United States v. Fedcon Joint Venture
| Decision Date | 18 October 2019 |
| Docket Number | C/w: Case No. 8:17-cv-02650-T-36TGW,Case No: 8:17-cv-01932-T-36AAS |
| Parties | UNITED STATES OF AMERICA for the use and benefit of GLF CONSTRUCTION CORPORATION, a Florida profit corporation, Plaintiff, v. FEDCON JOINT VENTURE, a Florida joint venture, DAVID BOLAND, INC., a Florida profit corporation, JT CONSTRUCTION ENTERPRISE CORPORATION, and WESTERN SURETY COMPANY, Defendants. FEDCON JOINT VENTURE, Counter-Plaintiff, v. GLF CONSTRUCTION CORPORATION and FIDELITY AND DEPOSIT COMPANY OF MARYLAND Counter-Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on GLF Construction Corporation's Dispositive Motion for Partial Summary Judgment and Incorporated Memorandum in Support, Doc. 68, Defendants' Motion for Partial Summary Judgment, Doc. 72, and GLF Construction Corporation and Fidelity and Deposit Company of Maryland's Dispositive Motion for Summary Judgment and Incorporated Memorandum in Support, Doc. 74. The motions are fully briefed and ripe for adjudication. The Court heard oral argument on the motions. Docs. 83, 91, 92, 102, 103, 105, 109. Having considered the parties' submissions and being fully advised in the premises, the Court will deny the motions.
These two Miller Act actions (Case Nos. 8:17-cv-1932-T-36AAS and 8:17-cv-2650-T-36TGW) stem from two separate construction projects to repair and raise substandard levees along a section of the Mississippi River in Plaquemines Parish, Louisiana for the United States Army Corps of Engineers (the "Corps"). Doc. 101 ¶¶7-8. Each case pertains to a separate contract with the United States of America, acting by and through the Corps, that was awarded to Defendant/Counter-Plaintiff FEDCON Joint Venture ("FEDCON") for such work.2 Doc. 101 ¶¶7-8. In both cases, FEDCON entered into a written subcontract agreement with Plaintiff/Counter-Defendant GLF Construction Corporation ("GLF") for a portion of the work. Id. at ¶¶8-9. Further, in both cases, FEDCON, as principal, and Western Surety Company ("Western"), as surety, executed and delivered to the Corps a payment bond in accordance with each contract with the United States and the Miller Act, 40 U.S.C. §§ 3131. Id. at ¶¶ 11, 13. Similarly, pursuant to the terms of each subcontract agreement, GLF, as principal, and Counter-Defendant Fidelity and Deposit Company of Maryland ("F&D"), as surety, executed and delivered to FEDCON a payment and performance bond. Id. at ¶¶ 12, 14.
On October 18, 2013, FEDCON was awarded a contract with the United States of America, acting by and through the Corps, known as Resilient Features, WBV, HSDRRS, Mississippi River Levee, Oak Point to Augusta, WBV-MRL 2.2 Plaquemines Parish, Louisiana (the "2.2 Project"). Id. at ¶7. The 2.2 Project called for FEDCON to repair and raise substandard levees along the section of the Mississippi River between the cities of Oak Point and Augusta, Louisiana. Id. Pursuant to the prime contract with the Corps, FEDCON, as principal, and Western, as surety, executed and delivered a payment bond to the Corps, in accordance with the contract and the Miller Act, 40 U.S.C. §§ 3131. Id. at ¶11. Significantly, GLF entered into a written subcontract agreement with FEDCON on January 22, 2014 (the "2.2 Project Subcontract Agreement"). Id. at ¶9. The 2.2 Project Subcontract Agreement provides, in part, that it includes "the Prime Contract between the Owner and the Contractor, including all general, supplementary, and special conditions, drawings, specifications, addenda and forms." Id. at ¶17. Significantly, the 2.2 Project Subcontract Agreement also provides, in part, that "others" would perform the following work: "(C) Construction and maintenance of a temporary access road approximately 12' wide . . . (E) Construction and maintenance of two (2) temporary work platforms on the protected side of the levee. The temporary work platforms will be approximately 30' wide . . . ." Id. at ¶19. Pursuant to FEDCON's coordination and scheduling of its subcontractors' performance of work, the construction of the access road, the construction of temporary flood protection, and the degrading of the levee and construction of the work platform was to be performed by HDB Construction, Inc., one of FEDCON's subcontractors. Doc. 134 ¶19. These tasks were predecessor work activities to GLF's performance of its work, including driving sheet pilings, driving pipe pilings, and forming concrete T-walls (involving furnishing and placing steel rebar, which was performedby a separate subcontractor on each project and also served as a predecessor activity to GLF's pouring of the T-walls). Id.
