Brock & Blevins Company v. United States

• Decision Date: 16 April 1965
• Docket Number: No. 292-59.,292-59.
• Citation: 343 F.2d 951
• Parties: BROCK & BLEVINS COMPANY, Inc. v. The UNITED STATES.
• Court: U.S. Claims Court

343 F.2d 951 (1965)

BROCK & BLEVINS COMPANY, Inc. v. The UNITED STATES.

No. 292-59.

United States Court of Claims.

April 16, 1965.

Gaines V. Palmes, Washington, D. C., for plaintiff.

John R. Franklin, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DURFEE, Judge.

This is a suit to recover damages for delays due to the fault of the Government arising out of a subcontract (later assigned to the Department of the Army), entered into by plaintiff with the prime contractor, Hiwassee Constructors on October 27, 1952. The subcontract covered rehabilitation of piping, mechanical and electrical equipment of the North Acid area of the Volunteer Ordnance Works at Chattanooga, Tennessee.

Plaintiff claims damages for breach of the subcontract through unreasonable delays caused by defendant which increased its cost for equipment, overtime and overhead. More specifically, plaintiff claims that defendant's refusal to grant time extensions until after the expiration of the original contract performance period coupled with defendant's demands throughout the original performance period that plaintiff complete its subcontract on time despite delays caused by defendant, caused great overtime expense, thereby increasing the cost of performing the contract.

Defendant, besides denying that it caused any delay to plaintiff, has raised several defenses including lack of privity between plaintiff and defendant, accord and satisfaction, and plaintiff's failure to exhaust its administrative remedy. We believe that plaintiff's claim may be disposed of on the ground that an accord and satisfaction was agreed upon by the parties, and therefore will limit ourselves to that aspect of the case.¹

At the outset, let us make clear our belief that there is no doubt that plaintiff suffered considerable expenses as the result of Government occasioned delays. Our findings of fact establish that plaintiff was delayed a total of 60 days in the completion of the work. It would be far too cumbersome to examine the specifics of each delay claim in the body of this opinion, so for the sake of brevity, they will not be delved into further.

The contract in issue contained no specific provision authorizing payment for delays, such as a "suspension of work" clause which is sometimes so treated. It did contain a "changes" clause which provided for an equitable adjustment for the reasonable cost of performing extra work. Due to hastily drafted and incomplete specifications, plaintiff was compelled to perform a great amount of extra work, work not included in the original contract specifications. At various times during the performance of the contract, plaintiff was given equitable adjustments in the form of additional compensation for the performance of extra work. Also, at various times during performance, plaintiff requested extensions of time due to the quantity of extra work ordered outside the original contract. These requests were rejected however, and plaintiff had to use extra help and pay overtime wages in an attempt to complete the contract on time. Finally, eight days after the scheduled completion date of the contract, plaintiff was allowed an extension of time. Subsequent extensions of time were thereafter given; however, they came too late to benefit plaintiff. The rejections of plaintiff's requests for time extensions caused plaintiff to make unnecessary expenditures in overtime in order to meet a completion date which intervening circumstances (Government caused delays) had made unrealistic. The subsequent time extensions which were granted could in no way have helped plaintiff avoid the previous investments in overtime. Had plaintiff been able to anticipate the time extensions which were eventually granted, the overtime and extra forces which it employed to accelerate completion of the original subcontract work would have been sharply reduced, if not eliminated.

After completion of the contract, plaintiff was not satisfied with two contract modifications which had been proposed as payment for some of the aforementioned extra work. Plaintiff accepted the sums offered, but not unqualifiedly, as it reserved its rights in this matter and specifically stated in written form that it was appealing to the Chief Engineer, Washington, D. C. for the additional sums to which plaintiff believed it was entitled.

After a duly filed notice of appeal, plaintiff filed its appeal with the Engineers Claims and Appeals Board, seeking payment of $265,688.03 as additional equitable adjustment under the contract. Representatives of plaintiff then agreed to meet with the Division Engineer, South Atlantic Division, Corps of Engineers, in an attempt to work out a fair price for the performance of the work in issue.² The parties met for a 30-day period, and considered in great detail the aspects of plaintiff's claim. Thereafter, the Division Engineer put out a detailed Conferees Report on Review of Claim which concluded that plaintiff was entitled to be paid $114,673.28 more than it had been paid in the two aforementioned contract modifications. The following conclusions were among those agreed to by the conferees:

(1) A forty-hour work week was used from the start of construction through January 1953.

(2) A forty-eight hour work week or more was used from February 1953 through to completion.

(3) There was approximately a 300 percent turnover in labor.

(4) There was no delay in construction due to late delivery of materials or equipment.

(5) The agreement on the amount of direct labor involved in the disputed items was increased by one-third to provide for lost time, on the basis of two hours lost time for each 8 hour work day.

(6) An amount of 16 2/3 percent was included in the estimates for overtime premium payment, based on an average week of 48 hours with premium payment for 8 hours.

(7) Allowances for overhead included, among other matters, costs of supervision, tools, equipment and supplies, and equipment operators.

The Conferees Report was sent to the contracting officer who would not accept it. However, plaintiff then submitted the dispute to the Engineers Claims and Appeals Board on the record, including the Conferees Report. The Board found plaintiff due the sum of $116,057.28. The Chief of Engineers approved the decision. Modification No. 14 to the contract was issued, authorizing payment of this sum to plaintiff. Plaintiff signed its acceptance and made no reservations, exceptions, or other claims at that time.³ Plaintiff executed a final payment estimate in the amount of $116,057.28 under the certification that "The above bill is correct and just * * *."

From the above resume of the pertinent facts in this case, we conclude that an accord and satisfaction exists, which precludes plaintiff from any further recovery. There are certain elements of the equitable adjustment here that are virtually interchangeable with delay-damage ingredients. In fact, it is evident that much of the extra work came about as a result of the delay. Plaintiff maintains, and we agree, that had a time extension been given in order to rectify the hold up...