Johnson Lasky Kindelin Architects, Inc. v. United States

• Decision Date: 23 December 2020
• Docket Number: No. 19-1419C,19-1419C
• Parties: JOHNSON LASKY KINDELIN ARCHITECTS, INC., Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

JOHNSON LASKY KINDELIN ARCHITECTS, INC., Plaintiff, v. THE UNITED STATES, Defendant.

No. 19-1419C

United States Court of Federal Claims

December 23, 2020

Contract Disputes Act; contract damages; tort damages; sounding in tort; joint and several liability; jurisdiction; RCFC 12(h)(3); government claim; government counterclaim; contracting officer's final decision; RCFC 14; RCFC 19

Lucas T. Hanback, Rogers Joseph O'Donnell, P.C., Washington, DC, for plaintiff. With him on the briefs were Stephen L. Bacon and Matthew Ligda.

P. Davis Oliver, United States Department of Justice, Civil Division, Washington, DC, for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.

ORDER AND OPINION

I. Introduction

This case presents what appears to be a jurisdictional issue of first impression: whether this Court has jurisdiction - pursuant to the Tucker Act, 28 U.S.C. § 1491(a), and the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 7101-7109 - to decide a case predicated upon a government claim contained in a contracting officer's final decision finding that two, unrelated contractors are jointly and severally liable for the same injury and sum certain arising from independent breaches of their respective contracts.

The Court answers that question in the negative and, accordingly, dismisses this case for lack of jurisdiction.

II. FACTUAL BACKGROUND¹

A. The Parties and The Contracts At Issue

Plaintiff and Counterclaim-Defendant, Johnson Lasky Kindelin Architects, Inc. ("JLK"), is an Illinois corporation that provides architectural and engineering services. ECF No. 1 ("Compl.") ¶ 1. Defendant and Counterclaim-Plaintiff is the United States of America, acting by and through the General Services Administration ("GSA"). ECF No. 12 ("Answer" or "Counterclaim") ¶ 2. On or about December 23, 2010, GSA awarded JLK a contract to provide architectural and engineering services. Compl. ¶ 4; see ECF No. 1-1 ("Ex. 1"); Answer ¶ 4.

Pursuant to that contract, GSA issued Task Order GS-P-05-14-FB-0103 ("the JLK Task Order") to JLK to provide professional design services as the architect-engineer supporting the relocation of existing National Labor Relations Board ("NLRB") office space in the Dirksen building in Chicago, Illinois ("the Courthouse"). Counterclaim ¶ 4. GSA separately contracted with Master Design Build, Inc. ("MDB") - via Delivery Order GS-P-05-14-FB-0059 ("the MDB Delivery Order") - to provide the necessary construction services for the relocation of the NLRB office space. Id. ¶ 5.

Among other items, JLK's proposed "work include[d] locating and specifying infrastructure (conduit and back boxes) for the telecommunications and security systems" as well as "[t]he design of a supplemental air conditioning unit[.]" Ex. 1 at 133, 135. Prior to the construction, "the 8th floor of the Dirksen building had an existing glycol water system used to provide coolant to the elevators and to supplemental cooling units that are typically utilized in tenant server rooms." Compl. ¶ 15. As part of the NLRB build out, a new computer room air conditioning unit ("CRU") had to be added for a new server room. Id. at ¶ 16. That, in turn, required "[n]ew supply lines . . . to provide glycol water to the CRU." Id. at ¶ 17. To ensure "adequate flow of coolant to the CRU[,] a small inline pump was added to the supply line prior to the CRU." Id. at ¶ 18. JLK was responsible for designing the new air conditioning unit, while MDB was tasked with the installation of the new cooling system. Id. at ¶ 8.

B. Damage To The Government's Courthouse

On March 3, 2016, MDB attempted to investigate what sounded like a "hammering noise" emanating from the cooling system that had been installed in the Courthouse. Counterclaim ¶ 17. MDB sent a technician from the CRU's manufacturer to the Courthouse to investigate the noise. See id.; Compl. ¶ 24. GSA, however, did not permit the service technician to access the site, because the technician allegedly did not possess the contractually required security clearance. Counterclaim ¶ 17.

On March 15, 2016, a condenser fluid pipe in the newly installed cooling system malfunctioned and caused extensive damage to parts of the Courthouse, including parts of the NLRB space, as well as portions of the United States Bankruptcy Court on the sixth and seventh floors. Counterclaim ¶¶ 6-7.

