Kinetic Builder's v. Peters, Secretary of the Air Force
| Decision Date | 25 September 2000 |
| Citation | 226 F.3d 1307 |
| Parties | (Fed. Cir. 2000) KINETIC BUILDER'S, INC.,Appellant, v. F. Whitten Peters, SECRETARY OF THE AIR FORCE,Appellee. 00-1065 DECIDED: |
| Court | U.S. Court of Appeals — Federal Circuit |
Richard B. Campbell, Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A., of Tampa, Florida, for appellant.
Kevin W. McArdle, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for appellee. With him on the brief wereDavid W. Ogden, Assistant Attorney General; David M. Cohen, Director; and Kirk T. Manhardt, Assistant Director.
Before RADER, SCHALL, and LINN, Circuit Judges.
Kinetic Builder's Inc. ("Kinetic") appeals from the consolidated reconsideration decision of the Armed Services Board of Contract Appeals ("Board" or "ASBCA"). SeeKinetic Builders, Inc., Nos. 51012 and 51611, 99-2 B.C.A. (CCH) ¶ 30,450 (ASBCA July 6, 1999). In that decision the Board denied Kinetic's claim for extended job site overhead costs for the delay in contract completion that was caused by the Department of the Air Force's ("Air Force") handling of a sewage back-up. In addition, the Board denied Kinetic's claim seeking a time extension and reimbursement for extended job site overhead costs caused by the alleged Air Force delay in promulgating a solution to the problem of a defective restroom layout. Because the Board's factual findings are supported by substantial evidence, we affirm.
The Air Force awarded Kinetic contract no. F08620-94-C0050 for the alteration of a building at Hurlburt Field, Florida. The contract was for a fixed price of $243,121.00 and the contract completion date was set for 268 calendar days after receiving notice to proceed. The Air Force issued the notice to proceed on October 20, 1994. Thus, the completion date was set for July 18, 1995. By a modification dated May 5, 1995, the parties agreed to an increase in the contract price and to extend the completion date to January 23, 1996. The Government took beneficial occupancy of the building on March 1, 1996, thirty-seven days after the scheduled completion date. In view of Federal Acquisition Regulation ("FAR") 52.232-5 paragraph (e), which was incorporated into the contract, the Air Force withheld $4,775.70 in contract payments as liquidated damages for late completion and credit for unperformed work.
Pursuant to the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-612, Kinetic submitted multiple claims to the contracting officer ("CO") for the Air Force seeking payment of $7,724.28 for additional costs incurred as a result of defective specifications as well as government-caused delays. The CO determined that Kinetic would be permitted: (1) twenty days of delay due to the Air Force's delay in handling a sewer backup; (2) a seven day performance extension, as previously agreed upon, due to work accomplished under Modification No. P00002 directing Kinetic to perform restroom changes and additional work specified in Addendum 6 to the contract; and (3) three days of delay because of delay by the Air Force in bringing forth corrective action due to a defective restroom layout. In view of these excusable delays, the CO only assessed Kinetic with a seven day liquidated damage charge, i.e., thirty-seven days total delay minus thirty days excusable delay, in the amount of $693.00.
In addition, the CO found that Kinetic was not entitled to extended overhead costs because it had contributed to the thirty-seven day delay. The CO also found that Kinetic was entitled to an equitable adjustment of $687.93 for the work added by Modification No. P00002, but that Kinetic was not entitled to additional compensation for painting certain rooms because the work was required by the contract, and therefore, was not additional work. Finally, the CO found that the Air Force was entitled to a contract price reduction of $435.00 for Kinetic's failure to paint exposed gas piping in accordance with the contract. In view of the foregoing, the CO calculated that Kinetic was owed $4,335.63 of the $4,775.70 that the Air Force withheld as liquidated damages and credit for unperformed work. Unhappy with the result of the CO's decision, Kinetic timely appealed to the Board.
