Jefferson Construction Company v. United States

• Decision Date: 19 April 1968
• Docket Number: No. 81-65.,81-65.
• Citation: 183 Ct. Cl. 720,392 F.2d 1006
• Parties: JEFFERSON CONSTRUCTION COMPANY v. The UNITED STATES.
• Court: U.S. Claims Court

183 Ct. Cl. 720, 392 F.2d 1006 (1968)

JEFFERSON CONSTRUCTION COMPANY v. The UNITED STATES.

No. 81-65.

United States Court of Claims.

April 19, 1968.

COPYRIGHT MATERIAL OMITTED

Philip M. Cronin, Boston, Mass., attorney of record, for plaintiff. Withington, Cross, Park & Groden, Boston, Mass., of counsel.

Edward J. Friedlander, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant.

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

OPINION

LARAMORE, Judge.^*

Plaintiff, Jefferson Construction Company, hereinafter referred to as Jefferson, was awarded a contract for $963,714 by the General Services Administration to construct two reinforced concrete buildings, a retaining wall and a pump-house at the Northeast Shellfish Sanitation Research Center at Narragansett, Rhode Island. Jefferson alleges that by supplying plans which it knew, or should have known, were defective, the government breached its implied contractual obligation to furnish plans, specifications and rock boring data which, if complied with, would result in satisfactory performance. Plaintiff's expected performance time and completion schedule were delayed when additional concrete and steel work were required to complete the contract under unanticipated weather conditions. Jefferson claims delay damages for breach of contract in addition to the equitable adjustment received from the contracting officer.

Originally plaintiff alleged four causes of action. Counts two and three¹ of the original petition were waived before trial. Plaintiff did not file exceptions to the trial commissioner's report on Count four and at oral argument waived that Count. We agree with the trial commissioner that the General Services Administration Board of Contract Appeals' decision (on Count four) is supported by substantial evidence. We have incorporated that part of the report, as modified, and deny any recovery for Count four.

Count one, the only claim now before us, alleges that Jefferson was unreasonably delayed both by the government's failure to furnish adequate plans and borings and by its failure to correct the plans within a reasonable time after the inadequacies became evident. We conclude that plaintiff has not proved that defendant breached the contract. It has received all of the administrative relief to which it is entitled, and we dismiss the petition.

I.

Prior to the issuance of a request for bids, government personnel took 15 core boring test samples of the subsoil at the excavation site in the area immediately adjacent to the locale of the foundation pads. Jefferson's bid and estimated excavation costs were based on government-furnished plans which indicated that foundation pad excavation would terminate at a depth where the core boring drill had shown "refusal," i. e., the drill would not penetrate the subsoil beyond the point of refusal. No representative of Jefferson ever examined the core boring samples which the government had made available.

Jefferson acknowledged its July 19, 1962 receipt of the government's July 17 notice to proceed and began work on the project the next day, July 20. Work was to have been completed within 360 days from the date of the notice to proceed. Because of the various delays encountered, substantial compliance did not occur until February 6, 1964, and the contract was not completed until June 16, 1964. Plaintiff claims to be entitled to compensation for the overhead costs incurred during delay.

Problems began at the first of the 36 required foundation pad (footing) excavations. Jefferson excavated to the depth indicated on the plans as the "refusal" point but encountered clay rather than the rock ledge which it had concluded was the basis for the "refusal." It had anticipated placing the foundation pads on that rock.

Jefferson notified the government resident engineer on the following day (August 14, 1962). After an on-site inspection the government structural engineer directed Jefferson to continue its excavation until an appropriate base for the footing was reached.² Excavation at 34 of the 36 footing sites terminated at a depth other than the refusal point noted on the plans. Thirty-two footings were at a greater depth, with an average overcut of 4.3 feet and a maximum of 10.6 feet.

The absence of a known excavation depth disrupted plaintiff's planned progress schedule, required additional manpower, special equipment and material, and prevented construction of wood forms (into which the concrete is poured) until after excavation for each footing was completed. Originally plaintiff claimed $46,229 as compensation for a 90-day delay, but its claim is now limited to $38,362.74 as compensation for a 70-day delay.³

Plaintiff presented to the contracting officer its claim for actual costs and indirect costs incurred as a result of the delay. In response, the contracting officer offered $17,000 as an equitable adjustment for the additional costs expended during performance. Plaintiff accepted that payment but expressly reserved its right to compensation for the delay damages. The final decision of the contracting officer awarded plaintiff the $17,000 and granted a 21-day extension of time (plaintiff had requested 90 days). Jefferson accepted the $17,000 but sought review of the "equitable adjustment" from the GSA Board of Contract Appeals.

