Bowman Constr. Co. v. United States

• Decision Date: 14 June 2021
• Docket Number: No. 18-1822C,18-1822C
• Parties: BOWMAN CONSTRUCTION CO., Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

BOWMAN CONSTRUCTION CO., Plaintiff,
v.
THE UNITED STATES, Defendant.

No. 18-1822C

United States Court of Federal Claims

June 14, 2021

Motion to Dismiss; Contract Disputes Act; Statute of Limitations; Termination for Default; Surety; Failure to Present Claim to Contracting Officer; Vague Claims.

Spencer L. Sears, Erin Frazee Masini, Fox Rothschild LLP, 1030 15th Street, N.W., Suite 380 East, Washington, D.C. 20005, for Plaintiff.

Jeffrey Bossert Clark, Robert E. Kirschman, Jr., Patricia M. McCarthy, Michael Duane Austin, United States Department of Justice, Civil Division, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, for Defendant. Alexander Fichtel, United States Department of the Interior, Of Counsel.

OPINION, ORDER OF PARTIAL DISMISSAL, AND ORDER TO SHOW CAUSE

WILLIAMS, Senior Judge.

Defendant seeks dismissal of this Contract Disputes Act ("CDA") case on statute of limitations grounds. In October 2012, the contracting officer issued a final decision terminating for default Plaintiff's contract for construction of a bicycle trail in Voyageurs National Park, Minnesota. Although Plaintiff was required to appeal that decision within one year under the CDA, Plaintiff did not take any action to challenge that decision until some five years later in October 2017. Then, in what it characterized a "claim," Plaintiff argued that the Government wrongfully terminated its contract and sought $837,759.21 representing reimbursement of the amounts its Surety paid for excess reprocurement costs, as well as unpaid invoices, costs of services and materials, work done by subcontractors, extended overhead, and "loss of bonding power" and future Government work. The Government denied this 2017 claim, and Plaintiff appeals the denial in this Court.

Defendant argues that this action, filed in 2018, is an untimely challenge to the 2012 decision terminating the contract for default. The Court agrees that Plaintiff was required to file

Page 2

an appeal of the termination decision within one year under the CDA and failed to do so, making Plaintiff's attempted challenge to the termination decision time-barred. Nor can Plaintiff maintain an action to recover the amount that its insurer, Old Republic Surety Company ("Surety"), paid the Government due to Plaintiff's default. Plaintiff has not established the jurisdictional predicate for this claim as the Government never asserted a CDA claim for excess reprocurement costs and Plaintiff never appealed a contracting officer's final decision assessing those costs. Rather, the Surety paid those costs standing in Plaintiff's shoes, and Plaintiff acquiesced in that payment by confessing judgment in favor of the Surety in state court. In this action, Plaintiff also asserts claims for lost profits stemming from the alleged bad-faith termination and for home office overhead, but these claims were never presented to a contracting officer and must be dismissed.

Plaintiff's claim for unpaid invoices survives the motion to dismiss because Plaintiff has alleged that these invoices cover work performed and accepted prior to the termination.

The Government contends that the remaining elements of this action and Plaintiff's 2017 claim -- costs for surveying, subcontractor work, stump removal, erosion and stabilization fabrics, supervisor labor, extended overhead, and additional clearing work -- are also challenges to the termination for default dressed up as separate monetary claims and that an appeal of the denial of those claims is time-barred. The Court cannot resolve this aspect of the Government's argument because Plaintiff has failed to articulate the bases for these claims. As such, the Court defers resolving Defendant's motion as to those claims pending further development of the record.

Background¹

The Solicitation

On July 13, 2011, the National Park Service issued a solicitation seeking bids for construction of a 1.78 mile-long, 10-foot wide paved bicycle trail in Voyageurs National Park near International Falls, Minnesota. The procurement was a "100% Total Small Business set-aside." ECF No. 73-1 at 2. Bidders were required to submit bids for 30 line items and, if selected, were to provide "all labor, equipment, supervision and materials necessary" for construction of the bike trail. Id. at 7; ECF No. 73-3 at 3. The line items included materials and services, such as geotextile fabrics, rip rap and barrow, aggregate base, bituminous concrete pavement, turf establishment, rock blasting, clearing, stump removal, surveying and staking, and construction of temporary access drives and a parking area.

The solicitation stated:

B.2 BID SCHEDULE

. . .

Submit bid for all items; failure to do so may render the bid non-responsive. On lump-sum bid items, provide total price only; on unit price bid items, provide the unit price and the extended amount of bid.

