MONROE M. TAPPER AND ASSOCIATES v. United States

• Decision Date: 19 March 1975
• Docket Number: No. 329-70.,329-70.
• Citation: 514 F.2d 1003
• Parties: MONROE M. TAPPER AND ASSOCIATES v. The UNITED STATES.
• Court: U.S. Claims Court

514 F.2d 1003

MONROE M. TAPPER AND ASSOCIATES v. The UNITED STATES.

No. 329-70.

United States Court of Claims.

March 19, 1975.

F. Trowbridge vom Baur, Washington, D. C., attorney of record, for plaintiff.

Michael J. Rubin, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

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

COWEN, Chief Judge:

We are called upon to decide another issue arising in connection with plaintiff's long-continued and persistent efforts to obtain a decision on the merits by the Postal Service Board of Contract Appeals on plaintiff's appeal from an adverse decision of the contracting officer. After the Board had dismissed plaintiff's appeal as untimely, we held that the Board had not given adequate consideration to the facts and circumstances which might, in the proper exercise of its discretion, authorize it to waive the contractual period for an appeal from the contracting officer's decision. Accordingly, we suspended proceedings pending plaintiff's further pursuit of its administrative remedy through a possible discretionary waiver by the Board of the contractual time limit. Monroe M. Tapper & Associates v. United States, 458 F.2d 66, 198 Ct.Cl. 72 (1972). After holding a hearing, the Board issued its decison on remand in which it determined that "on the assumption that it has `power, in proper circumstances, to waive or extend the appeal period specified in the usual disputes clauses,' no facts or circumstances have been presented in this appeal which would warrant or permit the exercise of such assumed power." PSBCA No. 349, 72-2 BCA ¶ 9629.

Thereafter, the case came before Trial Judge Mastin G. White on the parties' cross-motions for summary judgment, and these motions required a Wunderlich Act review of the Board's decision. The trial judge concluded that the refusal of the Board to waive the contractual 30-day time limit constituted action that was arbitrary and an abuse of discretion. He recommended that the parties' cross-motions for summary judgment be denied without prejudice, and that the case be remanded to the Board with instructions for a prompt determination on the merits of the contractor's claim for additional compensation because of the requirement that gravel be used in backfilling trenches for utility lines. The case is before us now on defendant's exceptions to the trial judge's opinion. After an en banc hearing and after considering the arguments and briefs of the parties, we find that the trial judge's determinations based on his review of the administrative record are correct, and we adopt his conclusion of law and his recommendation for remand of the case.

I

At oral argument there was an indication that there is some confusion by counsel as to the standard that should be used by this court in its review of the latest Board decision. However, any confusion on that point should be dispelled by reference to our decision in Moore-McCormack Lines, Inc. v. United States, 413 F.2d 568, 188 Ct.Cl. 644 (1969). We there held that in cases involving abuse of discretion in the administration of Government contracts, the standards provided in the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1964) apply. In that case, which also dealt with questions of procedure, the court stated that "questions of abuse of discretion are subsumed under the review required (41 U.S.C. § 321) for arbitrariness or capriciousness." 413 F.2d at 583, 188 Ct.Cl. at 669. This is not a situation in which the scope of judicial review is limited by a statute which precludes judicial review, or by one which is drawn in such broad terms that there is no law to apply. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).¹ See also Berger, Administrative Arbitrariness and Judicial Review, 65 Col.L.Rev. 55 (1965).

II

Under the contract that is involved in the present case, the plaintiff, Monroe M. Tapper and Associates (Tapper), agreed to construct a Post Office and Vehicle Maintenance Facility in Worcester, Massachusetts, according to plans and specifications prepared by the Post Office Department (now the Postal Service), and to lease the completed structure to the Department for a specified term. Tapper was a Minneapolis, Minnesota, real estate developer and investor, and not a builder, and was principally interested in the contract for investment purposes. Consequently, Tapper engaged a general contractor in Worcester, Granger Contracting Co., Inc. (Granger), to do the entire job of construction for a lumpsum price of $4,830,000.

