OPINION
On April 17, 1992, the court issued its initial opinion in this case, reported at
The law governing motions for reconsideration is ably set out in Bishop v. United States:
It is well recognized that “[a] motion for reconsideration is addressed to the discretion of the trial court.” Triax Co. v. United States,20 Cl.Ct. 507 , 509 (1990) (citing Eyre v. McDonough Power Equip.,755 F.2d 416 , 420 (5th Cir.1985) (construing FRCP 59)); see Yuba Natural Resources, Inc. v. United States,904 F.2d 1577 , 1583 (Fed.Cir.1990); Gelco Builders & Burjay Constr. Corp. v. United States, [177 Ct.Cl. 1025 ,369 F.2d 992 , 1000 n. 7 (1966) ]. Post-opinion motions to reconsider are not favored[.] General Elec. Co. v. United States, [189 Ct.Cl. 116 ,416 F.2d 1320 , 1321 (1969)]. It is well-settled that “[t]he court has a right to know before it decides [the controversy at hand] whether the parties have anything further to present.” [Id., 416 F.2d] at 1322.
Generally, “[a] motion under RUSCC 59 must be based upon manifest error of law, or mistake of fact, and is not intended to give an unhappy litigant an addi*405 tional chance to sway the court.” Circle K Corp. v. United States,23 Cl.Ct. 659 , 664-65 (1991). The movant must show either that an intervening change in the controlling law has occurred, evidence not previously available has become available, or that the motion is necessary to prevent manifest injustice. Weyer-haeuser Corp. v. Koppers Co.,771 F.Supp. 1406 , 1419 (D.Md.1991). “Litigants should not, on a motion for reconsideration, be permitted to attempt an extensive retrial based on evidence which was manifestly available at [the] time of the hearing.” Gelco, [369 F.2d at 1000 n. 7], The litigation process rests on the assumption that both parties present their case once, to their best advantage.
Bishop v. United States,
Plaintiff has not argued or presented any credible argument or evidence that any of the conditions cited in Weyerhaeuser Corp. are present here. However, to provide the parties with a basis upon which to determine quantum, the court will reissue its opinion to give a detailed discourse on the reasons why the termination for default was proper, and to fully address the delay and non-delay claims. Plaintiff provided no support for its contention that Al Johnson was unconstitutional or distinguishable, and the court can imagine of none: That argument need not be addressed. Plaintiff’s motion to amend or modify is granted; plaintiff’s motion for reconsideration and/or for a new trial is denied. The opinion of the court reported at
I. INTRODUCTION
On August 20, 1985, plaintiff, Mega Construction Company, Inc., entered into a fixed-price construction contract with defendant, through the United States Postal Service (U.S.P.S. or Postal Service), for the construction of the Main Post Office at Canoga Park, California. The contract price, as amended was $2,316,609.68. On September 9, 1985, defendant issued its Notice To Proceed, and on either September 17 or 23, 1985, plaintiff commenced work on the project.
II. PROCEDURAL HISTORY
Following the termination for default, plaintiff filed suit in this court on October 14, 1987, requesting a conversion of the termination for default to a termination for convenience of defendant. The complaint
In the interest of substantial justice this court concludes that plaintiffs earlier pleadings in response to defendant’s motion to dismiss brought the issues properly before this court. [RUSCC] 8(f). This is not a case in which the complaint would be statutorily time-barred or otherwise dismissed as untimely. The court concludes that it would be a waste of judicial resources and a denial of justice to dismiss plaintiff’s complaint only to have it immediately refiled. Instead, the court concludes, and the parties are noticed that the suit is properly and timely before the court. In order to clarify the issues, plaintiff is ordered to amend its complaint within 30 days of the date of oral argument to specifically address the December 9, 1987 monetary demand of the contracting officer.
Id. at 557.
Plaintiff submitted its claim for $2,569,-380.58 to the contracting officer on August 30, 1988. On September 21, 1988, the contracting officer issued a second final decision which allowed part and denied part of plaintiff’s claim, and assessed $531,495.44 in reprocurement costs. On November 25, 1988, the contracting officer issued a third final decision allowing plaintiff an additional $31,323.30. On May 9, 1989 plaintiff filed its second amended complaint, challenging the contracting officer’s second final decision, and stating an affirmative claim in the same amount presented to the contracting officer on August 30,1988. On October 26, 1989, defendant filed an amended counterclaim increasing the assessed reprocurement costs to $559,460.08. This opinion issues following trial.
III. THE TERMINATION FOR DEFAULT
A. Facts
Plaintiff is a corporation organized under the laws of California, doing business in that state as a licensed general contractor. Mr. Marvin N. Kaplan is president of plaintiff, and his assistant, Mr. Barry Harman, was construction manager on the Canoga Park Main Post Office project. As the general contractor, plaintiff was responsible for coordinating and managing the work of the various subcontractors on the job-site.
Among the many tasks that plaintiff perfоrmed under the contract was the installation of a poured-concrete (non-prestressed), non-structural slab on grade measuring ap
The slab sat atop two inches of sand that covered a layer of 6 MIL plastic vapor barrier. The vapor barrier covered another two inches of sand. The layers of sand rested on approximately five to six feet of compacted fill. The slab was to be finished covered with Va-inch asphalt plank. Because the slab was non-structural, its most important feature was its ability to endure the weight of loaded mail carts weighing up to 2000 pounds, as well as substantial foot traffic. Defendant’s engineering consultant, R.T. Frankian & Associates (Fran-kian), specified to defendant’s structural engineering subcontractor, Mr. Gordon Kelsen of Martin & Kelsen, Inc., one of defendant’s contract consultants, that the fill under the slab was to be non-expansive, meaning that it was not to expand if, for example, water seeped into the fill due to heavy rains or a broken water pipe. A non-expansive soil is composed of a mixture of small, medium, and large grains, carefully compacted to specification. If water seeps into a properly mixed fill, the large and medium particles will provide space for the water, thereby preventing the fill from expanding and causing the slab on top to shift and crack. If fill is comprised of too many small grains, water is simply absorbed into the fill like water into a compressed dry sponge; the reaction is the same. If the fill is five feet deep and experiences a three percent expansion, the fill will expand three inches, which, in turn, will cause substantial movement, and therefore cracking, in the slab. Frankian performed soils tests prior to installation of the slab and found the fill to be non-expansive.
The floor of the post office building’s main workroom, measuring approximately 10,300 square feet, comprised the largest section of the slab. In December 1986, cracking, and, in at least one or two areas, vertical displacement (also known as “differential settlement”) were discovered in the main workroom portion of the slab. Differential settlement is a severe form of cracking in which one side of a crack sinks or rises, resulting in a rough, uneven surface. On January 16, 1987, defendant’s architect, Lane Architectural Group (Lane), instructed Mr. Kelsen to inspect the slab. In a January 27, 1987, letter to Mr. Edward Jones, Jr., Lane’s manager for the project, Mr. Kelsen recommended coring the areas of vertical displacement to obtain a sample of the slab in hopes of determining the cause of the cracking. Mr. Kelsen also stated that the cracks and vertical displacement did not affect the structural integrity of the building, but that repairs should be effected for “architectural considerations.”
On February 26, 1987, the contracting officer, Mr. Joseph M. Cipriani, directed plaintiff to investigate the cracks and differential settlement of the slab and submit soil and concrete samples for testing. By letter of March 10, 1987, Mr. Harman, plaintiff’s construction manager, protested that physical testing was the owner’s re
The trial record demonstrated that the extent of the cracking in the slab was massive, with at least four cracks running the entire distance of the workroom portion of the slab in an east-west direction, and numerous other smaller east-west cracks as well. There were also at least ten smaller north-south cracks running through this area of the slab. Some of the cracks, according to Mr. Cipriani, were approximately three-sixteenths of an inch wide. While the trial concentrated on the slab in the main workroom because that was the portion ultimately removed, the entire slab, including areas in all of the other rooms, also contained cracks, albeit to a lesser extent than in the main workroom. For instance, there was evidence of vertical displacement of the slab in at least one office or hall area. According to Mr. Phillips T. Ruffalo, a registered architect and structural engineer under contract to defendant as its on-site representative and project manager, some of the cracks were typical hairline cracks, while others were large enough in places to see the sand beneath the slab.
During my time of association with this project before the slab was removed ... October 19, 1987 through early January of 1988, I noticed the cracks were getting worse. I — I would say that the slab ... had dynamic characteristics____ [I]t didn’t crack and then just stop cracking, and that was the end of it. The cracks were getting deeper, wider, and there were more of them every time I [visited the site.]
Mr. Ruffalo confirmed Mr. Whalen’s observations about the growth in size and number of the cracks. Mr. Ruffalo also testified that he saw worsening of the vertical displacement and actual “curling” of the concrete where several cracks came together.
After the major cracks in the slab appeared, defendant contracted with several engineering consultants to obtain independent appraisals of the cracking. One such firm, Pacific Architects and Engineers, retained Mr. Paul Winter, a structural engineer, to examine the slab design and specifications, and inspect the slab. Mr. Winter concluded that the cracking was caused by the wide spacing of control joints in the design of the slab. He stated in his March 30, 1987 letter that:
control joints in the main area of the building occur at from [sic] 30 to 37 Vb feet on center____ ‘Textbook’ spacing of control joints varies from 15 to 20 feet on center____ Shrinkage cracks will always occur in non-prestressed slab on grade, and control joints are provided to confine the cracks to pre-determined locations.
Mr. Kelsen countered that it was not uncommon to place expansion joints as far apart as forty feet by forty feet. Mr. Winter concluded his report with the recommendation that part of the slab should be repaired and part replaced. He suggested filling small cracks with non-shrink grout and replacing areas where vertical displacement had occurred.
Mr. Richard Levitt of Wagner, Hohns, Inglis, Inc., a construction consulting firm retained by defendant, also inspected the slab. In a memorandum dated March 24, 1987, Mr. Levitt stated:
The concrete slab ... had cracks as had been reported, mostly midway between the joints at approx. 20 foot spacings. Looks like an expansive soil problem or insufficient reinforcing in the design or construction. Most of the cracks are of no consequence____ Otherwise, the momentum observed today tells me it would not be a good time to terminate the contract, if that is being considered.
On May 14, 1987, two and half months after being directed to do so by the contracting officer, plaintiff finally removed a four foot by ten foot section of the slab. Mr. Kelsen reported in a letter to Lane that all of the rebar in the cut section, but one, lay in the sand under the floor and was not embedded in the slab as required by the contract. Mr. Kelsen also reported that no “Key[ed] Kold” control joint was present, although the contract drawings indicated that a control joint was to be used at that location. Mr. Kaplan reluctantly agreed, even though the photographs taken of the cut section overwhelmingly demonstrated that the rebar in the cut section had not been installed in conformance with the requirements of the contract. Mr. Kelsen, as did several other consultants, recommended that defendant ignore the almost-certain long term problems with the slab,
On June 8, 1987, Mr. Cipriani met at the job-site with Mr. William Peterson, a senior structural engineer with the architectural and engineering firm of Daniel, Mann, Johnson & Mendenhall to seek yet another independent appraisal of the cracking. In confirming what Mr. Kelsen had observed, Mr. Peterson reported that in the section of slab cut for sampling, the rebar rested on the top sand layer of the fill beneath the slab. Mr. Peterson did find some control joints but noted that they were improperly placed; i.e., the control joints were placed too low, and were parallel to columns rather than intersecting the column corners as specified in the contract drawings. Mr. Peterson opined that the fill underneath the slab was of proper quality and had been compacted sufficiently to ensure that the slab had not shifted unreasonably due to poor soil quality. Mr. Peterson's June 8, 1987 report concluded:
The owner did not get what was contracted for however, and this is the main problem. My recommendation is not to do anything to the slab, just use it as it is. But the owner should be reimbursed for the cost of the reinforcing [the rebar] as well as the placement of it. He [sic] should also be reimbursed about 50% of the cost of the joint materials and placement.6
Mr. Whalen, who personally observed removal of the concrete slab in the workroom, testified that in his estimation, seventy percent of the rebar lay beneath the concrete.
I was there when the whole slab was removed, and the only portions [of the rebar] I saw that were embedded in the slab, would pass through the key[ed] joints. [The rebar] would go up ... through the key joint and back down a few feet [on] either side of the key joint. So you count those sections, it’s about 30 percent of the slab.
Mr. Rudolph Paolini, whom the court found to be an impressive witness, was also present during the demolition of workroom slab. Mr. Paolini, an architect employed by Wagner, Hohns, Inglis, Inc., also under contract to defendant, “engaged principally in construction claims investigation” was an expert witness called by defendant. He testified that he saw approximately eighty percent of the rebar lying on the sand under, not in, the slab. Mr. Cipriani testified that the majority of the rebar was “all down in the sand.” Photographs entered into evidence typically showed large sections of the slab — after being removed— with the rebar “just stuck to the bottom.” Fidelity & Deposit Company of Maryland (F & D), plaintiff’s surety on the contract, retained the Construction Consulting Group, Inc., a subsidiary of the American Concrete Institute, to perform tests on the slab to determine whether the rebar in the slab was properly positioned. Before demolition, Mr. Edward R. Fiske of CCG used an electronic device known as a pachometer to determine the distance of the rebar from
Mr. Charles Macintosh, an independent construction consultant, called by plaintiff as an expert witness, also disagreed that eighty percent of the rebar lay beneath the slab on the sand for the same reason that Mr. Kelsen testified that it was, and that he would expect rebar to fall beneath the concrete because he knew of no contractual requirement that required plaintiff to take even ordinary steps to place “[the rebar] in the middle of the slab at the center of the span.” He also testified that if the rebar was held up in the concrete on the “Keyed Kold” joints, it would have been impossible for so much rebar to have fallen to the bottom. He testified that “there was probably[,] as on most jobs, 20 percent” on the ground. He also testified, however, that when he viewed the exposed soil on August 26, 1987, he saw only one instance where the rebar was placed too low in the concrete, and two instances where the rebar “was exposed near the middle of the slab.” In this regard, Mr. Macintosh testified as a fact witness, and his testimony is flawed because he did not consider that so many supports had fallen during pouring of the concrete. Neither had Mr. Macintosh read the design specifications at any time prior to his appearance in court. Mr. Macintosh further testified that the largest vertical displacement which he personally saw was not 3/i6 of an inch as reported by most witnesses but only Vk of an inch, 600 percent smaller, “which was nothing and would be completely covered up when you put any covering on it of any kind.” Mr. Macintosh did not even ascribe to. the general consensus that the slab would have to be repaired by grinding down the vertical displacement before covering it with tile or carpet. The photographic evidence alone clearly shows a much larger vertical displacement than Mr. Macintosh said he saw, and credible testimony by other witnesses supported the photographic evidence of a larger vertical displacement. In a hapless attempt to negate the value of the photographic evidence, Mr. Macintosh at one point testified that a length of rebar shown lying on the ground beneath an overturned piece of concrete had been simply “pushed” down and out of the concrete when it was removed, notwithstanding that the concrete was unbroken horizontally.
Mr. Macintosh’s testimony consisted in the main of his disagreement with the design of the slab, though there was no credible evidence that the design was not sufficient for its purpose. He also completely ignored the fact that plaintiff failed to construct the slab as per the design, as even Mr. Kaplan admitted.
In another directive dated June 17, 1987, Mr. Cipriani repeated his determination that the workroom portion of the slab did not conform to the contract specifications and ordered plaintiff to provide defendant with a plan and schedule to remove and replace the workroom slab within seven days of plaintiffs receipt of this directive. Instead of providing defendant with a plan and schedule for the work, plaintiff waited nine days, until June 26, 1987, and demanded copies of the various structural engineering reports that defendant had obtained from its contractors, Messrs. Kel-sen, Winter, Levitt, and Peterson. Mr. Ci-priani did not provide plaintiff with the requested reports.
On July 9, 1987, Mr. Cipriani again ordered plaintiff to remove and replace the slab, and to provide a plan to do so within five days of receipt of the letter, or be subject to termination for default. Mr. Ci-priani simultaneously informed F & D, plaintiffs surety, that grounds for default termination existed by reason of plaintiffs failure to comply with the directive of June 17, 1987. Mr. Kaplan, long after the fact, and for the first time, asserted at trial that he did not understand what was required of him. He did not, however, ever contemporaneously ask defendant for advice, instructions, or clarification. Plaintiffs argument that it did not understand the contracting officer’s directives to provide a plan to demonstrate how and when it would correct its defective work was not inyented until years later. Plaintiff's correspondence with the contracting officer, contemporaneous with the notices, never expressed confusion or doubt about what was expected of plaintiff. Instead of complying with the directives, Mr. Kaplan contacted his attorney who, in response to the June 17 and July 9, 1987 directives, wrote to Mr. Cipriani on July 14, 1987 reiterating plaintiff’s request for the reports and disputing Mr. Cipriani’s rejection of the slab. Plaintiff’s attorney, who at the time apparently did not grasp the critical position of his client, informed the contracting officer that “Mega is prepared to work with you to evaluate whether a problem exists, and if so, how to solve it, but you must be prepared to cooperate.” See note 3, supra. Plaintiff did not comply with Mr. Cipriani’s directives.
On July 22, 1987, Mr. Cipriani’s supervisor, Mr. Russell W. Harter, also a contracting officer, terminated plaintiff for default based upon lack of action, job abandonment, and failure to follow directives of the contracting officer. The evidence is clear that at about the time the first notice was issued, plaintiff had virtually no employees or subcontractors at the job-site. Following the last directive giving plaintiff one more opportunity to comply, plaintiff — for all practical purposes — had abandoned the project. Defendant gave plaintiff two clear directives in June and July 1987, both of which plaintiff failed or refused to follow.
Following the termination for default of plaintiff’s contract, JS & A contracted with the soils engineering firm of Smith-Emery Company (Smith-Emery) to perform a series of tests on the soils beneath the slab. The court found the several Smith-Emery reports to be the most credible of all the
2. ... soils are not the cause of the cracks observed in the slab.
3. It is our opinion that the cracks in the concrete slab are due to the reinforcing stee[l] not located at the proper depth in the slab and the lack of expansion joints around the columns and at other appropriate locations in the slab.
The following month, on September 28, 1987, F & D also contracted with Smith-Emery to investigate the soils beneath the slab. Smith-Emery took and tested another nineteen samples and concluded, for the second time, that the fill soils were “not the cause of the distress observed in the floor slab ... [t]he fill soils have a low expansion potential.” Between October 26 and 27, 1987, Smith-Emery extracted and tested samples from nine or ten more locations under the slab. In contrast to its reports of August and September 1987, Smith-Emery concluded in its report of November 3, 1987, that boring locations one, five, seven, nine, and ten exhibited a medium potential for soil expansion, while locations two, three, four, and six exhibited a low potential.
Defendant redesigned the slab based on Smith-Emery’s November 3d report that the soil placed by plaintiff under the existing slab was, low-to-moderately expansive. Mr. Paolini testified that in his expert opinion the soil was slightly expansive. In a November 13, 1987 letter to defendant, Mr. Kelsen, who re-designed the slab, stated:
Recent tests by Smith-Emery indicate potentially expansive soil in the low-to-medium range. We have increased the slab thickness and the amount of slab reinforcing due to these tests.
If the compacted fill had tested non-expansive, we would have recommended replacement with the same slab and reinforcing as shown on the [original] contract documents.10
On the reprocurement, Mr. Kelsen increased the thickness of the slab from four inches to five inches, placed the rebar eighteen inches apart rather than twenty-four, and spaced control joints approximately twenty-nine feet apart in both directions vice twenty-nine feet east to west and thirty-seven feet north to south. On November 6, 1987, Mr. Cipriani met with Messrs. Ruffalo, Kelsen, and Paolini, among others, to discuss possible solutions to the cracking in the slab. None of the consultants at the meeting recommended removing and replacing the slab in the main workroom, and, indeed, all advanced theories on how to solve the cracking in the slab through filling and grinding. Mr. Paolini explained that even though he believed the soil was slightly expansive, the contract, as a matter of principle, should not have been terminated. He explained:
It just — it messes a project up. It’s so difficult to get a bonding company or a surety to perform after that and it just delays the project even more. And as a firm we have taken a position and in fact have given seminars advising owners if at all possible, do not terminate either a designer or a contractor.
However, Mr. Paolini also stated that, in his opinion based on the contract specifications, defendant had cause to terminate the contract for default because of his observations of the nature of the slab and the November 3d Smith-Emery report identifying the low-to-medium expansive nature of the underlying soil.
B. Discussion
Default termination is a “drastic sanction,” and should be imposed only on the basis of “solid evidence.” J.D. Hedin Constr. Co. v. United States,
Pursuant to General Provision 4 of the contract, all claims arising under the contract were subject to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1988). In proceedings under the CDA, “the facts, as well as the law, are decided de novo by the ... court.” Seaboard Lumber Co. v. United States,
1. Breach of Contract
Plaintiff pled that the termination for default constituted a breach of the contract by defendant because it was not premised on legal or sound grounds and thereby entitled plaintiff to common law damages outside of the scope of General Provision 11, the Disputes clause of the contract. Plaintiff argued that the rules of the court permitted it to plead in the alternative, either in one count or in separate counts, and that it may also assert alternative theories of recovery which may conflict with one another. Upon first glance, plaintiff’s position appears to have merit. See In re King Enters.,
Contract clause 3.07, entitled Defective Concrete in section 03300, Concrete Work, of the Scope of Work, stated that “[a]ny concrete not in accordance with these specifications, ... or showing cracks, [or] ... exposed reinforcing ... will be considered defective____ Correct and replace defective concrete as directed by the Architect at no additional cost to the Owner.” In addition, the contract drawings called for the rebar to be placed one inch below the top surface of the concrete. Without exception, the architectural and structural engineering experts who testified at trial agreed that concrete shrinks when it cures, and that hairline cracks in poured concrete slabs are normal occurrences. However, credible evidence made it clear beyond doubt that the cracks in defendant’s slab were far more than the usual hairline cracks. It was uncontroverted that at least four of the cracks ran the entire length of the slab, and that some were so wide that the sand under the slab was clearly visible and a coin could fall to the sand fill through the crack. It is also clear from the record that seventy to eighty percent of the rebar lay exposed on the sand beneath the slab, and that the cracking was caused by plaintiff’s failure to install the' rebar according to the contract. Mr. Kelsen, the designer of both the original and replacement slabs noted that if the rebar lay at the bottom of the concrete, it would act as a crack inducer whereas properly placed rebar controls and minimizes cracking. All credible expert testimony confirmed this elementary principle of concrete engineering. Ample testimony and photographic evidence revealed that most of the rebar in the four foot by ten foot section that plaintiff removed on May 14, 1987, was not inserted through the holes of the “Keyed Kold” control joints and that a number of the control joints were either absent or improperly placed. Mr. Kaplan had to concede that the rebar in that section of the main workroom floor was in the sand, not the concrete, and that plaintiff had not installed it in accordance with the contract specifications.
Had plaintiff installed the control joints properly, the rebar would have run through the pre-formed holes in the control joints according to the specifications, which in turn would have secured the rebar in its proper position. Properly placed, the rebar would have functioned as designed to control excessive shrinkage cracking and differential settlement as the concrete cured. Mr. Kaplan’s assertion at trial that plaintiff had complied “completely” with the contract specifications directing placement of the rebar, because it had placed the rebar properly before the concrete was poured, was at best a nonsequitur, albeit an expression of his attitude about the contract and plaintiff's case; i.e., to prevail at any cost including the lack of logic, sound legal advice, the contract, and law.
According to the deposition of Mr. James Hearn, plaintiff's on-site project superintendent, Amber Steel Co., plaintiff’s subcontractor, placed the rebar in a checkerboard fashion.
Based on Mr. Hearn’s firsthand account of the crucial concrete pours, the court was not totally persuaded by Messrs. Cipriani and Paolini that plaintiff’s carelessness in pouring the concrete was the principal cause of the misplaced rebar. Rather, it was plaintiff’s slipshod misplacement of control joints which caused the fatal fall of the rebar from its proper position. The court was also not convinced that the cracking of the slab was due to the expansive nature of the soils beneath the slab. Even though Smith-Emery’s November 3, 1987 report found the soils to be of low-to-medium expansiveness, there was no evidence of water seepage into the fill or expansion of the soils beneath the slab. In the absence of water seepage into the fill, expansion was not the reason for the severe cracking.
Mr. Cipriani testified that the original slab design used at the Canoga Park Main Post Office was a generic concrete slab design used in dozens of post offices in California. Although the design of the slab was changed on the reprocurement, the court disagrees with plaintiff’s argument that the redesign proved the original design was defective. According to Mr. Hearn, it was not uncommon for rebar to be spaced at twenty-four inches, as demonstrated by the pre-formed cut-outs on the control joints that were located twelve, sixteen, and twenty-four inches apart. As a result of tests showing that the fill had low-to-moderate potential for expansion, defendant reasonably redesigned the slab in an attempt to safeguard against the effects of future fill expansion. The court agreed with Mr. Cipriani’s common sense observation that redesigning the slab was less expensive than removing and replacing approximately 50,000 cubic feet of low-to-moderately expansive, and hence, defective fill.
At trial, Mr. Kaplan testified that an unknown employee of plaintiff’s alleged that an ambiguity existed in the structural drawings governing placement of the re-bar, but not in the specifications. This argument was not presented to the contracting officer as required by the CDA, and the court has no jurisdiction to consider it a claim under the contract. See Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v. United States,
Plaintiff also argued that the termination for default was improper because the slab specifications were defective. Government liability for faulty design specifications is well settled. “[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” United States v. Spearin,
When the Government contracts for supplies to be manufactured in accordance with Government specifications, there is an implied warranty that if the specifica*418 tions are followed, a satisfactory product will result. If the warranty is breached, i.e., the specifications are defective, the plaintiff is entitled to damages equal to the amount expended in trying to comply with the defective specifications.
Hol-Gar Mfg. Corp. v. United States,
In particular, this court has stated that “[t]he implied warranty of adequacy of specifications applies only to design specifications such as detailed measurements, tolerances, materials, i.e., elaborate instructions on how to perform the contract____” Stuyvesant Dredging Co. v. United States,
[o]n occasion the labels “design specification” and “performance specification” have been used to connote the degree to which the government has prescribed certain details of performance on which the contractor could rely. However, those labels do not independently create, limit, or remove a contractor's obli-gations____ Contracts are viewed in their entirety and given the meaning imputed to a “reasonably intelligent contractor” acquainted with the involved circumstances, regardless of whether la-belled “design,” “performance,” or both.
