McQuagge v. United States

• Decision Date: 13 September 1961
• Docket Number: Civ. A. No. 7176.
• Citation: McQuagge v. United States, 197 F.Supp. 460 (W.D. La. 1961)
• Parties: C. H. McQUAGGE, d/b/a Shreveport Contracting Company v. UNITED STATES of America v. GREAT AMERICAN INDEMNITY COMPANY, Third-Party-Defendant.
• Court: U.S. District Court — Western District of Louisiana

197 F. Supp. 460

C. H. McQUAGGE, d/b/a Shreveport Contracting Company v. UNITED STATES of America v. GREAT AMERICAN INDEMNITY COMPANY, Third-Party-Defendant.

Civ. A. No. 7176.

United States District Court W. D. Louisiana, Shreveport Division.

September 13, 1961.

Kenneth G. Burgess, Shreveport, La., for plaintiff and Third Party Defendant.

T. Fitzhugh Wilson, U. S. Atty., and Edward V. Boagni, Asst. U. S. Atty., Shreveport, La., for the United States.

BENJAMIN C. DAWKINS, Jr., Chief Judge.

This case presents a disgusting example of bureaucratic incompetence, irresponsibility, negligence, and outright disdain for the Government's interests, in connection with a $55,000 construction contract at Barksdale Air Force Base. The intricate details will be developed in the course of this opinion.

Plaintiff, C. H. McQuagge, d/b/a Shreveport Contracting Company, brought this suit against the United States for recovery of the balance of the contract price due on Air Force Contract number AF 16 (602)-506. Jurisdiction is grounded on the Tucker Act, 28 U.S. C.A. Sec. 1346(a). In its answer the Government admitted liability under the contract for a balance due in the sum of $3,094.25, but counterclaimed for (1) $16,875 in damages for plaintiff's alleged breach of contract number AF 16 (602)-402, awarded June 20, 1955, said to have resulted from his failure properly to meet the contract specifications with respect to flexural strength of the concrete used in the construction of certain taxiways at the Base; and (2) for $16,794.87 allegedly due to the United States for withholding and unemployment taxes which had accrued over a period beginning January 1, 1955, and ending December 31, 1956, as evidenced by eight tax liens recorded in the public records of Caddo Parish, Louisiana.

Plaintiff filed a motion for summary judgment and a motion to dismiss the government's counterclaim for failure to state a claim upon which relief can be granted. Thereafter the government filed an amended answer and counterclaim alleging that the contractor had dismissed his appeal from the Contracting Officer's decision before the Armed Services Board of Contract Appeals. The government seeks to have the $3,094.25 owed the contractor under contract number AF 16(602)-506 set off against plaintiff's alleged indebtedness of $16,875.00 under contract number AF 16(602)-402, leaving a balance owed the government of $13,780.75 under counterclaim number (1) above. Additionally, the government prays that Great American Indemnity Company, a third party defendant, be held liable to the United States in the principal sum of $13,780.75, in solido with the contractor, McQuagge, and, in addition, individually liable for $3,094.20, with interest, this latter sum representing the set-off against the amount owed the government by the contractor.

On March 13, 1961, the contractor and government entered into a joint stipulation in which McQuagge admitted owing the United States $14,353.50 for withholding and unemployment taxes, including interest through March 1, 1961, and a recordation fee of $1.50. He denied liability, however, as to the counterclaim asserted with respect to contract number AF 16(602)-402.

Great American Indemnity Company answered the government's counterclaim urging the same defenses asserted by McQuagge.

The motion for summary judgment and motion to dismiss for failure to state a claim upon which relief can be granted were referred to the merits. Trial on the merits commenced on March 6, 1961, and concluded on March 8, 1961. Having settled all other matters, we now come to the merits of the government's counterclaim on contract number AF16(602)-402 as against the contractor and his surety.

