Fruehauf Corp. v. United States, No. 446-76.

CourtCourt of Federal Claims
Writing for the CourtPER CURIAM
Citation587 F.2d 486
PartiesFRUEHAUF CORPORATION v. The UNITED STATES.
Docket NumberNo. 446-76.
Decision Date15 November 1978

587 F.2d 486

FRUEHAUF CORPORATION
v.
The UNITED STATES.

No. 446-76.

United States Court of Claims.

November 15, 1978.


587 F.2d 487

Marion Edwyn Harrison, Washington, D.C., atty. of record, for plaintiff; Harrison, Lucey & Sagle, Washington, D.C., of counsel.

Ray Goddard, Washington, D.C., with whom was Asst. Atty. Gen., Barbara Allen Babcock, Washington, D.C., for defendant.

Before FRIEDMAN, Chief Judge, and BENNETT and SMITH, Judges.

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

PER CURIAM:

This case comes before the court on defendant's motion, filed September 28, 1978, under Rule 54(b)(3)(iii), moving that the court adopt the recommended decision of Trial Judge Lloyd Fletcher, filed May 31, 1978, under Rule 166(c), on plaintiff's motion and defendant's cross-motion for summary judgment, as the basis for its judgment in this case since neither party has filed a request for review thereof by the court and the time for so filing pursuant to the Rules of the Court has expired.

Upon consideration thereof, without oral argument, since the court agrees with the trial judge's recommended decision, as hereinafter set forth, it hereby affirms and adopts the decision as the basis for its judgment in this case. Therefore, plaintiff's motion for summary judgment is granted, defendant's cross-motion for summary judgment is denied, judgment is entered for plaintiff and the case is remanded to the U.S. Postal Service Board of Contract Appeals for further administrative proceedings not inconsistent with this opinion with proceedings in this court stayed for a period not to exceed six (6) months. Counsel for plaintiff is designated to furnish periodic advice as to the status of the proceedings on remand pursuant to the requirements of Rule 149(f).

OPINION OF TRIAL JUDGE*

FLETCHER, Trial Judge:

This contract dispute involves an appeal by plaintiff, Fruehauf Corporation, from a decision of the U.S. Postal Service Board of Contract Appeals, PSBCA No. 479 dated February 14, 1973. See 73-1 BCA ¶ 9897. The Board held that plaintiff was not entitled to various claims for equitable adjustment arising out of its performance of a contract for the installation of mechanical mail handling equipment in the United States Post Office at San Juan, Puerto Rico. The Board also denied a counterclaim asserted by the Government in that proceeding. By cross-motions for summary judgment, the parties have asked the court to review the Board's decision in accordance with the well-known standards of Wunderlich Act, 41 U.S.C. §§ 321-22.

The basic facts do not appear to be in substantial dispute, although plaintiff does criticize a number of the Board's findings as being irrelevant, incomplete, and therefore misleading, "out of focus," out of context, and even "naive." The contract, which was entered into on June 29, 1964, provided for the furnishing and installation of a mechanical mail handling system in a new post office building that was to be constructed by another contractor at San Juan.1

It resulted from the issuance of an invitation for bids by the Post Office Department