Id. (quoting Zinger Constr. Co. v. United States,
The Federal Circuit has refined the Spearin test by requiring the court to inquire whether the contractor complied fully with the design specifications that it asserted were defective. See Al Johnson Constr. Co. v. United States,
3. Failure to Submit Plan to Remove and Replace Slab; Consultants’Reports
On two occasions, June 17 and July 9, 1987 the contracting officer directed plaintiff to submit a plan to remove and replace the rejected slab. Plaintiff refused to comply with either directive, complaining that it could not proceed unless Mr. Cipriani forwarded the consultants’ reports. Plaintiff argued that Mr. Cipriani withheld the reports in bad faith because he sought to prevent plaintiff’s compliance, thereby obtaining a new slab at no additional cost to defendant. Plaintiff also contended that Mr. Cipriani was under pressure from the U.S.P.S. to complete the project and therefore had an ulterior motive for terminating plaintiff for default without sufficient cause. Plaintiff asserted that the November 6, 1987 meeting, at which defendant discussed repair of the slab with its consultants, proved that the prior directives to
The court finds plaintiffs argument unconvincing. Even if plaintiff disagreed with the merit of Mr. Cipriani’s position, it was bound by General Provisions 4
It took plaintiff considerable time to realize its position with respect to the project subsequent to the termination. Plaintiff’s counsel’s letter of August 27, 1987, over a month after the default, is illustrative of plaintiff's irresponsible behavior. In that letter, Mr. Lawrence R. Greenberg, with more than a minimum degree of arrogance, stated that plaintiff was
ready, willing, and able to complete the ... project while leaving in abeyance the issue pertaining to the slab until it can be determined what is the cause and remedy for the alleged problem with regard to the slab.
If the above is agreeable with you, please forward your consent in writing so that the same is received by the undersigned by September 1, 1987. If same is not received by the undersigned by September 1, 1987, time being expressly of the essence, my client will assume that you are unwilling to allow it to proceed on the above construction project, (emphasis added).
The coveted consultants’ reports, which would no doubt have been of general interest to plaintiff, discussed possible repair of the slab, not its removal and replacement,
Plaintiff was in clear and incontrovertible violation of the contract and the government is entitled to compliance with the contract requirements. Jet Constr. Co. v. United States,
There is an implied duty in contract law that both parties will cooperate and refrain from hindering each other’s performance. Lewis-Nicholson, Inc. v. United States,
4. Bad Faith Allegations
Plaintiff argued that defendant’s agents acted in bad faith in terminating the contract and that the termination should be converted to one for the convenience of the government pursuant to General Provision 10 and 11 of the contract, the Termination for Convenience of the Government and Termination for Default clauses, and damages for defendant’s “bad faith” termination of the contract. Plaintiff has a high burden of proof to meet. This court assumes that government officials act in good faith. Torncello v. United States,
As evidence of bad faith, plaintiff pointed to several unrelated instances in which defendant’s agents acted, or failed to act, with which plaintiff disagreed. There was no analysis of the alleged misdeeds, nor did plaintiff present evidence that the alleged misdeeds were causative of delay or other damages. It is amply clear that as the contract began to disintegrate, relationships between the parties deteriorated to the point where defendant, pursuant to General Provision 16(b), the Material and Workmanship clause of the contract, directed that plaintiff remove Mr. Hearn, its project superintendent, from the project.
Although plaintiff implied bad faith specifically on the part of Mr. Cipriani, it was unable to produce the quantum of proof necessary to dislodge the presumption that public officials act in good faith. Sanders v. United States Postal Serv.,
5. Subsequently Discovered Reasons for Termination
The contracting officer’s decision to terminate plaintiff for default was also supported by clear documented evidence of plaintiff’s substandard performance in other areas of the contract as well. As noted, the record demonstrated over four hundred instances of deficient work discovered on the reprocurement.
Plaintiff argued, without support, at trial, in its post-hearing briefs, and request for reconsideration that the government cannot use information discovered “after the fact” to justify a termination for default. The law says otherwise. Any extant reasons supporting a default termination are sufficient to sustain the default, even if not known or discovered until after the decision to tеrminate for default is made. College Point Boat Corp. v. United States,
Plaintiff was obligated under General Provision 4, paragraph (h), the Claims and Disputes clause of the contract, to continue work in accordance with the directives while simultaneously disputing the directives. See Stoeckert,
Because it so finds, the court need not address the other reasons for the termination for default (e.g., lack of job action and abandonment) at this time, though there will be reference to inaction and abandonment by plaintiff in the following discussion of the delay and other claims. Defendant has shown that it had reasonable and proper grounds for the default termination. Plaintiff’s work on the slab, and in other areas, clearly did not meet its contractual requirements, and it refused to obey two properly issued directives of the contracting officer. The court cannot find that any of defendant’s agents acted so improperly as to justify conversion of the default termination to one for the convenience of the government. See Norwood Mfg., Inc. v. United States,
6. Alleged Abuse of Discretion and Bad Faith
Plaintiff argued that the contracting officer acted arbitrarily and abused his discretion by terminating the contract. It is indisputable that the contracting officer had the power and authority to terminate the contract. Schlesinger v. United States,
1. Is there evidence indicating the official’s subjective bad faith? Keco Industries, a case in which an unsuccessful bidder sought recovery of bid preparation costs, limited this element to subjective bad faith on the part of procuring officials in depriving a bidder of full and honest consideration of its bid. Id.,492 F.2d at 1203 . Warranted damages were recovery of bid preparation costs. Id. (citing Heyer Prods. Co. v. United States,135 Ct.Cl. 63 ,140 F.Supp. 409 (1956)).
2. Was there any reasonable basis for the decision to terminate? Normally “no reasonable basis” for the administrative decision will suffice for a showing of capriciousness. Id. at 1203-04 (citing Continental Business Enters. Inc. v. United States,196 Ct.Cl. 627 ,452 F.2d 1016 , 1021 (1971)).
3. What amount of discretion was granted to the government’s agent? “[T]he degree of proof of error necessary*423 for recovery is ordinarily related to the amount of discretion entrusted to the procurement officials by applicable statutes and regulations. Id. at 1204 (citing Continental Business,452 F.2d at 1021 ; Keco Indus.,428 F.2d at 1240 ).
4. Was there a proven violation of an applicable statute or regulation? A “proven violation of pertinent statutes or regulations can, but need not necessarily, be a ground for recovery.” Id. (cf. Keco Indus.,428 F.2d at 1240 ).
Bad faith is distinguishable from abuse of discretion; the standard is high but does not reach the higher “well-nigh irrefraga-ble proof” standard. Embrey,
... pointed out that the standard of proof to be applied in eases where arbitrary and capricious action is charged should be a high one. Final decisions should be based on the particular circumstances of each case. It will remain for [the] plaintiff to meet this high standard by proving to the [court] that such arbitrary and capricious action as alleged did in fact exist.
Keco Indus., Inc. v. United States,
Weighed against these factors plaintiff has not met its burden of proof. The court has found that there was no persuasive evidence of any malice or bad faith by the contracting officer or any of defendant’s agents. “Subjective bad faith” did not cause the termination. Rather, in response to his duty to provide a post office building, the contracting officer acted to protect defendant’s interests. Defendant has proved that plaintiff failed to respond to proper directives it was bound to follow, and that the slab and other items were defective and not in compliance with the terms of the contract. Plaintiff simply cannot show that there is no reasonable basis for the adverse administrative decision. The contracting officer acted reasonably, not in bad faith, when he terminated the contract for default, and did not abuse his broad discretion. Finally, try as it might, plaintiff did not prove violation of an applicable statute or regulation by defendant.
IV. THE DELAY CLAIM
Plaintiff claims entitlement to damages for a total of 272 days of delay on the project. As discussed above, every contract with the government contains an implied obligation that neither party will do anything to prevent, hinder, or delay performance. Lewis-Nicholson, Inc. v. United States,
A. Suspension of Work
Plaintiff did not specify exactly under which clause of the contract its delay claims were predicated but, with a few exceptions, presented proof and argued entitlement consonant with government-caused project delay to the critical path. There are, of course, two possible routes to successful prosecution of a delay claim. See Chaney & James Constr. Co. v. United States,
If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted by an act of the Contracting Officer ... an adjustment shall be made for any increase in the cost of performance of this contract ... necessarily caused by such unreasonable suspension, delay or interruption and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent (1) that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or (2) for which an equitable adjustment*424 is provided for or excluded under any other provision of this contract.
The Court of Federal Claims and the Court of Appeals for the Federal Circuit have held that under the Suspension of Work clause, the contractor may be awarded compensation for “government-caused delays of an unreasonable duration.” Beauchamp Construction Co. v. United States,
To recover, the contractor must show: (1) the delay is of an “unreasonable length of time,” Wunderlich,
B. Delay to Critical Path
Not only must plaintiff disentangle its delays from those allegedly caused by the government, but the delays must have affected activities on the critical path. See Wilner v. United States (Wilner II),
The Court of Claims described critical path method analysis as “an efficient way of organizing and scheduling a complex project which consists of numerous interrelated separate small projects.” Haney v. United States,
Each subproject is identified and classified as to the duration and precedence of the work. (E.g., one could not carpet an area until the flooring is down and the flooring cannot be completed until the underlying electrical and telephone conduits are installed.) The data is then analyzed, usually by computer, to determine the most efficient schedule for the entire project. Many subprojects may be performed at any time within a given period without any effect on the completion of the entire project. However, some items of work are given no leeway and must be performed on schedule; otherwise, the entire project will be delayed. These latter items of work are on the “critical path.” A delay, or acceleration, of work along the critical path will affect the entire project.
Wilner v. United States (Wilner I),
The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path ha[s] an impact upon the time in which the project [i]s completed. If work on the critical path [i]s delayed, then the eventual completion date of the project [i]s delayed. Delay involving work not on the critical path generally ha[s] no impact on the eventual completion date of the project. * * * * * *
[The] critical path periods provide the court with the foundation necessary to reach delay damage conclusions.
G.M. Shupe, Inc. v. United States,
A requisite for government liability for the consequences of a critical path delay is fault on the part of the Government. Courts will deny recovery where the delays [of the Government and the contractor] are concurrent and the contractor has not established its delay apart from that attributable to the government. Furthermore, the court is constrained ... to award delay damages only for the unreasonable portion of a government-caused delay. Not all delay that occurs along the critical path is unreasonable.
Wilner II,
C. Proof of Critical Path and Critical Path Delay
“In order for the court to be able to award damages to plaintiff for government-caused project delay along the critical path, the court must have before it evidence that establishes the critical path of
The contract did not dictate the preparation and updating of a Program Evaluation and Review Technique (PERT) chart, to provide critical path method (CPM) analysis, both of which are traditionally used by construction contractors. General Provision 65, the Construction Project clause of the contract, simply required plaintiff to provide a “practicable progress chart.”
Plaintiff called Mr. Patrick Cumine as its expert construction delay witness to identify the delays and to establish the duration of, and responsibility for, the delays. Mr. Cumine did not expressly state as much, but before he could address the alleged project delays, he had to identify the critical path. It was clear to the court that plaintiff’s principals understood the critical path method of construction planning by the date of trial, but there is ample evidence that plaintiff did not know what the critical path was during the contract period. Mr. Cumine testified that he reviewed most of the record and interviewed Messrs. Kaplan and Hearn at length in preparing his analysis. Based on his investigations, Mr. Cumine prepared a “construction schedule” bar chart for trial, supposedly based on plaintiff’s as-planned bar chart. However, Mr. Cumine did not know if plaintiff’s chart, upon which he based his chart, was the original construction schedule bar chart or a version that had been revised at some unknown later date. The latter point is important because in order to establish delay to completion of the project, one must have a starting point and the contractor’s original intent in order to show
If the base bar chart Mr. Cumine used was actually a revised version, it did not accurately depict plaintiffs original intended construction schedule. Just how it differed was not explained. Mr. Cumine could not state whether his chart was based either on plaintiffs original chart, or on an amended version; none of plaintiffs witnesses offered any clarification on this point of confusion. Neither did plaintiff offer any evidence that its as-planned bar chart was reasonable. Compounding this problem was that the base bar chart that Mr. Cumine prepared for trial was, in his words, in a “different format” than plaintiffs. In the interests of judicial economy, the court permitted use of Mr. Cumine’s bar chart with the caveat that at some point during trial plaintiff would lay a foundation showing that the alleged as-planned bar chart prepared by Mr. Cumine was the same as the original chart prepared by Mr. Kaplan. Plaintiff never did so, and the court does not know to this day whether the two charts are the same. The best Mr. Kaplan could do was state he “believed” the two charts were identical.
Mr. Cumine’s bar chart had three clear plastic overlays. The first overlay depicted what he identified as the as-built bar chart and the “duration as-planned/as-built” comparison. His second overlay was a “pure graphical representation of the date of a document which relate[d] to a delay or impact on the specific work activity____” Not all of the documents to which he referred were specifically identified and there was no way for the court to confirm the accuracy of the information shown on the overlay. Nor was there any proffer of proof that the underlying documentation was factually accurate. The third overlay was Mr. Cumine’s “simplified critical path ... and the critical path logic.” He explained that his “simplified critical path” showed only, critical path delays but not non-critical path delays, which should not have been shown in any event. Mr. Cu-mine admitted that he assumed all time extensions allowed by defendant were on the critical path, but logic and credible evidence revealed that no to be the case.
Mr. Cumine also “identified” several instances where there were two concurrent delays on the critical path thereby invalidating much of his analysis. The suggestion of two concurrent delays on the critical path flies in the face of the critical path concept. Logically there cannot be two concurrent delays on the critical path because there is but one critical path at any one point in time, running in sequence from one critical activity to another.
Mr. Cumine admitted that neither the base bar chart he prepared, nor plaintiff’s as-planned bar chart, actually constituted a critical path schedule; they did not “indicate the interrelationship between a preceding and succeeding activity ... [with] an interdependency link.” See Wilner II,
(1) the nature of the particular losses make it impossible or highly impracticable to determine them with a reasonable degree of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its actual costs were reasonable; and (4) it was not responsible for the added expenses.
WRB Corp. v. United States,
Based on his analysis, Mr. Cumine alleged that he identified fifteen separate quantifiable “items of critical delay.” Mr. Cumine may have used the phrase “critical delay” as a shorthand term to mean “critical path delay,” but even if he did so, the court does not know whether the “critical delays” he allegedly identified were found using his concept of “concurrent” critical delays or by some other method. If the latter, the “critical delays” axiomatically may or may not have been on the critical path. A discussion and analysis of specific delay claims follows.
1. Site Preparation Work
Mr. Cumine alleged that the first critical delay occurred at the very outset of the contract. Plaintiff was prepared to begin work on September 23, 1985, but found that the job-site was “not ready” and that “[t]he Post Office required Mega to do considerable additional work in order to get the site prepared to the state that it should have been in on September 23rd.”
The fact that the pre-construction site-work was not on the critical path, and that defendant’s allowance of thirty-two additional days for performance at the outset of the contract thus did not affect the critical path, further confused the entire delay issue. While the thirty-two days in practical terms would have been reflected at the end of the contract, for analysis of any delay, they had to be counted at the beginning of the contract. Mr. Cumine’s delay analysis was flawed because the impact of that initial “lost” time was not calculated from when it occurred, and thus not considered a factor in the later periods of alleged delay. The thirty-two day period may have constituted a non-critical path delay at the beginning the contract, but Mr. Cumine did not take that into account in his calculations of “the delay” that he alleged occurred during the actual construction phase. By not counting the initial delay at the beginning of the contract, Mr. Cumine added thirty-two days of project delay to the as-planned construction phase.
2. Earthwork and Footing Excavation
Plaintiff’s base bar chart identified “Earthwork” and “Footing Excavation” as the third and fourth tasks to be performed on the project. “Earthwork” was apparently to have begun September 23, 1985, and be completed October 18 of the same year. “Footing Excavation” was not scheduled to begin until ten days later, on October 28, and be completed November 8, 1985. The only activity running during that ten-day gap in the as-planned schedule was “Mobilization,” that was to begin September 23 and be completed November 1, 1985. Mr. Cumine surmised that the “Earthwork” did not actually begin until the second week of October and was not completed until the last week of October, approximately the same time “Footing Excavation” was to begin. Mr. Cumine attempted to justify the as-built dates for “Earthwork” by adding an unexplained week of “impact” delay at the beginning of the period during which plaintiff was ostensibly to have performed “Earthwork.” Without understanding the basis or reason for the alleged “impact” delay week at the very оutset of the contract — before any work on the project began — the court cannot find that the “Earthwork” actually delayed “Footing Excavation” by a week, thereby adding seven days delay to the alleged critical path. In addition, the three week period between the apparent end of “Earthwork” and the start of “Footing Excavation,” as shown on Mr. Cumine’s version of the base chart and overlays, indicated that plaintiff intended only to continue the six week mobilization of its work force, and had no intention of working on site preparation, or on the building during that time.
3. Rain Delays
Other factors also bring into question the validity of Mr. Cumine’s delay analysis. For example, his chart and narrative testimony indicated that he included days of rain in the alleged delay claims. Special Provision 13, entitled Time Extensions, provides that “[t]ime extensions will be considered only for climatic conditions that are more severe than the average seasonal conditions recorded by the U.S. National Weather Service.” Early in his testimony, Mr. Cumine stated that rain was included in his base as-planned chart even though his analysis of the number of rain days that occurred over the “last five or six years” was average. On redirect, Mr. Cu-mine testified that he showed rain days on the chart and included them in his narrative of the delays but did not add days of delay to the alleged critical path, even though the charts allegedly showed only the critical path delays. He affirmed plaintiff’s counsel’s suggested answer that the
4. Plaintiffs Claimed Completion of Work Items
Mr. Cumine included days of delay attributable to defendant on which plaintiff was not working, but could have been. On February 3, 1986, defendant wrote to plaintiff, stating that, according to the project schedule, plaintiff was to have completed thirty-five percent of the project by the time it submitted its third request for progress payment. Yet, plaintiff’s third request for progress payment showed that only thirteen percent of the project had been completed. Defendant’s calculations included “no-work” time within the claimed delay period, further discrediting plaintiff’s assertions that defendant was liable for 272 days of delay to the project. Defendant wrote, “[i]n accordance with clause 65(b) of the General Provisions, we request that you submit a revised schedule and plan to make up the lag in scheduled prog-ress____” Plaintiff’s “response” was that the project was arguably twenty-three to twenty-five percent complete vice the thirteen percent shown in the record. There was sufficient evidence in the record to establish that defendant was faced with a serious discrepancy between actual project accomplishment and plaintiff’s claimed degree of completion. Defendant was well justified in not blindly making progress payments without inquiring into the discrepancy. The time taken to compare claimed completion with actual completion was not unreasonably long, and there was no evidence that any delayed progress payments actually hindered plaintiff's work, or that any delay was not the result of plaintiff’s submissions of questionable claims of accomplishment in support of its requests for progress payments.
5. Job-site Abandonment During Construction Period
The record revealed a number of instances when the job-site was vacant, or no work was being accomplished, even though there was work to be done that could have been done. One example was the delay caused by plaintiff when it ran out of rebar on April 3,1986 in the midst of construction of the slab, and was forced to idle its workers for nearly a week until it could purchase more rebar and have it delivered to the site. The same was true for concrete that was rejected as substandard by defendant. Plaintiff did not explain the impact of the shortage of rebar or rejection of concrete but did include those periods as part of the alleged government-caused delay. The record reflects many days, even weeks, when the job-site was vacant but for plaintiff’s project superintendent, when work could have been performed.
[t]he gates are all locked so that even your sub-contractors [sic] cannot access the site. I don’t see why your electri*431 cians and plumbers are not doing their ground work. Also, you could have framed and poured the dock wall, formed for the slab and finished pouring the remaining spread footings.
It is beyond my comprehension as to the way you are running this project. The weather has been some of the best of the year for the past two weeks____ We would like a meeting with you in our office at your earliest convenience, so that we may know what your intentions are.
Mr. Kaplan testified on cross-examination that there were periods when the project was “effectively” shut down because defendant had not provided needed guidance. “We literally ran out of work to do or any kind of consequential work to do.” There was, however, no persuasive evidence that the alleged lack of guidance caused critical path delay or constituted delay to any work item. The record does reveal that the job-site was closed for seventeen days between August 8 and 25, 1986. Plaintiff argued that defendant was liable for this seventeen-day delay because it failed to provide crucial instructions to plaintiff on the fire sprinkler system, impact doors, and approximately thirty other items that allegedly required written instructions or directives from defendant. Again, plaintiff totally failed to analyze the alleged delay in light of its burden under Shupe and Haney. Consequently, the court cannot find defendant liable for the alleged seventeen-day shutdown.
In its post-trial brief, plaintiff asserted that a design problem with the fire sprinkler system arose on December 20, 1985, and that defendant failed to solve the problem until June 19,1986. Yet, in the Appendix to its post-trial brief, plaintiff only referred to the fire sprinkler problem obliquely in construction log entries of May 1, 1986, and October 8, 1986, when the installation of the fire sprinklers began. The court has no idea when, or even if, plaintiff submitted shop drawings to resolve the fire sprinkler design problem; whether the delay from June 19 to October 8, 1986 was attributable to defendant, plaintiff, or both; or why installation did not begin until October 1986 if the problem had been resolved in June 1986. Nor was there credible proof of when plaintiff planned to begin installation of the fire sprinkler system, whether the alleged delay was on the critical path, or if the alleged delay was concurrent with other activities on or off the critical path. Such disarray of proof was typical of dozens of similarly incomprehensible delay claims for which plaintiff seeks recovery.
The longest single delay to the project, according to Messrs. Kaplan and Cumine, was the installation and finishing of drywall, which allegedly delayed completion of the project by 119 days. Plaintiff contended that defendant was responsible for this delay because it failed to provide timely resolution of design defects in impact doors, fire sprinkler systems, heating and ventilation controls, electrical outlets, and screen walls, all of which allegedly required resolution before drywall activities could commence. However, plaintiff admitted that it did not want to install the drywall in a piecemeal fashion because to do so would be “inconvenient” and “not cost-effective.” As a result, plaintiff asserted, the installation and finishing of drywall was delayed from approximately October 30, 1986, until January 7, 1987.
Mr. Irwin, defendant’s delay expert, testified, apart from his highly complex and discredited delay chart, that the impact door design problem was resolved in September 1986, and that installation of the fire sprinklers was completed by November 14, 1986.
It is also painfully obvious that plaintiff could not have continued work on the drywall through completion during the claim period because not all of the metal studs to which the drywall was to be attached had been installed. Even if plaintiff could have installed the drywall during the claim period there was no evidence of the amount of time plaintiff could have saved by installing all of the drywall at one time. Nor was there evidence of the allegedly additional time incurred because plaintiff insisted on delaying drywall installation until it could all be installed. Moreover, notwithstanding plaintiffs assertions that it could not have effectively installed the drywall in stages, it did partially install sections of the drywall before it was terminated for default. In fact, once plaintiff did begin to install drywall it did so on a piece-meal basis.
A further complicating factor facing the court was that plaintiffs pay requests for the drywall were grossly inaccurate. The record shows that in its May 1986 pay request, plaintiff stated that it had completed sixty-five percent of the value of the drywall installation. The amount of drywall installation remained at sixty-five percent until December 1986 when plaintiff claimed seventy-five percent completion. In January 1987, plaintiff claimed eighty-one percent completion of the drywall. Plaintiff raised the percentage of completion to ninety-five percent in its February 1987 pay request, and to ninety-nine percent in its April 1987 pay request. Plaintiff later claimed 100 percent of the drywall had been completed. Mr. Irwin, defendant’s delay expert, whose testimony bears close watch, did state that when he visited the site in January 1987, the drywall was approximately twenty-five percent complete, not eighty-one percent complete as claimed in plaintiff’s pay request for that month. The record also shows that between August or September 1986 through December 1986 when plaintiff claimed to have installed ten percent of the drywall, the job-site for all practical purposes had been abandoned. Mr. Ruffalo, defendant’s on-site project manager, testified that by December 1986, no drywall had been installed, and that there was no reason why plaintiff could not have commenced installation by then. Only a few of plaintiff’s employees were on-site on those days, and plaintiff provided no credible proof that the drywall subcontractor was on-site at all during the claim period.
Plaintiff consistently claimed that defendant was slow in giving necessary guidance, approving shop drawings, and answering its requests for clarifications. The claim has some basis; however, after careful examination of the record, the court finds that plaintiff has not proved that any such delay was on the critical path. The court is not unmindful that the contracting officer administratively allowed plaintiff
6. Delay Occurring “After” Default Termination
Mr. Cumine defined his fifteenth delay period as “indeterminate” because it was for delays that allegedly occurred after plaintiff’s contract had been terminated for default. One such claim was for government-furnished equipment that was not delivered to the job-site until after the default. Mr. Cumine measured the duration of this element of the delay claim from the time plaintiff first requested the equipment, even though it was a clear that plaintiff was not ready to install the equipment at that time, or at any time in the reasonably near future. The problem with making a delay claim for the period of time after the termination for default is that plaintiff had no legal interest in the contract, and defendant was under no duty to deliver the equipment until it was needed by the reprocurement contractor.
7. Unsubstantiated and Incomplete Analysis of Claims
Mr. Cumine gathered the information he used in his analysis from documents and discussions he had with plaintiff’s officers. Many of the documents used were not identified nor in the record, did not state what he alleged they reported, or were successfully refuted by defendant. The fact that Mr. Cumine discussed contract documents with plaintiff only and did not solicit comments from any of defendant’s inspectors, managers, or contracting officers raises a strong presumption that his analysis was biased in favor of plaintiff. At one point during Mr. Cumine’s testimony, plaintiff’s counsel Mr. Greenberg, responding to an objection of hearsay, confirmed that portions of Mr. Cumine’s analysis were based on bare self-serving statements made by plaintiff’s officers, which Mr. Cumine opined were true, but to have them admitted into the record over defendant’s hearsay objections, stated they were not offered for the truth of the matters contained therein. A good portion of Mr. Cumine’s analysis was based upon plaintiff’s construction logs, which are also highly suspect. Finally, Mr. Cumine included work in his delay analysis performed by plaintiff that was defective and had to be repaired or replaced by the reprocurement contractor.
8. Credibility of Expert Witness
The court was initially impressed with Mr. Cumine’s demeanor at trial, but as his
9. Credibility of Lay Witness
Mr. Kaplan’s testimony was no more helpful. He stated simply that plaintiff had worked on the project from the bottom upwards, but gave no specific description of the critical path or specifics of work item delays. Instead, he testified generally that plaintiff planned, seriatim, to prepare the soil, pour concrete, put up the framing and roof, install mechanical and electric items, drywall, and finish the project. Mr. Kaplan referred to his bar graph as a “Gantt Chart,” a bar chart that shows actual completion dates and can be used to compare an as-planned schedule with actual performance. It does not permit logical CPM analysis because it does not depict a “critical path schedule;” the bars did not “indicate the interrelationship between a preceding and succeeding activity” with the all-important “interdependency link.” Wil-ner II,
Specifically, plaintiff failed to prove that any claimed delay was of an “unreasonable length of time,” Wunderlich,
D. Periods Included in the Delay Claims
Plaintiff divided its delay claims into three separate time periods. The first spanned commencement of the work on September 23, 1985, two weeks after receipt of the Notice to Proceed, until July 22, 1987, the date of the termination for default (first period). The second period of delay claims lasted from July 23, 1987, until October 20, 1987, during which time plaintiff alleged that it was still “actively involved in the Project” (second period). The third time period spanned October 21, 1987 “to on or about December 31, 1988 [when plaintiff] was still actively involved in the project on a day-to-day basis as to,
Plaintiff claimed that support for its first-period delay claims arises from admissions of fault contained in the testimony of various government officers, and from the charts and testimony of its delay claims expert witness, Mr. Cumine. As noted, Mr. Cumine concluded from his analysis of fifteen items in the construction record that defendant was responsible for 272 days of delay, and plaintiff for five days of delay during the first period.