On February 5, 1965, the GSABCA upheld the $17,000 award but dismissed that part of the claim which requested damages for the delay. It concluded that plaintiff's unreasonable delay claim was not covered by the contract and, therefore, as a breach of contract claim it was not within its jurisdiction. By a pre-trial agreement the parties agreed to try Count one de novo in this court.

Both parties agree that plaintiff exhausted its available administrative remedies when the GSABCA refused to consider the claim for lack of jurisdiction. The Board recognized the distinction between claims which, by virtue of an agreement by the parties (as embodied in their contract), are determinable by an administrative agency, and those claims which, because they have not been made subject to resolution under the contract, remain "pure" breach of contract claims to be tried before the court. See: The Len Company v. United States, 385 F.2d 438, 442, 181 Ct.Cl. 29 (October, 1967) (slip op. 5); J. G. Watts Construction Co. v. United States, 355 F.2d 573, 174 Ct.Cl. 1 (1966); Cf., Ekco Products Co. v. United States, 312 F.2d 768, 160 Ct.Cl. 75 (1963); New York Shipbuilding Corp. v. United States, 385 F.2d 427, 180 Ct.Cl. 446 (1967). A true breach of contract claim which, by definition is outside the scope of the contract, is subject neither to equitable adjustment under the contract nor to administrative review or resolution. United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); and L. L. Hall Construction Co. v. United States, 379 F.2d 559, 177 Ct.Cl. 870 (1966). Merely recasting a dispute which has been made subject to adjustment under the contract into breach of contract language and theory does not remove the disputed claim from the administrative determination required by the contract or from the remedies therein provided. United States v. Utah Construction & Mining Co., supra; Morrison-Knudsen Co. v. United States, 345 F.2d 535, 170 Ct.Cl. 712 (1965).

It is clear, however, that the parties may, by a waiver agreement, submit a controversy for initial resolution by the court and thereby modify the contractual agreement to proceed before an administrative board. See: Luria Brothers & Co. v. United States, 369 F.2d 701, 177 Ct.Cl. 676 (1966), (369 F.2d at 704, 177 Ct.Cl. at 681 (footnote 4)); Stein Bros. Mfg. Co. v. United States, 337 F.2d 861, 162 Ct.Cl. 802 (1963), partially overruled on other grounds, United States v. Anthony Grace & Sons, Inc., supra; C. J. Langenfelder & Son, Inc. v. United States, 384 F.2d 1005, 181 Ct.Cl. 407 (November, 1967); Bennett v. United States, 371 F.2d 859, 178 Ct.Cl. 61 (1967). That choice, however, cannot result in the type of duplicative litigation specifically prohibited by United States v. Utah Construction & Mining Co., supra, whereby a dispute is tried before the administrative agency as a claim subject to the contract and then retried before the court as a dispute giving rise to a breach claim. Where, as in this case, the Board itself has denied jurisdiction over a claim and the parties have agreed to a trial de novo, the court will decide whether or not the particular dispute is or is not within the scope of the contract and, in either case, give the appropriate relief to which the contractor is entitled.

The finality of relevant findings of fact, supported by sufficient evidence, which are made by an administrative board in disposing of a claim over which it has the power to grant relief, cannot be denuded by a trial de novo in this court on a breach claim which is dependent upon the same underlying facts that have been previously determined by the board. See: United States v. Utah Construction & Mining Co., supra; Morrison-Knudsen Co. v. United States, supra; and Allied Paint & Color Works, Inc. v. United States, 309 F.2d 133 (2d Cir. 1962), cert. denied, 375 U.S. 813, 84 S.Ct. 41, 11 L.Ed.2d 48 (1963). Additional findings of fact made by our trial commissioner during the course of the agreed-to trial de novo, however, are not precluded by the existence of noncontradictory findings made by the Board in its determination of a dispute over which it has jurisdiction. Moreover, the interpretation of the contract, which is the essence of this dispute, is indisputably a question of law, and is not precluded by the administrative board's previous interpretation of the contract.

Plaintiff no longer argues that the government failed...