Electronic and Missile Facilities, Inc. v. United States

• Decision Date: 17 October 1969
• Docket Number: No. 221-67.,221-67.
• Citation: 189 Ct. Cl. 237,416 F.2d 1345
• Parties: ELECTRONIC AND MISSILE FACILITIES, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

189 Ct. Cl. 237, 416 F.2d 1345 (1969)

ELECTRONIC AND MISSILE FACILITIES, INC. v. The UNITED STATES.

No. 221-67.

United States Court of Claims.

October 17, 1969.

COPYRIGHT MATERIAL OMITTED

Max E. Greenberg, New York City, attorney of record, for plaintiff; Harold F. Blasky and Max E. Greenberg, Trayman, Harris Cantor, Reiss & Blasky, New York City, of counsel.

Sheldon J. Wolfe, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

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

PER CURIAM:

This case was referred to Trial Commissioner Harry E. Wood with directions to make recommendation for conclusions of law under the order of reference and Rule 99(c) since September 1, 1969, Rule 166(c). The commissioner has done so in an opinion and report filed on June 24, 1969, wherein such facts as are necessary to the opinion are set forth. Neither party filed a request for review of the commissioner's opinion, report and recommendations, pursuant to the provisions of Rules 99(c) and 55(b) (3) since September 1, 1969, Rules 166(c) and 54 (b) (3) within the time allowed for such filing under the rules of the court. On August 4, 1969, plaintiff filed a motion that the commissioner's report be adopted by the court without oral argument and on August 8, 1969, defendant filed a response thereto, also requesting adoption of the commissioner's recommendation.

The case has been submitted to the court without oral argument and since the court agrees with the commissioner's opinion and recommended conclusions of law, as hereinafter set forth, it hereby grants plaintiff's motion to adopt and adopts the same as the basis for its judgment in this case. Therefore, plaintiff's motion and defendant's cross-motion for summary judgment are granted in part and denied in part as to plaintiff's first and second causes of action, in accordance with the opinion. Further proceedings pertaining thereto will be suspended in this court for a period of ninety (90) days from this date pursuant to Rule 100 since September 1, 1969, Rule 167 to afford the parties an opportunity to obtain an administrative resolution of the equitable adjustment to which plaintiff is entitled, with the parties to comply with said rule and the General Order of April 1, 1968, implementing it. As to plaintiff's third cause of action, plaintiff's motion for summary judgment is denied, defendant's cross-motion is granted and the petition is dismissed.

OPINION OF COMMISSIONER

WOOD, Commissioner:

This case is before the court on cross-motions for summary judgment for review, under Wunderlich Act¹ standards, of a 1966 decision of the Armed Services Board of Contract Appeals. ASBCA No. 9866, 66-1 BCA ¶ 5307. On a monetary claim totaling some $703,000, and pertaining to nine separate "items," the Board awarded plaintiff an "equitable adjustment" of $174,000. In three counts, plaintiff here seeks an additional $520,705.91.

The preliminary facts are not in any dispute. On March 1, 1962, plaintiff was awarded an Air Force contract for the construction of 300 armed services housing units at Hill Air Force Base, Utah. Plaintiff received notice to proceed on March 19, 1962.

The terrain on which the housing units were to be built sloped downward in a generally southwesterly direction.² As designed, the housing units were to be placed on individual level sites or terraces supported and separated by embankments. Proper grading, therefore, required both cutting (principally in the north and on the upper sides of the streets) and filling (in the south and on the lower sides of the streets).

It was contemplated at the outset that additional fill material, over and above the earth available from the housing site area itself, would be required. Plaintiff and one of its subcontractors (C.M.C. Construction Company) estimated a deficiency of about 24,000 cubic yards, and a subcontract was written on that basis (with a provision for more fill, if required, to be "paid for at the rate of $1.50 per cubic yard, in place and compacted.").

After the clearing of the project area, stripping and stockpiling of topsoil, to a depth of up to 6 inches, commenced.³ The project area contained some 45,000 cubic yards of such topsoil. During April and early May 1962, C.M.C. was required to remove and store an additional 15,000 cubic yards of "topsoil."⁴ This required the replacement of the removed "topsoil" with 15,000 cubic yards of fill.

"The grading operation was first the cutting of broad sweeps of uniform grade along the lines of houses as they should be constructed, moving the cut material generally to the area where fill was required. The terraces and embankments were then formed and then came excavations for footings, basements and crawl spaces. At the same time borrow material was introduced into the area."

