OPINION and ORDER
The ancient Romans used an extensive system of roads such as the Via Appia, the famed cobbled Appian Way, to connect their vast empire. The empire spanned at its height much of Britain, Gaul (modern day France), Italy, and other lands surrounding the Mediterranean including North Africa, and Asia Minor up to the boundaries of the Tigris and Euphrates Rivers. Truly, all roads led to Rome.
Because they were paved, these roads could withstand heavy traffic and allowed the Romans to move their Legions quickly and efficiently to wherever they were needed to ensure the empire’s security. See Logan Thompson, Roman Roads, History Today, Feb. 1997, at 21, 21-22. In order to build and maintain these roads, the Romans depended, at least in part, on masterbuilder construction workers called “redemptores” to do the digging and paving pursuant to contract. See id. at 25; Cornelius van Tilburg, Traffic and Congestion in the Roman Empire 36-39 (2007); 2 A Dictionary of Greek and Roman Antiquities 947 (William Smith et al. eds., 3d ed., London, John Murray 1891). Today, the United States military also relies on contractors, modern day re-demptores, to meet its paving needs. To be sure, these paving needs include projects well beyond those even contemplated by the ancient Romans, such as the project giving rise to the dispute in this ease — the repaving of a parking area for jet aircraft.
Plaintiff, the Redland Company, Inc. (“Redland”), filed this complaint pursuant to the Contract Disputes Act (“CDA”),
Performance was to begin soon after the contract award. Pl.’s Resp. to Def.’s Proposed Findings ¶ 11. However, a work-suspension order from the Air Force delayed the start of performance for nearly four years. Compl. ¶ 7. Plaintiff alleges that it is entitled to compensation as a result of this four-year suspension of performance. Id. Plaintiff further alleges that, once work began, the Air Force’s actions substantially delayed project completion, prolonging the period of performance from an anticipated sixty-one days to well over a year. Id. ¶ 14. Finally, plaintiff alleges that it was required to perform additional work, i.e., work not contemplated under the contract, for which it was either inadequately compensated or not compensated at all. Id. ¶¶ 9-13. On these facts, plaintiff asserts multiple claims against defendant.
For the sake of convenience and clarity, the court has enumerated plaintiffs various claims. These begin with a claim for compensation for unabsorbed home office overhead during the four-year period of suspension (Claim 1). Thereafter, plaintiff asserts a claim for compensation for delayed project completion (Claim 2), removal of additional asphalt (Claim 3), removal and replacement of additional concrete (Claim 4), delayed access to HARB (Claim 5), removal of unanticipated buried metal and concrete (Claim 6), repairing an electrical duet bank (Claim 7), providing finish grade elevations (Claim 8), and, finally, repairing a crack in the concrete (Claim 9). Id. ¶¶ 7-14.
Before the court are the parties’ cross-motions for summary judgment pursuant to Rule 56 of the Rules for the Court of Federal Claims (“RCFC”). Defendant seeks summary judgment on Claims 1, 2, and 3. Def.’s Mot. for Partial Summ. J. (“Def.’s Mot. for Summ. J.”) at 1. For its part, plaintiff seeks summary judgment as to liability on all nine claims found in its complaint. Pl.’s Cross-Mot. for Summ. J. on Liability (“Pl.’s Mot. for Summ. J.”) at 1-2. In addition, plaintiff seeks summary judgment as to liability on a claim for breach of contract, which is found nowhere in its complaint and is raised for the first time in the motion for summary judgment. Id. at 13. For the reasons explained below, defendant’s motion is granted as to Claims 1 and 2, but denied as to Claim 3. Plaintiffs motion is granted as to Claims 6, 7, and 8, but is denied as to all other claims.
I. BACKGROUND
On October 30, 2000, the Air Force awarded plaintiff contract number FA6648-01-C0001 (“the contract”). Compl. ¶ 1; Pl.’s Resp. to Def.’s Proposed Findings ¶ 1. As noted above, the contract required plaintiff to repave a parking area for jet aircraft at HARB. Compl. ¶ 1; Pl.’s Resp. to Def.’s Proposed Findings ¶ 1. The parking area in question (the “project site” or “work site”) is located near an alert shelter for the Florida Air National Guard (appropriately known by the warlike name of “FANG”). Pl.’s Resp. to Def.’s Proposed Findings ¶ 2. This alert shelter houses fully fueled and armed jets that can be launched on short notice to intercept aircraft posing a threat to the United States. PL’s Resp. to Def.’s Proposed Findings ¶ 4. Plaintiff was to repave a three-lane section of the parking area. See Pfoh Dep. 82:11, Oct. 7, 2009.