Plaintiffs second-period delay claim was for ninety days, and began the day following the termination for default, until October 20, 1987, the date its superintendent and a round-the-clock watchmen left the job-site and “the site was fully turned over to the USPS [sic].” Plaintiff alleged that its home office remained active during this period, dealing with subcontractors and general “winding down” of the project. According to Mr. Cumine, defendant was the sole cause of the entire ninety-day delay and plaintiff was entitled to delay, impact, “and other” unidentified costs for the entire second period. Plaintiff referred the court to contract General Provision 10, The Termination for the Convenience of the Government clause, as the sole basis of its contention that damages incurred during the second period entitled plaintiff to an equitable adjustment.
The third period encompassed a total of 437 days. The delays claimed are the same as those claimed in the second period, i.e., home office involvement with subcontractors and “winding down.” Mr. Kaplan testified about the scope of the claim:
A. ... It takes [in] any project — even if it is completed — it takes time to wind the project down. This, of course, went well beyond that because of problems that had arisen with it. We had lots of problems with sub[contractor]s, for example ____ [D]uring that period, I had Mr. Harman working as a consultant for us. He had elected to leave the company. And I employed him to continue at least for a while to work as a consultant. He was off the payroll.
s}: sjt * * * sjs
Q. Was [Mr. Harman] responding to subcontractor claims and things like that at the time?
A. Well, I was really dealing more directly with the subcontractors on that, but certainly, I had to utilize him for the very detailed knowledge that he had on certain issues.
Q. What else was being done by Mega during this time frame with regard to this job that Mega is claiming?
A. Our Accounts Payable Department was certainly very active in trying to hold our sub[contractor]s at bay. We had been threatened with many lawsuits, some of which came to fruition. I had a lot of explaining to do to a lot of people. I spent a lot of time trying to [mollify] people and that’s never stopped.
As it did for its second-period delay claim, plaintiff relied upon the Termi
Throughout the record plaintiff characterized the termination for default as “alleged” and cited to the termination for convenience clause to justify entitlement to an equitable adjustment for costs incurred following its termination for default. However, once plaintiff’s contract was terminated for default, its only responsibility, as it was instructed, was to vacate the job-site immediately. The default termination can be analogized to the final payment to a contractor in that it marks the end of the contract. No doubt plaintiff did incur costs in dealing with its subcontractors and attempting to put its books in order in anticipation of litigation. However, post-termination for default costs are not recoverable in the absence of extraordinary circumstances, see, e.g., J.D. Hedin Constr. Co. v. United States,
Without making a finding at this time, the court seriously questions whether plaintiff actually incurred “winding down” expenses for a total period of 527 days in addition to its other claims for all costs and expenses. 41 U.S.C. § 605(c)(1). The claimed second and third period delay claim costs appear to overlap, or duplicate those in the claim for litigation costs, discussed in section V.C. 17 of this opinion, infra, and, if that is the case, would constitute a violation of plaintiff’s certification of costs submitted with its claim to the contracting officer as a condition of this court’s jurisdiction to adjudicate the claim. See W.M. Schlosser Co. v. United States,
This portion of the opinion addresses additional issues of liability on numerous fact-intensive cost claims that allegedly occurred prior to the July 22, 1987 termination for default. Plaintiff requested separate findings of fact of liability on all additional cost and change order claims to which defendant had not admitted liability. Because defendant did not admit liability on any specific claims at trial, the court assumes that plaintiff meant to exclude from this case on liability those claims which the contracting officer allowed administratively in whole or in part.
A. Jurisdiction Over the Claims
1. Filing of Claims Under the Contract Disputes Act
Because the claims were presented in such a disjointed illogical manner a question of jurisdiction has been presented which the court, sua sponte, must address. Hambsch v. United States,
This court has further articulated the prerequisites for jurisdiction as including the following additional elements: (1) a let
It could be argued that plaintiff failed to present its claims to the contracting officer in a manner which would give this court jurisdiction, and that this jurisdictional defect has not been cured as was the case with plaintiffs initial complaint addressed by the court in its Order on defendant’s motion to dismiss. See Mega Constr. Co. v. United States,
Mega Construction Co., Inc. submits the following Claim pursuant to the Contract Dispute [sic] Act of 1978 [P.L. 95-563, 41 U.S.C. §§ 601-613] and Section 4 of the General Provisions for the above-referenced contract.32
The undersigned certifies that the claims set forth herein are made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; and that the amounts requested accurately reflect the contract adjustment for which Mega Construction Co., Inc. believes that the United States Postal Service is liable.
The letter was signed by Marvin N. Kap-lan, President. In the introduction to the August 30, 1988 claim, plaintiff stated:
As to the claims on the contract amounts due Mega, purported monies claimed by the U.S.P.S. and as to the challenge by Mega of the purported termination for default, Mega takes the position that there has already been a final decision [of the contracting officer] with regard to the aforementioned pursuant to the U.S.P.S.’s letters dated July 22, 1987 [the termination for default] and December 9, 1987 [the assessment of re-procurement costs] to Mega and therefore, Mega is merely reasserting same to make certain that if in fact there is a determination made that the prior letters were not sufficient for such determination for purported termination for default in terms of the appeals process herein, or as the U.S.P.S. may assert in the U.S. Court of Claims [sic] action involving this matter, that same is at least asserted pursuant to this claim. However, Mega does reserve its rights to contend that the prior aforementioned letters in fact are final decisions on the aforementioned issues perfecting Mega’s right to appeal pursuant to the Contract Disputes Act, including, but not limited to the U.S. Court of Claims [sic]. Mega does not waive that right by asserting such claims herein.
The language is unwieldy, but it is clear that the August 30, 1988 letter constituted plaintiff’s additional cost and change order claims. The contracting officer believed that to be the case because he responded to the letter with a final decision on November 25, 1988. The final decision of the contracting officer ended with the mandatory standard language advising plaintiff of its rights of appeal. See 41 U.S.C. §§ 605(b), 607(d), 609(a).
Plaintiff might also argue that numerous of its letters prior to the August 30, 1988 letter submitting cost items to the contracting officer should be considered claims. There are two categories of such letters. One group begins with the statement, “[attached are our claims for costs
Attached are our claims for costs for the following:
Provide protective barricades for building due to delays in glass and hardware selection by USPS:
Total Amount: $14,551.50 Provide connection to wall (screen wall tube) per revised sketch SK-32:
Total Amount: $6,657.68
Please note that our claims are limited to the direct costs of the above work. Other costs incurred since discovery of the condition and to be incurred at a later date, (including but not limited to additional home and field office overhead resulting from overrun of the contract time, wage and fringe benefits escalations, increase of taxes, added weather protection, effects on work not modified by these changes, impact costs by subcontractors, ripple effect costs, etc., as well as liquidated damages are not included and are hereby specifically reserved. The extent of such additional costs will be evaluated only when fully known, but no later than the end of the project, and will be submitted at that time for equitable compensation. We do not recognize the granting of an appropriate time extension to be a waiver of any claim for costs.
Each so-called “claim” was accompanied by a completed standard form entitled “request for proposal” identifying plaintiffs direct and indirect costs for performing the claimed extra work, and in some instances, a voucher or bill from a subcontractor or supplier.
The court finds that the letters enclosing the request for proposals did not constitute claims under the CDA. Many did not give the contracting officer “adequate notice of the basis” of the claim, and none gave adequate notice of the amount claimed. Contract Cleaning,
One element of a properly submitted claim which the request for proposal letters and the August 30, 1988 claim specifically lack is a request that the contracting officer render a final decision on the “claim.” In Transamerica Insurance Corp. ex rel. Stroup Sheet Metal Works v. United States, Senior Circuit Judge Marion T. Bennett, writing for a three judge panel, reversed an opinion of the United States Claims Court holding that the court lacked jurisdiction to adjudicate the claims before it because the contractor had not expressly requested a final decision from the contracting officer. See Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v. United States,
This court’s bench opinion in Trans-america was based upon an interpretation of a lengthy series of opinions of the United States Court of Appeals for the Federal Circuit, our common predecessor court the United States Court of Claims, and persuasive opinions of this court applying the law of the Federal Circuit, that a request for a final decision from the contracting officer is a jurisdictional prerequisite to an appeal in this court. The Transamerica Insurance Corporation, surety to a contractor that had been terminated for default, took over the project through another contractor. The claims had first been submitted by the defaulted contractor on behalf of an unpaid subcontractor, Stroup Sheet Metal Works (Stroup). The record in Transamerica reflected that Stroup had written and spoken to the contracting officer, asking that he expedite his final decision. Id. at 1575. In the process of preparing the final decision, the contracting officer requested additional information of Stroup, which Stroup provided. Id. The contracting officer ultimately denied the claims in part, and Stroup accepted the allowed portions in a unilateral modification to the contract “as partial payment.” Id. at 1576. The lawsuit filed in this court in Transamerica was for the difference between the amount awarded in the unilateral modification and the amount sought as equitable adjustment. The Federal Circuit stated that the main question before it was whether the Claims Court erred in holding that the original contractor’s letter requesting an equitable adjustment on behalf of its subcontractor did not include “a request for a final decision, either express or implied.” Id.
Section 605(a) [of the Contract Disputes Act] by requiring submittal of a written claim ‘for decision’ does not of itself add any authority to the argument that there must be an explicit request for a contracting officer’s final decision. The statute’s broad language demonstrates that as long as what the contractor desires by its submissions is a final decision, that prong of the CDA claim test is met.
Id. The Federal Circuit in Transamerica distinguished the cases cited by defendant in support of its position that a request for a final decision is a jurisdictional prerequisite. One such case, Hoffman Construction Co. v. United States,
This court will not require contractors to do more than to comply as fully and reasonably as possible with the statutory requirements of the CDA when this court has definitively stated that certain ‘magic words’ need not be used and that the intent of the ‘claim’ governs. See Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d [586,] 592 [(Fed.Cir.1987).]
The [claim] letter was in writing, was submitted to the contracting officer for a decision, requested payment of a sum certain, and gave the contracting officer adequate notice of the basis and the amount of the claim. This court is loathe to believe that in this case a reasonable contractor would submit to the contracting officer a letter containing a payment request after a dispute had arisen solely for the contracting officer’s information and without at the very least an implied request that the contracting officer make a decision as to entitlement. Any other finding offends logic.
Id. Transamerica Insurance Corporation argued that the CDA requirements, as interpreted by the Federal Circuit, suggested applying “a common sense analysis to determine whether (1) the contractor asserted in writing and with sufficient specificity a right to additional compensation, (2) the government disputed that right, and (3) the contractor communicated his desire for a contracting officer decision.” Id. at 1579 (emphasis in original). The court agreed,
In its letter of August 30, 1988, plaintiff met all of the elements traditionally relied upon by the court to establish jurisdiction, see Cubic Corp. v. United States,
Based upon an analysis of the opinions of this court and of the Federal Circuit, the court finds that a request for a final decision of a contracting officer need not be in any particular format, or even expressly made. As long as the basic requirements of the CDA are met, and the contracting officer knows the bases of the claims and the final amounts sought, the “request” for a final decision may be inferred from the circumstances of the case. With the information available to the contracting officer defendant could not argue persuasively that the contracting officer was surprised at or lacked sufficient information to properly address plaintiff’s claims. Accordingly, the court finds that plaintiff’s additional cost item claims are properly before the court. Other claims, not included in the August 30, 1988 letter, are not properly before the court.
2. Untimely Filing of Claims
Under General Provision 6, the Changes clause, for any change which causes an increase or decrease in the contractor’s cost of or time for performance, an equitable adjustment shall be made, provided that the contractor gives written notice of the date, circumstances, and source of the order and that the contractor regards the order as a change order. Although no starting point need be specified, notice must be given within twenty days from incurring costs as a result of a change order. Costs incurred more than twenty days prior to this notification cannot be recovered, except in the case of defective specifications. Under the same clause, any claim for equitable adjustment must be provided by the contractor within thirty days from receipt of any written change order or written notice of a constructive change. The contractor must set forth, in writing, the general nature and monetary extent of the claim. The government has discretion to receive any claim asserted under this clause prior to final payment. The consequences of a contractor’s failure to follow the notice provisions of the clause may result in its claim being disallowed. In any event, a claim must be submitted no later than the date of final payment. The filing of a claim within the administration period of a contract is plainly a prerequisite to relief. Jo-Bar Mfg. Corp. v. United States,
Defendant argued that plaintiff’s proposal for the extra costs was untimely because it was not presented to the contracting officer until weeks after plaintiff’s contract was terminated for default and well after the thirty-day notice requirement in the Changes clause of the contract, and that a default termination was analogous to final payment to a contractor marking the end of the contract. This is not the law. See G.M. Shupe, Inc. v. United States,
Plaintiff does not deny that formal notice of its claims was not presented to the contracting officer until after the contract was terminated for default, but rather that the contracting officer had actual notice of the events and circumstances underlying its claims, and that this notice was sufficient to meet the notice requirements of the various contract clauses. The question thus is whether the notice requirements of the contract clauses in question can be subordinated to the actual or constructive knowledge by the contracting officer of the facts and events underscoring the claim. Plaintiff relied on the argument that the notice provisions should “not be applied too technically and illiberally where the government is quite aware of the operative facts,” citing Martin J. Simko Constr., Inc. v. United States,
B. Burden of Proof
The burden of proving its claims is solely upon plaintiff. It has long been held that the contractor bears the burden of proving the amount of its damages “with sufficient certainty so that the determination of the amount of damages will be more than mere speculation.” Lisbon Contractors, Inc. v. United States,
C. Offsets
Defendant administratively allowed costs and time extensions on nine claims, see note 30, supra, but the costs allowed were withheld by defendant to be
1. HVAC Controls and Permanent Power for Testing
The HVAC Controls claim is primarily a delay claim that was administratively allowed in part by the contracting officer. However, because it includes elements of additional costs, it will be addressed in this section of the opinion. Defendant changed the HVAC Control design and allowed plaintiff an equitable adjustment in the amount of $1,061.05. Plaintiff contends that additional costs and time for delay were incurred by reason of a change that was not included in the equitable adjustment, some of which costs were allegedly unknown at the time of the change. Defendant conceded that the administrative adjustment only reimbursed plaintiff for a “portion” of its extra expenses on this item and that its full damages, including overhead and general and administrative costs, should be addressed and proven during the quantum stage of this litigation. Plaintiff also alleged entitlement to additional time for performance, and defendant admitted to a delay of seven days after drywall installation had been completed, from June 12 through June 19, 1987. Following a thorough review of the record, the court is unable to find that plaintiff proved entitlement by a preponderance of the evidence to additional time. Moreover, it appears that plaintiff’s claim was for the total cost of installing the HVAC Controls with no reliable evidence of its original allocated cost. In the absence of such proof, the court cannot find defendant liable for any extra costs for installation of the HVAC system. See, however, the discussion of the Condensing Unit counterclaim in section VI. B.9. of this opinion.
Plaintiff also claims delay for the failure of defendant to “turn on permanent power to the project which resulted in the inability of Mega to be able to test certain equipment, ... [including HVAC].” Temporary power was provided in accordance with clause SP-8 of the Special Provisions. Mr. Whalen testified that temporary electric power was available on-site. He saw a temporary power pole that had been on-site throughout the whole period of performance. In fact, following completion of the project by the reprocurement contractor, defendant encountered difficulty getting the electrical subcontractor to remove the pole and power lines.
According to the electrical subcontractor, it needed three-phase power to complete electric testing of equipment such as the HVAC, the lighting system controlled by the “Lutron” panel, and three phase motors. The original electrical subcontractor claimed that the temporary electric power was only single phase power. The subcontractor testified that the reason the building did not have the correct type of power was because defendant had to apply for a meter permit, yet had not done so. “The contractor cannot do it ... [and] the Post
Inasmuch as the claim is for delay damages which the court denied in section IV of this opinion, supra, the claim is denied. Moreover, in the complete absence of any support for the bare allegation that defendant needed to apply for three-phase power and refused to do so and because plaintiff was not ready for testing before the termination for default, the court finds that plaintiff has not proved by a preponderance of the evidence that it is entitled to an equitable adjustment to compensate it for any alleged extra costs caused by the government’s refusal to provide three-phase electric power. The HVAC claim is dismissed.
2. Price Escalation (General)
Plaintiff made a price еscalation delay claim disguised as a change order claim. Plaintiff claimed entitlement to an equitable adjustment for increased subcontractor billings due to delay caused by defendant. In support of its claim, plaintiff inserted into the record several letters from subcontractors claiming that because of government-caused delay, their costs were increased. This may or may not have been the case, but is certainly not dispositive of the issue. A recitation of second- and third-hand, non-contemporaneous facts is insufficient to prove injury. See, e.g., Commerce Int’l Co. v. United States,
3. Site Meeting Costs
Plaintiff sought an equitable adjustment to the contract for extra costs it incurred because defendant allegedly failed to attend one meeting at the job-site. The most meaningful evidence of the missed meeting was found in the deposition of Mr. James Hearn, plaintiff’s on-site project superintendent. Mr. Hearn stated that Marvin Nelson, a representative of Lane Architectural Group, requested a meeting at 9:00 a.m. on May 30, 1985 with representatives of plaintiff and two subcontractors “to settle out the problems we had with the electrical part of the heating, air conditioning and fire sprinklers.” Mr. Greenberg, counsel for plaintiff, led Mr. Hearn through his deposition testimony, as follows:
Q. So you went out to the site that day, the date set for the meeting by Mr. Nelson?
A. Right.
Q. And no one showed up from the Postal Service?
A. No one showed up from the Postal Service.
Q. And Mr. Nelson didn’t show up?
A. Mr. Nelson was at the job.
In its post-trial brief, plaintiff cited to “Number 3, Index Item 37, on page 11” as support for the claim. The court has reviewed two identical Index Items 37, as it did all Indices, and there is no page eleven. Nor, for that matter is there any document identified as “Number 3.” Both Index Item No.’s 37 contain letters dated June 4, and June 18, 1986, a year after the alleged meeting, from two subcontractors purporting to bill plaintiff for four hours “wasted” waiting for representatives to attend the meeting. There is no proof, other than double hearsay, that defendant was even told of the meeting. Nor is there proof that defendant’s representatives agreed to attend any meeting. Plaintiff completely failed to meet its burden to show that it was damaged by defendant’s alleged derelictions. See Commerce Int’l,
Plaintiff’s failure to demonstrate that the meeting of which it complains was nothing more than a typical on-site meeting, or that plaintiff incurred any unexpected expenses beyond the scope of its contract bid negates any entitlement to an equitable adjustment. Plaintiff failed to meet its burden of proof, and the claim is denied and dismissed. Because of the nature of the evidence, coupled with a total lack of substance, the claim is frivolous.
4. Additional Demolition and Moving of Field Office
In support of this claim plaintiff provided the usual jumbled accumulation of documents and citations to the transcript, leaving the relevance of the material to the court to guess. Plaintiff claimed entitlement to an equitable adjustment for removal of existing pavement at the outer perimeter of the site, demolition, earthwork, and repaving. Plaintiff also sought an equitable adjustment for relocation of its on-site temporary field office trailer resulting from defendant’s decision to demolish the existing pavement and to fill, grade, and repave the area. The area was approximately thirty-five by eighty-five feet. The contract called for the existing pavement at issue to remain in place and for plaintiff to fill, grade, and pave “the entire parking area.” Thereafter, defendant determined that the existing pavement should be removed. Plaintiff was directed to remove the old pavement and to fill, grade, and repave the area to the proper level. Because plaintiff had placed its temporary field office trailer at this location, the trailer had to be moved. Defendant admitted responsibility for that portion of the claim associated with demolition of the pre-exist-ing pavement, but argued that plaintiff was not entitled to an equitable adjustment for filling, grading, and repaving the area because that effort was within the scope of the contract for work on the entire parking area. Defendant also denied plaintiff’s request for reimbursement of the cost of moving its field office.
Plaintiff claimed it had granted a credit to defendant in the second modification to the contract that deleted the demolition and paving work pursuant to defendant’s decision to permit the old pavement to remain in place. The second modification referred to “construction services (import and compact fill),” but the court found no reference to or any evidence of plaintiff’s claimed “credit” to defendant. From the evidence in the record, the court finds that plaintiff failed to meet its burden of proof to show that it had granted a credit for paving work to defendant.
Defendant modified the contract to require removal of the old pavement in a relatively small area of the job-site, entitling plaintiff to an equitable adjustment for the reasonable costs incurred in comply
Special Provision 32 of the contract, entitled Temporary Facilities, paragraph (f), required the contractor to maintain a temporary field office on the work-site at a site to be approved by the contracting officer. What actually happened is difficult to discern. Defendant claimed that the contract had “always” required new paving at the site where plaintiff first placed its trailer. Plaintiff appears to argue, though it is far from clear, that the trailer was situated on the pavement described above, that the situs was not to be disturbed, and that had defendant not modified the contract, plaintiff would not have incurred “substantial” trailer relocation expenses. There is evidence that plaintiff sought approval of defendant before originally situating its field office as required by the contract, and was assured that the site selected would not be disturbed. In weighing the proof, the court finds that plaintiff had a reasonable expectation at the time it first brought the field office on-site that it would not have to move the trailer during performаnce of the contract. Plaintiff would not reasonably have put a contingency for relocating the field office into its bid if it had known that there were areas within the construction site where the field office would not be disturbed, and upon which it could place its field office with defendant’s approval. The court therefore finds that plaintiff is entitled to an equitable adjustment for the cost of relocating its field office. The field office claim is allowed.
5. Subsurface Removal and Site-Work
Plaintiff sought an equitable adjustment for the removal of sub-surface debris from the job-site and extra site clearance of organic plant growth, including grading and compacting. The site had been cleared, graded, and compacted by a previous site preparation contractor. Plaintiff argued that all subsurface material was to have been removed under the site preparation contract, but that it had not been removed, and plaintiff had to remove the subsurface debris before it could grade and compact the site. Plaintiff also claimed it could not have paved the area in early 1986 as allegedly planned because of organic plant growth. Mr. Kaplan testified that plaintiff wanted to pave the area at the beginning of the project because paving at that time would have made the remaining performance easier. Site paving was not on the critical path. Plaintiff did not make a differing site condition claim pursuant to General Provision 7 of the contract.
Plaintiff presented the court with its typical series of disjointed conclusory statements and an accumulation of over fifty unreconciled documents, again leaving to the court the task of discovering and making plaintiff’s argument. The only coherent statement of the claim, such as it was, was presented by Mr. Hearn in his deposition. Mr. Hearn stated that this claim consisted of site clearance work and subsurface removals, other than perimeter footings for which defendant administratively allowed an additional thirty-two days, and that there was organic growth which plaintiff had to remove and haul away from the site. According to Mr. Hearn, “because of government-caused delay,” organic material, e.g., “weeds and debris, etc.,” had overgrown the site and had to be removed by plaintiff. Because of rain over the prior eighteen to twenty-four months, the soil had loosened and the organic growth had reappeared. Mr. Hearn testified that after removing the subsurface material and organic growth, he “rolled” the site with a water truck to compact the soil. The subsurface material removed consisted of at least two six-feet-by-eight-feet concrete
Defendant recognized that the pri- or site clearance contractor had not removed all subsurface material, and the contracting officer did administratively allow an equitable adjustment to compensate plaintiff for the extra costs of removing subsurface building footings at the perimeter of the site. A review of the record reveals that the extra work in this claim was coupled with other claims, including another building footing removal claim. It is true that there was no specific identification of the location of the subsurface material, or even the quantity encountered. There was, however, proof that additional subsurface material was encountered and removed by plaintiff. The nature of the claim precluded identification of the specific location of each and every item of material, but plaintiff did submit a proposed change for the work to the contracting officer on August 7, 1987, for the removal of “remaining subsurface foundations, ... paving, ... slabs & mise, debris encountered during excav[ation]____” The building footings, for which defendant allowed additional time, appears to have been part of this claim. The claim was stated with sufficient particularity to be addressed and in the absence of any evidence to the contrary the court finds that plaintiff has proven by a preponderance of the evidence entitlement to an equitable adjustment for the removal of the subsurface items included in this claim. The amount of the equitable adjustment will depend upon more accurate proof of the quantity of material removed, and costs incurred.
Plaintiff is not entitled to an equitable adjustment for its organic material removal claim. It is an elementary principle of government contract law that a fixed-price contract confers all risk of performance, including increased costs, on the contractor. McNamara Constr., Ltd. v. United States,
Prior to submitting Bid [sic] examine the site and the conditions pertaining thereto and determine the extent of work to be done. All existing conditions are not necessarily shown on the drawings or noted herein and can be determined only by examination of the premises by the Contractor.
See also Paragraphs 1 & 2 of the Instructions To Bidders and contract General Provision 3. General Provision 3, the Conditions Affecting Work clause, provides, in part, that:
The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the*450 cost thereof. Any failure by the Contractor to do so will not relieve him of responsibility for successfully performing the work without additional expense to the Postal Service.
The court cannot accept that Mr. Kaplan’s “drive-by” of the job-site without more reasonably constituted a site visit as required by Section 02050 and the other cited contract provisions, and finds that plaintiff waived any claim it might have had for removing organic growth. See Vann v. United States,
It is the rule that a contractor who knows or should have known the facts of the conditions at the site is estopped to claim a changed condition. Where he knows or has opportunity to learn the facts, he is unable to prove ... that he was misled by the contract.
Vann,
Moreover, even if the conditions encountered were unexpected or materially peculiar, plaintiff was required by its contract to clear the site, and keep it clear throughout performance of the contract. Sections 02050 and 02200 of the Scope of Work required plaintiff to “[cjlear and grub [the] site of existing vegetation.” Sec. 02050, Art. 1.03 A.I.; Scope of Work, Sec. 02200, Art. 1.02 A. Other provisions of the contract required plaintiff to maintain the site free from debris and waste material during progress of the construction. See Scope of Work, Sec. 02200, Art. 1.03 E. See also General Provision 3, the Conditions Affecting the Work clause of the contract, supra. Section 02200, article 1.05, entitled Investigation of Site, also required plaintiff to “inspect [the] existing site,” and to “[r]eport in writing, to the Architect, any unfavorable conditions requiring attention. Commencing any work will be considered as acceptance of the site for purpose [sic] of performing this work.”
The court finds that removal of organic plant material, as identified by Mr. Hearn, did not constitute a change to the contract. As part of its contractual obligation, plaintiff was to grade, fill, and compact the site in accordance with the specifications and drawings of the contract, and remove incompatible debris, such as organic plant material. Plaintiff’s simple, unsupported assertions failed to demonstrate defendant’s liability for the delay.
