Tuttle/White Constructors, Inc. v. US, 205-80C.

• Decision Date: 29 July 1981
• Docket Number: No. 205-80C.,205-80C.
• Citation: 656 F.2d 644
• Parties: TUTTLE/WHITE CONSTRUCTORS, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

656 F.2d 644

TUTTLE/WHITE CONSTRUCTORS, INC. v. The UNITED STATES.

No. 205-80C.

United States Court of Claims.

July 29, 1981.

David L. Reynolds, Jackson, Miss., atty. of record, for plaintiff. Benjamin P. Fishburne, III, Robert B. Wallace, Carol M. Welu, Surrey & Morse, Washington, D. C., and Reynolds, Mockbee & Johnson, Jackson, Miss., of counsel.

Robert E. Richardson, Washington, D.C., with whom was Acting Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant. Thomas W. Petersen, Ray Goddard, Washington, D. C., and Alva A. Hall, Division Trial Atty., and Anne W. Westbrook, Asst. Dist. Counsel, U. S. Army Corps of Engineers, of counsel.

Before NICHOLS, KUNZIG and SMITH, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SMITH, Judge:

This Government contract case, on which we have heard oral argument, is before the court on defendant's motion for summary judgment. We are unable to find, in the particular circumstances of this case, that plaintiff elected to proceed under the Contract Disputes Act of 1978.¹ Accordingly, we grant defendant's motion.

I.

On September 28, 1977, plaintiff entered into a contract with the Department of Army Corps of Engineers for the construction of an enlisted men's barracks complex at Fort Bragg, North Carolina. The contract (No. DACA21-77-0166) specified that a substantial portion of the barracks was to be constructed with masonry units, known as CMU blocks. During construction, the parties disagreed as to whether the interior walls of the barracks should be assembled in a stack bond fashion or in a running bond pattern. Although plaintiff had interpreted the contract to call for the stack bond pattern, defendant nevertheless directed plaintiff to lay the CMU blocks in a running bond pattern. Since the use of the running bond pattern significantly increased plaintiff's costs, plaintiff submitted a claim to the contracting officer for an equitable adjustment of the contract to cover its additional costs.

Plaintiff's claim for equitable adjustment was denied by the contracting officer on May 16, 1979. In the denial letter of that date he stated:

This is my final decision as Contracting Officer. Decisions on disputed questions of facts and on other questions that are subject to the procedures of the Disputes clause may be appealed in accordance with the provisions of that clause. If you decide to make such an appeal from this decision, written notice thereof (in triplicate) must be mailed or otherwise furnished to the Contracting Officer within 30 days from the date you receive this decision. Such notice should indicate that an appeal is intended and should reference this decision and identify the contract by number. * * * Please advise this office if you elect to have this dispute subject to the Contract Disputes Act of 1978. You have already been furnished a copy of this Act.

In response, plaintiff's project manager advised the contracting officer by letter dated June 4, 1979, as follows:

Reference is made to your letter of May 16, 1979 regarding your final decision in the matter of the masonry walls in the Barracks buildings being installed in a running bond pattern.

This is our notice to you that we desire to appeal from this decision.

This letter made no reference to the Contract Disputes Act.

The Armed Services Board of Contract Appeals (ASBCA) processed plaintiff's letter as an appeal to it and informed plaintiff by certified mail² of the ASBCA docket number it had assigned to the appeal. At that time plaintiff was notified that its appeal would be governed by the rules of the ASBCA. Plaintiff raised no objection nor indicated any desire on its part to pursue its claim in this court under the Contract Disputes Act. Subsequently, plaintiff allegedly decided to withdraw its appeal because the parties had continued to negotiate with the contracting officer and were trying to arrive at a mutually acceptable settlement. Plaintiff requested a dismissal of the appeal. Pursuant to this request, the ASBCA dismissed plaintiff's appeal with prejudice on September 10, 1979.