On December 1, 2000, plaintiff received from the contracting officer (“CO”) a “notice to proceed,” which is the CO’s authorization for a contractor to begin work on a project. PL’s Resp. to Def.’s Proposed Findings ¶ 7. The contract required plaintiff to begin performance within fourteen days of receiving the notice to proceed. Compl. Ex. 1 at 1. However, also on December 1, 2000, and paradoxically received about the same time as the notice to proceed, the CO issued a second order suspending work until further notice. Def.’s Mot. for Summ. J. Ex. F. The
During the period of suspension, the parties had sporadic discussions about when the suspension would be lifted and work could begin. Pl.’s Resp. to Def.’s Proposed Findings ¶ 9. On August 23, 2002, plaintiffs vice president requested that the Ar Force provide thirty days notice before requiring plaintiff to begin work. Id. ¶ 9. It is uncertain whether the Air Force responded to this request. Id. Eventually, in a letter dated July 21, 2004, the CO notified plaintiff that the Ar Force intended to lift the suspension on or about September 30, 2004. See Def.’s Mot. for Summ. J. Ex. X; see also Def.’s Resp. to Pl.’s Proposed Findings of Uneon-troverted Fact (“Def.’s Resp. to Pl.’s Proposed Findings”) ¶ 5. The Air Force ultimately lifted the suspension on October 18, 2004, with work to begin on October 20, 2004, and be completed by December 19, 2004. Pl.’s Resp. to Def.’s Proposed Findings ¶ 11.
Plaintiff alleges that, on the day the suspension was lifted, it and its subcontractor were delayed from entering HARB due to security clearance problems. Compl. ¶8. According to the CO, this delay resulted from plaintiffs failure to follow the correct security clearance procedures. See Burgains Dep. 39:8-23. According to plaintiffs project manager, however, plaintiff timely submitted the correct security information to the Ar Force and any delay was thus the fault of the Ar Force. See Pfoh Dep. 136:19-143:5.
Once plaintiff and its subcontractor gained entry to HARB and work was underway, one of the first tasks to be completed was the milling, or removal, of existing asphalt from the parking area. Pfoh Dep. 31:16-25. The contract specified that the layer of asphalt to be milled was two to four inches deep. Def.’s Resp. to Pl.’s Proposed Findings ¶ 10. Plaintiff alleges that it encountered asphalt in excess of four inches, which required additional milling at increased cost. Compl. ¶ 9. So, on November 1, 2004, plaintiff submitted Request for Change Order (“RFCO”) Number 5, requesting compensation for “additional direct costs” resulting from the milling of additional asphalt “along the NE [ (northeast) ] portion of the project.” Id. Ex. 2. According to plaintiff’s project manager, the CO was timely notified of the additional asphalt encountered and the CO approved the additional milling. Pfoh Dep. 40:10-43:22. The CO, however, denies having been informed of this differing site condition or having authorized any additional milling. Bur-gains Dep. 41:3-24.
Aso while removing the existing asphalt, plaintiff encountered unforeseen metal and concrete, as well as an electrical duet bank buried within the asphalt. Def.’s Resp. to Pl.’s Proposed Findings ¶¶ 18-19. The electrical duet bank, which is essentially a collection of metal tubes housing electrical wiring, was apparently damaged during the milling process, and thus the Ar Force required plaintiff to repair it. Def.’s Resp. to Pl.’s Proposed Findings ¶ 19.
Ater removing the existing asphalt and concrete, plaintiff prepared to lay new concrete and asphalt. Pfoh Dep. 44:9-13. The Ar Force then informed plaintiff that additional work would be needed to ensure that water would properly drain from the parking area once it was repaved. Pfoh Dep. 55:4-58:10. In particular, the Air Force required plaintiff to provide so-called finish grade elevations in order to ensure that the repaved parking area would have the necessary slope to allow for proper drainage. See Pfoh Dep. 58:20-59:5; Def.’s Resp. to Pl.’s Proposed Findings ¶ 21.
Ater providing the needed finish grade elevations, plaintiff began pouring the new concrete. Pfoh Dep. 59:23-60:17. Concrete for the project was loaded into trucks, or “batched,” at an off-base concrete plant, and then delivered to the work site at HARB. Pfoh Dep. 86:6-16; Easom Dep. 88:24-25, Oct. 6, 2009. The contract required plaintiff to deliver the concrete for pouring at the work site, in each of the three lanes being repaved, within forty-five minutes of batch
Although the contract required delivery of the concrete within forty-five minutes, it is uncontroverted that the concrete for the first lane was not poured within forty-five minutes of batching. See Pl.’s Resp. to Def.’s Proposed Findings ¶ 14; Rhodes Dep. 50:1-22, 69:11-13, Oct. 9, 2009. Plaintiffs subcontractor for concrete, Homestead Paving, was unaware of the forty-five minute time limit, believing instead that the time limit was ninety minutes. Rhodes Dep. 44:12-45:19. The actual amount of time between batching and pouring of concrete for the first lane varied by truck, but, according to the owner of Homestead Paving, was as long as two hours for one truck. Rhodes Dep. 50:2-10.
The Air Force’s project engineer contends that he observed two other contract violations relating to the first lane of concrete— the addition of water to the concrete mixture, and improper vibration of the concrete once it was poured. See Willock Dep. 105:9— 108:16,120:1-121:10, Oct. 29, 2009. Vibration is a process designed to ensure that all voids in the concrete are filled and that any air trapped in the concrete is removed. Pfoh Dep. 102:15-19. Adding water to concrete or improperly vibrating concrete can adversely affect the quality of the finished concrete. Easom Dep. 94:1-95:13; Leon Dep. 114:2-17, Oct. 8, 2009. Plaintiff refutes the Air Force’s assertions and maintains that no water was added to the concrete and that the concrete was properly vibrated. Pl.’s Proposed Findings of Uneontroverted Fact ¶ 14.