587 F.2d 488
(POD), the submission of a bid by plaintiff, and an acceptance of that bid by POD. The contract was a fixed-price supply contract, the original fixed price being $292,417 which was subsequently modified to $368,413. It contains the standard changes, disputes, and suspension of work clauses but contains no liquidated damages article. With regard to the question of when the installation of the mechanical mail handling equipment was to be accomplished in the yet-to-be-constructed building, paragraph 4.2 of the IFB stated in substantial part as follows
4.2 Completion Date — The Contractor shall have the installation completed, tested and ready for operation concurrently with the completion of the building. The best information available at this time indicates that the contract for building construction will be awarded on or about June 1, 1964, and that 18 months will be required to complete the building. The Contractor must coordinate the work under this contract with other contractors involved. See Section 3.16.1. On this basis, the completion date for this contract will be August 1, 1965. If the work under this contract is delayed by acts of God or for other reasons stated in paragraph 11, Standard Form 32, extensions of time and relief from excess costs shall be governed by the terms of paragraph 11. If the work under this contract is unreasonably delayed by the Government, an equitable adjustment in time of performance and/or contract price will be governed by the Suspension of Work Clause of the contract. If the work under this contract is unreasonably delayed by the lessor, his contractors or subcontractors as a result of the Government delaying them unreasonably, such delay shall be considered to have been caused by the Government and shall be treated in accordance with the Suspension of Work Clause. On the other hand, if the Contractor inexcusably delays the lessor, his contractors or subcontractors, he shall be liable for any additional costs incurred by the Government as a result of any equitable adjustment in time of performance or contract price granted to the lessor, his contractors or subcontractors involved. * * *

Only a few days prior to the award of the contract in question, the defendant contracted with Beacon Construction Company, Boston, Massachusetts, to erect the building in which Fruehauf was to install the mechanized mail handling system. Beacon then subcontracted the erection of the Post Office building to AMECO.

By the fall of 1964 it had become apparent that foundation problems at the site of the proposed building would delay construction and would make unrealistic the construction date estimated in paragraph 4.2, supra. In fact, it is recorded in the minutes of an October 14, 1964 construction meeting that AMECO had forwarded a construction schedule showing a completion date for the building on March 1, 1966. During late 1964 some correspondence ensued between Fruehauf and defendant with respect to the construction schedule and the starting date for the mechanization installation.

On March 10, 1965, Fruehauf wrote to the defendant stating that its suppliers were fabricating materials and equipment which would mean bulk shipment to the jobsite in late August 1965. The letter went on to request an estimate of the completion date for the building based on current circumstances. On March 24, 1965, defendant replied to Fruehauf's inquiry by letter stating in part:

The delay in construction of foundations for the new Post Office building in San Juan now indicates that the installation of mechanization equipment cannot be started in August sic-probably should be "September" 1965 as scheduled.

Following another construction meeting held in April 1965, the defendant wrote Fruehauf, stating:

Due to foundation construction difficulties accurate determination of the completion date for the building has been very difficult to forecast. These foundation difficulties have now been resolved and construction is in progress. Although
587 F.2d 489
we do not have a definite completion date established by the building contractor as of this date, it appears that this building should be ready for occupancy by the Post Office Department on September 15, 1966. On this basis the completion of your contract should be tentatively scheduled as October 15, 1966. In accordance with the contract specifications this completion date is to be preceded by a 30-day operating run-in test period.
When we have received a firm completion date from the building contractor you will be immediately advised and requested to submit a new schedule for mechanization in accordance with this date.

Fruehauf wrote to defendant acknowledging receipt of the aforesaid information and requested the issuance of a "formal suspension of installation." In addition, Fruehauf requested approval of a plan whereby its machinery suppliers, on furnishing Fruehauf with a certificate of completion and an agreement to install and protect items for this contract, could bill Fruehauf therefor, and thereupon defendant would reimburse Fruehauf. In October 1965, defendant advised Fruehauf that AMECO had submitted a firm schedule to complete the building for occupancy by October 1, 1966, and accordingly, defendant asked Fruehauf to submit its schedule for completion of installation ready for operation and the commencement of the 30-day test period on that date. Defendant further stated that Fruehauf's request for an issuance of a suspension of work order was under evaluation. On February 18, 1966, Fruehauf furnished defendant its erection schedule.

At a February 24, 1966 building-mechanization joint meeting it does not appear that the completion date of October 1, 1966, exclusive of the 30-day operating test period, was affirmed. However, it does appear that Fruehauf was advised that portions of the first floor area would be available for it on May 2, 1966, such portions to be turned back to AMECO for completion by July 29, 1966. Portions of the second floor area were to be made available to Fruehauf on a joint occupancy basis on May 23, 1966, and on an exclusive occupancy basis by May 30. No mention is made in the minutes of the meeting regarding Fruehauf's attitude towards the short lead time provided.