If it is plaintiff’s argument that the site was clear of organic material when it received the notice to proceed, but had to perform extra site preparation work because the organic material grew back during a period when the contract was stalled, the claim must fail because plaintiff has not proven that the delay was government-
The court reiterates that plaintiff has proven no delay solely attributable to defendant, and has made no attempt to apportion delay between the parties. Plaintiff may not recover in the absence of proof of government-caused delay. See Blinderman Constr. Co. v. United States,
6. Temporary Fence
Plaintiff initially claimed entitlement to an equitable adjustment for the cost of leasing and maintaining a temporary fence around the job-site from the date of the notice to proceed until the termination for default. Plaintiff sought additional compensation because the period of time was longer than it reasonably expected. Subsequently, plaintiff supplemented its claim to include costs incurred from the original contract completion date of October 20, 1986, until well after the termination for default.
The viability of the temporary fence cost claim hinges in great part on the causation of delay issue, which the court has already addressed. While plaintiff did allege delay in the temporary fence claim — both to the contracting officer and the court — Mr. Kap-lan testified that the extended period of time during which plaintiff was required to maintain the temporary fence did not cause a delay to the project. The temporary fence was clearly not on the critical path of the project.
Special Provision 24(e) of the contract, entitled Protection & Restoration of Public & Private Property, stated that plaintiff was responsible for protecting the job-site.
Sole responsibility for protection of existing facilities, new work, the public, etc., lies with the Contractor. He shall carefully plan all work and erect all temporary shoring, barriers, barricades, closures, etc., as required to protect existing facilities, new work, and the public, and maintain such protective devices in proper condition for the duration of the Contract, (emphasis added).
This provision must also be read in conjunction with clause 31 of the General Provisions of the contract, the Permits and Responsibilities clause, that provided
The Contractor shall, without additional expense to the Postal Service, be responsible for ... all damages to persons or property that occur as a result of his fault or negligence. He shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others. He shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire construction work.
Neither clause limits the time period of responsibility to any period earlier than completion of the contract, or as here, termination for default, at which time all of plaintiff’s responsibilities for the work ceased. Thus, defendant argued, the cost of the fence from the original date of the contract through the date of termination for default was the sole responsibility of plaintiff.
Temporary fence rental from 10/10/86 thru [sic] 10/9/87 (projected); additional labor and equipment charges for removal and re-installation during added site operations and on 15 separate occasions where fence was knocked down by vandals; continuous maintenance 10/10/86 thru [sic] 10/9/87 (projected).
Plaintiff presented one additional aspect of the claim to the court. Mr. Hearn testified that plaintiff incurred relatively minor non-delay damages for having to “[move the temporary fence] out and back to get it out of the way and putting it back away for grading, for removing of the paving up in the other area.” Defendant did not address this issue, and in the absence of proof to the contrary, the court finds that the fence was moved as described by Mr. Hearn. If plaintiff initially erected the temporary fence in the proper place but had to move it to perform extra earthwork for which it administratively received an equitable adjustment, the relocation constituted a change to the contract for which plaintiff is entitled to reimbursement. Plaintiff clearly had a duty to protect the job-site, but once reasonable efforts were taken, defendant could not increase plaintiff’s costs with impunity by requiring it to move the temporary fence in order to effect an unrelated change to the contract.
Plaintiff is not entitled to costs incurred after the termination for default as discussed in section IV of this opinion, supra. Upon receipt of the notice of termination, the contractual relationship between plaintiff and defendant ended and plaintiff’s sole responsibility was to quit the site immediately. Mr. Kaplan even testified that “[a]t termination we were basically told to clear out everything ... the fence was mentioned specifically.” As a result, plaintiff removed the temporary security fence. However, shortly thereafter, plaintiff's surety instructed it to reinstall the temporary fence for security purposes.
Plaintiff argued that it is entitled to damages for costs incurred following the termination for default because “General Provision 10, paragraph (e)(2) states in cases even for termination for convenience that a contractor is entitled to reasonable costs incurred with regard to items such as these in protecting the site.” (emphasis added). This argument is frivolous. The contract did not provide that in cases “even for termination for convenience” that plaintiff was entitled to post-termination costs. General Provision 10, the Termination for Convenience clause, provides squarely that only in the case of a termination for convenience is a contractor allowed the “reasonable cost of the preservation and protection of the property incurred pursuant to termination of work under this contract.” Had plaintiff been terminated for convenience, it would have been entitled to reimbursement of costs to protect the work, but that is not the case in a termination for default.
Plaintiff also argued that it was entitled to delay and impact costs for the fence until the entry on-site of the reprocurement contractor because it incurred the costs, and cannot sue its own surety, which may or may not be the case. The answer to that question depends upon facts which are not in evidence. See Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v. United States,
In a letter to the contracting officer, dated August 20, 1987 F & D stated in part
It is my understanding that the U.S. Post Office is of the position that it is the contractual responsibility of Mega Construction and Fidelity and Deposit Company, as it’s [sic] surety, to the safety and integrity of the project, even though*453 Mega Construction was defaulted on this project.
This company is not in agreement with this position and believes such responsibility may rest with the Post Office. Nonetheless, the Fidelity and Deposit Company is arranging for the security for the protection of the facility.
It is amply clear that defendant never instructed plaintiff to maintain site protection following termination and was under no notice by plaintiff or F & D that site security was provided by plaintiff. No contract ever existed between plaintiff and defendant upon which such a claim could be predicated. Accordingly, the temporary fence cost claim for all expenses incurred by plaintiff in providing protection to the job-site in accordance with Special Provision 24(e) and General Provision 31, and all costs allegedly incurred by plaintiff during the contract period and following the termination for default, with the exception of the claim for the costs of moving the temporary fence at defendant’s direction to effect the unrelated claim, is denied and dismissed. The claim for moving the temporary fence in the circumstances described is allowed.
7. Screen Wall Support
Plaintiff seeks an equitable adjustment for an alleged design deficiency in the plans for the screen wall.
According to plaintiff, pertinent information not shown on the drawings is the gauge of the three-inch-by-three-inch steel tubing, how the steel tubes were to be connected to the steel wall studs in the adjacent solid walls, where the steel tubes were required to be placed, and the number of vertical steel tubes that were required. Mr. Kaplan testified that the number of structural steel vertical supports shown on drawing A-9 was “insufficient” and that the dimensions of the wall supports indicated that the plans were' incorrect. As a result, plaintiff alleged it incurred extra labor and material costs and delay on the project by virtue of the defective plans.
Neither party identified the specifications governing steel work in the screen walls, but Sections 05100 and 05500 of Division 5 of the Scope of Work addressed steel work in general. Those sections, as well as General Provision 62, the Shop Drawing, Coordination, and Scheduling clause of the contract, required the submission and approval of shop drawings prior to commencing steel work, and forewarned plaintiff that to work ahead of shop drawing approval was at its peril. Division 5 identifies the type of fasteners used to join steel parts, specifically to what industry standard plaintiff was to weld the steel, and the industry standards governing connectors. Article 1.03E. of Section 05100, read in conjunction with the rest of the contract, required plaintiff to provide shop drawings, and furnish detail “required for the attachment of [steelwork] to the structural steel framing for ... anchors ... and similar work.” Article 3.03 of Section 05500 instructed plaintiff to
[f]urnish, fabricate, and install all miscellaneous angles, channels, bent plate, clips, anchors, and other miscellaneous metal work required for the complete job as indicated on the drawings. Form*454 such as detailed[,] or if not detailed, as required for the location and purposes served, and in accordance with the applicable provisions specified herein. Furnish and install all miscellaneous metal items not specifically mentioned herein, or in other sections, but which are customarily considered as part of the work, the same as if fully specified herein and detailed on the drawings.
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Furnish and install anchors, brackets, and plates of suitable steel where required in connection with steel, iron, and concrete construction, (emphasis added).
Other provisions of Division 5 specified that “pipe columns,” “tube steel,” “steel pipe other than structural steel,” and “[architectural and miscellaneous steel” utilized were to be in accordance with identified specific industry standards.
The minutes of site meeting No. 6 held on May 2, 1986, under “new business,” revealed that Lane Architectural Group agreed to “provide wall thicknesses for the steel tubes [in the screen wall].” Two months later, Mr. Hearn, plaintiff’s on-site project superintendent, in a letter to defendant, stated:
Our subcontractor has advised us that they [sic] have 68 Lpnear] F[eet] X 20 Gage [sic] tubing and three cross braces included in their estimate.
As the drawings do not adequately detail points of connection, welding or nominal tube thickness, we require additional information.
Please issue clarification drawings and change instructions where applicable as soon as possible to minimize delay to framing and drywall operations.
A hand-written note discovered by the court in its review of plaintiff’s evidence, written by Mr. Kaplan or Mr. Hearn, stated that the contract drawings showed incom-píete information, and that the “subcontractor] figured min[imum]!”
Lane provided plaintiff with sketch SK-32, dated December 18, 1986, showing column base and wall connections for the three-inch-by-three-inch square steel tubes. Plaintiff waited a full three months, until March 10, 1987, before instructing its subcontractor to “immediately proceed with fabrication and erection of the screen wall supports as detailed in the clarification drawing [SK-32] issued by [Lane].”
Mr. Hearn stated in his deposition that the claim arose because drawing A-9 did not show the thickness of the walls of the steel tubes or how to connect the steel tubes to the adjacent solid walls. He further stated that sketch SK-32 provided that information. According to Mr. Hearn, sketch SK-32 identified the kind of metal to use and how to connect it to the steel wall studs. This was not the case. Sketch SK-32 did indicate how plaintiff was to connect the horizontal steel braces to the steel wall studs and the vertical steel tubes to the floor, but gave no information about the steel tubes; it made no reference to the “type” of steel tubing, gauge of the steel tube walls, tube steel vertical supports, or tube steel horizontal braces. What sketch SK-32 simply depicted was how the vertical steel tubes were to be connected to the floor, and the horizontal steel tube “braces” to the steel wall studs, even though plaintiff had not asked for clarification of the former. Mr. Kaplan professed “sur
To recapitulate, plaintiff at various times and through several witnesses claimed the design was defective because the plans and specifications did not depict (1) the “type” of tubular steel to use, (2) the thickness (gauge) of the walls of the tubular steel, (3) the number of steel tube braces, (4) how to connect the steel tubes to the steel wall studs in the adjacent solid walls, (5) the requirements for “some” structural support,
involving] a change from the reasonable interpretation of the drawings and plans thus increasing costs. It involves additional and/or more expensive structural supports for screen walls.
* * * * * *
Relevant documents with regard to the above is as follows [sic]:
5/2/86 minutes “Lane Architectural Group to provide wall thickness for steel tubes at 14/A9.”
Mega’s 7/3/86 letter “please issue clarifications.”
SK-32 dated 12/18/86 received 1/19/87. See Mega letter and Request for Proposal dated 12/16/87, with attachments, Exhibit “9a” hereto.
The only screen wall claim actually submitted to the contracting officer was for a “connection to wall (screen wall tube) per revised sketch SK-32” [the claim designated (4), supra ]. That is how plaintiff phrased the claim in its December 16, 1987 request for a change order and how the contracting officer understood the claim.
The court has no doubt that the contracting officer was on notice of the two identified claims, and the amount of money demanded. However, such is not the case with the other four claims presented for the first time to the court. The four claims were not included in the August 30 claim letter, or any other valid claim, and it is obvious that the contracting officer had no notice of the reasons or bases for the claims, or the amounts requested, either explicitly or implicitly. Because those “claims” were not made prior to trial, they were not submitted in writing as required by the CDA and General Provision 4 of the contract, and do not otherwise satisfy the statutory prerequisites for jurisdiction. See 41 U.S.C. §§ 605, 609(a); Section V.A.l.
As is evidenced by plaintiffs July 3,1986 letter to defendant, plaintiffs subcontractor premised its bid on the use of twenty-gauge steel tubes, with three horizontal steel tube braces running from the top of the screen walls to an adjacent solid wall. The subcontractor allegedly had not included in its bid the costs of any connections, including welding, or extra vertical steel tube supports. Even though plaintiff complained in the July 3, 1986 letter that its subcontractor could not have known the tube wall thickness when it prepared its bid to plaintiff, the record shows that the subcontractor had determined it prudent, and presumably within the guidelines of the industry standards identified in Sections 05100 and 05500, Division 5, of the Scope of Work, to use twenty-gauge steel, “at the minimum,” as noted by either Mr. Kaplan or Mr. Hearn.
In the discussion of the main workroom defective slab claim, the court found that the slab design was more in the nature of a design specification than a performance specification. See section III.B.2. of this opinion, supra. This was not, however, the case for all of the specifications in the contract. “Contracts may have both design and performance characteristics.” Blake Constr. Co. v. United States,
In the alternative, Mr. Kaplan testified that plaintiffs bid was prepared on
Moreover, according to Mr. Hearn’s letter of July 3, 1986 to defendant, quoted above, the steel subcontractor said it intended to use twenty-gauge steel for the steel tubes but gave no indication of what gauge steel it intended to use for the connection plates. Plaintiff’s statement that its subcontractor prepared its bid on the use of twenty-gauge steel tubes, but changed it to ten-gauge based on plaintiff’s interpretation of sketch SK-32, although SK-32 made no reference to the gauge of the steel tubes, engendered further confusion. The reference to ten-gauge steel pre
A careful analysis by the court of the subcontractor’s voucher led to the discovery that the length of steel tubes it intended to use was, in fact, what it actually used, contrary to plaintiff’s assertion that extra tubing was needed after receiving sketch SK-32. The court reiterates that sketch SK-32 was issued December 18, 1986, but it was not until March 10, 1987 that plaintiff directed its steel subcontractor to fabricate the screen wall steel tubes and connections based on SK-32. The subcontractor delivered the steel two days later, on March 12, 1987 as shown by the subcontractor’s voucher for an “extra” charge of $780. The voucher revealed that the subcontractor delivered a quantity of steel tube %6-inch thick for “screen wall support.” There were no steel plates included in the delivery for connectors. Because %6-inch steel is thinner than Vi-inch steel, and Vi-inch was determined by plaintiff to equate to ten-gauge steel, s/i6-inch steel is thinner than ten-gauge. However, plaintiff directed the subcontractor to replace the steel tubes and to show a credit for the ten-gauge steel. The subcontractor’s second voucher was identical in all respects to the first, including the delivery date, except that it showed a credit of a $105 for the ten-gauge steel tubes, and replacement with exactly the same dimension steel tubes, as originally delivered, i.e., %6-inch, and lengths. The steel subcontractor’s vouchers show that it did not deliver more material after this ruckus than it had originally delivered, contrary to plaintiff’s claim. Fabrication costs were shown on both vouchers as $180 and freight costs as $120. Mr. Hearn’s handwritten note on the first voucher said “show credit for 10 ga[uge]? Don’t credit original freight (would have come with other material).” The second voucher showed no credit or extra cost as compared to the first voucher for freight or fabrication. Nor was there any reference to sixteen- or twenty-gauge steel.
Plaintiff created the confusion surrounding these issues but proffered no clarification. In light of the state of the record, the court has no option but to deny the claim. There are, however, additional reasons why the claim must be denied. In its cost sub-mittal, plaintiff included all of the costs for steel in the screen walls allegedly incurred by it and its subcontractor without providing a shred of evidence of the costs of the alleged changes. Another hand-written note included in the Index File for this claim indicated that plaintiff expended thirty-two hours welding and anchoring the steel tubes, eight hours drilling holes, twenty-four hours welding for “say:” a total of eighty hours. Also included were the statements “Mega’s welding outfit, rods and tips $90} [apparently equals] $126” and “Supervision 40 h[ou]rs.”
General Provision 6, the Changes clause of the contract, entitles a contractor to an adjustment to its contract price to compensate it for the increased costs of performing changed work. In order to prove the costs of the changed work, a contractor must prove by a preponderance of credible evidence the original, or unchanged, costs or, at the very least, quantify the cost of the changed work. Plaintiff did neither. Plaintiff’s total cost request for equitable adjustment associated with this alleged change included total direct costs (such as welding, drilling holes, etc.)
8. Material for Building Security
Plaintiff sought an equitable adjustment for materials and labor used to secure the building beyond the time it had anticipated. Special Provision 24(e) of the contract, the Protection & Restoration of Public & Private Property сlause, states that sole responsibility for protection of the facility lies with the contractor, and that the contractor will erect and maintain at its own cost the temporary barriers and closures, etc. necessary to protect new work. General Provision 31, entitled Permits and Responsibilities, requires the contractor to take responsibility “for all materials delivered and work performed until completion and acceptance of the entire construction work....”
Mr. Kaplan described the claim as for “plywood and plastic barricades or enclosures to protect building openings, security-wise and weather-wise.” Plaintiff acknowledged that every contract anticipates a certain amount of temporary protection on the job-site but argued that long periods of government-caused delay forced it to take precautions not anticipated at the time of award to protect the building. The claim was poorly briefed, unsupported, not analyzed, and therefore difficult to understand. In his testimony, Mr. Kaplan alleged that the plans and specifications were deficient in that “somewhere” the contract specified two types of glass. Plaintiff submitted one type for approval but Lane directed plaintiff to use the other type, for what he Mr. Kaplan believed were “aesthetic” purposes.
We had a building — with the exterior walls, certainly by October was complete — that is the lathe and plaster cladding, but we had open windows. So here we are in October, we were not that far away from the rainy season and we had a major theft. A whole bunch of electronic dimmers had been stolen from the building and there was some minor theft as well. But, I remember that became a big issue with our electrician because he was looking to us [because] we had not properly secured the building. There*460 fore, in October, we secured the building. We filled the building with plywood.
The contracting officer administratively allowed the “glass” change but denied plaintiff’s “plywood” claim for three reasons: (1) the contract required plaintiff to provide temporary protection; (2) a change order executed October 9, 1986, covered all the changes compensable, and later costs should have been included then, not fourteen months later; and (3) the amount of plywood and two by four’s shown delivered in a supplier’s voucher was vastly less than plaintiff’s claim stated it actually used.
One of the five elements of accord and satisfaction is a “meeting of the minds.” Brock & Blevins Co. v. United States,
Plaintiff’s claim is bottomed on a delay to the contract. The contracting officer’s administrative allowance of the “glass” claim may have been reasonable in the circumstances because of the ten-month delay to the work item in selecting the type of glass, though the evidence presented to the court would not have satisfied the requisite degree of proof to have permitted the court to have allowed the claim. Defendant was correct when it argued that normally plaintiff would be responsible for providing building security, including boarding open windows and doors to prevent weather damage, vandalism, and theft, in accordance with SP-24(e) and General Provision 31. The cost of barricading the windows and doors would be incidental, but allowable, damages to be included in the administrative modification to the contract. To the extent, therefor, that plaintiff was not fully reimbursed for costs of the plywood and lumber in the modification, it is entitled to those costs if it can prove the costs by the preponderance of the evidence, and the claim can be justified against plaintiff’s CDA certification. The court will make no findings or conclusion on this claim pending resolution of the CDA certification issue.
9. Fuel Storage Facility
Plaintiff requested an equitable adjustment for direct, impact, and delay costs stemming from alleged increased costs of
Mr. Kaplan testified that plaintiff intended to construct the “little fueling facility” towards the beginning of the contract but was unable to do its own site-work to prepare for the fueling facility construction for two years, until late February or early March 1987, because of extra site preparation work, as discussed in section IV.C.l. of this opinion, supra, even though Mr. Cumine only suggested a thirty-two day delay. Plaintiff never explained how it calculated the two-year period. Mr. Kaplan alleged that during the two-year period, the City of Los Angeles changed the fuel storage facility code, thereby increasing the subcontractor’s, and thus plaintiff’s, costs.
To make a long story short our subcontractor suffered a major increase in cost. He also ... in the space of a year and a half, suffered — he stated escalation costs in his labor and his insurance. As a result, he submitted a claim which we then processed.
Plaintiff’s counsel neatly marched Mr. Kap-lan through the claim. He asked: “Mr. Kaplan, was there basically a law that came into effect after Mega started the job which required Mega to change its original intended performance pertaining to this item.” Mr. Kaplan responded, “Yes.”
Q. Okay. And, that required additional work to be done that wasn’t originally contemplated at the time of the bid, is that correct?
A. That is correct.
Q. And, did Mega, in your belief as a contractor and opinion, start the work with regard to the site and taking into light all of the prior delays pertaining to demolition, et cetera, within a reasonable period of time?
A. Yes.
Q. And at the time Mega started the work-excuse me. This particular new provision was in effect?
A. Yes.
s}: sj: * sjs }■«
Q. And made it comply — the subcontractor complied with the new ordinance that came into effect at the time of this, correct, Mr. Kaplan?
A. Yes.
Q. And that resulted in the additional charge?
A. Yes.
Plaintiff entered into a subcontract for construction of the “Gasoline Fueling Island” on October 30, 1985. On March 3, 1987, the subcontractor wrote to plaintiff stating that
Since [entering into] our original contract with you ... several factors have influenced the job costs:
Although the facility is a Federal project, we find that the Postal Department is following the local Los Ange-les, City Fire Department recommendations in regards to underground fuel tanks and dispensing systems. The local code now requires____
The subcontractor explained that the equipment it originally intended to use could not be used, and that “the recommended” equipment would be more costly. The subcontractor informed plaintiff that its labor and equipment costs “escalated from our original bid of 1985 to 1987. Liability insurance ... has jumped a minimum of 600% during this time period and consequently increases the contractor’s operating costs.” As a result, the subcontractor stated that it would “accept the fueling facility project for an addition of $10,035.00 ... to the original contract agreement.” The subcontract was a “standard form subcontract” and had no provision for price escalation. The subcontract did, however, incorporate all terms and conditions of plaintiff’s contract with the Postal Service. It included the statement
SUBCONTRACTOR agrees to be bound to CONTRACTOR in the same manner*462 and to the same extent as CONTRACTOR is bound to OWNER under the Contract Documents, to the extent of the work provided for in this Agreement____
General Provision 31 of the contract, the Permits and Responsibilities clause, provides that the contractor, without cost to the government, is responsible for complying with “any applicable Federal, State, and municipal laws, codes, and regulations in connection with the prosecution of the work.” General Provision 52, the Building Codes, Fees and Charges clause, provided that
(a) State and local building codes and regulations do not apply as a matter of law to work inside the property lines of Postal Service-owned properties____ In compliance with U.S. Postal Service policy the Contractor shall comply with all State and local building code requirements unless otherwise specifically provided.
Mr. Kaplan testified that plaintiff intended to begin construction of the fueling station ten weeks after starting work and to complete it in three weeks. The Notice to Proceed was issued September 9, 1985, which meant that the fueling station should have been completed by the first or second week of December 1985. Had plaintiff worked to its allegedly as-planned schedule, the work would have been completed before any city code allegedly changed.
The contracting officer administratively allowed plaintiff a thirty-two day time extension for pre-construction site clearance. That delay, plaintiff agrees, was not on the critical path, though it allegedly did postpone the start of construction until late-November 1985. Plaintiff did not provide an iota of proof of when the city code changed, if, in fact, it did. The only evidence of a city code change was the subcontractor’s general references to the equipment it recommended be used to meet the new city code requirements. Had there been a code change, plaintiff certainly would have provided copies of both the old and new code, with an analysis of any differences between the two. This would also have answered the question of whether any construction changes were mandatory or merely recommended to meet the “new” code, and would have delineated the actual extent of the changes. If this had been done in 1985 it would also have permitted defendant to have evaluated its policy of city code compliance against the possibility of increased costs, or down-sized the facility. In the absence of any information about any allegedly new code and the changes it required, the court cannot find that the code changed between the time of award of the subcontract and the date of alleged actual construction of the fueling station, or that the construction changes, if any, were required. In the complete absence of this information, the court is unable to find that plaintiff proved by a preponderance of the evidence that it was in compliance with General Provisions 31 and 52 of the contract.
There was no credible evidence offered that the fueling station subcontractor incurred greater costs in completing its portion of the contract, or, if it did, whether plaintiff was actually liable to the subcontractor for the increased costs. If plaintiff has made payment to the subcontractor, of which there is some doubt, it may have been nothing more than a voluntary act on plaintiff’s part, and not a contractually required payment in light of the original fixed-price subcontract plaintiff entered into with its subcontractor. Plaintiff provided no analysis of or details about the extra costs allegedly incurred other than a bare, unsupported letter from its subcontractor. Plaintiff’s subcontractor simply stated that it would be only too happy to construct the fueling station for $10,035 over the amount for which it had previously contractually obligated itself to perform, and plaintiff agreed.
Plaintiff failed to prove that there was an actual change in Los Angeles’ fuel storage code, that the requirements of any later code were more expensive, or that the government caused or directed a compensa-ble change. For these reasons, the court finds that plaintiff has not proved entitlement by a preponderance of the evidence to an equitable adjustment for the claimed
10. Storm Drain
The contract originally contained no storm drainage requirement, but according to Mr. Kaplan, the City of Los Angeles would not accept water draining across the sidewalk from the site. Defendant modified the contract to require a storm drainage system but did not finally allow the claim until after the contract was terminated. There is conflicting evidence in the record as to who installed the storm drainage system, but the weight of the evidence indicates that plaintiff, rather than the re-procurement contractor, constructed the storm drain. Instead of paying plaintiff for the work, defendant offset the value of the work against its counterclaim. The issue before the court is of defendant’s right to offset funds earned, or to become due, as discussed above in section V.C. of this opinion. Whether plaintiff is entitled to have all or a portion of the earned funds released depends upon the outcome of the quantum phase of this litigation. Defendant properly withheld some payments pending resolution of its claims against plaintiff. See Mazama Timber Prods., Inc. v. United States,
11. Photocopying Logs
Plaintiff claimed entitlement to an equitable adjustment for photocopying its workmen’s and supervisor’s logs at the request of defendant. Mr. Ruffalo, defendant’s on-site project manager, testified that around March 1987, he requested that plaintiff furnish him with a copy of plaintiff’s daily reports. According to Mr. Ruffalo,
[t]he daily job log is an entry by the superintendent and he gives the weather, exactly who and which [subjcontractors are on the job and what they are doing and any major deliveries or problems that relate to the job for that day.
By all indications, Mr. Ruffalo’s request was in writing, but his letter was not offered into evidence. There was no dispute, however, over the request or exactly what was requested. Mr. Ruffalo testified that “[a]t the time we requested the daily reports, there was little or no progress going on at the job and we were ... wondering what the superintendent was actually writing in his daily job log.” The underlying reason for requesting the daily reports was defendant’s suspicion that it had been billed for work not accomplished. Defendant wanted to compare the daily reports showing what occurred at the site each day with plaintiff’s requests for progress payments. As was shown at trial, and discussed herein, plaintiff had, in fact, billed defendant for certain work not accomplished in violation of the CDA certification. See discussion of delay claims in section IV.C.4. of this opinion, supra, and the finding that the Canoga Park facility was between 60 and 70 percent complete at the time of plaintiff’s default termination. Section V.C.15. of this opinion, infra. The percentage of the project completed was far less than plaintiff represented to defendant. See id. The situation had become so severe by the time defendant requested the daily reports that defendant believed it could not make progress payments solely on the basis of plaintiff’s payment vouchers. Defendant was clearly entitled to additional documentation to verify claimed progress before making further progress payments.