After the first lane of concrete was poured, and prompted by plaintiffs objection to the forty-five minute time limit for delivery of the concrete after batching, the CO performed a test by driving the route from the concrete plant to the work site at HARB in order to determine if it was possible to travel from the concrete plant to HARB within the forty-five minutes required by the contract. Burgains Dep. 130:3-131:17. According to the CO, it took him between twenty and thirty minutes to travel by car from the concrete plant to HARB. Id. All the same, plaintiffs project manager contends that it took the concrete trucks an average of forty-three minutes to reach HARB and, upon reaching the entrance to the base, it took additional time for the trucks to pass through security and travel to the project site. See Pfoh Dep. 87:1-88:9. According to plaintiff, these facts demonstrate that the requirement to pour concrete within forty-five minutes of batching at the plant was impossible to meet. See Pl.’s Mot. for Summ. J. at 22-23.
After learning that the Air Force intended to reject the first lane of concrete, see Wil-lock Dep. 101:18-25, 105:12-15, plaintiff requested that the CO withhold his final decision until the concrete underwent the testing required by the contract. See Compl. Exs. 1-2. Plaintiff believed that the concrete would pass this testing and should thus be acceptable even though it had not been poured within forty-five minutes of batching. See Compl. Ex. 2. Ultimately, the first lane of concrete passed all tests performed. Def.’s Resp. to Pl.’s Proposed Findings ¶ 15; Rhodes Dep. 52:6-56:6; Easom Dep. 81:18-21. Nevertheless, without waiting for the test results, the CO notified plaintiff that the Air Force was rejecting the first lane of concrete due to plaintiffs failure to pour the concrete within specified time limits, plaintiffs addition of water to the concrete mixture, and plaintiffs improper vibration of the concrete. See Compl. Ex. 2. The CO required plaintiff to remove the newly poured concrete and to pour the first lane of concrete again. Def.’s Resp. to Pl.’s Proposed Findings ¶ 13. However, before plaintiff poured any additional concrete, the CO agreed to relax the time limit for delivery and pouring of the concrete from forty-five minutes to sixty minutes after batching. Id. ¶ 16. Thereafter, plaintiff encountered no problems relating to the time between the
After replacing the first lane of concrete, plaintiff proceeded to pour concrete for the remaining two lanes. Shortly after the second lane of concrete was poured, a crack developed in one corner. Pfoh Dep. 128:6-21; Rhodes Dep. 71:22-72:2. Under the terms of the contract, plaintiff was required to repair this crack. Pfoh Dep. 129:22-25. However, the required manner of repair differed depending on whether the crack was a “partial-depth” or “full-depth” crack. Pfoh Dep. 133:12-134:3. A partial-depth crack could be repaired by cutting a small area around the crack and refilling it with new concrete. Id. Repairing a full-depth crack, however, required removal of an entire section of concrete, at greater expense. Id.; Rhodes Dep. 73:22-74:13.
Perhaps not surprisingly, the Air Force and plaintiff disagreed on whether the crack was partial-depth or full-depth. According to plaintiff, the crack was a partial-depth crack because it only extended part of the way through the concrete. Pfoh Dep. 133:12-134:3. However, the Air Force regarded the crack as full-depth because it considered any crack extending more than halfway through the concrete to be a full-depth crack. Willoek Dep. 199:14-200:9. In the end, the Air Force required plaintiff to perform the more extensive repair required for a full-depth crack. Rhodes Dep. 71:17-18; Willoek Dep. 199:14-200:9. Thereafter, on August 31, 2005, plaintiff submitted a Request for Change Order to the CO, requesting additional compensation for repairing the concrete crack. See Compl. Ex. 2. In a modification dated September 29, 2005, the CO granted only partial compensation for this work. See Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. on Liability and Reply in Support of Def.’s Mot. for Partial Summ. J. (“Def.’s Opp’n”) Ex. 8; Burgains Dep. 62:11-63:24.
When all work under the contract was ultimately completed on January 11, 2006, the period of performance had lasted 449 days, greatly exceeding the sixty-one days specified in the notice to proceed. Pl.’s Resp. to Def.’s Proposed Findings ¶¶ 6, 11, 18. In the CO’s judgment, plaintiff was not to blame for the delay in project completion. Burgains Dep. 178:9-25. So, the CO granted plaintiff a time extension through January 11, 2006, the end of the actual period of performance. See Def.’s Resp. to Pl.’s Proposed Findings ¶ 22. Here, the contract provided that the Air Force would be entitled to $338.42 in liquidated damages for each calendar day of delay caused by plaintiff. See Compl. Ex. 1 at 11. Liquidated damages are a reasonable estimation of actual damages agreed to by the parties in advance and recoverable by one party if the other party fails to fulfill its obligations under the contract. See Restatement (Second) of Contracts § 356 (1981); see generally Black’s Law Dictionary 447 (9th ed. 2009). The CO did not assess any liquidated damages against plaintiff for the delay in project completion, as he could have done if he believed that plaintiff was responsible for the delay. Def.’s Resp. to Pl.’s Proposed Findings ¶ 22.
