Chaney and James Construction Company v. United States, No. 150-67.

CourtCourt of Federal Claims
Writing for the CourtCOWEN, , and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS
Citation190 Ct. Cl. 699,421 F.2d 728
Decision Date20 February 1970
Docket NumberNo. 150-67.
PartiesCHANEY AND JAMES CONSTRUCTION COMPANY, Inc. v. The UNITED STATES.

190 Ct. Cl. 699, 421 F.2d 728 (1970)

CHANEY AND JAMES CONSTRUCTION COMPANY, Inc.
v.
The UNITED STATES.

No. 150-67.

United States Court of Claims.

February 20, 1970.


421 F.2d 729

H. Randall Bixler, Washington, D. C., attorney of record, for plaintiff; Hudson & Creyke, Washington, D. C., of counsel.

Edward M. Jerum, Washington, D. C., with whom was Asst. Atty. Gen., William

421 F.2d 730
D. Ruckelshaus, for defendant; J. Michael Gottesman, of counsel

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

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DURFEE, Judge:*

This is a contract case involving a review, in accordance with the standards prescribed by the Wunderlich Act (41 U.S.C. §§ 321, 322 (1964)), of a decision that was rendered by the Federal Aviation Agency Contract Appeals Panel on January 6, 1967 (Docket No. 67-18). That decision passed upon claims for additional compensation which plaintiff had submitted under Contract No. FA1-1980 between plaintiff and defendant (represented by the Federal Aviation Agency).

Plaintiff and defendant have filed cross-motions for summary judgment in the present judicial proceeding, such motions being based upon the material contained in the administrative record.

Contract No. FA1-1980 ("the contract") was awarded to plaintiff by the Federal Aviation Agency on June 5, 1961. It called for the construction by plaintiff of an Air Traffic Control Center at Nashua, New Hampshire. Under the initial provisions of the contract, the project was to be completed within 349 calendar days from the effective date of the notice to proceed, and plaintiff was to receive $2,028,359.00 for its work. The notice to proceed was effective on June 26, 1961, and this fixed June 8, 1962 as the final date for the completion of the work under the contract. However, more than 100 change orders were issued during the course of the construction, the contract price was increased by $250,000.00, and the time for the completion of the work was extended beyond March 30, 1963, which was the date on which defendant finally accepted the facility.

The several claims with respect to which plaintiff seeks judicial review of the administrative decision will be discussed in the order in which they are dealt with by the parties in their briefs.

I — Roof Leader Drain

As part of the work called for by the contract, plaintiff was required to install a subsurface cast-iron roof leader drainage system, within subsurface space that was ultimately to be covered by the concrete floor of the basement underneath the administration wing of the Air Traffic Control Center.

On August 4, 1961, while plaintiff was in the process of laying the roof leader drain pipe at the elevation specified in the contract, a representative of the contracting officer directed that the elevation of the pipe be lowered approximately one foot. Compliance with this directive was begun by plaintiff on August 7, 1961.

On August 22, 1961, when the laying of the roof leader drain pipe at the new elevation was nearly completed, the contracting officer's representative decided that the directive of August 4 was wrong, and a new directive was issued requiring that the elevation of the pipe be raised approximately one foot, or back to the elevation originally specified in the contract. Plaintiff complied with the second directive, and the installation of the roof leader drain pipe was completed by August 31, 1961.

The contract contained, in paragraph 3 of the general provisions, the "changes" provision that is customarily included in Government construction contracts, authorizing the contracting officer to "make changes in the drawings and/or specifications of this contract and within the general scope thereof," and providing for "an equitable adjustment" if the changes caused "an increase or decrease in the amount due under this contract, or

421 F.2d 731
in the time required for its performance." Under this provision, a change order was issued by the contracting officer confirming the directives of August 4 and 22, 1961, relative to the elevation of the roof leader drain pipe. Pursuant to the change order, the time for the performance of the contract was extended, and plaintiff was compensated for the additional cost that it incurred in effecting the changes with respect to the elevation of the roof leader drain pipe

Plaintiff submitted to the contracting officer — and subsequently to the FAA Contract Appeals Panel on appeal — an additional claim for an adjustment in the amount of $14,986.08 under subparagraph (d) of paragraph 6 of the supplemental general provisions of the contract. That subparagraph stated in part as follows:

(d) * * * If * * * the performance of all or any part of the work is for an unreasonable period of time, suspended, delayed, or interrupted by an act of the Contracting Officer, in the administration of the contract, or by his failure to act * * * within a reasonable time * * *, an adjustment shall be made by the Contracting Officer for any increase in the cost of performance of the contract (excluding profit) necessarily caused by the unreasonable period of such suspension, delay, or interruption, and the contract shall be modified in writing accordingly. * * *

Plaintiff's additional claim under the "suspension of work" provision of the contract was denied by the FAA Contract Appeals Panel on the primary ground that, in the absence of unreasonable delay on the part of defendant's personnel in directing the changes with respect to the elevation of the roof leader drain pipe, plaintiff's remedy under the "changes" provision of the contract was exclusive.

In addition, the Panel determined on the basis of the evidence before it (received during the course of a 7-day hearing at Dallas, Texas) that the changes in connection with the elevation of the roof leader drain pipe actually "did not delay overall work progress."

Plaintiff contends, and defendant does not deny, that the delay was caused by an error in the specifications. It is well established that the Government warrants the adequacy of its plans and specifications to the extent that compliance with them will result in satisfactory performance. United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918); Warren Bros. Roads Co. v. United States, 105 F.Supp. 826, 123 Ct.Cl. 48 (1952).

Where a contractor is delayed because the specifications are deficient, it is allowed to recover extra costs resulting from delay due to mistakes in the plans, and its recovery is not limited to an equitable adjustment for changes ordered to correct those mistakes. Laburnum Construction Corp. v. United States, 325 F.2d 451, 457-458, 163 Ct.Cl. 339, 349 (1963).

This same kind of recovery was awarded in Luria Bros. & Co. v. United States, 369 F.2d 701, 709, 177 Ct.Cl. 676, 690 (1966), where the court stated:

Ordinarily, defendant is entitled to make necessary changes, but where the change is necessitated by defective plans and specifications defendant must pay the entire resulting damage without any deduction for time to make changes, as would be the case if the redesign were necessitated by a changed condition or the like. Emphasis supplied.

In both Laburnum, supra, and Luria, supra, the contractors were delayed and their costs were increased when the contracts were breached by virtue of their having been furnished with defective specifications. Moreover, all of the delay was compensable, not just the unreasonable part of the delay. Plaintiff here is also contending that its delay was caused by defective specifications, and thus seeks delay damages over and above the equitable adjustment it has already received.

421 F.2d 732

What makes plaintiff's request novel is that it is seeking these damages under the Suspension of Work clause. Plaintiff seeks to incorporate into that clause the rationale of the Laburnum and Luria cases. For the reasons we are about to enunciate, we agree with plaintiff's contentions.

The Suspension of Work clause has two main functions: (1) it negates the notion that a contractor's exclusive remedy for delays caused by acts of the Government is a time extension, and (2) it provides an administrative remedy for losses and increased costs incurred by the contractor because of suspensions of work caused by the Government. This latter function is actually an administrative substitute for a breach of contract claim. Cannon Construction Company et al. v. United States, 319 F.2d 173, 179, 162 Ct. Cl. 94, 105 (1963).

This function has been previously described as follows:

* * * * * *
In the absence of a contract clause giving the Government the right to suspend the contractor\'s work or otherwise delay the contractor\'s performance, a work stoppage caused by the Government would ordinarily be a breach of contract giving rise to an action at law for damages, but a suspension of work caused by the Government is not a breach of contract when done pursuant to a right granted to the Government by the terms of the contract itself. T. C. Bateson Construction Company, 60-1 BCA ¶ 2552, p. 12,348 (March 16, 1960).

It cannot be gainsaid that the Government had the right, under the instant contract, to issue change orders. But the issuance of change orders does not cure what is otherwise a breach, as is shown by Laburnum and Luria. And since the Suspension of Work clause is an administrative substitute for an action at law for breach, Cannon Construction, supra, the contractor should be entitled to get the same relief under the clause that he could get in the absence of the clause if he sued for breach of contract.