On April 27, 1987, Mr. Kaplan forwarded plaintiff’s “log of workmen and supervisory personnel,” pursuant to contract Special Provision 10, the Preconstruction Conference and Daily Reports clause of the contract. Plaintiff pointedly stated that Special Provision 10 only required “this log” to be available for inspection in the job-site office and that there was no requirement in the contract that it must copy the log for defendant.
In its opening post-trial brief, plaintiff began to move away from an identification of the “log” by describing the claim as one that “involved the preparation by Mega of additional information for the USPS [sic] ... together with copying of same.” In its post-trial reply brief, plaintiff simply stated “[Reference is made to [the opening post-trial brief] ... together with Mr. Hearn’s deposition testimony [located in Index 67], Index 67 sheds no light on the claim; it is simply a copy of Mr. Kaplan’s letter of April 27, cited above, and a stack of forty-seven transmittal forms sending weekly payroll reports under Special Provision 10 to defendant “for [their] records.”
Mr. Ruffalo testified in response to defendant’s counsel’s question asking if he ever received the daily reports; “No. We never got them____ The package I received was a xerox [sic] copy of a certified payroll, which I already had.” At no time did plaintiff supply defendant with a copy of the requested daily reports until the discovery phase of this litigation.
This claim raises serious issues which could affect the outcome of the entire litigation. Obviously, long before the time plaintiff submitted its claim to the contracting officer, plaintiff knew that it had copied and submitted the wrong documents. The court finds this claim, at the very least, to be blatantly irresponsible and perhaps false. The Rules of this court provide that
[t]he signature of an attorney or party constitutes a certificate by the attorney or party that the attorney or party has read the pleading, motion, or other paper; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
RCFC 11 (1993); see 28 U.S.C. § 2514 (1988);
This claim by plaintiff, repeated several times over the signature of its counsel, and presented at trial, tainted all of plaintiffs other claims and severely damaged plaintiffs credibility. It further raises a question of the “good faith” in plaintiffs claim certification signed by Mr. Kaplan and filed with the contracting officer in the August 30, 1988 claim letter, and its counsel’s repeated assertion of the claim. See RCFC 11 and 41 U.S.C. § 605(c).
The court finds absolutely no merit to plaintiff’s claim for the copying and furnishing of documents not requested by defendant. No findings will be made on this claim pending resolution of the possible false claim issue.
12. Change Order Proposals
Plaintiff claimed entitlement to an equitable adjustment in the amount of $2,000.00 for the cost of sixty hours of preparing “a few” unidentified change order proposals. As defendant explained to plaintiff at the outset of the contract, the process by which the U.S.P.S. initiated bilateral change orders required plaintiff to complete a request for proposal in which plaintiff stated its proposed direct and indirect costs for completing the work that was the subject of the proposal. The proposal was to identify the work to be performed and, where appropriate, included shop drawings. If the work required use of a subcontractor, its costs were to be stated. In some instances, subcontractors stated their direct and indirect costs, and in others simply the total cost. Some, but not all, proposals lead to change orders. See General Provision 8, Equitable Adjustments, of the contract, discussed infra.
At one point, seven months into the contract, plaintiff “directed” defendant to review and formally “execute modifications” to the contract “within 5 days after receipt of the quotation” in order to expedite approval of the costs stated in its requests for proposals. Later, plaintiff specifically limited the time its proposed costs would remain valid for only two or three days. The absurdity of plaintiff’s position is reflected in a letter of June 30,1987 from Mr. Ruffalo to Mr. Kaplan, stating, in part:
Regarding Mega Transmittal of April 14, 1987: Your comments are noted. It is also noted that your transmittal was dated [April 14, 1987] and received in this office on [April 20, 1987] at 8:55am. You also say that you need an answer by [April 20, 1987] at 7:00am. This is insufficient time for proper notification to*466 the Postal Service on a Change Request, (emphasis added).
The contract provided no specific time period for defendant to react to plaintiffs proposals unless the proposal contained a shop drawing. Special Provision 16, the Contractor Submittal Schedule clause, allowed defendant twenty days to review and approve shop drawings. General Provision 8, paragraph (e) stated:
After receipt of a proposal with a detailed breakdown the Contracting Officer shall act promptly thereon, provided, however, that when the necessity to proceed with a change does not allow sufficient time to check a proposal, or in the event of failure to reach agreement on a proposal, the Postal Service may order the Contractor to proceed on the basis of a price to be determined at the earliest practicable date but not to be more than the increase or less than the decrease proposed.
The record showed that on several occasions defendant ordered plaintiff to proceed with the proposed changes pursuant to General Provision 8(e), but there was no evidence permitting the court to identify or quantify action on the other requests for proposals. There were times when defendant took a long period of time to respond to plaintiffs requests for proposals, but plaintiff presented no credible proof that the delay in responding to any specific request for proposals delayed any activity on the critical path, or that it suffered any material damage as a result of a slow response. Nor did plaintiff even attempt to show what a normal approval period would have been for a modification to a cоntract from the date of receipt of a proposal by defendant until negotiation and execution of a modification. The court is aware of no law, regulation, or contract provision that permits plaintiff to unilaterally direct the duration of time that defendant is allowed to accede to and execute a modification to a $2.5 million dollar construction contract, much less only two or three days.
Further complicating the change order approval process was the fact that plaintiff rarely included its overhead, and other cost items required in General Provision 8, paragraphs (a) and (b), in its proposals, thereby hampering defendant’s ability to control, or even to estimate, the ultimate cost of the project. A further complicating factor was that plaintiff's claimed progress did not equate to its requests for progress payments thereby requiring defendant to carefully check all payments, including those made pursuant to requests for proposals to assure that it was not overbilled or billed twice for the same work.
In support of its claim, plaintiff referred the court to its claim Index No. 27. The Index includes a list of seventeen proposals submitted to defendant on August 14,1986, plus one additional proposal submitted on May 18, 1987, as requests for equitable adjustments. However, the Index did not identify which proposals were the subject of the claim. Some of the proposals were allowed in whole or in part by defendant, while others were denied, including several of the claims addressed in this opinion. Plaintiff had submitted other proposals to defendant, but did not include or refer to them in the Index, or otherwise. Plaintiff did not state how many proposals were submitted in total. At trial, Mr. Kaplan conceded that costs associated with change orders were part of normal overhead expenses, but believed that the number of the proposals required was far greater than normal. Plaintiff argued that because of the unusually large number of proposals it was required to submit, defendant, in effect, used plaintiff to perform “the services of an estimating service and a field inspection service” which “should have been done by the USPS [sic] consultants on the project, including the architect.” Plaintiff also argued that it “was required to be involved in redesign of portions of the project----”
There is a dearth of law addressing the issue of entitlement to additional compensation for the preparation of change order proposals. General Provision 8(g) stated that
[u]pon written request by the Contracting Officer, the Contractor shall submit a proposal, in accordance [with this clause],*467 for work involving contemplated changes covered by the request, within the time indicated____ If, within a reasonable time after receipt of such proposal, the Contracting Officer orders the Contractor to proceed with the performance of the work contemplated, the proposal ... shall constitute the Contractor’s statement of the monetary extent of claim [sic] for equitable adjustment.
The court found no guidance in the opinions of the Federal Circuit or this court on this issue. A few Boards of Contract Appeal have, however, addressed the issue and found such costs not allowable. See Greenhut Constr. Co., ASBCA 14354,
[w]e are unable to find any great complexity or magnitude in the work done by [the contractor] in preparing the estimate to change the pumps. But the Government proposed the use of the change order procedure for work that was clearly beyond the scope of the contract and we think that when the Government does that it is requiring extra work. Further we think the Government officials knew or should have known that the work was beyond the scope of the contract but appellant, having installed the first set of pumps, seemed the best source to do the work in correcting the design error the Government had made [and for which the government had expressly assumed responsibility].
Id. As the Board stated, the equitable adjustment vehicle was the most efficient procedure by which it could compensate the contractor for an action it took after final payment; at the least, it was the most expedient. However, there is no evidence that a similarly anomalous situation existed in the case at bar, and, therefore, no reason why the court should not apply the general rule disallowing recovery.
Plaintiff was directed to prepare a number of proposals. However, plaintiff provided no evidence that the number of proposals was greater than that normally encountered on any comparable construction project. Even if there had been more changes to its contract than was normally to be expected, plaintiff provided the court with no information about when the proposals allegedly crossed the line separating
Plaintiff did not explain what it meant in its statement that it was required to be a “field inspector and assist in redesign,” or how any such work went beyond what it was required to do under the terms of the contract. The project was not particularly or unusually difficult. In fact, Mr. Kaplan described the project as a “plain vanilla project ... of no particular degree of eom-plexity.” In the absence of any proof that the proposals were highly technical or complex in nature, that an undue amount of time went into proposal preparation, or that the proposals were in any way beyond the scope of its contract either in sheer number or subject matter, the court must apply the general rule that proposal preparation costs are part of the contractor’s overhead.
13. Post-Termination Security
Plaintiff alleged entitlement to an equitable adjustment for watchman services provided after the termination for default. Defendant demanded of the surety that security be maintained on the project following the termination for default, and the surety instructed plaintiff to provide round-the-clock watchmen. As a result, plaintiff allegedly provided a watchman at the site twenty-four hours a day until “around October 20, 1987.” Because plaintiff bore the entire cost of the watchmen’s services, including home office overhead, and defendant benefited from the services, plaintiff claims entitlement to relief. Plaintiff also claimed that the temporary fence, discussed above in section V.C.6. of this opinion, supra, was part of the post-termination security claim, and that plaintiff’s superintendent, Mr. Hearn, stayed at the site to provide additional security. Plaintiff did not spell out how Mr. Hearn’s presence provided any additional degree of security beyond that of watchmen, or how much of Mr. Hearn’s time was spent providing security as opposed to assisting F & D perform tests on the slab. Plaintiff argued that Mr. Hearn was on-site for both purposes through October 20, 1987, notwithstanding the fact that F & D completed its tests through the Construction Consulting Group, Inc. and Smith-Emory prior to September 28, 1987. Mr. Kaplan testified that no representative of defendant ever objected to Mr. Hearn’s presence on the site, even though plaintiff was forbid
In its post-trial brief, plaintiff argued that:
... the bonding company and Mega, for purposes of this item of damages, in essence, had a unity of identity and that a demand upon the bonding company was a demand on Mega____ Further, certainly the relationship of Mega and its bonding company as principal and surety are such that Mega can directly bring this claim for these costs against the USPS [sic].
As the court has already noted, upon receiving notice of the termination for default, plaintiff’s responsibility was to vacate the premises immediately. If F & D instructed plaintiff to provide watchmen at the site, that is a matter between F & D and plaintiff, or F & D and defendant. Plaintiff did not bring this claim on behalf of F & D and F & D has not joined in the suit as a party-plaintiff to recoup its costs for the fence. Following the default, F & D became responsible for plaintiff’s unfinished responsibilities under the contract, including site security; how it chose to comply with its duties is a matter beyond plaintiff’s extra cost and change order claims. F & D disagreed with defendant that it (or plaintiff) was responsible for site security following the termination and stated in a letter to the contracting officer of August 20, 1987, “such responsibility may rest with the Post Office. Nonetheless, [F & D] is arranging for the security for the protection of the facility.” (emphasis added).
Plaintiff can point to no directive or act of a government official creating privity of contract between itself and defendant to provide watchmen’s services or for the fence. Mr. Kaplan testified that he sent a letter to the contracting officer “generally regarding security at the site after the termination.” Defendant’s response was curt but clear: “Get off the job.” Later in his testimony, Mr. Kaplan confirmed defendant's position about plaintiff’s presence at the job-site; he testified that he was instructed on more than one occasion that under no circumstances was plaintiff to go anywhere near the job-site. As a result, plaintiff kept its personnel away.
Without authorization, work performed after termination is not compensable. See Semco, Inc. v. United States,
a. Contract implied-in-fact
Plaintiff may have stumbled upon an implied-in-fact contract argument in its allegation that it provided watchmen services and the government benefited. Implied-in-fact contracts require the same contractual elements as are required to establish an express contract: Mutuality of intent, offer and acceptance by an authorized person, consideration, and lack of ambiguity. Pollack v. United States,
An implied-in-fact contract may be created through the acceptance of benefits with the knowledge that the supplier expects to be compensated. Pacific Maritime Ass’n v. United States,
Under the Pacific Maritime analysis, there was no implied-in-fact contract in the present case. The mere conferring of a benefit upon the government does not create an implied-in-fact contractual relationship. Implied-in-fact contracts require conduct of the parties manifesting assent. Pacific Gas,
b. Contract implied-in-law
Plaintiff might argue entitlement under a totally incompatible line of cases sometimes relied upon by the Federal Circuit to provide economic relief to a provider of services when the government has benefited from the services. See United States v. Amdahl,
Despite the distinction between contracts implied-in-fact and contracts implied-in-law, the Federal Circuit has concluded that there are situations in which it will find
Where a benefit has been conferred by the contractor on the government in the form of goods or services, which it accepted, a contractor may recover at least on a quantum valebant or quantum meruit basis for the value of the conforming goods or services received by the government prior to the rescission of the contract for invalidity.
Id. at 393 (emphasis in original) (footnote omitted). The court held that the contractor was not to be compensated under the existing contract, but rather under a contract implied-in-fact. The Amdahl court quoted from Prestex, Inc. v. United States to emphasize that:
Even though a contract be unenforceable against the Government, because not properly advertised, not authorized, or for some other reason, it is only fair and just that the Government pay for goods delivered or services rendered and accepted under it. In certain limited fact situations, therefore, the courts will grant relief of a quasi-contractual nature when the Government elects to rescind an invalid contract. No one would deny that ordinary principles of equity and justice preclude the United States from retaining the services, materials, and benefits and at the same time refusing to pay for them on the ground that the contracting officer’s promise was unauthorized, or unenforceable for some other reason. However, the basic fact of legal significance charging the Government with liability in these situations is its retention of benefits in the form of goods or services.
Id. at 393 (quoting Prestex, Inc. v. United States,
This concept of “equity” embraced by the Federal Circuit runs counter to the long-established principle of government contract law that contracts must be awarded in accordance with the law and regulations, that only an agent expressly authorized to bind the United States contractually may do so, and that a person deals with the government at its peril. Nonetheless, it appears as if the “equitable” exception to the law as expressed in Amdahl and a handful of other decisions enables the Federal Circuit to grant relief to plaintiff under contracts implied-in-fact if the government received and kept a benefit from plaintiff’s labor even though such contracts actually would be contracts implied-in-law. Amdahl might hold defendant liable under “ordinary principles of equity” for the fair value of the benefit. Prestex, Inc. v. United States,
Because the Court of Appeals for the Federal Circuit is a court created under Article III of the Constitution of the United States, its exercise of equitable powers, such as in Amdahl, is within its jurisdictional mandate. However, this court is an Article I court with specific jurisdiction granted by the Congress that must be strictly construed. See United States v. John C. Grimberg Co.,
In the alternative, even if this court were to accept the characterization in Amdahl of a contract implied-in-fact, Amdahl is factually distinguishable. In Amdahl, a contract was entered into by authorized persons and it was only later, after the authorized persons acted beyond the scope of their authority, that the contract was rescinded as illegal. Amdahl,
Because of the nature of the relationship of the parties at the time the events in question occurred, this court rejects any argument that defendant became obligated to plaintiff for watchman services. The court cannot infer that defendant, under the circumstances of this case, would have accepted the services had it known plaintiff intended to charge the incurred costs to the government. The Federal Circuit never intended Amdahl to apply to a contractor in a post-termination for default period, especially in the absence of any action by the contracting officer or any person reasonably acting in his stead.
It is also noteworthy that while defendant may have benefited from the services allegedly provided, the benefit was remote. The true beneficiary of the services was F & D which bore the responsibility for completing, or funding completion of the contract. Had the site or building been damaged during the period between plaintiff’s termination for default and award of the reprocurement contract defendant would properly have looked to F & D for compensation for repairs or the cost of repairs; whether F & D would have then looked to plaintiff is a matter between F & D and plaintiff.
Plaintiff prepared no Index for this clаim, but chose to rely upon unsubstantiated and conclusory statements spread throughout the record, and the equitable argument that simply because it incurred the post-termination costs it is entitled to an equitable adjustment. There was no dispositive proof that plaintiff incurred the costs, and no analysis or breakdown of the costs as required by the contract to prove entitlement. Plaintiff offered no proof that the contracting officer even knew that plaintiff provided watchmen’s services at other than the surety’s cost, or that Mr. Hearn ever provided any security services. There was no credible proof that Mr. Hearn
14. Loss of Future Income
Plaintiff filed a claim for loss of future income and bonding capacity based solely on the termination for default. The claim is for lost income and profit for work other than on the Canoga Park Main Post Office contract. Plaintiff is a construction company, and performance and payment bonds are required on all levels of public work. Mr. Kaplan testified that prior to the termination for default, plaintiff’s bonding capacity was seven to eight million dollars. Mr. Richard Yeazel, vice-president of the Los Angeles office of F & D, testified that plaintiff’s bonding capacity was six and one-half to seven million dollars. Following the termination for default, plaintiff’s bonding capacity was reduced to $4 million in the aggregate and $2 million for a single project. Plaintiff alleged that as a result of the decreased bonding capacity following the termination for default it was unable to secure a bond that it needed in order to bid on a single unidentified project. Plaintiff’s bonding capacity was increased back to its pre-termination level in 1989.
Mr. Kaplan prepared two charts purporting to prove that plaintiff’s profit was twelve to thirteen percent of earnings for the period 1983 through 1987. For eighteen months following the termination for default, plaintiff’s profits were nine percent. When plaintiff’s bonding capacity was raised in late 1989, its profits soared to eighteen percent of earnings. Based upon this bald “evidence,” plaintiff requested that “culpability or liability be found with a determination of the amount of damages to be made at the trial on quantum.” In its claim to the contracting officer, see Attachment D to the Second Amended Complaint, plaintiff described its claim as
[ljoss of income to Mega as a result of reduction of Mega’s bonding capacity due to the alleged termination for default and therefor reduction in amount of revenues for an established 2 year period is $4,500,000.00 at 12% x 2 years which is $1,080,000.00. Said 12% is the figure based on Mega’s financial statements averaged over the last few years.
It is difficult to know where to begin to address this claim.
In Rhen v. United States a contractor that had been terminated for default claimed that its lack of ability to obtain future bonding prevented it from obtaining other contracts that would have enabled it to have earned significant profits. The court stated:
In substance, plaintiff's claim is one for general loss of business as a result of the default termination. Such a damage claim is too remote or consequential in nature to allow for a recovery thereon. Since the damages claimed are too remote, consequential and speculative, they are, as a matter of law, not recoverable in any event.
Rhen v. United States,
15. Lost Profits and Percentage of Completion of Work a. Lost profits
Plaintiff boldly claimed entitlement to lost profits on this contract for work which it did not perform because the contract was terminated for default. Plaintiff also asked the court to determine the percentage of the facility’s completion in purported support for its claim for pre-termination delay damages. To put the claim into perspective, plaintiff’s counsel led Mr. Kaplan through the following colloquy:
Q. Mr. Kaplan, you previously indicated that Mega did not fully complete the job that there was some small percentage left to go, is that correct?
A. Yes.
Q. Okay. With regard to that, we are talking about monies that would have been earmarked for work that Mega had not completed to the day of termination would Mega have been entitled to had Mega completed profits within that sum of money?
Mr. Kaplan apparently understood the question, and responded, “Yes.” He also answered “yes” to counsel’s question, was plaintiff “making a claim for those profits in this claim.” This claim, as best the court can determine, is that plaintiff believed the project was 97.92% complete on the day the contract was allegedly improperly terminated for default, and had the contract not been terminated, plaintiff would have completed the project quickly,
Termination, by definition, extinguishes a contractor’s association with the project on which it was terminated. Anticipated but unearned profit is not recoverable, even under a termination for the convenience of the government. Dairy Sales Corp. v. United States,
b. Percentage of completion
In support of its claim that the contract was 97.92% complete on the day of termination, plaintiff referred to Invoice and Payment Authorization No. 17, dated May 1, 1987, prepared approximately fifty days before the termination, wherein plaintiff claimed that the project was 90.8% complete. Mr. Ruffalo recommended payment of Invoice and Voucher No. 17 on June 10, 1987. Plaintiff argued that Mr. Ruffalo’s recommendation of payment constituted an admission by defendant that the project was 90.8% complete. Defendant challenged that conclusion. Mr. Ruffalo testified that in February 1987, the project was 80 to 85% complete. Mr. Cipriani, the contracting officer, testified that on June 10, 1987, the facility was only 85% complete and that, in any event, Invoice & Voucher No. 17 was not submitted to the government until after the termination, thereby raising an issue of whether plaintiff had other self-serving reasons for stating that the project was over 90% complete. The court can find no support for Mr. Cipriani's statement that the invoice was not submitted until after the termination for default. However, neither does the record support the various positions of Messrs. Kaplan, Cipriani, or Ruffalo on the percentage of contract completion because their statements were made in the period of time before defendant had identified the full amount of incomplete and deficient work to be corrected.
Mr. Daniel Whalen, an architect from JS & A, defendant’s architectural firm on the reprocurement, whom the court found to be a very credible witness, first visited the job-site with Mr. Sturm, also of JS & A, on October 19, 1987. Their purpose was to familiarize themselves with the work JS & A had undertaken, and to determine what was necessary to complete the facility. This information was to be incorporated into the reprocurement documents. Messrs. Whalen and Sturm prepared lists of incomplete and deficient work, and visually verified all items that could be seen. Mr. Whalen, alone and with Mr. Sturm, made three more site visits in the following two weeks. On his first visit he noted seven incomplete items of work. Following his second site visit, his list grew to twenty-seven incomplete or deficient items. The final list of incomplete and deficient items was extensive. In concluding this portion of his testimony, Mr. Whalen stated that after termination, based on plaintiff’s uncompleted and deficient work, the project was “between 60 and 70 percent complete.” Additional information discovered later by Mr. Whalen and the reprocurement contractor would have decreased the percentage of completion, perhaps significantly. The court cannot quantify the lower percentage of completion but in the circumstances it is not necessary to do so. Had there been no deficiencies, Mr. Whalen agreed that the project would have been 80 percent complete. There was no other credible testimony or documentary evidence addressing the issue of percentage of completion of the project. The court, having had the benefit of observing the witnesses, and after a thorough review of the record, is of the opinion that the testimony of Mr. Whalen is to be given great weight. The testimony of other witnesses as to the degree of completion of the work was not based upon the same amount of information available to Mr. Whalen, or was otherwise not credible.
After weighing the documentary evidence and testimony, the court finds that the facility was between 60 and 70 percent
16. Damage to Reputation
Plaintiff divided this claim into two parts: damages due to certain unidentified subcontractors who refuse to do business with plaintiff, and loss of future unidentified clients.
a. Damaged relationship with subcontractors
Mr. Kaplan testified that he does not now receive bids on new projects from some unidentified subcontractors who worked for plaintiff on the Canoga Park Post Office project, or from other potential subcontractors. Furthermore, he testified, if subcontractors do submit bids, the bids are inflated, presumably because plaintiff has yet to pay its subcontractors who worked on the Canoga Park Main Post Office project. Plaintiff lays • fault for these occurrences at defendant’s doorstep because the allegedly wrongful termination for default gave plaintiff a “negative reputation,” in the “small construction industry.” As Mr. Kaplan testified, “word does get around.” The court finds it odd that plaintiff has not yet paid its subcontractors from the project in the light of its claim that it has earned a very healthy eighteen percent profit on earnings since at least 1987. Plaintiff offered only Mr. Kaplan’s conclusory testimony in support of the claim. Plaintiff provided no proof that it no longer receives bids from subcontractors, that bids it receives are higher because of nonpayment or late payment as opposed to generally rising costs, or that bids contain a risk factor attributable to the termination for default. Not a single subcontractor was proffered to testify that it would not do business with plaintiff, or that it inflated its bids to plaintiff. The claim was based on sheer speculation and guess-work by Mr. Kaplan, with absolutely no credible proof.
b. Loss of future clients
Plaintiff’s claim for damages for loss of future clients is equally speculative. In its post-trial brief, plaintiff stated that its claim is for “the loss of potentially one or more jobs by Mega as a result of the alleged default termination and the loss of reputation that necessarily follows from same.” In its August 30, 1988 claim to the contracting officer, plaintiff offered a somewhat expanded view of the claim.
On negotiated work or work where Mega is the low bidder, this project [i.e., the Canoga Park Post Office] may have some impact with regard to Mega not obtaining such jobs when the owner questions Mega as to whether Mega has been purportedly terminated for default on any other jobs. This situation and the loss of any job would result in a direct loss of profits plus bid expenses for the project. The amount would be estimated at $240,000. Based on 12% estimated profits X $2,000,000 of revenue.
Plaintiff provided the court with no evidence of actual jobs lost because of the termination for default, or how it derived the $2 million revenue figure.
Moreover, this claim sounds in tort and the Tucker Act, 28 U.S.C. § 1491(a)(1), expressly excludes the consideration of tort claims against the government from the jurisdiction of this court.
The United States [Court of Federal Claims] shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (1988) (emphasis added).
Defendant argued that plaintiff’s claim for damage to reputation is for tortious misrepresentation, rather than for “breach” of contract. Defendant emphasized that plaintiff, in its presentation of the claim to the contracting officer and in its original pre-trial submission to this
It is undisputed that this court has a specific statutory jurisdiction which does not extend to tort claims. Transcountry Packing Co. v. United States,
In Olin Jones Sand Co., the contractor sought damages for allegedly false statements made by representatives of the contracting officer to the contractor’s bonding company about the contractor’s performance. Olin Jones,
[w]here, as is the case here, a claim is based on breach of contract it is properly within the jurisdiction of this court even though it also alleges that defendant engaged in tortious conduct in breaching the contract. In Fountain v. United States, ... [192 Ct.Cl. 495 ]427 F.2d 759 (1970), cert. denied,404 U.S. 839 [92 S.Ct. 131 ,30 L.Ed.2d 73 ] (1971), we specifically stated that “[i]f contractual relations exist, the fact that the alleged breach is also tortious does not foreclose Tucker Act jurisdiction.” Id. at 761. Insofar as plaintiff’s references to defendant’s alleged misrepresentations are merely another way of asserting that a breach of contract occurred, the ... claim is not barred simply because it might also be stated as a tort. However, damages arising from defendant’s alleged breach must still be limited to compensation for those injuries directly related to completion of the contract in question, as opposed to any remote or speculative effects the misrepresentations might have had on obtaining bonding for*479 other contracts. The damages must be proper contract damages.
Id.