On September 8, 2006, plaintiff submitted to the CO several claims for additional compensation and requested that the CO issue a final decision either approving or denying the claims, as is required by the CDA Def.’s Resp. to Pl.’s Proposed Findings ¶ 26; Compl. Ex. 2; see Pub.L. No. 111-350, § 3,
The parties’ cross-motions for summary judgment are now before the court. As already noted, defendant seeks summary judgment on Claims 1, 2, and 3. See Def.’s Mot. for Summ. J. at 1. For its part, plaintiff seeks summary judgment as to liability on all nine claims in its complaint, as well as on a
II. JURISDICTION AND STANDARD OF REVIEW
A. Jurisdiction
It is beyond dispute that the court has jurisdiction over the case at bar under the Tucker Act operating in conjunction with the CDA. To be sure, the Tucker Act provides jurisdiction over “any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41,” which is the cite to the CDA. 28 U.S.C. § 1491(a)(2), amended by Pub.L. No. 111-350, § 5(g)(7),
B. Summary Judgment Standards
In addition to determining jurisdiction, the court faces cross-motions for summary judgment. See Int’l Elec. Tech. Corp. v. Hughes Aircraft Co.,
A factual dispute is considered “genuine” if it “may reasonably be resolved in favor of either party.” Anderson,
III. DISCUSSION
Plaintiff seeks total damages in the amount of $698,939.16, broken down as follows: $429,478.53 for unabsorbed home office overhead during the four-year period of suspension (Claim 1); $117,295.83 for delayed project completion (Claim 2); $30,749.00 for additional asphalt removal (Claim 3); $103,637.50 for replacement of the first lane of concrete (Claim 4); $1,803.63 for the delay in accessing HARB (Claim 5); $7,999.00 for unforeseen material buried in the existing asphalt (Claim 6); $5,175.00 yet to be paid out of $8,000.28 originally sought for repair of the electrical duct bank (Claim 7); $525.00 yet to be paid out of $3,525.00 originally sought for providing finish grade elevations (Claim 8); and $2,257.00 yet to be paid out of $6,257.00 originally sought for repair of the concrete crack (Claim 9). Compl. ¶¶ 7-17. These amounts are taken from the com
A. Unabsorbed Home Office Overhead (Claim 1)
The court begins with plaintiffs first claim and notes that two salutary facts are clear from the record. First, it is uncontro-verted that the CO issued a notice to proceed on December 1, 2000, then immediately suspended all work under the contract. Def.’s Resp. to Pl.’s Proposed Findings ¶¶ 2-3. Second, it is also uncontroverted that plain tiff did not begin work until nearly four years later, after the Air Force lifted the suspension on October 18, 2004. Id. ¶ 9. It is on these facts that plaintiff seeks compensation for delay based on the notion of recovering for damages on what is termed “unabsorbed home office overhead.”
Home office overhead is among a contractor’s indirect costs, “costs ‘that are expended for the benefit of the whole business, [and] by their nature cannot be attributed or charged to any particular contract.’ ” Nicon, Inc. v. United States,
When the government suspends performance under a contract, however, the contractor ceases to incur direct costs under that contract. See Nicon,
The Federal Circuit has established the so-called Eichleay formula as the exclusive method for calculating a contractor’s unabsorbed home office overhead during a period of government-caused delay after the start of performance.
To establish a prima facie case of entitlement to Eichleay damages, the contractor must satisfy three prerequisites. Id.; P.J. Dick, Inc. v. Principi,
The Federal Circuit has stressed that Eichleay damages are only available when the government-caused delay occurs after performance has begun, thereby extending the period of performance.
1. Plaintiff Is Not Entitled to Eichleay Damages
Here, because plaintiff had not started performance prior to issuance of the suspension order on December 1, 2000, it cannot recover Eichleay damages. Plaintiff contends that issuance of the notice to proceed established the start of performance. Pl.’s Reply in Support of Pl.’s Cross-Mot. for Summ. J. on Liability (“Pl.’s Reply”) at 4. Therefore, according to plaintiff, performance began on December 1, 2000, and was suspended by defendant that same day. See id. However, equating the issuance of a notice to proceed with the start of performance is at odds with both the language of the contract and the parties’ understanding.
The plain language of the contract made clear that the issuance of a notice to proceed and the start of performance were two distinct events. In particular, the contract provided that plaintiff would “begin performance within 14 calendar days ... after receiving ... notice to proceed.” Compl. Ex. 1. Notice to proceed was thus merely the earliest date that performance could begin. This distinction was also reflected in the parties’ actions when performance actually began in 2004. After discussing possible dates with plaintiff, the Air Force issued a second notice to proceed on October 18, 2004, with performance to begin two days later, on October 20, 2004. Pl.’s Resp. to Def.’s Proposed Findings ¶ 11. The parties thus clearly recognized what the contract established: performance commenced, not when the notice to proceed issued, but when work actually began.