In August 1962, the contracting officer decided that plaintiff was contractually obligated to strip 6 inches of surface soil from all lawn areas in the project site, and to replace this surface material with topsoil.⁵ Plaintiff appealed this decision, and, in 1964, the Board found that plaintiff was entitled to "an equitable adjustment of the contract * * * price * * *" for stripping of surface soil the contracting officer, but not the contract, had required,⁶ and also to "an equitable adjustment for covering the lawn areas with topsoil * * *."⁷ ASBCA No. 8554, 1964 BCA ¶ 4045.

On remand, the contracting officer, under "more specific direction of a superior," made a decision that plaintiff was entitled to an equitable adjustment of $109,599 for the "change." Plaintiff timely appealed this decision,⁸ with results indicated generally above, and specifically hereinafter.

The Board concluded that in August 1962 the contracting officer had "imposed on plaintiff a new requirement to strip 6 inches of surface material from all lawn areas and replace it with topsoil," and that plaintiff "was completely justified, in the period prior to August 1962, in moving into the area sufficient fill to balance its earth requirements." The "pertinent question," the Board stated, "is to what extent the area had been brought to proper elevation at that time and properly graded." On this factual problem, the Board found that "in August 1962 some approximation of correct elevation had been attained over substantially the entire area although there was an excess of dirt and grading had not accurately been established."⁹

"The six inch stripping for topsoil required by the contracting officer's August 1962 decision commenced in the fall of 1962 and continued into 1963. During the period of this work there was also generated excess dirt from high elevations, the smaller excavations above-mentioned for sidewalks, curbs, gutters and the cutting of drainage patterns, an accumulation from basements, the readjustment of slopes, an accumulation from utilities installation and spillage. In a word all of the cutting and hauling of dirt was not attributable to the change."

The Board's ultimate disposition of the matter necessitates discussion of plaintiff's several claims, and of the Board's action on them, at this point. Before the Board, plaintiff sought, for nine "items," $550,565.65. To the latter sum plaintiff added, "successively and cumulatively, a 15% overhead, a 10% profit and 1% for a bond premium which in themselves are agreed to be appropriate additive percentages,"¹⁰ thus arriving at a total claim of $703,430.21.

The Board characterized plaintiff's separate items as falling into two categories, and considered them accordingly. In the first category¹¹ were grouped these items:

                Item Claim
                1.  Cost of removing and storing 15,000 "extra" cubic
                      yards of topsoil .................. ($11,250) 
                  and replacing it with fill material ... ($22,500) ...        $ 33,750.00
                2A. Estimated cost of piling excess dirt removed from
                      lawn areas to make room for topsoil (performed by
                      subcontractor) ..................................   1214,720.00
                2B. Labor costs of piling excess dirt .................          17,594.88
                2C. Equipment costs of piling excess dirt .............          68,026.37
                3.  Spreading of topsoil ..............................          53,128.00
                                                                               ___________
                  Total ............................................... 13$187,219.25
                

The Board found that plaintiff was entitled to the $11,250 claimed for removing and storing 15,000 "extra" cubic yards of topsoil,¹⁴ and to "a reasonable price" for replacing this removed topsoil with "other fill material" (item 1). The Board concluded that $1.50 per cubic yard for the fill material¹⁵ "is a proper pricing base to be used here but it should be adjusted for such noncompaction as was required (where the topsoil had been removed from cut areas) and for the inclusion therein of an overhead and profit which are separately to be allowed in this proceeding." The Board also found that the amount claimed for spreading of topsoil (item 3) should be allowed in full.

Item 2 was composed of three elements: item 2A (the estimated cost of piling excess dirt, performed by C.M.C. Construction Company prior to termination of its contract with plaintiff) and items 2B and 2C (plaintiff's claimed cost of labor and equipment for piling excess dirt).¹⁶ Plaintiff's unamended claim on item 2 totaled $100,341.25, before adjustments for overhead, profit, and bond premium. The Board found that:

For the most part * * * the actual incurred obligations for grading and dirt hauling as represented by these schedules 2B and 2C are not subject to serious question and we do not doubt that a substantial portion is attributable to the six inch removal requirement. We are quite as firm, however, in our belief, and we do find that an indeterminate portion is rightly to be assigned to other dirt moving operations. * * *¹⁷

In discussing...