TC Bateson Construction Company v. United States

• Decision Date: 11 October 1963
• Docket Number: No. 392-61.,392-61.
• Citation: 319 F.2d 135,162 Ct. Cl. 145
• Parties: T. C. BATESON CONSTRUCTION COMPANY v. The UNITED STATES.
• Court: U.S. Claims Court

162 Ct. Cl. 145, 319 F.2d 135 (1963)

T. C. BATESON CONSTRUCTION COMPANY v. The UNITED STATES.

No. 392-61.

United States Court of Claims.

June 7, 1963.

Rehearing Denied October 11, 1963.

Clair F. Achenbach, Dallas, Tex., and O. P. Easterwood, Jr., Washington, D. C., for plaintiff. McNutt, Dudley & Easterwood, Washington, D. C., on the briefs.

Thomas J. Lydon, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before JONES, Chief Judge, REED, Justice (Retired), sitting by designation, and LARAMORE, DURFEE and DAVIS, Judges.

LARAMORE, Judge.

Plaintiff, a prime contractor with the Corps of Engineers, seeks to recover damages it incurred because of a work stoppage of 38 days brought about by picket lines established by certain labor unions around the Plattsburgh Air Force Base, Plattsburgh, New York, the work site of the contract here in issue. Plaintiff contends that the Government is liable for damages under either Article GC-10¹ of the contract, Article GC-11² of the contract, or because of an alleged breach of the contract by defendant. The alleged breach is that the Government was responsible for the work stoppage because it utilized civilian personnel in the operation of two boilers in the central heating plant while two additional boilers were being constructed by plaintiff's subcontractor.

Both plaintiff and defendant rely on the facts as recited by the Armed Services Board of Contract Appeals in its decision of March 16, 1960. The Board's recital of facts is long and elaborate, but since neither side seem to agree on what was stated by the Board, said facts are hereinafter set forth in detail as the facts upon which plaintiff and defendant base their respective motions for summary judgment.

"Appellant's two contracts were part of the program for the construction of Plattsburgh Air Force Base, which is located on the shore of Lake Champlain near Plattsburgh, New York, about 26 miles from the Canadian border. The `old' part of the Air Base on the lake side of U. S. Highway No. 9 had formerly been Army Barracks, but at the end of World War II it had been made available for civilian use, and it was being occupied by Champlain College when this site was selected for a Base of the Strategic Air Command in the early 1950's. From several standpoints it was a Base of unusual importance, and its construction at the earliest possible date was considered of the utmost importance to national defense. The construction program for the Air Base included the renovation of the old facilities and the construction of many new facilities on the other side of Route 9. This appeal relates to the new construction part of the Base only. Plans called for the construction of the Base, the manufacture of bombers and the training of Air Force personnel simultaneously and for the activation of the Base in the summer of 1955, such activation to be piecemeal as the various new facilities became completed to the point where they were usable.

"The Army Corps of Engineers was designated as the `construction agency' to construct Plattsburgh Air Force Base for the Strategic Air Command (SAC) of the Air Force as `using agency'. Contracts for the construction of the Base were awarded and administered by the crops of Engineers through its New York District, which came under the jurisdiction of the North Atlantic Division. The District Engineer, New York District, was the contracting officer for the contracts, and he was assisted in the administration of the contracts by the Resident Engineer and his staff at Plattsburgh. The project was financed with Air Force construction funds that were allocated to the Corps of Engineers by the Air Force. The Air Force had an Air Force Installations Representative (AFIR) who spent more than 60 percent of his time on the project during the construction of the Base, and there was constant liaison between the Corps of Engineers as construction agency and the Air Force as using agency. Before completion of the construction program the Base was activated and came under the command of a Base Commander. The Air Force chain of command was from the Base Commander through Headquarters, Eighth Air Force, Westover Air Force Base, Massachusetts, to Headquarters, United States Air Force (Hq., USAF) in Washington, D.C. On some matters relating to the construction program there was direct communication between the AFIR and the office of the Assistant Chief of Staff, Installations, USAF, in Washington.