2. Plaintiff Cannot Recover Unabsorbed Overhead Using an Alternative Method of Calculation
In the alternative, plaintiff argues that, even if it is not entitled to Eichleay damages, it should be permitted to recover unabsorbed overhead using some other, unidentified method of calculation. Pl.’s Reply at 5 n.1 (citing Nicon,
Yet, Nicon’s holding does not sweep as broadly as plaintiff argues. See Nicon,
As stated above, a plaintiff must meet three prerequisites in order to establish a prima facie case of entitlement to compensation for unabsorbed overhead. First, there must be a government-caused delay of uncertain duration. Id. at 883. Second, the delay must have extended the period of performance beyond what was originally anticipated. Id. Finally, the contractor must have been required to remain on standby during the period of delay. Id. It is undisputed that plaintiff meets the first two prerequisites. See Def.’s Resp. to Pl.’s Proposed Findings ¶ 4; Def.’s Proposed Findings of Uncontroverted Fact ¶¶ 6, 7, 11. However, as explained more fully below, the court concludes that plaintiff was not required to remain on standby during the period of suspension. Accordingly, plaintiff may not recover its unabsorbed overhead, even assuming that Ni-con could be extended beyond cases involving a termination for convenience.
In judging whether a contractor was on “standby” during a period of delay, the court first determines “whether the CO [] issued a written order that [1] suspended] all the work on the contract for an uncertain duration and [2] require[d] the contractor to remain ready to resume work immediately or on short notice. In such a case, the contractor need not offer further proof of standby.” P.J. Dick,
Plaintiff argues that the CO’s suspension order in this case established standby, eliminating the need for further proof. Pl.’s Mot. for Summ. J. at 16-17. To be sure, the suspension order plainly established a suspension of uncertain duration, thus satisfying the first requirement above. See P.J. Dick,
Plaintiff argues that the suspension order required it to be on standby precisely because it was silent on the matter and did not explicitly release plaintiff from the obligation
Simply put, plaintiff grossly miseharacter-izes the court’s holding in Oak Environmental. In Oak Environmental, the court concluded that it was reasonable “for the contractor to be uncertain as to when or if contract performance would resume, and ... to consider the suspension indefinite.” Oak Envtl. Consultants,
Moreover, plaintiffs proposed standard would render superfluous the Federal Circuit’s careful explanation of how a contractor can prove standby by indirect evidence. See P.J. Dick,
Accordingly, because the CO’s suspension order, standing alone, does not establish standby in this case, plaintiff must demonstrate standby through indirect evidence. See P.J. Dick,
Significantly, being “ready to resume work at full speed as well as immediately” is a strict requirement, one that is separate from the requirement that the delay or suspension be of uncertain duration. Id. For instance, if a contractor is given a reasonable amount of time to gather together its equipment and personnel after a suspension is lifted, the contractor is not on standby. Id. Nor is a contractor on standby if the government requires “immediate resumption of the work, but only with a reduced work force [that allows] the contractor to gradually increase its work force.” Id. Rather, in order to be on standby, “the contractor must be required to keep at least some of its workers and necessary equipment at the site, even if idle, ready to resume work on the contract (i.e., doing nothing or working on something elsewhere that allows them to get back to the contract site on short notice).” Id.
Although plaintiff was a local contractor, there is no evidence that it had equipment or personnel at any location either waiting idly for work to begin at HARB or doing work that could be immediately stopped. When asked to detail what resources plaintiff had available during the period of suspension, plaintiffs vice president could not identify any specific resources, but merely offered that plaintiff would have used either in-house equipment or rental equipment. Easom Dep. 22:5-23:4. Thus, rather than keeping resources idle and ready to commence work at HARB immediately, plaintiff evidently relied, at least in part, on its ability to rent equipment in order to begin work when the suspension was lifted. See id. These are signs of a fully employed construction company that would increase its resources to perform additional work, not one that was waiting on standby with its existing resources constantly at the ready.
Also, plaintiff cannot be said to have been ready to perform work immediately because it did not even enter into a contract with one of its primary construction subcontractors, Homestead Paving, until as late as 2004.
Finally, plaintiffs repeated argument that it actually began performance on short notice is unsupported by the facts. See Pl.’s Mot. for Summ. J. at 17; Munz Decl. ¶ 9. In support of this argument, plaintiff points to the two-day period between issuance of the second notice to proceed on October 18, 2004, and the start of performance on October 20, 2004. See Munz Decl. ¶ 9. Yet, this is misleading. After all, plaintiff knew approximately when work would commence no later than August 18, 2004, when it received notice from the CO of a projected start date of September 30, 2004. See Easom Dep. 36:10-38:3; Munz Decl. Ex. B. This notice provided the thirty-day advance notice that plaintiff had consistently requested. See Easom Dep. 36:10-38:3. And the court is not persuaded by plaintiffs argument that a thirty-day notice is consistent with being on standby because it “requires immediate mobilization.” See Pl.’s Mot. for Summ. J. at 17. Quite simply, beginning to “mobilize” is not the same as beginning to work. See P.J. Dicl.,
To be sure, plaintiffs employees insist that plaintiff was on standby. See Easom Dep. 28:2-29:1; Leon Dep. 205:5-8. However, such conclusory statements are insufficient to defeat a motion for summary judgment. See, e.g., Moore U.S.A., Inc. v. Standard Register Co.,
In sum, plaintiff is not entitled to Eichleay damages because those damages are available only for a period of government-caused delay after performance has begun, not in situations such as here where the delay occurred prior to the start of performance. Moreover, plaintiff has failed to satisfy the “strict prerequisites for recovery of unabsorbed overhead costs” because it was not on standby during the period of delay. See Nicon,
B. Delayed Project Completion (Claim 2)
The court next turns to plaintiffs claim for compensation for delayed project completion. As noted above, performance of the contract began on October 20, 2004, and was to be completed by December 19, 2004, a performance period of sixty-one days. Pl.’s Resp. to Def.’s Proposed Findings ¶ 11. However, plaintiff did not complete work on the project until November 5, 2005, and the work was accepted on January 11, 2006. Id. ¶ 18. Thus the period of performance lasted 387 days longer than originally planned.