On May 2, 1980, plaintiff petitioned this court, pursuant to the Contract Disputes Act, for a trial de novo on its claim. Defendant at that point refused to proceed with the scheduled negotiations. Defendant now moves for dismissal of the petition but so informs the court that it will not oppose reinstatement of this plaintiff's appeal before the ASBCA. It is defendant's position that the ASBCA appeal foreclosed plaintiff's right to proceed in this court under the Contract Disputes Act. Plaintiff, on the other hand, argues that the mere assignment of a docket number by the ASBCA cannot bar an otherwise valid election and insists that the court's recent holding in National Electric Coil³ compels us to allow plaintiff to proceed with its suit in this court. We do not agree with plaintiff and, based on the following, we grant defendant's motion.

II.

With the passage of the Contract Disputes Act, a new era in the resolution of Government contracts emerged. One of its most significant reforms was to present an alternative to the administrative appeal in contract disputes. Under the new law, which applies to all contracts entered into on or after March 1, 1979, a contractor either can appeal an adverse final decision to the appropriate board of contract appeals⁴ or seek relief from the contracting officer's decision directly in this court.⁵ Given the fundamental differences between the two forums, the contractor thus must make an important initial strategic decision; namely, which forum would be better suited to hear its particular claims.⁶

With respect to pre-March 1, 1979, contracts, section 16 of the act provides that "notwithstanding any provision in a contract made before the effective date of this Act, the contractor may elect to proceed under this Act with respect to any claim pending then before the contracting officer or initiated thereafter."⁷ (Emphasis supplied.) In other words, although the Contract Disputes Act does not automatically apply to such contracts, including the one here in dispute, the contractor is given the right to elect to have the act extend to such claims. In these circumstances, the contractor would have to make two distinct elections. First the contractor must decide whether to elect to proceed under the new act at all. If that election is made, the contractor would further have to choose a forum in which to pursue its claim. Absent an election to proceed under the new act, the disputes clause of the pre-March 1, 1979, contract would govern the resolution of the dispute.

That being the case, we must find that plaintiff at an appropriate point elected to have the parties' pre-March 1, 1979, contract governed by the new act. We find that plaintiff has failed to make that election. Although the contracting officer had requested that plaintiff notify his office if plaintiff intended to proceed under the act, plaintiff submitted, pursuant to the procedures set forth in the contract's disputes clause, its notice of appeal to the contracting officer without any mention of the new act. Nor did plaintiff elect to have the dispute subject to the Contract Disputes Act when it received notice of the docketing by the ASBCA.

Plaintiff vigorously argues that it elected to have the dispute subject to the Contract Disputes Act when it instituted the present suit. Having withdrawn the former appeal, plaintiff contends that it was free to elect to proceed in this court under the Contract Disputes Act. We do not agree; plaintiff originally chose to appeal the contracting officer's adverse decision to the ASBCA and now that choice must stand. Plaintiff appealed the contracting officer's final decision to the ASBCA, and once this avenue was chosen for resolution of its dispute, we hold that plaintiff could no longer elect to bring suit directly in this court under the Contract Disputes Act.

It is a fact that the Contract Disputes Act does not set forth a specific time period within which an election to proceed under that act must be made, nor does the act prescribe the manner in which such election must be made. However, it is clear that, for the comprehensive purposes of the act to be implemented, the contractor is under certain compulsions of time and choice that point to a requirement that the contractor make a positive election whether to come under the act at such time and in such manner as are consistent with the options that it has and which remain open to it from time to time. For example, in a pre-March 1, 1979, contract, where a contractor makes a conscious and unwavering election to proceed under the disputes clause of the contract, it obviously must move to implement that election within 30 days of the contracting officer's final decision. Where a contractor makes a conscious and unwavering election to proceed under the act and before a board, it obviously must implement that election within 90 days of the final decision. Where a contractor makes a conscious and unwavering decision to come under the act and proceed directly to this court, it obviously must implement that election by filing a petition here within 12 months of the final decision of the contracting officer. Thus, had plaintiff not responded to the contracting officer and to the board as it did, it clearly could have done nothing for almost 12 months and then could have availed itself of direct access to this court, or abandoned its claim. In choosing direct access it would of necessity have had to invoke the act. Those are not the facts of this case.

In response to the contracting officer's notice that questions which are subject to the procedures of the disputes clause may be appealed by written notice to the contracting officer within 30 days, plaintiff, within such 30-day period, responded that it desired to appeal. With respect to the contracting officer's request that his office be advised...