"The basic policies and fundamental concepts of responsibilities under which the Corps of Engineers performed construction for the Air Force are set out in a joint Army-Navy-Air Force regulation entitled `Construction, Air Force contract Construction' numbered AR 415-11 and AFR 88-3. Such regulation makes the Air Force responsible for `surveillance' of the construction work, which includes on-the-site observation or inquiry by the AFIR without duplication of the functions of inspection and contract administration which are the responsibilities of the construction agent.

"Air Force Regulation 88-9 dated 31 August 1954, as amended on 6 December 1954, entitled `New Construction, Transfer and Acceptance of Facilities Constructed for the Air Force', established the Air Force policy, procedures and responsibilities in the transfer and acceptance of real estate facilities constructed for the Air Force. Pertinent provisions of such regulation are as follows:

"`4. Transfer Document. Department of the Army ENG Form 290, "Transfer of Construction," 1 April 1952, is authorized and will be used in all instances for the transfer of facilities constructed for the Air Force. * * *

"`5. Types of Acceptance. The extent of acceptance of facilities by the Air Force will be governed by the conditions attendant to the transfer. Determinations as to the extent of acceptance involved and appropriate procedures to be followed will be based on the following classifications:

"`a. Accountability Acceptance. Accountability acceptance establishes complete ownership of the facilities by the Air Force and custody by the using agency under Air Force jurisdiction. Facilities will be accepted for Air Force accountability when determination has been made that the construction is in accordance with the contract plans and specifications and construction deficiencies, observed during the transfer inspection and listed on the ENG Form 290, have been corrected or a certification placed on the form by the construction agency, or the contractor when the work is performed under an Air Force contract, acknowledging the validity of the deficiencies and assuring correction as an integral part of the contract. Accountability acceptance will be evidenced by the signature of the appropriate installations commander and installations engineer on the ENG Form 290.

"`b. Conditional Acceptance. When a satisfactory agreement cannot be reached with the construction agency as to the validity and correction of deficiencies considered to be a part of the construction contract, the AFIR will determine whether the facilities will be accepted by the using agency on a conditional basis. Upon reaching a satisfactory agreement the facilities will be accepted for accountability of the Air Force as outlined in "a" above.

"`c. Beneficial occupancy. Beneficial occupancy constitutes a use of facilities, or portions of facilities, by Air Force personnel after the facilities have been completed to the point where they are capable of accommodating their assigned mission but not completed to the level required by the plans and specifications. Air Force policies, procedures in the negotiation of agreements, and responsibilities relative to beneficial occupancy use of facilities are contained in AFR 85-17.\'

"It will be noted that paragraph 5c, AFR 88-9, refers to AFR 85-17 for policies and procedure on `beneficial occupancy.' The latter regulation dated 30 July 1952 and amended 1 April 1953 is entitled `Installations — General, Beneficial Occupancy'. Pertinent provisions are as follows:

"`2. Policy. The extent to which Air Force personnel and organizations are assigned to use real estate and real property facilities under beneficial occupancy agreements will be held to a minimum and will be governed by the following prime considerations:

"`a. Urgency of the need for the real estate and facilities in the continuance or support of the using command.

"`b. Capability of facilities to meet shelter and operational requirements.

"`c. The degree of caretaking and protection responsibilities which must be assumed by the Air Force.

"`3. Definitions. For the purpose of this Regulation, the following definitions of beneficial occupancy will apply.

* * * * *

"`b. New Construction. Occupancy for use of real property facilities prior to physical completion or formal acceptance of the facilities from the construction agency or contractor by the Air Force. (NOTE: Newly constructed facilities used under beneficial occupancy agreements usually provide only minimum shelter and operational needs which will be progressively completed to the requirement level of the plans and specifications before being formally accepted by the Air Force.)

"`4. Procedure. Occupancy and use of real estate and real property facilities by Air Force personnel and organizations prior to conclusion of agreements, acquisition proceedings, or completion of construction will be subject to the following actions:

* * * * *

"`b. New Construction. The date on which Air Force personnel or organizations may occupy and use any real property facilities, or portions of facilities, prior to completion of construction will be determined jointly by the major air commander who will assume jurisdiction of the facilities when formally accepted by the Department of the Air Force, the chief of the construction agency or his authorized representative, and the appropriate Air Force installations representative.

"`5. Ag

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