Plaintiff offers two pieces of evidence in support of this claim. First, plaintiff points to the undisputed fact that the CO did not assess liquidated damages against plaintiff. Def.’s Resp. to Pl.’s Proposed Findings ¶ 22. Plaintiff argues that, had it been responsible for any portion of the delay in project completion, the CO would have assessed liquidated damages. Pl.’s Mot. for Summ. J. at 21. Second, plaintiff points to the CO’s deposition, in which the CO testified that plaintiff and its subcontractors were not responsible for the delay in project completion.
This argument, however, fails as a matter of law and logic. The argument fails as a matter of logic because there “are three potential causes of delay in performance of a contract: the contractor’s actions, the government’s actions, and forces outside the control of both parties.” England v. Sherman R. Smoot Corp.,
And plaintiffs argument also fails as a matter of law because it seeks to revive a presumption that the Federal Circuit has firmly rejected as contrary to the CDA. See id. at 854, 857. In Smoot, the Federal Circuit rejected the so-called McMullan presumption, under which, “when faced with a claim by a contractor for costs incurred as a result of a delay, and the government extended the period of contract performance, the Board [of Contract Appeals] w[ould] invoke a presumption, subject to rebuttal, that the government was at fault for the delay.” Id. at 851 (citing Robert McMullan & Son, Inc., ASBCA No. 19023, 76-1 B.C.A ¶ 11,728). Smoot held that this “presumption is con
In sum, plaintiff has failed to produce any material evidence showing that defendant was responsible for any portion of the 387-day delay in project completion. See Wilner,
C. Milling of Additional Asphalt (Claim 3)
The court next turns to plaintiffs claim for compensation for the milling of additional asphalt, specifically, asphalt in excess of the maximum four-inch depth specified in the contract. Compl. ¶ 9. Section 52.236-2 of the Federal Acquisition Regulation (“FAR”), which was incorporated by the contract, provides that a “Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract.” FAR 52.236-2(a). If, upon notice and investigation, the CO concludes that the encountered “conditions do materially so differ” as to “cause an increase or decrease in the Contractor’s cost,” the CO must make “an equitable adjustment” to the contract and the contract must be “modified in writing accordingly.” FAR 52.236-2(b). However, “[n]o request by the Contractor for an equitable adjustment to the contract” as a result of the differing site condition “shall be allowed, unless the Contractor has given the written notice required.” FAR 52.236-2(e). Thus, a contractor’s failure to notify the CO of the differing site condition bars recovery, at least when the failure results in prejudice to the government. See id.; Ace Constructors, Inc. v. United States,
The excess asphalt allegedly encountered by plaintiff would appear to qualify as a “subsurface or latent physical conditions at the site which differ[ed] materially from those indicated in this contract,” FAR 52.236-2(a). As a threshold matter, however, plaintiff was required to notify the CO in writing of this differing site condition before disturbing it or performing any work not contemplated by the contract. See id.
It is uneontroverted that work at HARB began on October 20, 2004, and that asphalt milling was one of the first tasks to be completed. See, e.g., Pfoh Dep. 31:14-25. However, the parties do not identify, and court cannot locate in the record, any evidence of when the actual milling took place, how long it lasted, or when plaintiff discovered the alleged differing site condition. Plaintiffs RFCO No. 5, which sought compensation for additional asphalt milling, is dated November 1, 2004. See Compl. Ex. 2. Again, however, the parties do not identify, and the court cannot locate in the record, any indication of whether this was plaintiffs first notice to the CO or, for that matter, whether this notice was given before or after any additional milling was performed. According to plaintiffs project manager, the CO was notified of the excess asphalt and the CO approved the additional milling before work began. See Pfoh Dep. 40:7-41:17. The CO, however, testified that he never had the opportunity to investigate the alleged differing site condition and never approved the additional milling. See Burgains Dep. 41:3-24.
D. Concrete Lane Replacement (Claim 4)
Next, the court considers plaintiffs claim for compensation for replacement of the first lane of concrete on the ground that defendant improperly rejected the concrete that plaintiff initially poured. Compl. ¶ 13. Although there is no dispute that plaintiff initially failed to pour the concrete within forty-five minutes of batching, as was specified in the contract, plaintiff claims that the CO’s rejection of this concrete was “arbitrary and unreasonable” because the CO later relaxed the forty-five minute time limit. See Pl.’s Mot. for Summ. J. at 22-23. Plaintiff also disputes the assertions that it improperly added water to the concrete mixture or improperly vibrated the concrete after it was poured. Pl.’s Reply at 18; see Willock Dep. 105:9-108:16,120:1-121:10.
