SUSAN G. BRADEN, Chief Judge.
This case concerns the United States Army Corps of Engineers ("Army Corps") attempt to shift its contractual responsibility to make arrangements for permanent electrical utility services that MW Builders, Inc. ("MW Builders") needed to build an Army Reserve Center in Sloan, Nevada. This imposed unnecessary construction delay and costs on MW Builders that the Contracting Officer ("CO") refused to pay. When MW Builders filed a Complaint in the United States Court of Federal Claims, the Government alleged that the contractor's claim was fraudulent.
As discussed herein, the court has determined that the Army Corps breached a September 10, 2010 Contract with MW Builders and violated the duty of good faith and fair dealing for which $418,961.90 is awarded, as compensable delay damages, together with statutory interest. The Government's counterclaims for fraud are dismissed, but the Government's affirmative defense of waiver concerning one of MW Builders' subcontractors' alleged pass-through claim is granted.
To facilitate review of this Post-Trial Memorandum Opinion And Final Order, the court has provided the following outline.
I. RELEVANT FACTUAL BACKGROUND.
II. PROCEDURAL HISTORY.
III. DISCUSSION.
IV. CALCULATION OF DELAY CAUSED BY THE UNITED STATES ARMY CORPS OF ENGINEERS' BREACH AND DAMAGES.
V. CONCLUSION.
In 2008, the United States Army Corps of Engineers (the "Army Corps") began designing an Army Reserve Center in Sloan, Nevada (the "Project") for use by the Army Reserve 63rd Regional Support Command ("63rd RSC"). TR at 16-17 (Probst); TR at 971 (Miller). During the "Design Phase," the Army Corps retained Mason & Hanger, an architecture and engineering firm, to design and prepare construction specifications. Jt. Stip. ¶ 8. Mr. Jonathan Miller also served as Mason & Hanger's Project Manager. TR at 970-71 (Miller). Several Army Corps employees also were involved:
The Sloan, Nevada site selected by the Army Corps did not have any existing electric utilities. Jt. Stip. ¶ 5. Therefore, the local electrical utility, Nevada Power Company, doing business as NV Energy ("NV Energy"), was required to design a new utility line that would connect the Project with existing power lines. PX 4 at 2; see also JX 2 (4/28/09 Meeting Minutes reporting that "[u]tility coordination is critical").
Mason & Hanger was responsible for contacting NV Energy about utility design and, on May 6, 2009, NV Energy provided Mason & Hanger with a draft "Design Initiation Agreement," together with a memorandum that listed all the steps necessary for NV Energy to provide electrical power to the Project. DX 6 at 4. NV Energy's May 6, 2009 draft Design Initiation Agreement provided that, "[p]rior to going to construction, [the applicant must] sign one or more of the following agreements: Line Extension Agreement (LEA); Large Profit Service Agreement (LPS Agreement); Contribution In Aid of Construction Agreement (CIAC Agreement); Non-Refundable Construction Agreement (NRCA)." DX 6 at 5.
On May 14, 2009, a Mason & Hanger employee forwarded the Design Initiation Agreement and attached memorandum to Mark Cutler, an employee of the 63rd RSC. DX 6 at 2. On May 15, 2009, Mr. Cutler forwarded the agreement to Ms. O'Leary, the Army Corps Design Project Engineer for the Project, and stated that the Design Initiation Agreement should "be signed by the [Army] Corps," because it "has a look on it that whoever signs it should really have a warrant or be a contracting officer." DX 6 at 1. But, Ms. O'Leary declined to authorize a representative of the Army Corps to sign the Design Initiation Agreement. DX 6 at 1. Consequently, neither the 63rd RSC, Mason & Hanger, nor the Army Corps signed the Design Initiation Agreement that NV Energy required before it would commence utility work on the Project. JX 4. Instead, Ms. O'Leary suggested that the Army Corps "place that requirement on the construction contractor." DX 6 at 1.
On July 15, 2009, the 63rd RSC, the Army Corps, and Mason & Hanger decided that the solicitation should include a requirement that the winning bidder must sign the Design Initiation Agreement with NV Energy. DX 8 at 1; see also TR at 978 (Miller). The Army Corps and Mason & Hanger, however, did not include any express requirement about the "Line Extension Agreement" in the solicitation.