The Worcester architectural firm of C. W. Buckley, Inc. (Buckley), was engaged by the Post Office Department as Architect-Engineer to supervise the construction. During performance of the contract, Buckley and Granger had offices in the same building.

Stephen M. Trich (Trich), an official of the Post Office Department in Washington, D. C., customarily represented the Department in handling matters that reached the departmental level in connection with the construction, although a Deputy Assistant Postmaster General was technically the contracting officer. Trich was the Chief of Building Construction in the Bureau of Research and Engineering. He testified that he visited the construction site once a month for the construction progress meeting and that, prior to the meeting, he always went in to see Dragon, Granger's Vice President in charge of engineering, to see whether there was anything he wished to bring out at the meeting; that if Granger was in (two doors away) he would say "hello" to him.

The contract contained the usual "disputes" provision, which gave the "lessor" (Tapper) a 30-day period within which to appeal in writing to the Postmaster General from a final decision rendered by the contracting officer on a dispute arising under the contract.

Tapper took very little interest in the construction process, other than to make a few phone calls to Trich and to sign papers occasionally, as the prime contractor, when requested to do so by Granger and assured by Granger that the papers were in proper order. Postal officials were aware that Granger was the real party in interest concerning construction matters arising in connection with the job, and it was Granger who dealt with these officials on such matters, usually through Buckley. Tapper attended a preconstruction meeting in Worcester on August 8, 1968, with Granger, Trich, and others, where it was agreed that Granger would obtain Post Office Department approval of a project manager, and it was understood by Tapper that change orders over $2,000 should go through Tapper's office. Tapper wrote a letter to Granger on August 19, 1968, authorizing Granger to approve and execute change orders in the amount of $2,000 or less "in my behalf." The letter also stated: "Should change orders be larger than $2,000 the authority for such execution shall be mine."

During the course of the construction, a controversy arose in September 1968 between Granger and Buckley over whether, as contended by Buckley and denied by Granger, the contract specifications required that gravel be used in backfilling trenches for utility lines. The contracting officer's adverse ruling on this dispute was the subject of plaintiff's appeal to the Board.

III

In our decision of April 14, 1972, 458 F.2d 66, 198 Ct.Cl. 72 (1972), remanding the case to the Board, the court stated that the plaintiff should be permitted to apply to the Board for a further consideration of a discretionary waiver, because the course of defendant's dealings with Granger as the real party in interest may have induced him to believe that he would promptly receive a copy of the contracting officer's final decision and, thus, set in motion a timely appeal. In determining that there was no basis to warrant the exercise of a waiver of the contractual time limit for plaintiff's appeal to the Board, the Board found "there simply is no evidence of a course of direct dealing by respondent the Government with Granger in regard to the subject of the backfill material." Plaintiff has characterized this finding as astounding, arbitrary, capricious, and unsupported by substantial evidence. Indeed it is. Our able trial judge, who has had extensive experience in reviewing administrative records in contract cases, found that

The undisputed evidence before the board showed that all dealings by the Post Office Department relative to the backfill dispute during the crucial period were with Granger, either directly or through Buckley, defendant's Architect-Engineer, and that the Department did not have any dealings with Tapper concerning that subject up until the receipt on February 26, 1969, of the formal appeal which Tapper signed at the request of Granger.

Moreover, the Board's finding is in direct conflict with the finding which this court made in its decision of April 14, 1972, on the basis of the administrative record of the first Board hearing held on March 17, 1970.². The Board's conclusion is also contrary to its own evidentiary findings on the same question.

A review of the evidence shows that from the very beginning of the construction, the Government dealt directly with Granger as the real party in interest on all matters relating to construction, and particularly on disputes arising between Granger and C. W. Buckley, Inc. Buckley, the Architect-Engineer whom the Government employed to represent it at the site. Tapper was involved in none of these matters. As he stated in his testimony, "after receiving the award and entering into the contract with the Granger Construction Company to build it, the extent of my concern was paying the bills and making periodic calls to Mr. Trich to see how things were going."

At the beginning of the contract...