Plaintiffs exact theory of recovery on this claim is unclear, and plaintiff cites no law in support of its motion for summary judgment on this claim. See Pl.’s Mot. for Summ. J. at 22-23; Pl.’s Reply at 17-18. To be sure, plaintiff repeatedly asserts that meeting the forty-five minute time limit was “impossible.” See, e.g., Pl.’s Mot. for Summ. J. at 22. The defense of impossibility, or what is perhaps more appropriately called impracticability in this case, is certainly available to those contracting with the government. See Ace Constructors v. U.S.,
Here, the CO adjusted the terms of the contract before requiring plaintiff to re-pour the first lane of concrete, allowing for up to sixty minutes or longer between batching and pouring of concrete. See Def.’s Resp. to Pl.’s Proposed Findings ¶ 16; Bargains Dep. 132:1-134:10; Willock Dep. 144:19-145:5. Plaintiff argues that this adjustment reveals that it was wrongful for the CO to rely on the delay in pouring as a ground for rejecting the first lane of concrete. See Pl.’s Mot. for Summ. J. at 23. Plaintiff chides the CO for “belatedly performing a ‘test drive,’ which demonstrated the forty-five minute specification was not feasible.” Pl.’s Reply at 17. Yet, plaintiff ignores the fact that its own subcontractor was unaware of the forty-five minute limit and was operating under the assumption that a ninety-minute delay between batching and pouring was acceptable. See Rhodes Dep. 44:15-46:4. More to the point, after plaintiff objected to the forty-five minute time limit, defendant made an adjustment to this term of the contract, which is generally all that the doctrine of impracticability requires of the government. See Raytheon,
In the final analysis, the court concludes that further fact-finding is necessary in order to determine whether the rejected concrete was in fact adequate for its intended purpose, and whether meeting the forty-five minute time limit for delivery and pouring of the concrete was impracticable. Accordingly, plaintiffs motion for summary judgment on this claim must be denied.
E. Delay in Accessing HARB (Claim 5)
Next, plaintiff claims that it was unreasonably delayed in entering HARB on October 18, 2004, and seeks compensation for the cost of this alleged delay. Compl. ¶8. Defendant responds that access to HARB is controlled, that all contractors must be cleared by the base security office before entering, and that plaintiff was not unreasonably delayed. Def.’s Opp’n at 20. Rather, defendant avers, the security process worked as intended. Id.
“Every contract, as an aspect of the duty of good faith and fair dealing, imposes an implied obligation ‘that neither party will do anything that will hinder or delay the other party in performance of the contract.’ ” Essex Electro Eng’rs v. Danzig,
Here, the only evidence that plaintiff cites in support of its motion for summary judgment on this claim is the declaration of its own officer, Charles Munz, stating that defendant “unreasonably delayed security clearance for the personnel of Redland and its subcontractors.” See Pl.’s Mot. for Summ. J. at 26; Munz Decl. ¶ 10. This self-serving and conclusory statement is insufficient to resolve the genuine issues of material fact surrounding this claim. Cf. Moore U.S.A., Inc. v. Standard Register Co.,
F. Partially Compensated Additional Work (Claims 6, 7, 8, and 9)
For some of the additional work that plaintiff performed, the CO approved additional compensation. Def.’s Resp. to Pl.’s Proposed Findings ¶¶ 18-20. Plaintiff alleges, however, that it was not fully compensated for this additional work, which included removing unforeseen concrete and metal (Claim 6), repairing the electrical duct bank (Claim 7), providing finish grade elevations (Claim 8), and repairing the crack in the concrete (Claim 9). Compl. ¶¶ 10-12. Plaintiff asks for summary judgment as to liability on these four claims, arguing that the CO’s approval of some compensation for this additional work is sufficient to establish defendant’s liability. Pl.’s Mot. for Summ. J. at 24-26.
Plaintiff apparently regards these items of additional work as breaches of contract by defendant, arguing that it “indisputably encountered unforeseen conditions and changed work” and is thus “entitled to summary judgment on its breach of contract claim against the [gjovernment.” Pl.’s Mot. for Summ. J. at 13. However, this argument overlooks the distinction in government contract law between claims for relief under contract clauses and claims for breach of contract.
The typical federal government contract contains numerous standard clauses granting remedies to either the contractor or the government. See, e.g., FAR 52.236-2 (Differing Site Conditions); FAR 52.243-4 (Changes). As the Federal Circuit has explained, “contingencies contemplated by various contract clauses are remediable under those clauses of the contract, not as a breach of the contract.” Triax-Pacific v. Stone,
Here, the CO did not issue any formal change orders in advance of plaintiffs performance of the additional work. Therefore, plaintiffs claims for compensation for additional work are properly analyzed as claims for equitable adjustments due to constructive changes to the contract.
Here, the uncontroverted facts establish that there were constructive changes to the contract, requiring removal of unforeseen concrete and metal, repair of an electrical duct bank, and provision of finish grade elevations. See Burgains Dep. 40:6-18, 50:25-51:8; Easom Dep. 111:25-115:5, 120:8-16; Leon Dep. 49:6-51:9, 171:1-172:11; Pfoh Dep. 78:1-79:11, 143:8-144:4; Willock Dep. 97:8-23. Defendant concedes that it ordered these changes and that they were outside the contract requirements. See Def.’s Resp. to Pl.’s Proposed Findings ¶¶ 18, 19, 21. Accordingly, there are no genuine issues of material fact as to defendant’s liability for these three constructive changes, and plaintiff is thus entitled to summary judgment as to liability on Claims 6, 7, and 8.
