Tri-Cor, Inc. v. United States

• Decision Date: 14 April 1972
• Docket Number: No. 486-69.,486-69.
• Parties: TRI-COR, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

198 Ct. Cl. 187, 458 F.2d 112 (1972)

TRI-COR, INC. v. The UNITED STATES.

No. 486-69.

United States Court of Claims.

April 14, 1972.

COPYRIGHT MATERIAL OMITTED

H. Randall Bixler, McLean, Va., attorney of record, for plaintiff. Lewis, Mitchell, Bixler & Moore, McLean, Va., of counsel.

Judith A. Yannello, Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray III, for defendant.

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

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

PER CURIAM:

This case was referred to Trial Commissioner William E. Day with directions to prepare and file his opinion on the issues of plaintiff's motion and defendant's cross-motion for summary judgment under the order of reference and Rule 166 (c). The commissioner has done so in an opinion and report filed on October 26, 1971, wherein such facts as are necessary to the opinion are set forth. Plaintiff filed a request for review of the commissioner's opinion by the court and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the opinion and recommended conclusion of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Accordingly, plaintiff's motion for summary judgment in opposition to the decision of the Armed Services Board of Contract Appeals in ASBCA Nos. 11849, 11952, 11955, 12001, 12028, 12030 and 12031 is denied; defendant's motion in support of the decision of the Armed Services Board of Contract Appeals on the same appeals is granted; and, plaintiff's petition is dismissed.

OPINION OF COMMISSIONER

DAY, Commissioner:

This is a contract case which is before the court on plaintiff's motion and defendant's cross-motion for summary judgment under Rule 163(b) (1) and (2). Review is sought in accordance with the standards prescribed by the Wunderlich Act, 41 U. S.C. §§ 321, 322, of a decision of the Armed Services Board of Contract Appeals.¹ The Board denied a total of seven claims by the plaintiff arising from a contract between the plaintiff and the defendant. The responsible contracting agency was the Department of the Army, Sacramento District, Corps of Engineers, located at Sacramento, California. Plaintiff is a Nevada corporation with its principal place of business in Long Beach, California. In this court, plaintiff challenges the decision and findings of the Board as not supported by substantial evidence, as arbitrary and as erroneous as a matter of law.

Contract No. DA-04-167-ENG-3403, dated May 28, 1964, was a fixed price construction contract² for a total price of $599,300, awarded to plaintiff following competitive bidding. The plaintiff agreed to perform several separate items of construction work at Travis Air Force Base, California, all work to be completed by April 1, 1965. Final completion of the contract was successful, and is not in issue here. All of the contractor's claims arise under Item No. 1 of the contract, entitled "Hydrant Fuel System."

Item 1 essentially required plaintiff to convert an existing aircraft fuel pumphouse into a hydrant fuel pumphouse, including fixtures. Of primary importance for the issues presented in this case was a requirement that the contractor extend fuel feeder lines, totaling 6 in number, under the existing concrete apron of the airfield; and construct at several points along these lines hydrant stations that would permit aircraft to be fueled in place on their parking hardstands. In order to lay the fuel pipelines the contractor had to tear up (or "break out") and remove from the apron 6 narrow strips of concrete, called "laterals." The laterals were numbered sequentially from 1 to 6. In order to minimize interference with the operation of the airfield during performance of Item No. 1, the item was subdivided into three phases of work. Each phase consisted of (in addition to work not in issue) the construction of one pair of laterals. Thus phase 1 consisted of the breakout and excavation of laterals 5 and 6, construction of the hydrant valve boxes along these laterals, installation of fuel and electrical lines, backfilling of the trenches, pouring in of new concrete, and curing time for the concrete. Phase 2 included work on laterals 3 and 4; and completion of laterals 1 and 2 was included in phase 3. All work on each pair of laterals, including curing time, had to be completed before the contractor would be permitted to begin breakout on the laterals in the subsequent phase. The final completion date of Item No. 1 was to be October 1, 1964. Subsequent contract modifications extended this date to October 17, 1964, and increased the total contract price to $627,310. The contract provided for liquidated damages in the amount of $150 per day for failure of the contractor to meet any intermediate completion date, including the Item No. 1 completion date. Since the contractor failed to complete Item No. 1 until November 20, 1964, the government deducted liquidated damages in the amount of $5,100 from the contract price.