Page 3

Quantities for unit price items are estimated, but payment will be made only for actual quantities of work completed.

ECF No.73-1 at 7. On August 15, 2011, Plaintiff, Bowman Construction Company, Inc. ("Bowman"), submitted its bid in the amount of $1,204,902, and on September 22, 2011, the National Park Service awarded Plaintiff Contract No. P11PC60388 ("the Contract").

Performance

The agency issued a notice to proceed on October 24, 2011. As of an October 24, 2011 construction meeting, performance "proceeded in a timely fashion with surveying discrepancies, blasting plans and protocols, approval of class 5 barrow and field adjustments amicably resolved." ECF No. 64-1 at 2. On December 12, 2011, due to "winter weather conditions, the Government halted work at approximately one-third completeness." Second Am. Compl. ¶ 30; see Answer ¶ 30; ECF No. 37-7 at 1.

During the winter shutdown, the parties met and discussed a potential need for more topsoil, and issues with parking area grades, drainage, and slopes. On March 19, 2012, the parties agreed on Amendments 0001 and 0002 "to increase and adjust unit measurements and volumes." ECF No. 64-1 at 3.

Work on the project resumed on April 30, 2012. In mid-April 2012, the parties discussed "the contract limitation on imported common and granular barrow," and in May, Plaintiff informed contracting officer ("CO") S. Dale Allen that it would exceed the barrow limitation. Id. at 3-4. On May 22, 2012, the contract specialist, Karen Thomas, advised Plaintiff that she would issue Amendment 0003 to the Contract, allowing for an additional 3,600 tons of barrow, and granting a price increase based on a cost of $10 per ton.

It appears that between June 11 through September 29, 2012, no work was performed on the bike trail, and that on June 14, 2012, Plaintiff removed its machinery and workers from the worksite.

On July 18, 2012, the contracting specialist issued Amendment 0003 apparently increasing granular barrow and agreeing to pay an additional $35,000.² The parties continued to have disputes into August 2012, regarding additional fill material and grade slopes. On August 4, 2012, the Government issued Amendment 0004, providing an unspecified payment for an additional 1,743 tons of granular barrow.

On August 15, 2012, Plaintiff advised the contracting officer that it would "not submit a fixed price to shape the slopes of the bike trail. There are no 'true grades' to meet: ....only the whim of your inspector David Draipsa [sic]." ECF No. 64-1 at 6. In response, on August 22, 2012, CO Allen advised Plaintiff that "the Default Clause for fixed price contracts would be used" if Plaintiff did not restart work on the bike trail using on-site fill. Id. On August 26, 2012, Plaintiff replied that it was unable to continue work until the Government clarified the slope grades, addressed the insufficient fill on site, and guaranteed the unit price Plaintiff would be paid for work under these unit price line items.

Page 4

On September 4, 2012, the Government notified Plaintiff that it was required to have a site superintendent at the parking lot worksite. On September 13, 2012, after receiving no response from Plaintiff, the Government issued a stop work order for work on the parking lot "for failure to provide proper oversight of the construction project." ECF No. 78-1.

The Cure Notice and Termination

On September 12, 2012, the Government issued a cure notice with respect to work on the bike trail. The cure notice warned Plaintiff that the Government considered Plaintiff's "failure to prepare the trail to permit proper installation of bituminous asphalt" as "endangering performance of the contract" and that the Government "may terminate for default." ECF No. 87-1 at 1. The cure notice gave Plaintiff 30 days to cure deficiencies and stated that it was "the Government's position that no additional fill material should be delivered to the site as there are substantial amounts of fill material already at the site to complete work." Id.

On September 12, 2012, Plaintiff responded to the cure notice, stating that the Government had failed to respond to its "letter requesting detailed information on how to modify the grade and slopes." ECF No. 71-1.

At the expiration of the cure notice on October 15, 2012, the Government terminated Plaintiff's contract for default, stating in pertinent part:

(2) The acts or omissions constituting the default are as follows:

. . . . Since receiving the cure notice, Bowman has only deployed one CAT 320CL excavator (trackhoe), one heavy equipment operator, and one supervisor for three and one half days between October 1 and October 4, 2012 and worked between stations 16+00 and 59+50 to balance fill material and shape side slopes of the embankment. Bowman has specifically failed to cure the following performance defects:

a. Balance and shape embankment, side slopes, aggregate sub-base and base-course to the lines, grades, and details shown on the drawings and approved field changes.

. . .

No areas of the bike trail were reworked for thickness and grades. Not all areas reworked uniformly conform to tolerances

...