According to several persuasive opinions of this court, the claim is also “consequential” in nature and thus not recoverable under a contract theory. The determination of whether damages are consequential turns on whether the plaintiff’s damages were the natural and probable consequences of an alleged breach of contract. See Gardner Displays Co. v. United States,
17. Legal and Related Fees
Plaintiff made a claim for legal fees arising out of this dispute: For defending subcontractor and supplier lawsuits; for its surety’s legal and consultant expenses; and for legal fees incurred in this litigation, and costs. Attorney’s fees can be awarded to a plaintiff only in situations allowed by the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1985). Congress has limited such awards under § 2412(d)(1)(A) to situations where, after litigation is concluded, and plaintiff is the “prevailing party,” the court can find that the litigation position of defendant “was not substantially justified.” See TGS Int’l, Inc. v. United States,
18. Consultants’ Fees
Plaintiff requested an equitable adjustment for consultant’s fees pursuant to General Provision 10 of the contract. It argued that reimbursement for “certain uses of consultants during construction [is] allowable.” Plaintiff also claimed unidentified consulting costs for claim preparation and litigation based upon the alleged “grievous, willful acts of [the contracting officer,]” and the expense of paying Mr. Harman after he left plaintiff’s employ, but remained as an “independent contractor to plaintiff, providing the same services.” Mr. Kaplan was particularly terse in testifying on this claim. He merely responded “Yes” to his counsel’s question “[D]id Mega incur some monies with regard to [consultant’s fees]?”
It is fundamental contract law that a contractor is entitled to reimbursement of consultants’ expenses in a cost reimbursement contract, or for the resolution of disputes arising out of a contract terminated for convenience, if the costs are allowable, allocаble, and reasonable. See General Provision 11, the Termination for Default clause of the contract. General Provision 11(e) provides that if a contractor proves a termination for default to have been wrongfully issued, damages are measured pursuant to General Provision 10. It is fundamental that a contractor performing under a fixed-price contract that was terminated for default is not entitled to such reimbursement in the absence of proof of government liability. Plaintiff cannot claim entitlement to reimbursement pursuant to the Termination for the Convenience of the Government clause, with any success, until and unless it first proves the termination for default was wrongly issued. Plaintiff’s bald claim that it is entitled to be reimbursed for “certain uses” of consultants during construction, claim preparation, and the instant litigation, and for Mr. Harman’s compensation, without any proof or explanation of what particular services were performed, who performed the services, why the costs were not a part of plaintiff’s contract and chargeable to overhead, and how the government was at fault and therefore liable for those unquantified costs is hardly a claim, much less a claim proven by a preponderance of the evidence. The simple fact that plaintiff “incurred some costs under the contract” is axiomatic, but certainly — without much much more — does not support a claim for reimbursement of those expenses. The claim for consultants’ fees brought under General Provision 10 of the contract is denied and dismissed. The claim is frivolous.
19. Escalation Costs
In addition to plaintiff’s escalation cost claim for the fueling station, discussed in section V.C.9. of this opinion, supra, plaintiff also separately claimed escalation costs for the allegedly delayed work performed by its plumbing and paving subcontractors.
a. Plumbing
LeBaron Plumbing Company, Inc. (Le-Baron) subcontracted to perform all or a portion of the plumbing work under the contract. The subcontract was not introduced into evidence. LeBaron’s claim letter to Mr. Harman seems little more than a recital of plaintiff’s overall claim. LeBar-on’s letter was undated but was obviously prepared after plaintiff’s termination for default. It stated, in part
In accordance with the specifications we are filing a job claim on the ... project. As you are aware, the completion date has been delayed for an unreasonable length of time.... Currently we are waiting for a cabinet to be installed by others, so that we can complete our work. All of the job phases have been started and finished late at no fault of ours. Original total job completion date was 9-15-86 and the estimated completion date is 7-1-87 which equals 288 days delayed.
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To this plaintiff added its ten percent profit on the claimed extra costs but not overhead. In denying the claim, the contracting officer indicated that LeBaron did not deduct from its claim the time extensions allowed by defendant that would have reduced plaintiffs claim by almost half. The court has no evidence before it that the time extensions allowed by the contracting officer did or did not halve the value of the claim, and makes no finding. However, if the time already allowed by defendant did reduce the delay, and LeBaron, or plaintiff, benefited from the time extension, this claim would be an attempt by plaintiff to recover twice on the same claim. See the court’s discussion of the photocopying logs claim, section V.C.ll. of this opinion, supra. There was no other pertinent information about the escalation claim in the record. The court has numerous problems with this claim and will address them in the order presented by plaintiff.
1. Labor
LeBaron presented its claim through plaintiff for a delay period beginning September 15, 1986, and ending approximately July 1, 1987. There is no credible information in the record that LeBaron was delayed 288 days (which, incredibly, was sixteen days longer than plaintiff’s delay claim) other than its bald allegation. The $2,139 labor increase is unsupported as is the 8.36% multiplier. There is no information about what the multiplier represents or how it was derived. Further, there is no justification or explanation for the $1.71 per day dues for a “travel card.”
2. Materials
There is no proof in the record that the “finish materials” increased in price by $7,418 during the alleged 288 day delay claim. Nor was the 5.6% multiplier explained, identified, or proven.
3. Job-site storage
There was no proof of the $2.33 per day storage rental claim. There was no evidence offered of what was stored, that storage was used throughout the contract and beyond, what was rented, why storage was necessary for such an extended period, or that storage extended over the full 288 days claimed.
4. Overhead
The record is devoid of any proof, other than LeBaron’s unsupported assertion, that its overhead was $4,340.16, that such overhead was all chargeable to this contract, or that such overhead was incurred for the full 288 day delay period claimed at a calculated daily rate of $15.07.
5. Interest
Defendant retained five percent of the funds due plaintiff under the terms of the contract, and plaintiff may have withheld that same amount from LeBaron; there was no proof of retention by plaintiff and no witness, including Mr. Kaplan, knew with certainty. There was no credible evidence that plaintiff retained any funds owed LeBaron, that interest is owed on any such funds, or that the claim is properly based on 288 days of alleged government-caused delay.
b. Paving
Plaintiff also claimed entitlement to an equitable adjustment in the amount of $3,661 over its subcontract price of $61,514 for costs allegedly incurred by Del Mar
On May 6, 1987, Del Mar submitted what it described as its “breakdown of additional costs due to delay of project past the contract expiration date.” The claim identified a $273 deduction for asphalt, a ninety-four cent per ton increase in the cost of “base,” a five cent per square foot increase for the slurry seal coat, an increase of two dollars an hour for labor, benefits, and equipment rental, a 100% increase in insurance, and a total increase of 210 hours. On May 14, 1987, plaintiff and Del Mar amended the subcontract to increase the price to the amounts stated above. Plaintiff added ten percent to its claim, presumably its profit on the increase, but again excluded its overhead costs. The claim submitted to the government, less overhead, was $4,027.10.
Two factors dictate dismissal of the Del Mar escalation claim. While plaintiff might have included a price escalation clause in the subcontract at Del Mar’s insistence, plaintiff’s contract with the government had no such clause. If plaintiff is to recover from defendant on this claim it must do so under the terms of its contract with defendant. Plaintiff’s entire claim on behalf of Del Mar is predicated upon government-caused delay. However, in the absence of proof that the government caused such delay, plaintiff is not entitled to an equitable adjustment for its alleged increased costs, even though it may have been liable to Del Mar under the terms of the subcontract.
Plaintiffs confusing and suspect as-planned progress chart, prepared for litigation, supported Mr. Kaplan’s testimony that paving was planned for early 1986. The chart, which the court has not accepted as accurate, shows pаving was planned from March 20 through April 9, 1986. However, the as-built overlay indicates that the parking lot was actually paved between late May and late June 1986, about six weeks after planned. While the overlay is almost impossible to read with the base chart, it does seem to indicate that by the time paving was completed other activities lagged behind the as-planned schedule. This information, suspect as it is, raises the possibility that there was no significant delay in the paving work, at least no delay of the magnitude claimed. It also raises a serious question as to the effect of the escalation clause in the subcontract. There is no evidence of when the Del Mar subcontract was executed, but the court finds it difficult to believe in light of a complete lack of evidence that plaintiff would obligate itself to increase the cost of a subcontract which was apparently delayed only six weeks. The court also questions Del Mar’s alleged increase of 210 hours on the project. There was no evidence that Del Mar worked more than the normal eight-hour workday, and the work was completed in less than a month. The as-planned chart indicated that the work was to be accomplished in twenty days. Del Mar’s claim for an additional 210 hours of work, at eight hours a day, subsumes twenty-six days. The claim is thus for the equivalent of two months work, but the only evidence available to the court is that it was completed in twenty days.
The court makes no findings or conclusions on the Del Mar and LeBaron cost escalation claims because of the need to
VI. DEFENDANT’S COUNTERCLAIMS [84] Following a proper termination for default, defendant is entitled to reimbursement of the costs of completing the project from the defaulted contractor. Defendant is permitted to deduct unearned funds remaining in the contract for use to complete the project including reasonable costs occasioned by the termination for default, J. Richard Margulies, Owner Remedies for Contractor Default, in Construction Contracting 837, 866 (George Washington University 1991), and liquidated damages. See General Provision 11 and Special Provision 2 of the contract. The burden is on defendant to prove it acted reasonably in completing the contract and assessing such damages. Datronics Eng’rs, Inc. v. United States, 190 CtiCl. 196,
Defendant’s amended counterclaim is based upon General Provision 11 of the contract, the Termination for Default clause, and on Special Provision 2, the Liquidated Damages clause. These clauses provide, in pertinent part:
11. TERMINATION FOR DEFAULT-DAMAGES FOR CONTRACTOR DELAY-TIME EXTENSION
(a) If the Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in this contract, or any extension thereof, or fails to complete said work within such time, the Postal Service may, by written notice to the Contractor, terminate his right to proceed with the work____ In such event the Postal Service may take over the work and prosecute the same to completion, by contract or otherwise____ Whether or not the Contractor’s right to proceed with the work is terminated, he and his sureties shall be liable for any damage to the Postal Service resulting from his refusal or failure to complete the work within the time specified.
(b) If fixed and agreed liquidated damages are provided in the contract and if the Postal Service so terminates the Contractor’s right to proceed, the resulting damage will consist of such liquidated damages until such reasonable time as may be required for final completion of the work together with any increased costs occasioned the Postal Service in completing the work.
(f) The rights and remedies of the Postal Service provided in this clause are in addition to any other rights and remedies provided by law or under this contract.
SP-2 LIQUIDATED DAMAGES
(A) GENERAL
In case of failure on the part of the Contractor to complete the work within the time fixed in the contract or any extension thereof, the Contractor shall pay to the USPS [sic] as liquidated damages, pursuant to the clauses of the GENERAL PROVISIONS entitled TERMINATION FOR DELAY — DAMAGES FOR DELAY — TIME EXTENSION, the sum of $387.00 for each day of delay.
The figure “$387.00” was manually typed into the printed boiler-plate language of Special Provision 2.
Under recognized rules of contract interpretation, “words are to be given their plain and ordinary meanings.” Thanet Corp. v. United States,
1. Duties of Contracting Officer
In reprocuring work on a defaulted contract, the contracting officer has broad discretionary powers, United States v. Warsaw Elevator Co.,
Courts have often approved reprocurements on somewhat different terms than the defaulted contract. See, e.g., Consolidated Airborne Sys., Inc. v. United States,
This court has held on numerous occasions that what is a “reasonable time” depends on the facts and circumstances of a particular situation. The ultimate test is whether the defaulted contractor was charged a higher price due to the passage of time, i.e., was the passage of time per se a failure to mitigate damages against the defaulted contractor. Astro-Space,
In the view of the court, defendant’s obligation to mitigate damages is a balanced one. Defendant cannot be lackadaisical about selecting a reprocurement contractor while the clock is running on plaintiff, but neither does defendant have to rush in to a reprocurement. [Defendant] is entitled, at the least, to enough time to carefully select a new contractor to complete the project____
Martin J. Simko Constr., Inc., v. United States,
Competitive reprocurement is not required after, default although it is desirable since it offers firm evidence that the original contract price was reasonable. Astro-Space,
Mr. Ruffalo, defendant’s on-site project manager, testified that the Canoga Park Main Post Office was urgently needed, and that in anticipation of completing the project he recommended early in November 1987 that the contracting officer negotiate a competitive contract with a minority-owned construction company to complete the project. He did so “because under [that] procurement procedure we could save a lot of time rather than procuring the completion through [the relatively lengthy process of] an open bid.” The contracting officer accepted Mr. Ruffalo’s recommendation.
On November 6, 1987, before the repro-curement contractor selection process formally began, defendant met with its architect, soils engineer, structural engineer, and others at its Inglewood Facility Service Office to discuss the anticipated scope of the reprocurement contract. Later that same day, the meeting reconvened at the job-site so that all attendees could view the slab and the building. The reason for the meeting was to attempt to gain consensus of what defendant needed of the reprocurement contractor in order to complete the project. The most important item was the slab: if the slab had to be removed, was it to be replaced using the same specifications as in the original contract, or were the specifications to be modified? At this meeting, defendant made the decision to remove the entire main workroom slab from a point anywhere between four to ten or twelve feet in from the surrounding walls, but not to remove the parts of the slab in adjoining rooms.
Defendant began the selection process for the reprocurement contractor in mid-November 1987 by mailing a “Request for Price Proposals” to four minority-owned construction firms with prior Postal Service construction experience who were known to have the necessary bonding capacity necessary to undertake this project. Two of the four firms solicited responded to the “Request for Price Proposals”: B.G. Construction Company, Inc. and one other firm. Defendant’s policy governing its “Requests for Price Proposals” permitted it to negotiate with the responsive firms, and did not require it to necessarily accept the lowest offer. B.G. Construction’s initial price proposal of $298,000 was the lowest received, against defendant’s estimate of approximately $500,000. The court has no solid information on the price proposed by the competing firm, but it was inferred at trial that it was similarly discrepant from defendant’s estimate. Because of the significant difference between both offer-ors’ proposed prices and defendant’s estimate, defendant was concerned that neither offeror fully understood the scope of the reprocurement contract. Accordingly, the two responsive firms were required to meet separately with defendant to discuss the extent of the undertaking, and the their proposed costs. At the meetings defendant discussed each proposal and each item of work with both firms. Those discussions confirmed defendant’s concern that neither offeror had understood and addressed the full scope of the reprocurement contract in their proposals. This negotiation process was repeated several times before defendant was confident that, at the least, B.G. Construction fully understood the scope of the reprocurement. During these discussions, B.G. Construction’s price grew as it understood more and more fully the scope of the undertaking. Mr. Whalen testified that it was difficult to arrive at a firm price proposal for the reprocurement contract “because you had to field verify so many things. It’s not like you can look at the
The reprocurement contract provided that the project was to be completed 100 days from the date of the Notice to Proceed, but because a number of deficiencies and incomplete items in plaintiff’s work were discovered by JS & A and B.G. Construction after work began, and because defendant added work items to the repro-curement contract which were not included in the original contract, defendant issued several modifications extending the time for performance and increasing the contract price to $559,000.
The total reprocurement contract price, less work items not charged against plaintiff in the counterclaim was twenty-four percent of plaintiff’s contract price. Assuming that the project was seventy percent complete when the contract was terminated, the figures are remarkably close. B.G. Construction completed thirty percent of the work for twenty-four percent of the original contract price, thereby verifying that the original contract price was reasonable, see Astro-Space,
2. Availability of Common Law Damages; Excess Costs
Defendant, in this case, has a separate remedy under paragraph (f) of General Provision 11, the Termination for Default clause. This term of the contract reserves to defendant all remedies provided by law, i.e. damages for breach of contract, in addition to its contractual remedies. Prior to the CDA, 41 U.S.C. § 605, the Court of Claims recognized that a contractor’s default was a breach of contract. Marley v. United States,
As discussed in section VI.A.l. of this opinion, a reprocurement contract not identical to the original contract may provide a basis for computation of excess costs, if it is capable of a reasonable adjustment to fulfill the purpose of the excess costs subparagraph of the Termination for Default clause. The award of reasonably adjusted excess costs on reprocurement is allowable under Consolidated Airborne,
The excess cost language of the Termination for Default clause is designed to avoid the need to prove market price by calculating breach damages through a formula to derive market value at the time of breach, less the contract price. When the excess reprocurement costs paragraph is inapplicable by reason of a belated reprocurement or otherwise, breach damages may be computed from other available evidence, under the authority of the reservation-of-rights paragraph (f). See Marley,
On December 9, 1987, defendant issued unilateral Modification No. 16 to plaintiffs contract by which it deducted $338,917.38, the remaining balance, to apply to the re-procurement contract, and demanded payment of $62,082.62, the difference between the amount deducted from plaintiffs contract and the initial reprocurement contract price. Cf. Speck v. United States,
Plaintiff argued that defendant had no right under the contract or law to collect excess reprocurement costs because (1) it had unreasonably delayed awarding the re-procurement contract to B.G. Construction, (2) the reprocurement contract had not been awarded in the same manner as had plaintiff’s, and (3) the contract price had been “forced” up by defendant during its negotiations with the responsive firms. Hovering over plaintiff’s request that the court find it not liable for the counterclaim was its unsuccessful, but recurring, argument that defendant had delayed performance of plaintiff’s contract beyond the completion date of the reprocurement con
To determine if defendant fatally delayed the reprocurement, the court must look to the facts of the case to see if, under the circumstances, the delay was unreasonable. See Astro-Space,
Plaintiffs contract was terminated for default on July 22, 1987, following plaintiffs refusal to comply with valid directives of the contracting officer. The subsequent discovery of defective workmanship further validated the termination for default. See section III.B.5. of this opinion, supra. The reprocurement process began in mid-November, four months after the default termination, and the reprocurement contract was awarded to B.G. Construction on December 11, 1987. The reprocurement contract was in evidence. See Cascade Pac.,
On July 22, 1987, the same day as the termination for default, defendant wrote to F & D informing the surety that plaintiff’s “right to proceed with the work ha[d] been terminated for default” and that the surety was obligated to complete the work under the performance bond. The surety was asked to notify defendant as soon as possible of its plans for completing the work. Cf. Int’l Fidelity Ins. Co. v. United States,
Defendant attempted to quickly obtain agreement from the surety to complete the project following the termination for default. F & D never explained why it refused for several months to take a firm corporate position on whether it would or would not complete the project. Mr. Dennis Kelly, claims manager for the Los An-geles office of F & D, met with defendant on at least three occasions to discuss its obligations and intent under the performance bond. Mr. Kelly first met with defendant representatives on August 19, 1987, almost a month after the termination and receipt of the first letter inquiring whether F & D intended to take over the project. At that time, Mr. Kelly asserted that the surety was under no obligation to complete the project, and that under no circumstances would it do so. The record however, belied Mr. Kelly’s statements and denigrated his credibility. Minutes of the August 19 meeting indicated that the attendees had a lengthy conversation about plaintiff’s failure to comply with the terms of the contract, and the termination. Mr. Kelly was given a take-over agreement prepared by defendant that he agreed to “have his people review and present any changes they feel necessary,” but that first he would have his consultant visit the site to confirm the conditions. Mr. Kelly made no firm commitment as to a date by which it would respond to defendant’s inquiry but target dates were discussed for completion of the project. Specifically, the timing for the take-over agreement was left open.
[Mr. Kelly] kept leading us to believe that they were reviewing the take[-]over agreement and that they would get back to us with the signed document or any revisions that they determined they wanted to have in the take over agreement. But, they never did.
Defendant did not stand idly by waiting for F & D to make its decision to take over the project. Following the termination of plaintiff’s contract, defendant employed the architectural firm of Joncich, Sturm & Associates to assist in planning the reprocurement contract. At defendant s instruction, Smith-Emery Company undertook soil samples of the fill beneath the slab in August, and again in September 1987. Also in September 1987 F & D contracted with Construction Consulting Group, Inc. and Smith-Emery to conduct soils tests. The reasons why F & D wanted its own tests were never disclosed; nor were the results of the tests. In October 1987, defendant directed Smith-Emery to take additional soil samples from other areas under the slab. It was from the October 1987 soils test that Smith-Emery discovered the “low-to-medium potential for expansion” of the fill that was reported to defendant November 3, 1987. On October 19, 1987, Messrs. Whalen and Sturm made their first visit to the job-site. As discussed, Mr. Whalen made at least two more site visits over the next few weeks. On November 6, 1987, Mr. Cipriani met with defendant’s consultants and advisors to discuss the scope of the reprocurement. Mr. Kelsen completed his redesign of the slab by November 13, 1987. It was on November 15, 1987 that defendant began its reprocurement process, and following several meetings with B.G. Construction, awarded it the repro-curement contract on December 11, 1987.
Plaintiff’s argument that defendant took an unreasonably long time between the date of the termination for default and award of the reprocurement contract to permit it to recover excess costs could appear, at first glance, to have merit. However, upon analysis of the circumstances of the case, the court finds that the time was well-spent, and certainly justified. Defendant could have acted more quickly only if it had been able to ascertain more readily the scope of the project upon termination. Defendant must be allowed the necessary time to select a reprocurement contractor, so long as the time is reasonable. Martin J. Simko,
The court does not consider the three months lost by defendant in dealing with F & D as unreasonable delay to the reprocurement. The surety was under contract to plaintiff even though defendant was the beneficiary of the performance bond. See Washington Int’l Ins. Co. v. United States,
The time defendant spent selecting the reprocurement contractor was also reasonable in the circumstances. It was vital to defendant’s needs that the Canoga Park Main Post Office be completed quickly with a minimum amount of lost time and extra costs. Defendant reasonably believed that if the reproeurement contractor did not have a sound grasp of the scope of the work necessary to complete the facility, that contractor would founder, as had plaintiff. The negotiations with B.G. Construction was time well spent. It was amply clear that B.G. Construction did not initially have a grasp of the scope of the work required, as evidenced by its low initial proposed price and testimony of witnesses who conducted the negotiations. The fact that B.G. Construction did not grasp all of the nuances of the reprocurement in one negotiation session was not surprising considering the circumstances of the project. There was no proof of, or merit, to plaintiff’s charge that defendant negotiated the price of the reprocurement contract upwards to increase its counterclaim.
The court also finds that the reprocurement contractor selection process was reasonable under the circumstances. Defendant perceived an urgent need for the facility and legitimately wanted to award a contract more quickly than would have been possible had it used the formal sealed bid process. Competitive reprocurement is not required after a termination for default, Astro-Space,
The test of whether the contracting officer acted in a reasonably timely manner is usually determined by whether the contractor was charged a higher price due to the passage of time, i.e., was the passage of time per se a failure to mitigate damages against the defaulted contractor. Id. A contractor who claims that it has been prejudiced by a contracting officer’s delay bears the burden of proving that the excess costs were greater than would have been the case if the contracting officer had acted more quickly. Id. The contractor must also show that it did not contribute to the delay. See CCM Corp. v. United States,
Based upon its observation of the witnesses and a careful review of the entire record the court is satisfied that in his exercise of the discretion granted the contracting officer in the Termination for Default clause of the contract Mr. Cipriani used good faith and reasonable judgment in the circumstances of the reprocurement. The court finds that the contracting officer acted in a reasonable and timely manner to award the reprocurement contract following termination of plaintiffs contract, that the reprocurement methodology and price of the reprocurement contract was reasonable, and that defendant took reasonable steps to mitigate plaintiffs damages. See Cascade Pac.,
B. Specific Excess Costs Incurred by Defendant Under the Reprocurement
1. Replacement of the Slab
The court has expended much time discussing the concrete slab in the main workroom of the Canoga Park Main Post Office and, except as necessary to understand the issues, will not repeat that discussion in making its findings and conclusions on defendant’s counterclaim for excess costs incurred in removing, redesigning and replacing the slab.
It is abundantly clear that plaintiff did not construct the slab in accordance with the specifications of the contract. The slab contained severe cracks due tо misplaced and missing control joints, and improper placement of the rebar in the slab. It is fact that a seventy to eighty percent of the rebar lay on the sand beneath the slab and actually induced cracking; and would have continued to do so. The quality of the slab was far less than that for which defendant bargained, and defendant was justified in terminating the contract for default on that basis alone. Defendant is entitled to strict compliance with the contract requirements, Jet Constr. Co. v. United States,
Several consultants and engineers employed by defendant reported that the fill beneath the slab was non-expansive and properly compacted, save two: Smith-Emery, the last to test the fill, even though it had previously tested the fill and found it to be in accordance with the terms of the contract, and Mr. Paolini, defendant’s expert architectural witness, who concurred with the November 3, 1987 Smith-Emery report. Mr. Cipriani faced a dilemma. Defendant’s consultants and advisors had given him diametrically opposed reports on the potential for expansion of the fill. Mr. Cipriani’s duty required him to make decisions based on the needs of the Postal Service, within the confines of the contract.
Faced with conflicting reports of the nature of the fill, Mr. Cipriani made a reasoned decision — based upon professional advice from an independent source he considered knowledgeable and trustworthy that the fill was “low-to-moderately” expansive — to remove, redesign, and replace approximately 7,600 square feet of the slab to make it stronger to minimize cracking should the fill expand even slightly during the planned thirty-year life of the slab. Mr. Cipriani also made the least-costly decision of those available to him after learning of the nature of the fill. Mr. Cipriani could have strengthened the slab, or removed and replaced almost 50,000 cubic feet of fill at a significantly higher cost. He chose the less costly course. The decision was not impermissibly a “matter of whim or caprice.” Cascade Pac.,
For the reasons discussed above, the court finds that defendant proved by a preponderance of the evidence that plaintiff constructed a slab sadly out of conformance with the contract, and is thus entitled to recover the excess costs incurred in removing, redesigning, and replacing the slab. See General Provision 11 of the contract.
2. Consultants’ Fees
Defendant and JS & A employed several consultants, engineers, and advisors to assist during the reprocurement phase of the project in addition to the engineers and consultants that JS & A inherited from Lane Architectural Group. The cost of the consultants is included in the counterclaim. Defendant explained that by the time of the reprocurement it recognized that completion of the Canoga Park Main Post Office could pose significant problems. Defendant was under pressure to complete the project as quickly as possible and feared that during the completion contract, difficult questions would arise about the extent of plaintiff’s poor performance, the extent of incomplete work, the need for redesign of the slab, and other issues of which it would not be aware without professional assistance. Mr. Whalen testified that “[w]e hired a lot of laboratories] to do a lot of tests on that building to make sure that things were okay.” Plaintiff challenged the need for some of the consultants, including those employed to investigate the adequacy of plaintiff’s performance. Plaintiff’s counsel asked why new consultants were employed, and suggested that the original consultants were inadequate for the task placed before them during the period plaintiff was the contractor. Mr. Ruffalo answered, “I wouldn’t say they were inadequate ... [but that defendant] wanted a third outside relatively unbiased opinion,” in addition to the knowledge the original consultants would bring to the reprocurement.
It is not open to dispute that Lane had not performed well and was replaced by JS & A for that reason. Plaintiff argued that Lane’s derelictions must be chargeable to its consultants as well. This, plaintiff claimed, proved its contention that defen
1. Action is necessary to mitigate any impact due to a change of engineering consultants.
2. A change of engineering consultants would seriously affect the design liabilities issue, slow the construction as new engineers become familiar with the documents and the work, and increase the cost of surveillance due to extra payments to the new consultants to review the work.