Contract AF 16(602)-402 was awarded to McQuagge on June 20, 1955, and approved on June 23, 1955. It called for replacement of previously failed concrete slabs in taxiways at Barksdale Air Force Base, Louisiana, for a total price of $55,250. The project was undertaken and completed within the prescribed period and a certificate of final acceptance was signed by Philip Gumbiner, civilian Contracting Officer for the Base, on October 6, 1955. Final payment of the contract price was approved and made on October 13, 1955. However, nearly a year later, on October 2, 1956, Gumbiner wrote a rather vague letter to McQuagge advising that he had failed to comply with certain provisions of the contract and that the extent of non-compliance would be ascertained at a later date. The letter contained no details as to the nature of non-compliance and no particular demands were made upon McQuagge. On July 10, 1957, more than nine months later, Gumbiner again wrote McQuagge stating that the contract specifications relative to flexural strength of the concrete poured on the taxiways had not been complied with; that it was impossible to determine which of the slabs "failed" due to substandard material; hence the contractor would be required to replace all of the slabs which had failed. In other words, Gumbiner sought to hold McQuagge responsible for slabs which failed as a result of his alleged wrongdoing, as well as those due to other reasons such as design defects for which the Contracting Office was responsible. On March 10, 1958, Gumbiner again wrote McQuagge admitting that while responsible Air Force personnel had knowledge when final acceptance and payment were made, of the alleged failure of the concrete to measure up to specifications, still he was making demand, under Section 9 of the contract, that the entire project be condemned because of defective workmanship and materials. McQuagge was given thirty-days to appeal the decision of the Contracting Officer. The decision was appealed, preserving, however, all objections to the jurisdiction of both the Contracting Officer and the Secretary of the Air Force on the ground that the dispute arose out of a contract whereunder performance had been finally accepted and final payment made pursuant to the provisions of the contract. This suit was filed September 25, 1958. Immediately prior to trial on the merits, McQuagge dismissed his appeal before the Armed Services Board of Contract Appeals, and relies for relief upon the evidence adduced here.

Some of the facts are not disputed. The total area of all concrete replaced by McQuagge was 48,212.5 square feet, consisting of 257 concrete slabs or squares of 12½ × 15 feet dimension. Of the total, only 75 showed noticeable defects, according to John H. Liebl, a civil engineer for the Air Force and a government witness. This leaves a balance of 182 slabs placed by McQuagge without defects. Frank J. Birdsong, a civilian Air Force concrete inspector, testified that approximately 45% of the total area showed either hairline cracks or cracks running throughout the depth of the slabs. Thus, according to Birdsong's testimony, 21,750 square feet of the 48,212.5 square feet replaced by McQuagge indicated some degree of failure. Birdsong, however, did not attribute all of the failures to faulty workmanship or materials supplied by McQuagge, and conceded that other causes, including design defects, could have brought them about.

The government's claim centers upon the alleged failure of McQuagge to satisfy the requirements of provision Tp 4-04 of the contract, which provides:

"Tp 4-04 Strength: The concrete mix will be designed by the contractor and submitted to the Contracting Officer for approval. The concrete mixture shall be designed to produce concrete having a minimum flexural strength of 700 pounds per square inch at the age of seven days determined by standard beam test performed in strict accordance with ASTM Standard C78-49. The seven-day flexural strength may be obtained by high early strength cement or by the use of sufficient quantity of portland cement. Prior to the start of paving operations the contractor shall cast, cure and test standard beams in strict accordance with ASTM Specification C78-49. The method of making and curing test beams shall be in accordance with C192-52T."

The government introduced thirty-six concrete beam flexural strength test charts, each initialed on the back by Major William B. Weaver, military Contracting Officer. The evidence that these tests were made upon concrete specimens supplied by McQuagge is most inconclusive; and so is the matter of whether the tests were conducted properly. Assuming, arguendo, that they were authentic, fourteen of these charts indicated the flexural strength of the several test samples at seven days to be 580, 558, 591, 582, 566, 396, 430, 475, 491, 497, 496, 539, 539 and 541 pounds per square inch or an average strength of 520 P.S.I. at seven days. The remaining twenty-two test charts indicated the flexural strength of the several concrete beams at fourteen days to be 525, 641, 566, 614, 589, 612, 537 and 554, and at seventeen days to be 606 and 675 and at twenty-eight days to be 705, 673, 587, 662, 718, 583, 625, 537, 596, 679, 616 and 650 per square inch. The average flexural strength of the sample beams at fourteen, seventeen and twenty-eight days approximates 615.90 pounds per square inch.

In any event, all thirty-six of these tests, argues the government, were conducted during construction of the taxiways and were completed and the results known prior to acceptance and final payment for the finished work.

Gumbiner, who has been Deputy Base Procurement Officer and civilian Contracting Officer at the Base since January, 1955, testified that he was familiar with the initials of Major Weaver and from his knowledge of the practice and procedure in the office of the Contracting Officer, the thirty-six charts were received in that office and the initials on the back of each chart were those of Major Weaver. Gumbiner also testified that although he was the civilian Contracting Officer, he had equal authority with Major Weaver as to ordinary contractual matters. Gumbiner further testified that it was standard...