Three of the contractor's claims involved the concrete breakout work under Item No. 1. ASBCA Nos. 11849 and 11955 are claims for equitable adjustments and time extensions under the changes and suspension of work clauses. The contractor claims he was prevented from pursuing a method of breakout that was permissible under the specifications, and then permitted to use this method only under burdensome and costly restrictions. ASBCA 11952 involves the contractor's claim that he was required to repair portions of the concrete taxiway not directly involved in the contract by a method more costly than the one contemplated by the specifications, even assuming (as he does not) that this work was his responsibility. In ASBCA 12031 the contractor claims an adjustment based on what he conceives to have been unjustified acceleration orders by the contracting officer. ASBCA 12001 is a claim for suspension of work clause adjustments based upon the late receipt of revised drawings needed to comply with certain change orders. ASBCA 12028 is a claim for remission of liquidated damages and ASBCA 12030 is a claim for impact damages, or a total cost recovery, based on the above-mentioned substantive claims. The contractor seeks $116,250 and an extension of 7 days under 11849; $5,948 and 14 days under 11952; $14,750 and 6 days under 11952; $8,853 and 8 days under 12001; $5,100 under 12028; $76,303 under 12031, and in the alternative, a total cost recovery of $222,615 for the claims numbered 11849, 11952, 11955, 12001 and 12031.

I. Standard of Review

At the threshold of this case, plaintiff makes the contention that this court should apply a more stringent standard of review to the findings of fact of the Board than is usual in Wunderlich Act reviews. The hearing before the ASBCA was presided over by a hearing officer who did not subsequently participate in the consideration or decision of the appeals. The plaintiff does not argue that the rendering of the decision by three members of the Board other than the hearing officer renders the decision a nullity. It is well-settled that "there is no applicable rule stating that the board decision must be rendered by the individual who presided at the hearing," and consequently the hearing officer's participation in the decision is not required. Anthony P. Miller, Inc. v. United States, 161 Ct.Cl. 455, 474 n. 11, cert. denied, 375 U.S. 879, 84 S.Ct. 149, 11 L.Ed.2d 111 (1963). Instead plaintiff argues that the panel rendering the decision did not have the opportunity to observe the demeanor of the witnesses. Since the decision of the Board necessarily required it to discredit some or all of the testimony favorable to the plaintiff, plaintiff maintains that the findings of the Board are not merely unsupported by substantial evidence, they are also arbitrary. Therefore, plaintiff asks the court to carefully weigh the opposing evidence and in effect to require more than substantial evidence to support the findings of the Board.

This argument is without merit. In dealing with substantially similar contentions, this court has recently stated:

* * * It is the plaintiff\'s position that the findings of fact made by the ASBCA are a nullity and without binding effect on this court since the presiding member of the Board neither wrote the Board\'s decision, nor was he a party to it. This contention must be rejected for we recently stated that in the absence of a rule compelling the Board\'s decision to be rendered by the presiding member there is no such requirement. * * * Emphasis added.

Sundstrand Turbo v. United States, 389 F.2d 406, 410, 182 Ct.Cl. 31, 38 (1968).

Plaintiff presents no argument that the Board did not consider all the evidence presented to it. See Sternberger v. United States, 401 F.2d 1012, 1017, 185 Ct.Cl. 528, 537 (1968). The Board's decision and findings indicate a careful review of all the evidence. Nor does plaintiff argue that the record is incomplete or otherwise defective. Furthermore, in a case like the present one in which the evidence presented to the Board is of a technical nature, the utility of physical observation of the witnesses is marginal at best.

The standards of review in this court of the findings of fact in an administrative determination are not mere rules of convenience. Under Wunderlich Act criteria, administrative determinations in contract disputes of fact are conclusive and binding on this court unless the findings of fact are arbitrary, capricious or not supported by substantial evidence on the record as a whole. The standard of substantial evidence goes to the reasonableness of what the agency did on the basis of the evidence before it. United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963).³

Since the ASBCA panel deciding this...