Paul Hardeman, Inc. v. United States, No. 273-67.

CourtCourt of Federal Claims
Writing for the CourtCOWEN, , LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS
Citation186 Ct. Cl. 743,406 F.2d 1357
PartiesPAUL HARDEMAN, INC. v. The UNITED STATES.
Docket NumberNo. 273-67.
Decision Date14 February 1969

186 Ct. Cl. 743, 406 F.2d 1357 (1969)

PAUL HARDEMAN, INC.
v.
The UNITED STATES.

No. 273-67.

United States Court of Claims.

February 14, 1969.


406 F.2d 1358

Harold F. Blasky, New York City, for plaintiff, Max E. Greenberg, New York City, atty. of record, Max E. Greenberg, Trayman, Harris, Cantor, Reiss & Blasky, New York City, of counsel.

John C. Ranney, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

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

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

COLLINS, Judge, delivered the opinion of the court:

This case comes before the court on the motion of plaintiff and on cross-motion of defendant for summary judgment, in review under the Wunderlich Act (41 U.S.C. §§ 321, 322 (1964)) of a decision of the Corps of Engineers Board of Contract Appeals. Both parties rely upon the administrative record and the pleadings filed in this court, and there is no dispute over the material facts. Both plaintiff and defendant agreed during oral argument that a decision for plaintiff in this court would necessitate returning the case to the board for determinations on the issue of quantum.1

406 F.2d 1359
For the reasons stated herein, we grant plaintiff's motion for summary judgment, deny the defendant's, and return the case to the board

On April 12, 1962, plaintiff corporation contracted with the United States Army Corps of Engineers for the furnishing of plant, labor, equipment, and material to construct a dam and powerhouse at the Green Peter Reservoir site on the Middle Santiam River, Linn County, Oregon. Although the contractor was allowed to select the equipment for and method of handling and placing concrete, the contractor's choices were subject, under the contract, to the approval of the contracting officer.2

The method of concrete conveyance and placement selected by plaintiff and accepted and approved by defendant required the construction and utilization of a trestle extending from embankment to embankment across the cavity wherein the dam was to be constructed. The plan contemplated the simultaneous operation of two whirley cranes on a roadway established upon the trestle. The cranes were supplied with concrete from a batch plant near the left embankment by means of a dinky railroad operating on tracks laid on the trestle roadway. The dam was constructed directly beneath the trestle.

The construction of the trestle was to begin from each embankment and proceed toward the center of the site. During excavation of the area near the right abutment, however, a subsurface condition was discovered which necessitated the unanticipated removal of approximately 118,000 cubic yards of additional material. The contracting officer found the subsurface fault to be a changed condition within the meaning of Article 4 of the General Provisions of the contract,3 and the contractor has been fully compensated for the additional excavation.

Because of the changed condition, the trestle could not be completed on schedule, and a gap was left in the trestle until the additional excavation was performed. The gap was located near the right bank, and consequently the mobility of the whirley crane located on that embankment was severely restricted from July 9, 1964, to September 21, 1964. That crane could not be used at all for the placement of concrete during that period, although some concrete was poured in the interim by means of the left-bank crane.

The question for decision here is a narrow one. Plaintiff claims that from July 9, 1964, to September 21, 1964, the costs to it of concrete placement were greater by virtue of using only one

406 F.2d 1360
whirley crane than they would have been if two cranes could have been used, as planned.4 Plaintiff asserts that these costs were the direct result of the changed condition and that it is entitled to an equitable adjustment therefor. Plaintiff admits that it has been fully compensated for all other work and costs to it occasioned by the changed condition

The board denied plaintiff's claim on the grounds (1) that the modifications of plaintiff's operation necessitated by the changed condition were consequential to the delay incident thereto, and payment for any such increased costs is barred by the "Rice doctrine" (United States v. Rice, 317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53 (1942)); and (2) that plaintiff placed substantially less concrete than projected with the left-bank whirley crane from July to September, indicating that plaintiff's increased costs were attributable to some other cause than the non-use of two whirley cranes, and accordingly the costs were not a direct result of the changed condition.5

Defendant, in reliance upon the first ground of the board's decision,6 contends that, whether or not the damages

406 F.2d 1361
plaintiff claims are denominated "delay damages," the increased costs incurred by plaintiff were suffered in the performance of work which was required under the contract, the amount and scope of which was unchanged by the changed condition. The recovery of such "consequential" costs, defendant argues, is barred by the "Rice doctrine."

The first question to be decided is whether the damages allegedly incurred by plaintiff were "delay damages." We are not faced with a situation wherein plaintiff alleges that the Government was responsible for a delay which gave rise to the damages claimed.7 Instead, plaintiff argues that the disputed costs were not at all a result of delay.