Plaintiff pointed to not one specific instance of “over-employment” of consultants, or testing, and defendant made a persuasive showing that its continued employment of the original consultants as well as new consultants to assist it in completing the project was reasonable. The court notes that the new consultants found several design errors made by Lane, the repair costs of which were deducted from the counterclaim in mitigation of damages. The court rejects plaintiff’s allegation that defendant did not employ new consultants because it could not get answers it wanted from the original consultants. The court finds that defendant proved by a preponderance of the evidence that it was reasonably justified in employing the consultants it needed to complete the project in good and timely order, thereby mitigating plaintiffs liability for excеss costs. The counterclaim is allowed.
3. Deductions for Poor Workmanship: Floor Covering
As a result of its investigations and testing, defendant discovered that some of the work performed by plaintiff incorporated inferior materials, was shoddy, and not completed by plaintiff in accordance with the terms of the contract. Mr. Ruffalo testified that defendant chose not to replace a number of those items but to deduct the pro rata cost of the work from the contract. General Provision 51 permits the government to accept work not performed in accordance with the contract requirements with an appropriate price adjustment. Mr. Ruffalo stated that pro rata meant that if the item was built only partially to specifications, defendant took a deduction for the portion it determined was not built to specifications. “We deducted the amount for whatever was missing. If what was missing was fifty percent of what we would have thought would have been the original installation, that’s all we would have deducted.”
The redesigned slab that B.G. Construction placed in the main workroom was an inch thicker than that poured by plaintiff, but both were at the same grade level. However, the finish flooring to be placed over the slab in the main workroom was changed in the reprocurement contract to be Vs-inch thick vinyl composition. The finish flooring specified in plaintiff's eon-
Plaintiff’s supplier delivered the Vk-inch asphalt planking to the job-site but plaintiff neither installed nor paid for it. Defendant had intended to use the asphalt planking but was instructed by its Regional Counsel to return it to the supplier pursuant to a court order obtained by the supplier in a suit it filed against plaintiff. To decrease the cost of the completion contract, and because by the time of the reprocurement contract the U.S.P.S. had changed its standard tile flooring to vinyl composition, defendant chose the less expensive Vk-inch vinyl composition tile for use over the replaced portion of the slab. Defendant contended, however, that the liquid underlayment placed over the new portion of the slab was so expensive that it negated any cost savings. Mr. Ruffalo did not know, but “guesstimated” that there was no net gain or loss in cost in replacing the original finish flooring with the new.
Defendant deducted from the contract, and now claims, $50,400 for “[n]on-installation of asphalt plank at workroom.” Mr. Ruffalo testified that this figure represents the labor costs that plaintiff would have expended had it installed the V2-inch asphalt planking as required in its contract, plus the normal ten percent markup to which plaintiff would have been entitled. Mr. Kaplan responded that the cost of installation of the asphalt planking was “absolutely not” $50,000; the cost of installing asphalt planking was more than vinyl composition tile, but not by much. Mr. Kaplan testified that the cost of installing vinyl composition tile was “less than 50 cents a square foot. Asphalt plank couldn’t have been twice that.” Defendant did not rebut Mr. Kaplan’s cost estimate. Assuming, for discussion purposes only, that the cost of installing the asphalt planking was one dollar a square foot, and that 7,600 square feet were covered, the most the labor and material could have cost was $14,200. The court finds that defendant is entitled to a deduction from plaintiff’s contract for the cost of failing to install the asphalt planking, the cost of which was in plaintiff’s contract price, but defendant will have to prove the amount with more accuracy in later proceedings. Defendant will also have to improve its proof over Mr. Ruf-falo’s “guesstimate” of the cost of installing vinyl vs. asphalt tile. The counterclaim is allowed.
4. Wiring Defects
Defendant alleged that the building contained six significant wiring defects.
a. Size of wire
The contract required plaintiff to comply with the National Electric Code which specifies wire sizes for some purposes. Mr. Whalen stated that plaintiff used No. 18 wire in the fire alarm system, a smaller sized wire than No. 14 which should have been used, and that use of the smaller wire was a fire hazard. Contract Drawing E-2 required use of No. 14 wire in the fire alarm system. The electrical subcontractor testified that No. 14 wire was used in the fire alarm system; he “knew for a fact” that No. 14 wire had been installed because he had purchased the wire and had it delivered to the job-site. The electrical subcontractor testified, “[w]e had not had a chance to check it out. I would do that when I did the check out of the fire alarm.” The witness for the electrical subcontractor could not confirm that No. 14 wire was used because he never saw it in place: He did not install it, observe its installation, or view it after installation. Mr. Whalen, on the other hand, actually saw the No. 18 wire installed. The court finds that defen
b. Installation of ground wire
Defendant claimed that plaintiff failed to install a ground wire in a number of areas in the electrical system. B.G. Construction estimated that 142 switches and outlets lacked the required ground wire. Mr. Whalen personally took the cover plate off each outlet and switch in the building and confirmed that seventy-two outlets and switches did not have a ground wire. Plaintiffs electrical subcontractor testified that the 1987 National Electric Code did not require a ground wire in flexible conduit under six feet in length, and that in 1989 when B.G. Construction rewired the building, the National Electric Code and the City of Los Angeles Code had changed to permit the exclusion of ground wire in flexible conduit up to 100 feet in length. Section 16100, entitled ELECTRICAL WORK, of the Scope of Work provided at paragraph 1.03 B that all electrical work was to meet the latest edition of the National Electric Code, “excepting where the requirements herein are more stringent.” Paragraph 2.10 A of the same section required that all electrical receptacles shall be “3-wire ground type.”
When the contract was awarded in 1985 the latest version of the National Electric Code was the 1984 edition, but without more information it was impossible for the court to determine whether the Code required ground wire in flexible conduit. Neither defendant nor plaintiff referred to any provision of the Code governing ground wire requirements. However, the contractual requirement that receptacles be three-wire ground type strongly implies that ground wire was required. Plaintiffs assertion that the 1987 edition of the Code did not require ground wire in flexible conduit under six feet in length was not responsive to the issue in the absence of evidence that the receptacles were served by flexible conduit less than six feet in length, or how the 1984 Code addressed the issue. On balance, the court believes that Mr. Whalen’s testimony that he personally removed all faceplates in the building and found ground wire lacking in half — coupled with the requirement that all receptacles be three-wire grounded — provided a preponderance of the evidence that the contract required that all flexible circuits to be grounded, and that seventy-two were not. The counterclaim is allowed.
c. Ground fault disrupters and placement of outlets
Defendant claimed that ground fault dis-rupters were not installed in electrical outlets near drinking fountains, as required. Mr. Whalen testified that the National Electric Code requires that ground fault disrupters be installed in outlets near drinking fountains, but did not cite to any provision of the Code. A ground fault disrupter contains a built-in circuit breaker so that if moisture comes into contact with the wiring, the circuit will trip, thereby preventing electrocution.
Defendant also claimed that some outlets were located too far from the drinking fountains to be plugged in but provided no credible evidence to support the allegation. Plaintiff is not liable for the cost of allegedly improperly installing electrical outlets near water fountains in the wrong location. The counterclaim is denied and dismissed,
d. Use of grounding rod
Defendant asserted that the main electric ground for the building was improperly attached to the water pipes, whereas, according to its electrical consultant, it should have been attached to a grounding rod embedded directly in the ground. This is not the case. Plaintiffs electrical subcontractor explained that
[l]arge commercial buildings do not use grounding rods. They use what [is called] a Ufer ground, which is a bare copper wire ... about as big as your index finger that is placed in the bottom of the footing____ Plan E-2 describes exactly how the Ufer ground would be put in that building and ... it was in fact installed exactly the way that it is depicted in E-2.
In addition, the Ufer ground wire had to be linked to the water pipes. “[Y]ou always link the grounding system to the water system. That’s required in the National Electric Code. So you have, if you' look at the diagram E-2 you’ll see that there is [a] water [link] as part of the grounding system. It has to be.” The Ufer ground was embedded in the concrete slab and was bonded to the cold water pipe in the electric room. Moreover, one of defendant’s construction inspectors reported on November 15, 1985, that the “ground wire was run into the footings as required.” Defendant has not proven entitlement to excess costs on this counterclaim by the preponderance of the evidence. The counterclaim is denied and dismissed,
e. Conduit running beneath slab
When B.G. Construction removed the concrete slab it found damaged electric conduit running beneath it that had to be repaired. There was no testimony that it was improper to run the conduit under the slab even though it was not shown running under the slab in the plans. Conversely, competent testimony persuaded the court that the conduit could properly have been placed beneath the slab. However, the contract did specify that the electrical conduit be in good working order. Plaintiff provided no rebuttal to the counterclaim, but neither did defendant prove by a preponderance of the evidence that the conduit had not been damaged during the numerous core drillings or removal of the slab. In the absence of such information, the court cannot find that defendant proved entitlement to excess costs for repair of the electric conduit. The counterclaim is denied and dismissed.
f. Light dimming system
Mr. Whalen testified that the Lutron light dimming system did not work and had to be repaired by the reprocurement contractor. The evidence presented by both parties on this claim is inconclusive. The court finds that defendant failed to prove entitlement to costs by a preponderance of the evidence. The counterclaim is denied and dismissed.
5. Cracks in the Outer Wall Covering
On Mr. Whalen’s first visit to the job-site on October 19, 1987, he saw that the outer stucco walls of the building were severely cracked,
[m]ore so than you would expect under a normal stucco building. Normally you would expect maybe some cracks at the ... corners of windows ... going out at a 45 .degree angle, but this cracking was like a spider web. It went out in all areas horizontally and vertically.
Expansion joints are put in to take up the movement that is inevitable in all building material, and the stucco shouldn’t crack adjacent to it, because the metal itself should be moving, not the stucco ... this indicated that the metal was put in and both sides were fixed so that it was unable to expand. And so what happened was, the stucco broke away. It broke at its weak point.
Contemporary photographs and videotape admitted into evidence confirmed that cracking in the stucco, as described by Mr. Whalen, was indeed extensive.
In preparing for the reprocurement contract, defendant employed the structural engineering firm of Arche Engineering Laboratories (Arche) to inspect and investigate the structural steel placed in the building by plaintiff. Mr. Whalen testified that during his inspection and analysis of the building he discovered one of the structural steel supports was tilting, “it was not plumb ... [w]e didn’t know what to expect ... [w]e wanted to insure that the building wasn’t going to fall down.” Arche’s November 16, 1987 report made passing mention of the damage to the exterior stucco finish of the building as part of its inspection of a structural steel beam. The report stated in part:
One potential concern worthy of additional analysis was the north exterior wall/column connection to the girder line second from Canoga. This girder bears on a transverse beam whose supporting system was not obvious by visual inspection alone. This transverse beam may be cantilevered or simply supported, but despite its support mechanism cosmetic distress to the exterior portland cement plaster was apparent, which may be the result of movement due to settlement, the earthquake, excessive deflection, thermal expansion or construction, or some combination of these.
We are inclined to suspect that a combination of the earthquake loads coupled with the dead load deflection consistent with this sort of design has caused the cosmetic cracking. We recommend that the structural engineer of record evaluate this area further. This appears to be the only major girder support which does not bear directly upon a continuous vertical column to a pad or foundation.
Mr. Whalen disputed Arche’s statement that the damage could have been caused by an earthquake. He saw no cracking in the stucco that was indicative of cracking normally found in stucco after an earthquake. Evidence of earthquake damage to stucco is “very significant.” He explained that
there’s very distinctive cracking that occurs after an earthquake____ Earthquakes [provide] a lateral force and you get cracking at openings, windows and doors, and you get them ... on a 45 degree angle.
Say you have two windows stacked [one atop the other], you’d get an X below the [lower] window and above the [upper] one.
Defendant viewed the Arche report as critical of the workmanship on the exterior stucco finish of the building, plaintiff viewed the cracking as a natural event, or caused by an earthquake, i.e., an act of God.
The court finds plaintiff’s explanation of why the stucco cracked to be without merit. Plaintiff explained that consulting engineers accompanied by Mr. Kaplan inspected the stucco on August 26, 1987, a month after the termination for default, and observed the cracked stucco. The record contains no information about an earthquake, when one might have occurred, its magnitude, or how close it might have been to the job-site. There was no particular evidence that an earthquake actually did occur other than a passing reference to the “Whittier Earthquake” by plaintiff’s counsel during cross-examination of Mr. Whalen. However, United States Geological Survey records show that an earthquake centered around Whittier, California occurred on October 1, 1987. It was in the middle of the moderate range on the Richter Scale and was strong enough to have damaged stucco on buildings in Canoga Park. The dates are the key to this issue. The damage was first noted by Mr. Kaplan, and other consulting engineers a month before the earthquake. Plaintiff made no ■reference to any other earthquake and proffered no credible other reason why the stucco cracked so extensively.
The cost of the repair is included in the counterclaim. From a review of all of the evidence, it is clear that stucco containing concrete will crack to some extent but not to the extent shown in the photographic evidence. Plaintiff was obligated by the terms of General Provision 16(b) of its contract to apply the stucco and expansion joints in a “skillful and workmanlike manner.” The court finds that plaintiff did not install the stucco to the building in accordance with the terms of the contract, thereby causing the stucco to crack so extensively as to be unsightly, and create gaps exposing the building structure to water leaks. B.G. Construction repaired the stucco and repainted the entire building. Defendant mitigated costs by eliminating a large trim stripe. The court finds plaintiff liable for the costs of repairs to the stucco exterior of the building. The counterclaim is allowed.
6. Asphalt Paving
a. Non-conforming paving
Defendant claimed plaintiff failed to adhere to the paving specifications of the contract in two areas.
Plaintiff installed asphalt paving that did not comply with the contract specifications, particularly at the north end of the parking lot, and the 10,000 square foot truck maneuvering area. Defendant did not explain why it suspected the paving might have been installed too thinly, but did employ a testing company to determine the thickness of the asphalt, and the base over which the asphalt was applied. The testing company reported that the asphalt and base did not meet the thickness requirements of the contract in the areas it inspected. Plaintiff’s failure to meet the thickness requirements was proved when the asphalt was removed. A photograph with a measuring tape held against the side of a piece of asphalt removed from the truck maneuvering area clearly shows that the asphalt was less than two inches thick where the contract required it to be four-inches thick. The same evidence was included in a videotape taken by Mr. Whalen.
To mitigate damages, defendant chose not to remove and replace all of the pavement, but did remove and replace the pavement at the north end of the parking lot and the truck maneuvering area. Defendant could not have simply paved over the thin areas, as Mr. Kaplan and Mr. Macintosh testified because it would have resulted in an uneven surface where water would have “ponded.” To repave the entire area would have required the application of one inch of asphalt topped with “Petro-mat,” or two inches of asphalt. “And there would still be ponding.” In any event, an additional layer of asphalt would not have solved the problem because the base was too thin in spots to have supported traffic
. b. Stubbing of conduit
The same videotape of the parking lot also purported to show where plaintiff had laid electrical and telephone conduit under the pavement but had not “stubbed” or brought the conduit up above the surface for future installation in “a maintenance facility.” Defendant asserted that plaintiff simply left the conduit lying on the base, and paved over it. Plaintiffs subcontractor testified that it had stubbed the conduit, but in a different place, at defendant’s direction. On balance the court finds that defendant has not proven its claim by a preponderance of the evidence and is not entitled to recover costs for stubbing the electrical and telephone conduit. The counterclaim is denied and dismissed.
7. Foreign-made Material
In preparing for the reprocurement contract defendant discovered that plaintiff had installed fire sprinkler piping that had not been manufactured in the United States in violation of General Provision 34, the Buy American clause of the contract. The clause is based on the Buy American Act, 41 U.S.C. § 10a et seq., which provides that “only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured ... in the United States, shall be acquired for public use.” 41 U.S.C. § 10a (1988). Executive Order No. 10,582, entitled Prescribing Uniform Procedures for . Certain Determinations Under the Buy-American Act, states that “[f]or the purposes of this order materials shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes fifty per centum or more of the cost of all the products used in such materials.” Exec.Order No. 10,582, 19 Fed.Reg. 8723, sec. 2(a) (1954). Thus, to be a domestic product, an article must be made in the United States, and over half of its components must have been made in the United States.
In May 1987, Mr. Whalen discovered a short section of four-inch sprinkler piping above the mechanical room with the words “Made in Taiwan” or “Taiwan” painted on it. Photographs taken by Mr. Whalen confirmed his testimony. The fire system subcontractor testified that his firm was experienced in government contracting and knew the pipe had to be made in the United States. Its supplier, accordingly, set U.S. made pipe aside in the suppliers yard so there would be no danger of using foreign-made pipe. The subcontractor testified that by the time it was permitted back onto the job-site, B.G. Construction had completed its work and the piping had been painted, or was out of sight. No one could determine the origin of the pipe, with the single exception noted by Mr. Whalen. The subcontractor could only surmise that the pipe in the mechanical room had been “inadvertently” used by his employees. Defendant did not replace the piping but did deduct $32,037, ostensibly the cost of some, but obviously not all, of the pipe. That cost is included in the counterclaim.
The court finds that defendant has failed to prove its counterclаim for impermissible use of foreign-made pipe by a preponderance of the evidence. Defendant has no proof that pipe not in compliance with the Buy American Act was used in the project, with the single exception of the short span of pipe in the mechanical room. Such de minimis use would not constitute a violation of the Act. See Ralph C. Nash & John Cibinie, 6 The Nash & Cibinic Report 161, 165 (1992). The counterclaim for improper use of foreign-made material is denied and dismissed.
8. HVAC Problems
Defendant claimed that plaintiff made two significant deviations from the specifi
a. Size of ducts
The contract specified that heating and air conditioning duets were to be sixteen inches in diameter. Mr. Whalen testified that plaintiff installed ducts which were either twelve or fourteen inches in diameter. When the HVAC system was first brought on-line, it was extremely noisy. Defendant sought the advice of a mechanical consultant but there is no mention in the record of whatever came of the matter. In the absence of proof of further events the court finds that defendant failed to prove this portion of the counterclaim by a preponderance of the evidence. The counterclaim is denied and dismissed.
b. Air controller
The “air controller” controls the flow of air throughout the HVAC system but, according to defendant, the controller installed by plaintiff did not have an “integral control function,” without which it could not control the flow of air. The missing controller was added by B.G. Construction under the reprocurement contract. Defendant presented virtually no testimony of any merit on this item, but neither did plaintiff provide any credible evidence to rebut the claim. On balance the court finds that defendant did not prove by a preponderance of the evidence that the air controller was required by the contract, was missing, [or deficient] and is thus not entitled to compensation for installing the unit under the reprocurement contract. The counterclaim is denied and dismissed.
9. Condensing Unit
Defendant introduced several photographs of the air conditioning condensing unit showing damage to the cooling fins. Defendant first noticed the damage on January 16, 1987, prior to the termination for default, and brought it to the attention of plaintiff in a letter signed by Mr. Ruffalo on February 11, 1987. The February 11 letter stated that the fins were “severely damaged” and requested plaintiff to immediately “protect the unit and to propose to the USPS [sic] your remedy for the damaged condition.” Mr. Ruffalo testified that the cooling fins were bent but that it is “not terribly unusual for fins to be damaged on every unit” and could be repaired with a tool that “combs,” or straightens, the fins. Mr. Kaplan agreed. Mr. Ruffalo testified that he withheld either “ten or twenty thousand dollars” from a payment request shortly before the contract was terminated. The amount withheld appeared to be excessive, but Mr. Ruffalo stated that he withheld that amount upon the advice of the mechanical engineer consultant who advised him that the fin damage could indicate some internal damage as well, and that the amount withheld would be the cost if it was necessary to replace the condenser unit. Later, but before termination, Mr. Ruffalo told plaintiff “that the fins had been fixed and it was okay to bill us for that [withheld] money.” There was, however, conflicting testimony about whether defendant had paid plaintiff, the amount paid, and exactly what was done to the unit. Mr. Whalen stated that B.G. Construction replaced the fins at a cost to defendant of $5,000. Plaintiff, in rebutting the claim, only confused the matter more by arguing that rather than combing the fins, defendant withheld approximately $5,000 from plaintiff’s contract “in order not only to replace the fins, but other portions of the condensing unit required to be replaced by reason of replacement of the fins.”
The court cannot determine from the evidence whether Mr. Ruffalo was correct that plaintiff repaired or replaced the fins, or whether Mr. Whalen was correct that B.G. Construction replaced the fins. In the circumstances, the court cannot find that defendant proved entitlement by a preponderance of the evidence to any reduction in contract price for repair or replacement of the HVAC fins, or the condensing unit. The counterclaim is denied and dismissed.
10. Finish Carpentry
The finish carpentry section of plaintiff’s contract and the building plans required it to provide wood bumpers along the workroom walls, and cabinetry. Plaintiff in
[t]he cabinets were supposed to be custom grade AWI, Architectural Woodwork Institute custom grade, and they had — the [large customer] writing desk had numerous gaps. They didn’t fit tightly together against the wall. The service-line cabinets, the pullout drawer, you couldn’t pull it out. For some reason, [plaintiff] had built it so you could not pull it out, and we had to correct that. There were a variety of smaller problems that were outlined in the Completion Document, that we had to make changes to the cabinets because of workmanship.
Plaintiff did not refute the finish carpentry counterclaim and the court finds that defendant has proved by a preponderance of the evidence that it is entitled to reasonable excess costs for repairing or replacing the cabinets.
11. Lookout Gallery Ladders
Plaintiff’s contract specified that the ladders leading to the Lookout Gallery were to extend five feet above the floor of the Gallery. Plaintiff installed the ladders only to the floor level and B.G. Construction was required to weld another five feet of ladder to the top of the ladders. Plaintiff did not attempt to refute this counterclaim. Defendant is entitled to recover excess costs for correcting the Lookout Gallery Ladders.
12. Administrative Costs
Courts will award damages that are reasonably foreseeable results of the contractor’s default in addition to those damages typically contemplated, such as administrative costs incurred by defendant in completing the contract. Tester Corp. v. United States,
are a few decisions of boards of contract appeal that deny recovery of “administrative expenses” and the costs of processing the reprocurement contract documents; in those few instances where the boards denied such costs, they did so because the default termination language was more restrictive than in plaintiff’s contract. See Arthur Q. Evans, Jr., ASBCA 10951,
Here, defendant claimed it incurred administrative costs in awarding and administering the reprocurement contract, but did not identify any specific cost items comprising the claim. The lack of specificity is not, however, fatal to the claim so long as defendant, at the quantum stage of the proceedings in this litigation, can show that the claimed administrative costs fall into the categories of costs addressed in Tester. The court finds that pursuant to General Provision 11(a) and (f), defendant is entitled to recover its administrative expenses incurred by reason of the default that were foreseeable, direct, natural, reasonable and proximate results of the default.
C. Liquidated Damages
General Provision 11 and Special Provision 2 provided for the assessment of liquidated damages at the rate of $387 per day for each day that the project was incomplete beyond the original contract comple
Liquidated damages are properly assessed and awarded unless plaintiff can show that (1) defendant caused or contributed to the delay, Southwest Eng’g Co. v. United States,
Any argument by plaintiff that defendant is not entitled to liquidated damages because it caused or contributed to the delay, is without merit. The court has found that plaintiff failed to prove that defendant was the cause of delay to the project or that any delay was apportioned between the parties.
There was no showing that the liquidated damages for delay provided for in Special Provision 2 are beyond damages reasonably contemplated by the parties at the time the contract was executed. The court must consider two factors to determine whether the provision included in the contract fixing the amount of damages payable upon breach is an enforceable liquidated damages clause. First, the amount so fixed must be a reasonable forecast of just compensation for the harm that is caused by the breach. Second, the harm that is caused by the breach must be one that is incapable or nearly incapable of accurate estimation. See J.D. Streett & Co. v. United States,
In Bethlehem Steel the court defined the applicable standard for determining whether a liquidated damages provision is proper by asking “what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out.” Bethlehem Steel,
[tjoday the law does not look with disfavor upon ‘liquidated damages’ provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by*503 breach of contract, they are enforced. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract.
Id. at 411-12,
[l]iquidated-damage provisions, when reasonable, are not to be regarded as penal-ties____ As this Court recognized in [Priebe ], liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts____” [T]he fact that no damages are shown is not fatal.
Le Roy Dyal, in addressing a number of aspects of the liquidated damage issue, held that “[i]f a provision for liquidated damages is upheld the fact that actual damage did or did not occur or was not proved to have occurred does not prevent the recovery of the stipulated sum.” Le Roy Dyal,
Where the parties, as here, have by their contract agreed upon a liquidated damage provision as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision will be enforced. If in the course of subsequent developments, damages prove to be greater than those stipulated, the party entitled to damages is bound by the liquidated damage agreement. See P & D Contractors,
The court finds that plaintiff did not demonstrate that the assessment of liquidated damages was unwarranted, contrary to law, or unreasonable in the light of the circumstances existing at the time the parties entered into the contract. There is nothing in the record which compels a contrary conclusion. There was an urgent need for the Canoga Park Main Post Office, and the time taken to complete the project, including the time taken to select and award the reprocurement contract, was reasonable in the circumstances. See As-tro-Space,
D. Interest on the Counterclaims
The award of interest on counterclaims is discretionary. Astro-Space,
VII. CONCLUSION
As the court has previously stated, it found Mr. Whalen to be an impressive witness. In concluding his testimony on direct examination, over oftentimes confused interjections and objections by plaintiff’s counsel, Mr. Whalen proffered his impression of the problems with the building, and the site, as he found it.
From what I saw there, all of the problems boiled down to one issue, and that is, the general contractor did not comply with Section 0140, which is the Quality Control Section. And that — the reason I say that is because of all the myriad of problems with the job.
I mean, its not just one or two disciplines that had problems, there were several areas from [the Lookout Gallery] Ladders to doors that didn’t have stripes that matched, to — I mean, it wasn’t cleaning and painting, it wasn’t that kind of small stuff. It was — there were big things, and had there been any quality control whatsoever on the job, I feel these problems wouldn’t have happened.
So I have to say that construction was, ... based on what I’ve seen, what I’ve documented, was very poor. And I can say that, because nobody else saw what I saw. I was there, I saw it and I documented it very carefully. Nobody else associated with this project, saw the items that I saw.
Mr. Whalen’s testimony captured the essence of how frustratingly troublesome this project was from the start.
Based upon its careful study of the record, having had the benefit of observing all of the witnessеs over the ten days of trial, and the opportunity to reflect on the issues outside of the tussle and tension of trial, the court would be derelict in its duty if it did not give great weight to Mr. Whalen’s testimony. The court believes that plaintiff could have performed all of the many corrective actions taken by B.G. Construction, but in light of plaintiff’s proven poor and non-performance, defendant was well justified in turning to another contractor to complete the project. It has become abundantly clear that plaintiff did not want to perform the work in accordance with the terms and conditions of its contract and as directed by the contracting officer. The court finds that plaintiff was given a fair opportunity to complete the project but chose instead to attempt to circumvent much of the contract, and to provide defendant with far less than for what it paid.
