembled parts. However, even with some of these conditions present, for example,
We are of the opinion that the appellant has thus, in its own case, failed to establish a reasonable basis for the changed procedures it initiated in anticipation of the changed ballistic test. All it has really shown is a "feeling” (a word repeated in Mr. Mitchell’s testimony) and a "belief’ as Mr. Dinstman testified, that changes were necessary to meet the 400 foot screen test. They made no inquiry of the Government about arming time or distance and made no effort themselves to determine what it was or should be. [73-1 BCA at 45,699.]
The Board did not rest its decision only upon the want of proof in the contractor’s case-in-chief. It went on to further support the result it arrived at by relying upon certain ballistics analyses — so-called Bruceton tests — which revealed the arming time of the booster mechanism. It was from this data that the Government was able to specify with assurance that the arming time of the booster mechanism would be accomplished within the stated distance of 400 feet.
Much is now made of the board’s reliance on this data. For one thing, it is pointed out that the data upon which the Government relied originated in test firings that used a 75 mm weapon and thus the application of that data to the weapon used in the 400-foot screen test, a 105 mm weapon, depended upon extrapolation by formula. Also — and this is the major point that is raised — the contractor was never made aware of the fact that it was this Bruceton test data upon which the Government had relied when it revised the air burst test. The deficiencies that plaintiff attaches to all
The argument misreads the board’s decision as well as the case law offered in support of it. The contractor lost before the board because it failed to prove its case. The unilateral response to the change order was taken in the face of what clearly should have been recognized by the contractor as a serious limitation in its own knowledge, namely, that it did not know the arming time of the booster under conditions of actual use. In other words, it acted on its own to modify a function whose performance characteristics, to start with, it knew little about. This alone was enough to defeat the claim for absent any better explanations to support this course of action than those given here, it could never be said that the contractor had acted reasonably. Thus, even if the Government’s test data had not come into the record, the outcome of the appeal would have been just the same.
The several decisions that plaintiff cites do not set out legal principles that argue for a different result; in fact, they only underscore what is lacking in this case: a contractual setting in which altered circumstances dictated a reasonable need for extra effort on the contractor’s part. Thus, in L. W. Foster Sportswear Co. v. United States, 186 Ct. Cl. 499, 405 F.2d 1285 (1969), the court recognized a right to additional compensation for efforts expended to overcome certain deficiencies in manufacturing specifications which the closely related predecessor procuring activity had repeatedly resolved by permitting the contractor to deviate from stated requirements. The emphasis placed in that decision on the contractor’s "reasonable belief’ as the test of contractual expectations (the point plaintiff stresses) has no counterpart in the instant facts. The Foster decision may not be read apart from the pattern of previous conduct between the same parties for it was this conduct which led the contractor to assume that deviations from specifications would remain the Govern
The final point that is argued is that the Government should be estopped from denying responsibility for the costs in question on the theory that its representatives (the plant inspector and the project engineer) had knowledge of plaintiffs actions yet took no steps to discourage them, not even to advise that they were unnecessary. The Government’s silence in the face of this situation is said to now preclude its right to disavow liability.
The trouble with this argument is the facts. Nowhere is it shown that the Government had actual and contemporaneous notice that the contractor’s work stoppage and
In its entirety, the board’s denial of the contractor’s claims was correct.
CONCLUSION
Accordingly, plaintiffs motion for summary judgment is denied, defendant’s cross motion for summary judgment is granted, and the petition is dismissed.
Oral argument was directed only at the request for review, not to any other portions of the Trial Judge’s opinion.
The Trial Judge’s decision while dispositive on the standing issue, also discusses the merits of plaintiffs claim. Since neither party has excepted to the merits portion of the decision, we include it, albeit dicta, as part of the Trial Judge’s opinion.
The statutory reference is: 41 U.S.C. §§ 321-22 (1970). The case on appeal is: I. D. Precision Components Corp., ASBCA No. 12828, 73-1 BCA ¶ 9783.
31 U.S.C. § 203 (1970) and 41 U.S.C. § 15 (1970).
This should not be taken as an endorsement of the approach which the Government has adopted in its treatment of the issues in this case. The trial division’s authority was not meant to encompass suits which, from the start, are seen to be amenable to disposition (either in whole or in major part), through the resolution of a question of law. Hence, the better practice here would have dictated that the Government’s jurisdictional defenses be presented through the vehicle of a dispositive motion. That would have served to bring the matter before the Appellate Division for a final decision in the shortest possible time and with the least expenditure of effort for all concerned.
There was, of course, no record made before the board on these issues. The facts given are those recited in the parties’ briefs and in the accompanying affidavits.
These two contracts were designated, respectively, as: Contract DA-11-173-AMC-385(A) and Contract DA-11-173-AMC-975(A).
Regarding these assignments to Long Island Trust Company, the record provides no facts concerning either the time or the circumstances under which the assignments came into being. It is not known whether these assignments were the initial assignments or perhaps reassignments. Likewise, it is not known whether they were contemporaneous with new monies being advanced by Long Island Trust Company or whether they had been given as security in favor of a pre-existing indebtedness.
The board’s decision was issued on November 15, 1972.
Except to the extent noted, the circumstances surrounding the release are not further spelled out.
Paragraph 1.4 of the credit agreement, entitled, Use of Proceeds, stated in relevant part as follows: "Simultaneous with the execution of this Agreement, the Borrower shall pay to the Bank $997,568.44 for the following purposes: (i) $876,100.00 shall be credited to the Borrower’s current indebtedness to the Bank secured by prior assignments of government contracts, and shall constitute payment in full of said indebtedness; (ii) $55,871.00 shall be credited to Borrower’s current indebtedness to the Bank, reflected in the Bank’s accounts #1000-437-23 and 100-453-86, and shall constitute payment in full of said indebtedness; * * [The remainder of this paragraph listed the names of other creditors and the amounts each was to be paid. The total of these directed payments came to $997,568.44.]
The final payment dates were April 18, 1968, on contract DA-11-173-AMC-385(A) and, on Contract DA-11-173-AMC-975(A), March 9, 1970.
Insofar as here relevant, the two contracts, and the tests which each prescribed, were identical. The tests were those set out in the applicable military specification, MIL-B“46654A{MO), 10 September 1984, as amended, 4 January 1965.
The order was issued as modification 2 to Contract DA-11-173-AMC-975(A) and as modification 3 to Contract DA-11-173-AMC-385ÍA).