It is true that, had plaintiff not been without the full use of one of its cranes during the period in question, the costs sought would not have been incurred. But the coincidence of the hiatus and the additional expense does not necessarily imply a causal link between them.

The term "delay" implies a stopping or hindrance for some period; "delay damages" are obviously those which flow from that increment in time. In this context, standby equipment expense, additional overhead, increased labor costs — typical delay damage items — are not incurred unless there is a prolongation of performance beyond the anticipated date of completion.8

In contrast, the costs sought by plaintiff would have been incurred even had the contract been performed as soon as physically possible. An interruption in one phase of the work under a contract does not always result in an increase in the time necessary for total performance. In such a case, the absence of any delay would obviously preclude recovery therefor. Had there in fact been no delay in the completion of the instant contract, plaintiff's restricted pouring operations would still have caused the increased costs alleged. Plaintiff's damages accordingly could not have been the result of any delay in performance, and the board erred in concluding otherwise.

There remains the further question concerning the relation of the "Rice doctrine" to increased costs in the performance of work which is required by the contract, but which is not...

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18 practice notes
  • Merritt-Chapman & Scott Corporation v. United States, No. 44-66.
    • United States
    • Court of Federal Claims
    • July 15, 1970
    ...where that condition or change directly leads to disruption, extra work, or new procedures. See Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 186 Ct. Cl. 743 (1969); Ivey Bros. Constr. Co., Eng. BCA No. 1764 (1960). At least a portion of the claimed cost increase in this case — it is......
  • SUN SHIPBLDG. & DRY DOCK CO. v. US Lines, Inc., Civ. A. No. 75-2275.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • November 22, 1977
    ...there is serious doubt whether it would be upheld in full by the Supreme Court today. See, e. g., Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 1362, 186 Ct.Cl. 743 (1969); Law v. United States, 195 Ct.Cl. 370, 432 (1971). See also Shedd, The Rice Doctrine and the Ripple Effects of C......
  • Corinno Civetta Const. Corp. v. City of New York, NAB-TERN
    • United States
    • New York Court of Appeals
    • May 6, 1986
    ...Co. v. Turner Constr. Co., 742 F.2d 965, cert denied 471 U.S. 1102, 105 S.Ct. 2328, 85 L.Ed.2d 845; Paul Hardeman, Inc. v. United States, 406 F.2d 1357). All delay damage claims seek compensation for increased costs, however, whether the costs result because it takes longer to complete the ......
  • Electronic and Missile Facilities, Inc. v. United States, No. 221-67.
    • United States
    • Court of Federal Claims
    • October 17, 1969
    ...of negligence.39 Any such damage which was a direct result of the "change" is compensable. Cf. Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 186 Ct. Cl. 743 (1969).s conclusion that plaintiff is entitled to none is not entitled to finality. Cf. Bell v. United States, supra. Findings ......
  • Request a trial to view additional results
18 cases
  • Merritt-Chapman & Scott Corporation v. United States, No. 44-66.
    • United States
    • Court of Federal Claims
    • July 15, 1970
    ...where that condition or change directly leads to disruption, extra work, or new procedures. See Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 186 Ct. Cl. 743 (1969); Ivey Bros. Constr. Co., Eng. BCA No. 1764 (1960). At least a portion of the claimed cost increase in this case — it is......
  • SUN SHIPBLDG. & DRY DOCK CO. v. US Lines, Inc., Civ. A. No. 75-2275.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • November 22, 1977
    ...there is serious doubt whether it would be upheld in full by the Supreme Court today. See, e. g., Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 1362, 186 Ct.Cl. 743 (1969); Law v. United States, 195 Ct.Cl. 370, 432 (1971). See also Shedd, The Rice Doctrine and the Ripple Effects of C......
  • Corinno Civetta Const. Corp. v. City of New York, NAB-TERN
    • United States
    • New York Court of Appeals
    • May 6, 1986
    ...Co. v. Turner Constr. Co., 742 F.2d 965, cert denied 471 U.S. 1102, 105 S.Ct. 2328, 85 L.Ed.2d 845; Paul Hardeman, Inc. v. United States, 406 F.2d 1357). All delay damage claims seek compensation for increased costs, however, whether the costs result because it takes longer to complete the ......
  • Electronic and Missile Facilities, Inc. v. United States, No. 221-67.
    • United States
    • Court of Federal Claims
    • October 17, 1969
    ...of negligence.39 Any such damage which was a direct result of the "change" is compensable. Cf. Paul Hardeman, Inc. v. United States, 406 F.2d 1357, 186 Ct. Cl. 743 (1969).s conclusion that plaintiff is entitled to none is not entitled to finality. Cf. Bell v. United States, supra. Findings ......
  • Request a trial to view additional results

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