As stated at the outset of this opinion, the court has gone to extraordinary lengths to address plaintiff’s claims that, in most instances, were unsupported and presented in a random, rambling manner. The court can discern no merit to many of the issues presented by plaintiff. Many of the charges were made without citation to the record, or made with a plethora of unrelated meaningless citations. Frivolous citations by plaintiff to the Termination for Convenience clause of the contract as sole support for certain claims, and the advancement of claims clearly having no support in federal contract or common law have wasted valuable judicial resources and defendant’s time and finances. Similarly, plaintiff’s numerous expositions of what the law “is,” or “should be,” without any valid supportive reference to case law precedent or contract clauses must be ignored. The court cannot be expected to search the record unrelentingly to match evidence to plaintiff’s contentions. Substantial un-sworn statements by plaintiff’s counsel at trial must also be ignored. Loose, undocumented attacks on defendant and its officials are not enough to prove a claim.
For the reasons stated above, plaintiff failed to prove its delay claim. Accordingly, the claim is denied and dismissed in its entirety. Plaintiff is entitled to an equitable adjustment to its contract for constructive or actual changes for those claims administratively allowed by the contracting officer which plaintiff here challenges as insufficient, and for those changes found by the court. General Provision 4, the Claims and Disputes clause of the contract, provides that plaintiff is entitled to interest on its allowed claims. See CDA, 41 U.S.C. § 611.
The court concludes that defendant met its duty to mitigate damages in the repro-
VIII. SUMMARY OF COST CLAIMS ALLOWED AND DENIED
The following is a summary only of the disposition of plaintiffs claims, and defendant’s counterclaims. It does not include the court’s findings and conclusion on the arguments made by the parties in support of their claims. Items marked with an asterisk need to be addressed further before proceedings can continue.
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IX. FURTHER PROCEEDINGS
To guide the parties in addressing damages the court notes that damage awards to contractors are calculated based upon the difference between the reasonable cost for performing the work as changed and the reason able cost for performing the work according to the original contract specifications. J.L. Simmons Co. v. United States,
[t]he ascertainment of damages, or of an equitable adjustment, is not an exact science, and where responsibility for damage is clear, it is not essential that the amount thereof be ascertainable with absolute exactness or mathematical precision: “It is sufficient if the evidence adduced is sufficient to enable a court or jury to make a fair and reasonable approximation.”
Electronic & Missile Facilities, Inc. v. United States,
All outstanding motions are moot with the exception of plaintiffs motion, concurred in by defendant, to replace the court reporter’s incorrect exhibit list. That motion is allowed.
Notes
. Plaintiff provided conflicting statements of when it actually commenced work. Mr. Marvin N. Kaplan, president of Mega Construction Company, Inc. (Mega), testified that work commenced September 17, 1985. However, plaintiffs principal expert witness on construction delays testified that work actually commenced a week later, on September 23, 1985. The start date is immaterial at this point, although it further confuses the delay claim discussed in detail later in this opinion.
. Title IX of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506, enacted October 29, 1992, renamed this court The United States Court of Federal Claims. The Rules of the court are now abbreviated "RCFC.” See General Order No. 32 (Dec. 4, 1992).
. Plaintiffs counsel ignored the obvious. In a letter to the contracting officer dated July 14, 1987, a week before the termination for default, he stated, without support, that
Your approach to replace the entire slab may very well be totally unsuitable and an overreaction, ... (As you know, Mega opened up two different areas of the slab for you at locations that, Mega contends, did not manifest the alleged [rebar placement] problems) ____
Mega is prepared to work with you to evaluate whether a problem exists, and if so, how to solve it, but you must be ready to cooperate. Please contact Marvin Kaplan or the undersigned at your earliest convenience with regard to the above.
The court noted that plaintiff did not "open” two areas of the slab. To the contrary, until the slab was removed, no more than one section or area, other than several small core samples taken by various design and engineering consultants, had been removed.
. General Provision 51, Inspection and Acceptance, states in pertinent part:
(b) The Contractor shall, without charge, replace any material or correct any workmanship found by the Postal Service not to conform to the contract requirements, unless in the public interest the Postal Service consents to accept such material or workmanship with an appropriate adjustment in contract price. The Contractor shall promptly segregate and remove rejected material from the premises.
(c) If the Contractor does not promptly replace rejected material or correct rejected workmanship, the Postal Service (1) may, by contract or otherwise, replace such material or correct such workmanship and charge the cost thereof to the Contractor, or (2) may terminate the Contractor’s right to proceed in accordance with the “Termination for Default” clause of these General Provisions.
(d) The Contractor shall furnish promptly, without additional charge, all facilities, labor, and material reasonably needed for performing such safe and convenient inspection and test as may be required by the Contracting Officer.
******
(e) Should it be considered necessary or advisable by the Postal Service at any time before acceptance of the entire work to make an examination of work already completed, by removing or tearing out same, the Contractor shall, on request, promptly furnish all necessary facilities, labor and material. If such work is found to be defective or nonconforming in any material respect, due to the default of the Contractor or his Subcontractors, he shall defray all the expenses of such examination and of satisfactory reconstruction, (emphаsis added).
. Joncich, Sturm and Associates (JS & A) was one of several architectural-engineering firms employed by defendant, at the time, under a "general term contract.” This was explained as a one-year contract with options for two more years to provide general architectural services including engineering and consulting services that defendant might need on either small projects or for emergency use when it did not have the necessary time to formally compete a contract for architectural.services. Defendant gave JS & A a work order under the general term contract for its services on this project.
. The court infers from Mr. Peterson’s comments that he concluded that the quality of the slab was half of what defendant contracted with plaintiff to construct.
. Even though all of the evidence proved that the slab was not built to the contract specifications, and despite Mr. Kaplan’s admission that plaintiff had not built the slab in accordance with the contract specifications, plaintiffs counsel foolishly adhered to the position throughout trial and his post-hearing briefs that plaintiff had built the slab in strict accordance with the specifications.
. A trial court is not obligated to adopt a conclusion stated by an expert witness, but to weigh both the expert and lay testimony and decide the probity and veracity of each. Del Mar Avionics, Inc. v. Quinton Instrument Co.,
. Despite the contracting officer’s directives and warnings, plaintiff complained that it was not given adequate notice of defendant's intent to terminate the contract for default. Plaintiffs complaint is not only incredible in light of the notices and conversations between the parties between February and July 1987, but also inconsequential as notice in a construction contract is not required as in a supply contract. Compare General Provision 11 with 48 CFR § 52.249-8 (1985); see also Halifax Eng’g, Inc. v. United States,
. Mr. Kelsen also stated in the November 13, 1987 letter
On the other hand, we cannot guarantee that the 5" slab will prevent cracking if expansion should occur. However, the increase in slab reinforcing will offer greater resistance to uplift forces.
. The court observes that following implementation of the “all-disputes” clause mandated by the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1976 & Supp. II 1978), it is possible that defendant may not accurately ever be deemed to have "breached” a contract. Prior to implementation of the CDA, the disputes clause provided an avenue for contractors seeking relief specifically provided for in clauses of the contract. A contractor could initiate a claim in a board of contract appeals to correct an injustice committed in the government’s course of contract administration so long as a contract clause recognized the type of wrong of which the contractor complained. Jurisdiction of claims resolution was defined by the specific terms of the contract. United States v. Utah Constr. & Mining Co.,
Following much debate and study in the early 1970’s, particularly by the Congressional Commission on Government Procurement, the government recognized that its contractors were faced with a Hobson’s Choice. If a claim was brought in the Court of Claims, but should have been brought before a board, the contractor was deemed to have breached the contract. Conversely, if the claim was brought before a board and there was no contract clause providing for the relief sought, the board lacked jurisdiction to decide the claim. Many contractors complained of the unnecessary time and expense incurred in selecting the proper forum. See G & H Mach. Co. v. United States,
The all-disputes clause sought to rectify the jurisdictional problem by providing that all disputes arising under the contract were to be decided under that clause. The CDA abolished the jurisdictional requirement of a specific relief-granting clause, giving contractors the right, and the obligation, to bring any and all disputes before a board or the court as a contract dispute under the all-disputes clause. See Essex,
Under pre-CDA procedure, "breach of contract” was a term of art referring to claims alleging that the Government failed to perform an express or implied duty (such as the duty to cooperate and not hinder) for which*416 no relief was available under the terms of the contract and which thus fell outside the scope of the disputes process. Since such breach of contract claims are “related to” the contract, they are now within the scope of the CDA disputes process.
Richard J. Bednar, The Disputes Process in Federal, State, and Local Construction Contracts, in Construction Contracting, 957, 964 (George Washington University 1991) (citations omitted).
The contractual bargain eliminates plaintiffs right to seek common law, or any other form, of extra-contractual damages. However, in drafting the all-disputes clause, language was retained by the Congress reserving to the government the right to seek common law damages as well as contractually provided damages. Compare General Provision 11(a), (f) with Tester Corp. v. United States,
. Mr. Hearn was unavailable to testify at trial because of illness. The court allowed his deposition to be entered into the record.
. General Provision 4 of the contract, entitled Claims and Disputes, contractually bound plaintiff to follow Mr. Cipriani's directives. Paragraph (h) states:
Except as the parties may otherwise agree, ' pending final resolution of a claim by the Contractor arising under the contract, the Contractor shall proceed diligently with the performance of the contract in accordance with the Contracting Officer’s decision.
. The court notes that on December 3, 1986, Mr. Cipriani gave several instructions to plaintiff, and that by letter dated December 16, 1986, plaintiff refused to comply in part because the letter had been signed by Mr. Cipriani and not by Mr. Hunter, the contracting officer who executed the contraсt. In the December 16 letter, plaintiff stated that it "[would] only act upon such approval to proceed with any recommendations and resulting costs after Mr. Hunter has authorized and/or directed such recommendation be performed.” By letter dated December 17, 1986, Lane Architectural Group informed Mr. Hunter that plaintiff claimed to be confused by "all these personnel changes” and that plaintiff was using this as an excuse not to perform. Mr. Harman, plaintiffs construction manager, claimed not to know who Mr. Cipriani was, even though he had met with Mr. Cipriani on several previous occasions, and elected to wait for instructions from Mr. Hunter only.
Plaintiffs position is specious. Mr. Cipriani was a contracting officer and had signed the December 3, 1986 letter as such. Plaintiff did not seek clarification of Mr. Cipriani’s authority, if it in fact needed clarification. Clause No. 1 of the contract General Provisions contemplates that more than one contracting officer may be assigned to the project. It defines the term "contracting officer” as "any ... officer or employee who is properly designated Contracting Officer____” Plaintiff, by its own assertion, was not a neophyte in the public construction contract arena and cannot be heard to legitimately claim that it needed to only respond to the contracting officer of its choice. Moreover, Mr. Kaplan testified that the parties discussed General Provision No. 1 at the pre-bid conference held in September 1985. There was no indication given that there would not be more than one contracting officer assigned to the project; in fact, it would indeed be rare if there was not more than one contracting officer assigned to any significant construction project.
. Even though the case is bifurcated and this opinion addresses only liability, plaintiff must show injury to recover for the claimed delay. The injury need not be quantified with precision — that will be the subject of negotiations or subsequent proceedings — but plaintiff bears the burden of proving some economic injury as a condition of any recovery. Courts have held, “no matter how unreasonable the Government’s delay, there can be no recovery without proof that th[e] delay caused material damage." Commerce Int’l Co. v. United States,
. As a preliminary matter, the court is constrained to note that plaintiffs presentation of its case, its briefing of the issues, and legal argument, confounded rather than clarified the court's understanding of its delay claims. Much of the evidence consisted of general comments recorded in unidentified, highly suspect, self-serving correspondence, much of which was prepared for litigation long after the events allegedly occurred. Plaintiff’s already weak case foundered in the wake of defendant’s evidence and testimony.
. Counsel for defendant, in his opening remarks at trial, admitted liability for the 118-day delay previously allowed administratively by the contracting officer. The court has concluded that it cannot find from the record that plaintiff would be entitled to the 118 days however, "a contracting officer's findings of fact and conclusions of law ... favorable to the contractor have been held to constitute an ‘evidentiary admission’ of liability. Wilner v. United States,
. General Provision 65 continued:
The chart shall show the principal categories of work corresponding with those used in the breakdown on which progress payments are based; the order in which the Contractor proposes to carry on the work, the date on which he will start each of the categories of work, and the contemplated dates for completing the same. The chart shall be in suitable scale to indicate graphically the total percentage of work scheduled to be in place at any time. At the end of each progress payment period, or at such intervals as directed by the Contracting Officer, the Contractor shall (1) adjust the chart to reflect any changes in the contract work, completion time, or both as approved by the Contracting Officer, (2) enter on the chart the total percentage of work actually in place, and (3) submit three copies of the adjusted chart to the Contracting Officer.
Defendant explained that the principal purpose of the charts was to provide a check on progress payments by permitting defendant to compare actual progress with claimed progress.
. For instance, Mr. Cumine suggested the existence of a critical path delay of 177 days for installation of drywall but asserted that because defendant allowed time extensions for other "concurrent” delays, the drywall delay was only 119 days, even though drywall at the time allegedly was the critical path item.
. It should be borne in mind that Mr. Kaplan previously testified that work began on September 17, 1985. Because this portion of the discussion of the delay claim addresses Mr. Cu-mine’s analysis, the court will consider that work began on September 23, 1985, a week later.
. Mr. Irwin's charts and testimony suffered from the same problems as did Mr. Cumine’s and for that reason are equally faulty. For example, using exactly the same data as did Mr. Cumine, Mr. Irwin concluded that it took plaintiff twenty-one days to clear the site at the outset of the contract as compared to Mr. Cu-mine’s thirty-nine days. By studying the data the court cannot find support for either supposition.
. The court can only infer that Mr. Cumine added 32 days, though it cannot be confirmed. As the court attempted to read the charts from left to right and top to bottom, the data became increasingly incomprehensible and ultimately meaningless.
. Although present at the job-site on days when other workers were absent, Mr. Hearn, plaintiffs project superintendent was not always at the job-site when other workers were present, even though the contract required that plaintiff maintain superintendence at all times. See General Provision 15, the Superintendence by Contractor clause of the contract. Mr. Hearn, it appears, split his time between the Canoga Park project and another Mega construction project. It was for this reason, and because of Mr. Hearn's refusal to cooperate with defendant’s officers and agents, that the contracting officer directed his removal from the project pursuant to contract General Provision 16(b), supra.
. From October 30, 1986, to January 7, 1987, is 69 days. Plaintiff never explained how it calculated 119 days of delay to drywall installation.
. Mr. Irwin’s chart, and related testimony, were ordered stricken from the record at trial. As introduced, the chart was virtually unreadable. The court asked Mr. Irwin if the "weeks” shown at the top of the chart were five-day work-weeks or seven-day weeks. He first testified that they were seven-day weeks, but the next day after consulting with the person who prepared the chart, informed the court that they were five-day work-weeks. At the close of his testimony the court called for a closer look at
. The government-furnished equipment was timely delivered to B.G. Construction on the reprocurement.
. Rule 702 of the Federal Rules of Evidence, entitled Testimony by Experts, provides "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702 (1993).
. Plaintiff admitted but to five days of fault for delay out of the total of 272 claimed, and sought ineffectively to lay the blame for remaining 267 days of delay at defendant's doorstep. Plaintiff arrived at the total days of first-period delay for its claim simply by deducting the 400-day construction period in the contract from the approximately 690 days that elapsed between the time it began work on the project and the date of its termination for default, less the five days for which it admits fault.
. The CDA certification requirement furthers an important congressional objective of discouraging the submission of unwarranted contractor claims. Paul E. Lehman, Inc. v. United States,
. In his final decision of November 25, 1988, the contracting officer admitted liability in whole or in part on the following claims: (1) HVAC Controls, (2) Relocation of Refrigeration Lines, (3) Relocation of Telephone Vault, (4) Additional Demolition & Field Office, (5) Perimeter Footing Removal, (6) Look-out Gallery Revision, (7) Electrical Vault, (8) Sink Hole, and (9) Catch Basin.
. The government’s right of offset is a claim. Placeway Construction Corp. v. United States,
. General Provision 4 of the contract parrots the certification language of the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1988).
. Compare Dawco Construction, Inc. v. United States, where the Federal Circuit held that a "request for cost proposal” did not constitute a claim. Dawco Constr., Inc. v. United States,
. The Transamerica court used a similar approach in ruling on the alternate basis for the Claims Court’s dismissal, the alleged defective certification.
This court has previously found that even when a proposed claim certification lacks certain elements specified in the statutory standard of 41 U.S.C. § 605(c)(1), the certification can still be valid if in substantial compliance with the statute and its purposes. In United States v. General Electric Corp.,727 F.2d 1567 (Fed.Cir.1984), this court ruled that although the certification failed to state the amount of the claim and did not include language to the effect "that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable, it contained the critical information required by the statute and was therefore in substantial compliance with it.”
Transamerica Ins. Corp. ex rel. Stroup Sheet Metal Works v. United States,
. Plaintiff did not make the design versus performance specification argument that might have invoked the Spearin doctrine. See United States v. Spearin,
. This period of time is included in plaintiffs delay claim, was alleged to be on the critical path, and causation attributable to defendant. Proof that the screen wall was on the critical path was lacking. Moreover, plaintiff gave no reason why it waited a full three months after receiving SK-32 before instructing its subcontractor to proceed and how much of the delay was caused by this three month delay, or how, in the circumstances, causation could be attributed to defendant.
. A hand-written, undated note in plaintiffs Index File for this claim stated ”[o]wner/arch[itect] added correction details and established lA“ nominal thickness (use 10 gafuge] as min[imum]!” The ‘/t-inch steel was shown in sketch SK-32 as the thickness of the plates connecting the steel tubes to the metal studs in the adjacent walls.
. The court assumes that this refers to Mr. Kaplan’s claim that there were “insufficient” tube steel vertical supports in the walls.
. In his final decision of November 25, 1988, the contracting officer stated that ”[t]he additional information given on SK-32 is merely clarification of the column connection to the floor and the 3" X 3" tubular steel tie connection to the steel wall studs and involves no extra work.”
. See Sterling Millwrights v. United States,
. The part of the claim dealing with the subcontractor's materials costs does not appear to be in accord with plaintiff s certification of costs as per the CDA, 41 U.S.C. § 605(c)(1), and will be addressed shortly with other similar issues identified in this opinion.
. For further discussion of Special Provision 24(e) and General Provision 31, see the discussion of the Temporary Fence claim in section V.C.6. of this opinion, supra.
. Plaintiff made mention in passing of problems with glazing the windows and window frames, but never explained or developed the issues as part of any claim.
. At one point in the presentation of its case, plaintiff claimed that fifty-eight four-foot-by eight-foot pieces of plywood were used. Defendant’s review of the record showed that only twenty-three were needed. The supplier’s voucher showed that it had delivered 1856 square feet of plywood (fifty-eight sheets), whereas plaintiffs claim was for 2176 square feet (sixty-eight sheets). The supplier’s voucher showed that it delivered 608 board feet of two-inch-by-four-inch framing lumber, but plaintiff’s claim is for 1356 board feet. It could be that plaintiff used the wood for other purposes, but failed to mention that fact. This discrepancy appears to constitute a violation of the CDA certification, 41 U.S.C. § 605(c)(1), and will be addressed following the filing of this opinion.
. The second paragraph Special Provision 10 stated:
. The payroll reports were submitted weekly to defendant pursuant to Labor Standard Provision 5(b)(1) of the contract.
. Title 28 U.S.C. § 2514, entitled "Forfeiture of fraudulent claims" provides
A claim against the United States shall be forfeited to the United States by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof.
In such cases the United States [Court of Federal] Claims shall specifically find such fraud or attempt and render judgment of forfeiture.
. The cited portion of Sterling was vacated by the court at the request of the parties to that litigation in furtherance of settlement. The case is cited only as cogent statement of the law under discussion in this section of the opinion.
. Section 6(c) of the CDA requires that all claims over $50,000 be properly certified before submission to the contracting officer. 41 U.S.C. § 605(c). Mr. Kaplan stated in his letter of August 30, 1988:
The undersigned certifies that the claims set forth herein are made in good faith; that the supporting data is accurate and complete to the best of his knowledge and belief; and that the amounts requested accurately reflect the contract adjustment for which Mega Construction Co., Inc. believes that the United States Postal Service is liable.
. This is so even though Mr. Kaplan testified that plaintiff did not specifically include an overhead factor in its bid. Mr. Kaplan explained that plaintiff intended to recoup its non-change order overhead from profits.
. Mr. Kaplan’s testimony on this claim is a fair example of the confusion running rampantly through plaintiffs claims. Mr. Kaplan identified this claim as for lost income for a two-year period when, in fact, it was for lost profit for an eighteen-month period. Plaintiff claimed it lost $4.5 million over a two-year period, and that its profit was twelve percent of revenue. Multiplying $4.5 million by twelve percent would give an alleged loss of profit of $540,000 for a two -year period — yet plaintiff more than doubled that figure in its claim. Plaintiff certified in its Second Amended Complaint pursuant to the CDA that its lost future income was $840,000, not $1,080,000. See Second Am.CompL, Attach. D at 40, entitled Summary of Claims. The court cannot fathom how plaintiff reconciled its claim with its CDA certification, See 41 U.S.C. § 605(c); section V.C.ll. of this opinion, or arrived at the figures it threw about in this claim.
. Plaintiff computed the loss of its profits following the termination for default by subtracting the alleged 97.92% completion from 100%, which is 2.08% and multiplying the latter by $350,000, plaintiffs anticipated gross profit on the project. The result was $7,280. It must be borne in mind that Mr. Kaplan testified that plaintiff did not include a specific factor for overhead in its bid and that overhead expenses were to be recovered from profit. That being the case, overhead and related factors would have to be deducted from anticipated gross profit to find the true, or net, anticipated profit. That was not done; Mr. Kaplan's formula is too self-serving, and thus, defective for this reason as well.
. The Court of Claims, now the Court of Appeals for the Federal Circuit, has consistently upheld the validity of this principle. In G.C. Casebolt Co. v. United States the court held that if a contract contains a convenience-termination clause, anticipated, but unearned, profits are not allowable. G.C. Casebolt Co. v. United States,
. Some of the more work-extensive items included installation of paving, fencing and gates, landscaping and irrigation, electric power to the fuel island, flip ramps, dock levelers, the scale and scale indicator, downspouts, floor and base including asphalt plank and carpet, U.S.P.S. provided equipment, lobby desks, acoustical tile ceilings, fire sprinkler escutcheons and sleeves, and painting of the interior and exterior. Plaintiff had not provided final certifications, tests, and manuals for the plumbing, fire sprinkler, HVAC, and electrical systems. Mr. Whalen testified that, for example, he saw no landscaping in place, notwithstanding that plaintiff claimed in Invoice and Voucher No. 17 to have completed twenty-five percent of the landscaping. The project was far from complete when plaintiff requested that the final inspection be conducted May 28, 1987. Lane’s list, completed before the termination for default, naturally did not in-elude the numerous defective and incomplete items, or poor workmanship, discovered later.
. “Determining the weight and credibility of the evidence is the special province of the trier of fact.” Inwood Labs., Inc. v. Ives Labs., Inc.,
The determination of the credibility of a witness is within the discretion of the presiding official. The presiding official in her [or his] role as the trier of fact can observe the demeanor of the witnesses and their reaction when confronted with the documents and evidence in the case[.]
Hagmeyer v. Department of the Treasury,
. See note 51, supra, on plaintiffs calculation of alleged lost profits.
. Kamen Soap Products. Co., ASBCA 2587,
. In the total absence of any proof the court finds it very difficult to believe that LeBaron Plumbing Company, Inc. pays $624.15 a year for the privilege of owning a travel card, and that the full yearly amount is chargeable to this contract. If the claimed amount of $624.15 represents only the percentage of the annual charge that is allocable to plaintiff's contract the annual dues would be unbelievably higher.
. There was no limited "fault for delay” reimbursement clause in Del Mar's subcontract as there was in plaintiff's contract with the government.
. There was no consistent testimony on how far "in" from the walls of the main work room the slab was cut, but the evidence favors four feet. There was consensus that less than the total of 10,300 square feet was removed. The court calculated that approximately 7,600 square feet was removed; one-third of the entire 27,000 square foot slab.
. Mr. Kaplan testified that had plaintiff been permitted to complete the project, it could have done so "within six weeks” for “[fjifty, sixty, seventy thousand [dollars].” It is probable that plaintiff could have completed the project, as it claimed, had it been permitted to do so in the same slip-shod manner that it began. However, it could not have completed the project as well as corrected the previously constructed and installed deficient work within that time period. The record shows that the cost to remove and replace the slab alone would have exceeded seventy thousand dollars. Moreover, Mr. Kap-lan’s self-serving statement was predicated upon the false assumption that the project was 97.92% complete on the date of the termination for default; not less than 60 to 70% complete as found by the court in section V.C.15. of this opinion, supra. The additional work items were not charged back against plaintiff in the counterclaim.
. Mr. Kelly made several weak attempts to defend plaintiff, including the claim that plaintiff had not received progress payments since April 1987. Nothing more was said about the issue and the court must infer that Mr. Kelly was satisfied with Mr. Ruffalo’s explanation that the cause of the delay was plaintiffs failure to furnish defendant with the data required by the contract to support the progress payment claims, and that the problem had been resolved
. It should be noted that notwithstanding Mr. Kelly’s waffling on the take-over decision, he never denied F & D's responsibility to defendant for the cost of completion under its bond.
. In these circumstances, there is no need to adjust the slab costs to reflect the changed design. Any savings to plaintiff would have been more than offset by the alternative of removing and replacing the fill and using the original design. Plaintiff would have borne the excess costs of replacing the defective low-to-moderately expansive fill.
. Mr. Ruffalo explained, for example, that if the contract had required a two-inch manhole cover and plaintiff had provided a one-inch cover, defendant would have accepted the one-inch cover and deducted fifty percent of the total cost from the contract.
. Asphalt planking is a heavy duty floor covering made for use in areas that have forklift traffic. It is not made for appearance, but for durability. The supplier estimated that the material cost of the original asphalt planking for use in the main workroom was $20,000, approximately three times the cost of the vinyl composite tile actually installed, i.e., $6,600.
. “Electrocution” as used in the building trades means an electric shock and does not imply that death results, though it could.
. Under General Provision 11(d)(1) an earthquake would be considered an act of God, thereby releasing plaintiff from any liability for damage.
. Defendant calculated the liquidated damages as running from February 13, 1987, until April 24, 1988, and found the total to be 435 days. The calculations were incorrect. Plaintiff’s actual amended completion date was February 15, 1987, and 1988 was a leap year. The proper period for the calculation of liquidated damages was 434 days.
. Items marked with an asterisk were found to be frivolous, or the court questions whether they were submitted in good faith or in accordance with the CDA certification. See 41 U.S.C. § 605(c) and section V.C.ll. of this opinion. Other claims that fit this category are plaintiffs alleged progress on drywall installation (p. 432), delay for government-furnished equipment (p. 433), post-termination "winding down” (p. 438), subcontractor material costs (pp. 457-59), and post-termination security (p. 452).