Citations
- 510 F.2d 1379
Full opinion text
PER CURIAM:
This case comes before the court on defendant’s request, filed June 12, 1974, for review by the court of the recommended decision filed April 12, 1974, by Trial Judge George Willi pursuant to Rule 166(c) on plaintiff’s motion and defendant’s cross-motion for summary judgment. Upon consideration thereof, together with the opposition thereto, and the briefs and oral argument of counsel, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, defendant’s request for review and motion for summary judgment are denied, plaintiff’s motion for summary judgment is granted and judgment is entered for plaintiff in the sum of $81,784.23.
OPINION OF TRIAL JUDGE
WILLI, Trial Judge:
On August 6, 1965 the Army Corps of Engineers awarded plaintiff, two general contractors associated in a joint venture, a $465,395.80 contract for modification of certain existing flood control structures along the west bank of the Mississippi River at St. Louis, Missouri. The job included the refurbishing and alteration of storm sewers comprising a part of the control complex. That work, for which the contract provided by reference to estimated quantities of individual items, each with its own unit price, was performed by a subcontractor, Western Waterproofing Co., Inc. In the course of performance the Government ordered increases in the estimated quantities of five categories of the subcontract work. Western did its job so diligently and efficiently that in thirty days it not only completed the work for which the contract allotted 270 days’ performance time, but finished all of the Government-ordered increases as well.
The present suit is brought on behalf of Western Waterproofing to reverse a decision of the Corps of Engineers Board of Contract Appeals (the Board) upholding the contracting officer’s determination as to the amount of compensation due Western for the additional work that it performed at the Government’s behest. 69-2 BCA 117920.
The issue presented by the parties’ cross-motions for summary judgment is the extent to which that decision merits the finality accorded by the interaction of the standard Disputes clause of the contract and the applicable criteria of the Wunderlich Act, 68 Stat. 81, 41 U.S.C. §§ 321-322 (1970).
In addition to a conventional Changes article, the subject contract included among its Special Provisions a clause required by the Armed Services Procurement Regulations in all “ * * * contracts containing estimated quantity items when the Contracting Officer has reserved the right to vary the estimated quantity during the performance of the work to accommodate actual conditions encountered” as follows:
SP-6. VARIATIONS IN ESTIMATED QUANTITIES (JAN 1965).— Where the quantity of a pay item in this contract is an estimated quantity and where the actual quantity of such pay item varies more than fifteen (15%) percent above or below the estimated quantity stated in this contract, as it may hereafter be modified, an equitable adjustment in the contract unit price shall be made upon demand of either party. If the quantity variation is such as to cause an increase in the time necessary for completion, the Contracting Officer shall, upon receipt of a written request for an extension of time within ten (10) days from the beginning of such delay, or within such further period of time which may be granted by the Contracting Officer prior to the date of final settlement of the contract, ascertain the facts and make such adjustment for extending the completion date as in his judgment the findings justify. If the parties fail to agree upon an equitable adjustment in the contract price or time the dispute shall be determined as provided in the clause of this contract entitled “Disputes.”
The quantity overrun that invoked the procedure defined by paragraph 6 of the Special Provisions occurred with respect to the five items of sewer alteration work identified below by contract Item Number, Estimated Quantity, Actual Quantity, Excess (in units) of Actual Quantity over 115 percent of Estimated Quantity, Unit Price Estimated by the Government Prior to Bidding, Unit Price per Award, and Unit Price Allowed by the Contracting Officer for Equitable Adjustment purposes.
Item No. Est. Quan. Actual Unit Quantity Above 115% of Estimate Govt. Est. Unit Price Unit Price Per Award Unit Price on Excess Per Equit. Adj.
17 9 ea. 11 .65 ea. $101.45 $1,085.70 $324.30
18 300 lin.ft. 394.71 49.71 Mn. ft. $66.30 '' $92.40 $27.62
19 15 sack 94.70 77.44 sacks $269.30 $856.90 $256.15
20 90 sack 116.83 13.33 sacks $327.35 $561.85 $167.94
21 15 sack 62.37 43.12 sacks ««ga on