Raymond Constructors of Africa, Ltd. v. United States
| Decision Date | 20 June 1969 |
| Docket Number | No. 175-65.,175-65. |
| Citation | 411 F.2d 1227 |
| Parties | RAYMOND CONSTRUCTORS OF AFRICA, LTD. v. The UNITED STATES. |
| Court | U.S. Claims Court |
Thomas S. Jackson, Washington, D. C., for plaintiff; Austin P. Frum, Washington, D. C., attorney of record. Jackson, Gray & Laskey, Washington, D. C., of counsel.
Steven L. Cohen, Washington, D. C., with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant. R. W. Koskinen, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.
*
The plaintiff presented in the petition six claims growing out of the construction by the plaintiff of a demonstration road in the Sudan.
Three of the six claims that were originally set out in the petition have been abandoned by the plaintiff. Therefore, only three claims remain in the case for disposition by the court.
It is our opinion that the plaintiff is entitled to recover on one of the remaining claims, but not on the other two.
The plaintiff is a corporation organized and existing under the laws of Liberia. It is a wholly owned subsidiary of Raymond International, Inc., a corporation organized and existing under the laws of New Jersey. During the period that is involved in the present case, both the plaintiff and its parent corporation maintained their home offices in New York City.
During the period 1959-1962, the defendant's International Cooperation Administration (now the Agency for International Development), in furtherance of the defendant's foreign aid program, maintained in The Republic of the Sudan a mission that was known as the United States Operations Mission and was frequently referred to as "the USOM." This mission, which operated under the general supervision of the defendant's embassy at Khartoum, the capital of the Sudan, was headed by a director, who was stationed in Khartoum. The USOM handled the technical, financial, and other assistance that was provided by the defendant to the Sudanese government.
Sometime prior to April 1959, the United States Operations Mission proposed to officials of The Republic of the Sudan that a demonstration road project be constructed in the Sudan, with financial assistance from the defendant. At that time, there were no modern highways in the Sudan. It was proposed by the USOM to the Sudanese government that the demonstration road be constructed as a modern blacktop highway in the vicinity of Khartoum, for the purpose of demonstrating what was involved in the construction of a modern highway, what it would cost, and the benefits that would be derived from it. It was also believed by personnel of the USOM that the construction of a segment of a modern road as a demonstration highway would educate the Sudanese in contracting for, administering, and financing a road project, and also in the engineering aspects of road-building to some extent.
The government of The Republic of the Sudan approved the proposal relative to the construction of a demonstration road project. With the concurrence of the United States Operations Mission, the Sudanese government decided that the demonstration road would start at Khartoum North and go approximately 21 kilometers in a northerly direction to Khogalab. The latter is situated in a rather large agricultural area near the Nile River, downstream from the confluence of the Blue Nile and the White Nile.
On or about June 25, 1959, the defendant and the government of The Republic of the Sudan entered into an agreement (usually referred to as "the project agreement") relative to the construction of a demonstration road approximately 21 kilometers in length from Khartoum North to Khogalab. The project agreement was subsequently revised several times. In its final form, the project agreement not only covered the construction of the demonstration road from Khartoum North to Khogalab, but it also provided for the extension of the road to Kabbashi Village, approximately 8½ kilometers beyond Khogalab. Total financing equivalent to $1,460,000 was provided for, of which total the Sudanese government was to furnish the equivalent of $900,000 in Sudanese pounds (LS 313,200). The remainder of the financing, $560,000, was to be provided by the defendant in United States dollars, $310,000 being made available for "contract services" and $250,000 being made available for "commodities." The "commodities" were to consist of major items of construction equipment that would be procured by the defendant and delivered at Port Sudan to the Sudanese government, which, in turn, was to make such construction equipment available for use in the construction of the demonstration road by the contractor selected for the job. The ownership of the equipment was to be vested in and retained by the Sudanese government.
The Sudanese Ministry of Works issued an invitation for competitive tenders or bids with respect to the construction of the demonstration road, the plaintiff and other construction companies submitted such tenders, and the plaintiff was selected as the successful low bidder. The plaintiff's tender was accepted on or about October 27, 1959; and a formal contract was entered into between the plaintiff and the government of The Republic of the Sudan on or about November 11, 1959. The contract provided for the performance by the plaintiff of the various items of work involved in the construction of the demonstration road, stating as to each item the estimated quantity, the unit price, and the estimated total price for the item. The original contract gave the estimated contract price for all items as the equivalent of $750,455, and provided that the maximum amount to be paid in United States dollars was $175,000, with the remainder of the estimated contract price to be paid in Sudanese pounds.
After the project agreement between the defendant and the Sudanese government was revised, as previously indicated, for the purpose of extending the demonstration road for an additional distance of approximately 8½ kilometers beyond Khogalab to Kabbashi Village, the plaintiff and the Sudanese government entered into a supplemental contract providing for the 8½ kilometer extension of the demonstration road. This supplemental contract enlarged the estimated quantities previously set out in the contract; and it increased the estimated contract price to the equivalent of $1,158,091.57, increased the maximum amount to be paid in United States dollars to $310,000, and increased the amount that was to be paid in Sudanese pounds. The unit prices stated in the original contract were not changed by the supplemental contract.
The plaintiff made a subcontract with the Sudanese Construction Company for the performance by the latter of the earthwork items under the prime contract between the plaintiff and the Sudanese government.
At about the time when the plaintiff entered into the contract with the Sudanese government for the construction of the demonstration road, the plaintiff also entered into a letter of understanding with the International Cooperation Administration. This document referred to a request from the Sudanese government that the ICA finance the dollar payments under the contract for the construction of the demonstration road, and further stated in part as follows:
Subsequently, after arrangements were made for the extension of the demonstration road for approximately 8½ kilometers beyond Khogalab to Kabbashi Village, paragraph numbered 2 of the letter of understanding between the plaintiff and the International Cooperation Administration was amended "to increase ICA's maximum obligation in financing the Contract * * * from $175,000 to $310,000."
One of the claims asserted by the plaintiff in the present action is based upon the allegation that the cost of constructing the demonstration road in the Sudan was increased because personnel of the defendant violated an "agreement with the plaintiff that only unsieved and mechanically loaded `pit run' aggregate material need be used" in constructing the base of the demonstration road.
Pit-run aggregate is aggregate just as it is dug out of a pit or borrow area. It is excavated mechanically, and it is loaded on a vehicle and delivered to the job site for use in the construction process, without being screened or sieved by hand labor.
The evidence in the record shows that personnel of the defendant's Bureau of Public Roads was assigned to, and formed part of, the United States Operations Mission in the Sudan. The top person in this category was Herman Gaines. He was the principal official of the USOM with respect to highway matters, although he served under the administrative supervision of the Director of the USOM.
The evidence also shows that the specifications for the proposed demonstration road, and the other contract documents which the Sudanese Ministry of Works furnished to the plaintiff and other prospective bidders as part of the invitation for tenders, were prepared in the office of Herman Gaines and by personnel of the defendant, in conjunction with the Sudanese Ministry of Works. The specifications and other contract documents were modeled principally on documentary material customarily used by ...
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Porter v. United States
...L.Ed.2d 97 (1967); Housing Corp. of America v. United States, 468 F.2d 922, 199 Ct.Cl. 705 (1972); Raymond Constructors of Africa, Ltd. v. United States, 411 F.2d 1227, 188 Ct.Cl. 147 (1969). Under such circumstances, the Federal Government would be considered to have waived its sovereign i......