885 F.3d 1351 (Fed. Cir. 2018), 2017-1584, Meridian Engineering Company v. United States

Docket Nº:2017-1584
Citation:885 F.3d 1351
Opinion Judge:Wallach, Circuit Judge.
Party Name:MERIDIAN ENGINEERING COMPANY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
Attorney:Maria L. Panichelli, Cohen Seglias Pallas Greenhall & Furman PC, Philadelphia, PA, argued for plaintiff-appellant. Also represented by Michael H. Payne. Eric Laufgraben, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appelle...
Judge Panel:Before Prost, Chief Judge, Reyna and Wallach, Circuit Judges.
Case Date:March 20, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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885 F.3d 1351 (Fed. Cir. 2018)

MERIDIAN ENGINEERING COMPANY, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee

No. 2017-1584

United States Court of Appeals, Federal Circuit

March 20, 2018

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[Copyrighted Material Omitted]

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Appeal from the United States Court of Federal Claims in No. 1:11-cv-00492-SGB, Chief Judge Susan G. Braden.

Maria L. Panichelli, Cohen Seglias Pallas Greenhall & Furman PC, Philadelphia, PA, argued for plaintiff-appellant. Also represented by Michael H. Payne.

Eric Laufgraben, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Allison Kidd-Miller; John Francis Bazan, Sr., United States Army Corps of Engineers, Los Angeles, CA.

Before Prost, Chief Judge, Reyna and Wallach, Circuit Judges.

OPINION

Wallach, Circuit Judge.

Meridian Engineering Company (" Meridian" ) appeals two final decisions of the U.S. Court of Federal Claims determining, inter alia, that (1) Meridian did not meet standards of proof to show that the United States (" Government" ) breached certain contractual obligations and its duty of good

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faith and fair dealing in a dispute under the Contract Disputes Act, 41 U.S.C. § § 601-613 (2006) (" CDA" ) related to the construction of a flood control project in Nogales, Arizona, see Meridian Eng’g Co. v. United States (Meridian I), 122 Fed.Cl. 381, 384, 400 n.25, 426 (2015); J.A. 3000-53 (Second Amended Complaint), and (2) Meridian was owed certain monies for equitable adjustment and interest on the payments running from the date Meridian submitted its claim, January 7, 2014, see

Meridian Eng’g Co. v. United States (Meridian II), 130 Fed.Cl. 147, 172 (2016). We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm-in-part, vacate-in-part, reverse-in-part, and remand.

BACKGROUND1

In 2007, Meridian entered into a contract with the Government to construct flood control structures, referred to as the Chula Vista Project. Meridian I, 122 Fed.Cl. at 385-86. The Project contemplated construction of several concrete channels, relocation of a sewer line, and dewatering and water diversion. See J.A. 1044-627 (Contract). After commencing the Project, Meridian encountered a series of problems relating primarily to what it deemed " subsurface organic/unsuitable material," specifically, " a layer of dripping saturated dark clay material under which a clean layer of sand is producing water" that had " the potential for serious structural damage." J.A. 1810; see Meridian I, 122 Fed.Cl. at 388 (describing " softer-than-anticipated soils" ), 390-92 (describing modifications pursuant to discovery of " saturated soils" ). Meridian notified the Government about these problems, and the Government issued several Contract modifications in response. See

Meridian I, 122 Fed.Cl. at 388-90 (describing modifications for increase in allotted funds for larger pipe size, addition of a reinforced concrete access ramp, investigation of soil properties, remediation of saturated soils, and additional sheet piling). Eventually, the Government directed Meridian to suspend work on the Project in January 2009 following a series of structural failures, see J.A. 3127-28, and, while minor work continued, the Government ultimately terminated the Project following a September 2009 final inspection of the Project site, see Meridian I, 122 Fed.Cl. at 394-96.