As previously mentioned, Fruehauf had contracts with defendant to provide several mechanized mail handling systems simultaneously with the San Juan contract. Because of concern over problems related to the scheduling of materials, Fruehauf employed a procurement consultant, C. O. Nelson, of Anaheim, California, to assist in obtaining a timely flow of materials to the various projects, particularly in regard to the San Juan contract. Nelson began this work on or about March 3, 1966.

At the time of Nelson's arrival, plaintiff's procurement and material...

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6 practice notes
  • Timber Investors, Inc. v. United States, No. 61-75.
    • United States
    • Court of Federal Claims
    • November 15, 1978
    ...attacks on the Forest Service's preparatory work in arriving at such estimates must be rejected. Plaintiff's petition should be dismissed. 587 F.2d 486 CONCLUSION OF Based upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment her......
  • De Matteo Const. Co. v. United States, No. 441-77.
    • United States
    • Court of Federal Claims
    • June 13, 1979
    ...of delay even where the delay has not been due to the Government's fault, dereliction or responsibility. Fruehauf Corp. v. United States, 587 F.2d 486, 218 Ct.Cl. ___ (1978); Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 432, 192 Ct.Cl. 848, 852 However, defendant correctly ......
  • K-Con Bldg. Sys. Inc. v. United States, No. 05-1054C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 19, 2011
    ...as an actual suspension, and relief should be granted as if an actual suspension order had been issued." Fruehauf Corp. v. United States, 587 F.2d 486, 493-94 (Ct. Cl. 1978). Plaintiff asserts that soon after the contract was awarded, the Coast Guard interfered with and constructively suspe......
  • K-Con Bldg. Sys. Inc. v. United States, No. 05-1054C
    • United States
    • Court of Federal Claims
    • August 19, 2011
    ...as an actual suspension, and relief should be granted as if an actual suspension order had been issued." Fruehauf Corp. v. United States, 587 F.2d 486, 493-94 (Ct. Cl. 1978). Plaintiff asserts that soon after the contract was awarded, the Coast Guard interfered with and constructively suspe......
  • Request a trial to view additional results
6 cases
  • Timber Investors, Inc. v. United States, No. 61-75.
    • United States
    • Court of Federal Claims
    • November 15, 1978
    ...attacks on the Forest Service's preparatory work in arriving at such estimates must be rejected. Plaintiff's petition should be dismissed. 587 F.2d 486 CONCLUSION OF Based upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment her......
  • De Matteo Const. Co. v. United States, No. 441-77.
    • United States
    • Court of Federal Claims
    • June 13, 1979
    ...of delay even where the delay has not been due to the Government's fault, dereliction or responsibility. Fruehauf Corp. v. United States, 587 F.2d 486, 218 Ct.Cl. ___ (1978); Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 432, 192 Ct.Cl. 848, 852 However, defendant correctly ......
  • K-Con Bldg. Sys. Inc. v. United States, No. 05-1054C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 19, 2011
    ...as an actual suspension, and relief should be granted as if an actual suspension order had been issued." Fruehauf Corp. v. United States, 587 F.2d 486, 493-94 (Ct. Cl. 1978). Plaintiff asserts that soon after the contract was awarded, the Coast Guard interfered with and constructively suspe......
  • K-Con Bldg. Sys. Inc. v. United States, No. 05-1054C
    • United States
    • Court of Federal Claims
    • August 19, 2011
    ...as an actual suspension, and relief should be granted as if an actual suspension order had been issued." Fruehauf Corp. v. United States, 587 F.2d 486, 493-94 (Ct. Cl. 1978). Plaintiff asserts that soon after the contract was awarded, the Coast Guard interfered with and constructively suspe......
  • Request a trial to view additional results

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