The Board addressed Kinetic's multiple claims in two separate decisions. The first decision covered Kinetic's claims of entitlement to: (1) a time extension for Air Force delay in dealing with the sewer back-up, (2) an increase in contract price for additional painting, and (3) extended overhead costs due to the Air Force delay in dealing with the sewer back-up. The first decision also covered the Air Force's claim for a contract price reduction for unperformed work. The second decision covered: (1) Kinetic's claims for entitlement to a time extension for Air Force delay in promulgating a solution to the problem of the defective restroom layout, (2) the accompanying extended job site overhead costs, (3) an equitable adjustment for work added by Modification No. P00002, and (4) an accompanying time extension for carrying out the work added by Modification No. P00002.
In the first decision, the Board determined that Kinetic was entitled to seventeen days of excusable delay out of the thirty-seven days of completion delay because of the Air Force's delay in handling the sewer back-up. The Board also determined that Kinetic was entitled to an equitable adjustment for overhead costs due to that delay. The Board, like the CO, also determined that Kinetic was not entitled to an increase in the contract price for the alleged extra painting because that painting was not additional work, but rather work that was required by the contract. Further, the Board, like the CO, found that the Air Force was entitled to a price reduction of $435.00 for Kinetic's failure to paint exposed piping as required by the contract. The Board then determined the maximum amount of money that the Air Force properly could have withheld from Kinetic pursuant to FAR 52.232-5 if none of the contract delay were excusable to Kinetic. Finally, the Board concluded that because seventeen days of delay was excusable to Kinetic and Kinetic was entitled to an equitable adjustment for costs associated with that delay, the maximum amount it had just calculated needed to be further reduced. Consequently, the Board referred that issue of quantum to the parties.
In the second decision, the Board concluded that Kinetic did not seek a time extension for carrying out the work required by Modification No. P00002. In addition, the Board concluded that Kinetic was not entitled to a time extension or accompanying overhead costs for alleged Air Force delay regarding the promulgation of a solution to the defective restroom layout. According to the Board, Kinetic failed to establish that any Air Force delay in solving the defective restroom layout caused delay in Kinetic's completion of the contract or caused Kinetic to incur additional overhead costs. Furthermore, the Board concluded that while Kinetic was entitled to an equitable adjustment for the work added by Modification No. P00002 and the Air Force was entitled to a credit against the price for work deleted by that modification, the issue of quantum for those claims should be referred to the parties for negotiation.
Kinetic moved for reconsideration of portions of these two Board decisions. The Board consolidated these portions into a single decision for purposes of reconsideration. In its consolidated reconsideration decision, the Board affirmed all parts of its second decision but modified parts of its first decision. First, the Board found that while the Air Force did not take beneficial occupancy of the building until March 1, it was on notice of substantial completion of the contract as of February 27. Thus, the total contract delay was thirty-five days not thirty-seven. Second, the Board found that while seventeen days of the contract delay was excusable as to Kinetic due to the Air Force's delay in handling the sewer back-up, Kinetic did not test the fire alarm system until February 26, 1996, and did not notify the Air Force of the results of this test until February 27, 1996. Thus, the Board concluded that Kinetic, as well as the Air Force, was responsible for contract delay. In view of the foregoing, the Board denied Kinetic's entitlement to overhead costs for the sewer back-up delay because the record did not provide a basis for apportioning the overhead costs incurred as a result of the Air Force's delay and the overhead costs incurred as a result of Kinetic's delay.
Despite denying the overhead costs due to the sewer back-up delay because of the concurrence with Kinetic's delay, the Board found that Kinetic was nevertheless entitled to damages for the seventeen days of Air Force delay in dealing with the sewer back-up. However, the Board also noted that the Air Force was entitled to damages for the remaining eighteen days of delay caused by Kinetic in completing the contract. The Board then calculated the maximum payment that the Air Force could properly have withheld from Kinetic pursuant to FAR 52.232-5 in view of the foregoing findings as to delay by the Air Force and by Kinetic and the contract price reduction for the painting of the pipes that was not performed by Kinetic. That sum was determined to be $2,217.00.
Kinetic timely appealed the Board's reconsideration decision to this court.
"[E]very federal appellate court has a special obligation to satisfy itself of its own jurisdiction." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (internal quotations and citations omitted); see also Helfgott & Karas, P.C., v. Dickinson, 209 F.3d 1328, 1333, 54 USPQ2d 1425, 1428 (Fed. Cir. 2000). Thus, we first address the question raised by the government of our...
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