Nonetheless, the court finds that genuine issues of material fact do exist as to whether plaintiffs repair of the concrete crack amounted to a constructive change to the contract. Plaintiff asserts that the crack was partial-depth, requiring only a limited repair under the terms of the contract. See PL’s Mot. for Summ. J. at 24; Rhodes Dep. 77:20-78:8. The CO instead required plaintiff to make the more extensive repair required for a full-depth crack, which involved removal and replacement of an entire section of concrete. See Def.’s Resp. to Pl.’s Proposed Findings ¶ 20; Willock Dep. 200:3-15. Whether this repair was outside the requirements of the contract thus turns on whether the crack was, in fact, full-depth or partial-depth. Although the CO granted plaintiff partial compensation for the repair, this court’s “[d]e novo review [under the CDA] precludes reliance upon the presumed correctness of th[at] decision.” Smoot,
G. Breach of Contract Claim
Finally, plaintiff seeks summary judgment as to liability on a breach of contract claim, asserting that if it prevails on summary judgment with respect to any of its other claims, then it is entitled to summary judgment on a claim for breach of contract. However, this breach of contract claim is not contained in the complaint. Plaintiff could have sought to amend its complaint to add this claim, but did not do so. When a plaintiff raises new claims at this stage of litigation, the defendant is left at a disadvantage because it has not been given an opportunity to prepare for those claims during discovery. See Lawmaster v. Ward,
IV. CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN PART, and plaintiffs motion for summaiy judgment is GRANTED IN PART and DENIED IN PART. Specifically:
(1) defendant’s MOTION for summary judgment is GRANTED as to CLAIM 1 (unabsorbed home office overhead) and CLAIM 2 (delayed project completion) and DENIED as to CLAIM 3 (additional asphalt milling); and
(2) plaintiffs MOTION for summary judgment as to liability is GRANTED as to CLAIMS 6, 7, and 8 (equitable adjustment for removal of unforeseen concrete and metal, repair of an electrical duct bank, and
The parties SHALL file, no later than May 6, 2011, a JOINT STATUS REPORT suggesting a procedural course for resolving the remaining issues.
IT IS SO ORDERED.
Notes
. On January 4, 2011, Public Law No. 111-350 was signed into law, reorganizing Title 41 of the United States Code. See Act of Jan. 4, 2011, Pub.L. No. 111-350, 124 Stat. 3677 (2011). The original location of the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-13, has been replaced by 41 U.S.C. §§ 7101-09. See Pub.L. No. 111-350, § 7,
. The Eichleay method for calculating unabsorbed overhead is as follows: “(1) to find alloca-ble contract overhead, multiply the total overhead cost incurred during the contract period times the ratio of billings from the delayed contract to total billings of the firm during the contract period; (2) to get the daily contract overhead rate, divide allocable contract overhead by days of contract performance; and (3) to get the amount recoverable, multiply the daily contract overhead rate times days of government-caused delay.” Wickham Contracting Co., Inc. v. Fischer,
. The Eichleay formula has long been the subject of criticism. See, e.g., Ralph C. Nash & John Cibinic, Postscript: Unabsorbed Overhead and the "Eichleay " Formula, 17 No. 6 Nash & Cibinic Report ¶ 33 (Jun. 2003) ("As best we can tell, the entire standby rule has little or nothing to do with home office overhead.... Yet the Federal Circuit has devised this stringent standby rule to kill Eichleay damages and, at the same time, seems still to believe that there is no other means of proving unabsorbed overhead.”); Ralph C. Nash & John Cibinic, Unabsorbed Overhead and the "Eichleay ” Formula: Rampant Confusion, 16 No. 5 Nash & Cibinic Report ¶ 23 (May 2002) ("One of the most confusing issues in the pricing of claims by construction contractors is the proper application of the Eichleay formula in computing home office overhead.”). The Federal Circuit has noted that, given the long-standing nature of the Eichleay formula, any change to the formula should come from Congress. See Capital Elec. Co. v. United States,
. A termination for convenience occurs when the government ends performance of work under a contract because it determines that doing so is in the government’s interest. FAR 2.101 (b).
. Although the suspension order identified the date of suspension as December 1, 2001, the parties agree that the actual date of suspension was December 1, 2000. See Def.'s Resp. to Pl.’s Proposed Findings ¶ 3.
. It is also unclear when plaintiff entered into a contract with APAC, its subcontractor for asphalt paving and milling. See Easom Dep. 55:25-56:1.
. Based on the dates provided by the parties, the ' performance period was actually 388 days longer than anticipated. However, because plaintiff has alleged only 387 days of delay, the court uses that number.
. The court notes that this statement by the CO is at odds with some of his actions in administering the contract, specifically, his rejection of work (such as the first lane of concrete) as defective. Nevertheless, for the purposes of defendant’s summaiy judgment motion, the court draws all inferences in favor of plaintiff. See Anderson v. Liberty Lobby, Inc.,
. Nevertheless, a constructive contract change can be a breach of contract if it is a cardinal change, i.e., a change that requires work materially different from that specified in the contract. See Int’l Data Prods.,
. Of course, proving that a constructive change occurred does not necessarily entitle a contractor to additional compensation. See FAR 52.243-4(d) (requiring an equitable adjustment when a change results in an increase or decrease in the contractor’s cost of performance).