FEDCON terminated the 2.2 Project Subcontract Agreement. Doc. 101 ¶27. Before such termination, on October 30, 2015, FEDCON placed the Corps on notice of a differing site condition at a work front, known as "Work Front Two," behind a Chevron plant on the 2.2 Project. Id. at ¶20. On April 7, 2016, the Corps, through its contracting officer, Jeffrey Falati, issued a letter to FEDCON, which acknowledged FEDCON's claim for the differing site conditions behind the Chevron plant. Id. at ¶20. The Corps labeled this change as "CIN-019." Id. A few days later, on April 11, 2016, FEDCON sent correspondence to GLF, informing GLF that the Corps had recognized FEDCON's claim that a different site condition existed behind the Chevron plant. Id. at ¶21.
On or about May 23, 2016, FEDCON issue a notice of default (the "Notice of Default") to GLF and directed GLF to submit a plan setting forth how it intended to proceed with work from Monolith 076 south. Id. at ¶22. GLF responded to the Notice of Default on May 24, 2016, and F&D, as surety on the payment and performance bond responded to the Notice of Default on May 26, 2016. Doc. 101 ¶¶23-24. Approximately four days after issuing the Notice of Default, on or about May 27, 2016, FEDCON issued a notice to GLF of its termination of the 2.2 Project Subcontract Agreement (the "Notice of Termination"). Id. at ¶25. F&D and GLF responded to the Notice of Termination on May 31, 2016, and June 1, 2016, respectively. Id. at ¶¶26-27. Thereafter, on June 9, 2016, FEDCON filed a lawsuit against both GLF and F&D in Florida's Ninth Judicial Circuit Court, but F&D did not receive notice of the lawsuit until June 15, 2016. Id. at ¶28. By letter dated June 11, 2016, F&D acknowledged receipt of documents from FEDCON and requested further documentation from FEDCON. Docs. 74 at 4; 74-8 at 1; 91 at 7. Approximately two yearsfollowing GLF's termination, the Corps issued CIN-019 for the 2.2 Project on May 3, 2018, which extended the contraction completion dates by 224 calendar days. Doc. 101 ¶31. The revised contract completion date for the 2.2 Project included the 224-day extension. Id. at ¶32. Finally, GLF submitted six requests for equitable adjustments to FEDCON for alleged additional costs incurred by GLF on the 2.2 Project. Id. at ¶29.
On December 5, 2013, FEDCON was also awarded a contract with the United States of America, acting by and through the Corps, known as Resilient Features, WBV, HSDRRS, Mississippi River Levee, Augusta to Oakville (A), WBV-MRL 1.2a, Plaquemines Parish, Louisiana (the "1.2a Project"). Id. at ¶8. The 1.2a Project called for FEDCON to repair and raise the substandard levees on a different portion of the Mississippi River than the 2.2 Project, this time between the cities of Augusta and Oakville, Louisiana. Id. As with the 2.2 Project, FEDCON, as principal, and Western, as surety, executed and delivered to the Corps a payment bond for the 1.2a Project, in accordance with the contract and the Miller Act, 40 U.S.C. §§ 3131. Id. at ¶13. Also like the 2.2 Project, FEDCON entered into a written subcontract agreement with GLF for work on the 1.2a Project on April 3, 2014 (the "1.2a Project Subcontract Agreement"). Id. at ¶10. GLF submitted a total of three requests for equitable adjustment to FEDCON relating to alleged additional costs GLF incurred on the 1.2a Project. Doc. 101 ¶30.
GLF filed a lawsuit for the 2.2 Project, which includes three counts: (1) a Miller Act Payment Bond claim pursuant to 40 U.S.C. § 3133(b)(3) against FEDCON Joint Venture ("FEDCON"), David Bolan, JT Construction Enterprise Corporation, and Western Surety Company (collectively "Defendants") for damages resulting from FEDCON's various purportedbreaches of the 2.2 Project Subcontract Agreement; (2) a breach of contract claim against FEDCON, David Boland, and JT Construction, in which GLF alleges that FEDCON breached the 2.2 Project Subcontract Agreement by, inter alia, improperly default terminating the 2.2 Project Subcontract Agreement, failing to compensate GLF for additional costs incurred, and interfering with GLF's ability to timely perform its work; and (3) an unjust enrichment claim, pleaded in equity and in the alternative, against FEDCON, David Boland, and JT Construction, in which GLF alleges that FEDCON was unjustly enriched as a result of GLF's provision of labor, materials, and equipment on the 2.2 Project. GLF Constr. Corp. v. FEDCON Joint Venture, et al., No. 8:17-cv-02650-T-36TGW (M.D. Fla.) (hereinafter, "GLF II"), Doc. 1 ¶¶37-59.
In turn, FEDCON filed a counterclaim against GLF and F&D. GLF II, Doc. 66. The counterclaim contains two counts: one count against GLF for its alleged material breach of the 2.2 Project Subcontract Agreement "in a number of ways," including GLF's failure to maintain the project schedule and failing and refusing to abide by FEDCON's proper directive to recommence its work (Count I); and one count against F&D for its alleged breach of the payment and performance bond for failing to complete performance of the work under the 2.2 Project Subcontract Project Agreement (Count II). Id. at ¶¶28-39.
GLF also filed a lawsuit against Defendants regarding its work on the 1.2a Project. Docs. 1, 38. The...
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