Following the leak, GSA retained Bailey Edward, an independent architecture and engineering consulting firm, to conduct a forensic investigation to ascertain the cause of the condenser fluid piping system failure and to issue a report. See ECF No. 1-3 ("Bailey Edward Study"); see also Compl. ¶14. The Bailey Edward Study concluded, among other things, that

[t]he design called for a centrifugal wet rotor pump without any provision to turn the pump off when flow was not needed . . . When the motorized control valve is closed and the pump remains energized, the pump is operating under a no flow condition which results in premature pump failure. . . . Operating the pump in a no flow condition also causes the water within the impeller housing to heat up and could have resulted in failure of the downstream gasket. In this particular instance the no flow condition from the closed control valve resulted in vibration that was transmitted to the connected piping and additionally created objectionable noise.

Bailey Edward Study at 6; see Counterclaim ¶ 12. The Bailey Edward Study also found that JLK's design documents identified spring isolation hangers that MDB had not installed. Bailey Edward Study at 6; Counterclaim ¶ 16. Specifically, Bailey Edward concluded that

[a]lthough the design identified that spring hangers were to be installed at the pump, none were provided. Per the GSA P100 document all pumps should be provided with flexible connections on the inlet and discharge. However, the installation of such appurtenances was not identified in the contract documents, and flexible connections were not provided by the contractor. The installation of these deviceswould have reduced the vibration transmitted from the pump to the piping and increased the time to failure.

Bailey Edward Study at 6; Counterclaim ¶ 16.

Bailey Edward also determined that: MDB had failed to install a specified filter and strainer and to check a valve; the bolts on the pump flange that malfunctioned were not equally tightened (with one bolt being only one-third as tight as the others); a disconnect switch for the pump had not been installed as specified; and a liquid sensor that would have triggered an alarm in the event of a leak was not properly installed. Bailey Edward Study at 5-8; see Counterclaim ¶¶ 10-16. Thus, the Bailey Edward Study determined that "several aspects of JLK's design were not installed by MDB as specified in JLK's design." Bailey Edward Study at 4-5; see also Pl. Mot. at 2.

Ultimately, Bailey Edward determined that it could not assign fault to JLK to the exclusion of MDB (or the government):

Although considerable efforts have been performed to research, review and craft the report, no conclusive evidence is available to find fault with a single component, party or decision . . . It is the opinion of [Bailey Edward] that the leak resulted due to the confluence of several factors. Elimination of one or two of these factors may have eliminated the premature failure of the glycol system.

Bailey Edward Study at 8, 10 (emphasis added) ("Based on the email chain within the Appendix C letter, the GSA was to coordinate access with the manufacturer's technician. Since the technician was not allowed access to the facility, it would seem that the GSA did not diligently coordinate access.").

C. The Government's CDA Claim

On September 18, 2018, following the completion of the Bailey Edward Study, Ms. Kathern M. Williams, the cognizant contracting officer ("CO") for the Courthouse project, issued a contracting officer's final decision ("COFD") on a government claim, pursuant to the CDA, 41 U.S.C. § 7101 et seq. ECF No 1-2. The COFD was addressed jointly to JLK and MDB, and claimed damages allegedly caused by "the glycol piping system leak that occurred on March 15, 2016 at the [Courthouse]." Id. at 1. The COFD initially noted that "[d]esign and construction services were provided separately" by JLK and MDB "for the buildout of new office space for the [NLRB]." Id. (emphasis added). After describing the damage to the Courthouse and the Bailey Edward Study, the COFD concluded that "[b]oth JLK and MDB are at fault, and are jointly and severally liable . . . ." Id. at 3 (emphasis added); see also id. at 4 ("GSA has determined that JLK and MDB are both jointly liable for all of the costs to address this issue.").

Accordingly, the COFD demanded "that JLK and MDB collectively reimburse GSA $1,938,866.86 to offset the costs incurred as a result of the [leak]." Id. at 5 (emphasis added); see Counterclaim ¶¶ 19, 24.

D. JLK's Complaint and The Government's Counterclaim

While MDB appealed the COFD to the Civilian Board of Contract Appeals ("CBCA"),² JLK filed a timely Complaint in this Court, requesting that we vacate the COFD with respect to JLK. Compl. at 10 ("Conclusion and Request for Relief"). Specifically, JLK contends that "[t]he decision of the Contracting officer is incomplete and unfinished as it fails to attribute percentages of fault between JLK and MBD but only states that each party is jointly and severally liable." Id. Furthermore, JLK alleges that "[t]he Contracting Officer improperly attributed equal fault to JLK and MBD without finding any degree of liability attributable to the GSA, even though the forensic investigators faulted the government for failing to admit a technician to the premises prior to the system failure." Id. ¶ 65. Finally, JLK maintains that it...