Following the parties’ disagreements over payment owed to Meridian, Meridian filed suit in the Court of Federal Claims for breach of contract, breach of the duty of good faith and fair dealing, and a violation of the CDA. See J.A. 127, 3000-53. The Government conceded liability for costs relating to three counts of Meridian’s Second Amended Complaint (Counts VII-IX), which were the subject of a separate damages trial. See J.A. 3032-36 (Count VII (Suspension of Work), Count VIII (Channel Fill), Count IX (Interim Protection) ). See generally Meridian II, 130 Fed.Cl. 147. Because the Government now concedes the only issue with respect to Meridian II ,[2] the remainder of this opinion addresses determinations from Meridian I .

DISCUSSION

I. Standard of Review

We review the Court of Federal Claims’ legal conclusions de novo and its

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factual findings for clear error. See John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1353 (Fed. Cir. 2006), aff’d 552 U.S. 130, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). " A finding may be held clearly erroneous when the appellate court is left with a definite and firm conviction that a mistake has been committed." Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005) (internal quotation marks, ellipsis, and citation omitted).

II. CDA Claims

Meridian asserts that the Court of Federal Claims erred when it " reasoned that only Meridian’s breach of contract and breach of good faith and fair dealing claims presented a viable cause of action," because " Meridian’s CDA claims should have been analyzed under the framework contemplated by the CDA, and not under the rubric of a ‘breach’ claim." Appellant’s Br. 23, 24 (capitalization modified). However, Meridian does not explain the alternate CDA framework to which it refers, nor does it state how analysis under a different hypothetical framework would result in a finding in its favor. See id. at 22-25 (stating only that the use of the breach of contract standard " skewed" the Court of Federal Claims’ analysis).

" The[ ] requirements of the CDA are jurisdictional prerequisites to any appeal." M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1328 (Fed. Cir. 2010) (citation omitted); see K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1004 (Fed. Cir. 2015) (reviewing de novo whether the Court of Federal Claims had jurisdiction under the CDA). Pursuant to the CDA, a party must submit a " valid claim," which is defined by regulation as a demand seeking " as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract." M. Maropakis, 609 F.3d at 1327 (quoting 48 C.F.R. § 33.2013 ). Thus, the CDA itself does not provide a cause of action to which money damages may accrue; it is the claim asserted pursuant to the CDA that is the source of potential damages and review by the trier of fact. See Northrop Grumman Computing Sys., Inc. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (explaining the prerequisites for a valid claim brought under the CDA, which is a jurisdictional requirement to obtain relief). Therefore, the Court of Federal Claims did not err in finding it had jurisdiction under the CDA to evaluate Meridian’s breach of contract claims.

III. The Court of Federal Claims Did Not Err in Its Differing Site Conditions Analysis (Counts II and V)

The Court of Federal Claims found that Meridian did not offer sufficient evidence to satisfy its Type I differing site condition (" DSC" ) claim alleging that in the channel

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and sewer line areas of the project the unexpected conditions of " soupy" soil caused delays and imposed unanticipated costs.4 Meridian I, 122 Fed.Cl. at 403; see id. at 408-09. Meridian posits several errors in the Court of Federal Claims’ analysis.5 See Appellant’s Br. 27-40. After articulating the applicable legal standard, we address each argument in turn.

A. Legal Standard

" A Type I [DSC claim] arises when the conditions encountered differ from what was indicated in the contract documents." Renda Marine, Inc. v. United States, 509 F.3d 1372, 1376 (Fed. Cir. 2007); see FAR 52.236-2(a)-(b) (" The Contractor shall promptly ... give a written notice to the [CO] of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract. ... The [CO] shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause ...." ).6 To prevail on a Type I DSC claim, a contractor must prove that: (1) " a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site conditions" ; (2) " the actual site conditions were not reasonably foreseeable to the contractor, with the information available to the particular contractor outside the contract documents" (i.e., reasonable foreseeability); (3) " the particular contractor in fact relied on the...

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