If plaintiff had brought his present claim as a breach claim, under the rationale of Laburnum and Luria, it would not have had to prove the delay unreasonable, since all delay due to defective or erroneous Government specifications are per se unreasonable and hence...

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19 practice notes
  • Merritt-Chapman & Scott Corporation v. United States, No. 44-66.
    • United States
    • Court of Federal Claims
    • 15 Julio 1970
    ...of Work clause to operate when the Government is at fault, as we recently noted (See Chaney & James Constr. Co. v. United States, 421 F.2d 728, 731-733, 190 Ct.Cl. 699, 705-708, (Feb. 1970)), but the clause can likewise be effective, as we have also held, when there is a suspension not ......
  • District of Columbia v. Savoy Const. Co., No. 82-1350.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 26 Septiembre 1986
    ...the extent that compliance with them will result in satisfactory performance. E.g., Chaney & James Construction Co. v. United States, 421 F.2d 728, 731, 190 Ct.Cl. 699 (1970); Jefferson, 372 F.2d at 1011; J.D. Hedin Construction Co. v. United States, 347 F.2d 235, 241, 171 Ct.Cl. 70 (19......
  • City of Seattle v. Dyad Const., Inc., No. 3206-I
    • United States
    • Court of Appeals of Washington
    • 9 Mayo 1977
    ...(1972); La Crosse Garment Mfg. Co. v. United States, 432 F.2d 1377, 193 Ct.Cl. 168 (1970); Chaney and James Constr. Co. v. United States, 421 F.2d 728, 190 Ct.Cl. 699 (1970); Litchfield Mfg. Corp. v. United States, 338 F.2d 94, 167 Ct.Cl. 604 (1964); Laburnum Constr. Corp. v. United States,......
  • Phillips & Jordan, Inc. v. McCarthy Improvement Co., Civil Action No. 5:18-cv-00559-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 29 Septiembre 2020
    ...to reflect the reality of the project's progress, or lack thereof. See, e.g., Chaney & James Const. Co., Inc. v. United States, 421 F.2d 728, 740-41 (Cl. Ct. 1970) (explaining that a CPM schedule should represent a feasible and reasonable plan for performance and be utilized during cons......
  • Request a trial to view additional results
19 cases
  • Merritt-Chapman & Scott Corporation v. United States, No. 44-66.
    • United States
    • Court of Federal Claims
    • 15 Julio 1970
    ...of Work clause to operate when the Government is at fault, as we recently noted (See Chaney & James Constr. Co. v. United States, 421 F.2d 728, 731-733, 190 Ct.Cl. 699, 705-708, (Feb. 1970)), but the clause can likewise be effective, as we have also held, when there is a suspension not ......
  • District of Columbia v. Savoy Const. Co., No. 82-1350.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 26 Septiembre 1986
    ...the extent that compliance with them will result in satisfactory performance. E.g., Chaney & James Construction Co. v. United States, 421 F.2d 728, 731, 190 Ct.Cl. 699 (1970); Jefferson, 372 F.2d at 1011; J.D. Hedin Construction Co. v. United States, 347 F.2d 235, 241, 171 Ct.Cl. 70 (19......
  • City of Seattle v. Dyad Const., Inc., No. 3206-I
    • United States
    • Court of Appeals of Washington
    • 9 Mayo 1977
    ...(1972); La Crosse Garment Mfg. Co. v. United States, 432 F.2d 1377, 193 Ct.Cl. 168 (1970); Chaney and James Constr. Co. v. United States, 421 F.2d 728, 190 Ct.Cl. 699 (1970); Litchfield Mfg. Corp. v. United States, 338 F.2d 94, 167 Ct.Cl. 604 (1964); Laburnum Constr. Corp. v. United States,......
  • Phillips & Jordan, Inc. v. McCarthy Improvement Co., Civil Action No. 5:18-cv-00559-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 29 Septiembre 2020
    ...to reflect the reality of the project's progress, or lack thereof. See, e.g., Chaney & James Const. Co., Inc. v. United States, 421 F.2d 728, 740-41 (Cl. Ct. 1970) (explaining that a CPM schedule should represent a feasible and reasonable plan for performance and be utilized during cons......
  • Request a trial to view additional results

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