On June 11, 2010, the Army Corps issued Solicitation No. W912QR-09-R-0104 for a firm, fixed-price contract to build a new 800-person Army Reserve Center in Sloan, Nevada for use of the 63rd RSC. Jt. Stip. ¶¶ 1, 14.
On September 10, 2010, the Army Corps awarded a contract to construct the Project to MW Builders, based on a $23,661,000.00 bid (the "Contract"). Jt. Stip. ¶ 3. Under the terms of the Contract, the completed Army Reserve Center would consist of: a training center (the "Training Building"); an organizational maintenance shop building; a unit storage building; and a pump house and tank. Jt. Stip. ¶ 2. In addition, the Contract required MW Builders to follow the Contract specifications and design prepared by Mason & Hanger. Jt. Stip. ¶ 8.
Because the Project's location in Sloan, Nevada did not have electric utilities, the Contract required MW Builders to provide both "temporary power"
DX 14.
The Contract also included Line Item 0006, "Nevada Energy Service Fee," in the amount of $590,160.00, that "includes the fee required by [NV Energy] to bring electric service to the site." Jt. Stip. ¶ 9.
In addition, the Contract required MW Builders to develop and update project schedules using a "Critical Path Method" ("CPM"),
On November 9, 2010, the Army Corps issued a Notice To Proceed. DX 20. MW Builders' work was to be completed in 660 days, i.e., by August 30, 2012. Jt. Stip. ¶ 7.
On December 6, 2010, MW Builders entered into a $4,579,943.00 subcontract with Bergelectric Corporation ("Bergelectric") to "provide a complete Electrical System in accordance with [the Contract] plans and specifications." JX 9 at 2, 14. Bergelectric also was required to provide temporary power for the site, prior to the installation of permanent power. JX 9 at 14. Attached to the December 6, 2010 subcontract was a "Partial Waiver And Release," under which Bergelectric waived "any and all mechanic's liens or other liens or any other claims on any bonds or any other claims whatsoever in connection with this Contract and with the Realty . . . reserving, however, all lien rights for materials and labor furnished or performed after said period[.]" JX 9 at 49. During performance, Bergelectric also was required to sign periodic partial waivers and submit them to MW Builders, together with applications for payment. DX 124 (4/15/12 waiver); see also TR 672 (Campbell).
On March 15, 2011, NV Energy informed MW Builders that "the [Project] Owner shall complete a NV Energy Consultant/Third Party [Contact] Authorization Form before any activity will be provided to deliver electric service to the [P]roject site." DX 37 at 30. On that date, an Army Corps representative signed a Third Party Authorization Form, indicating that MW Builders was the "sole contact" between NV Energy and the Army Corps, but MW Builders did not have authority to negotiate contract changes on behalf of the Army Corps.
On March 29, 2011, NV Energy also was provided with a "Project Information Sheet," wherein MW Builders provided a description of the Project to assist NV Energy's utility design and listed the Army Corps as the "Customer/Legal Owner." PX 567 at 4.
On April 15, 2011, NV Energy sent MW Builders a draft "Design Initiation Agreement." DX 37 at 3. This document authorized NV Energy to design a utility system to bring permanent power to the Project. TR at 1027-28 (Creveling). The draft Design Initiation Agreement listed the "US Army Corps of Engineers" as the "Applicant" for permanent power. DX 37 at 14. A timeline titled, "Milestones And NPC Durations For Typical New Business Projects," also was included stating that, generally it took NV Energy 20 weeks before it could begin providing permanent power, but it could take as long as 88 weeks, i.e., 616 days, depending on how long it took to secure the necessary approvals and perform other preliminary design steps, such as site inspection. DX 37 at 19.
On April 27, 2011, Michael Marti, then MW Builders' Project Manager,
On July 25, 2011, Mr. Marti also executed the "Design Approval Agreement," by which MW Builders approved NV Energy's preliminary design for the Project's permanent power. TR at 213 (Marti). The Design Approval Agreement stated that the "Applicant" for permanent power was the "US Army Corps of Engineers." JX 21 at 1.
After executing the Design Approval Agreement, MW Builders began the work necessary to connect the Project site to the electric grid. TR at 213 (Marti).
On or about August 9, 2011, MW Builders informed the Army Corps that their part of the electrical work could not continue without the required easements. PX 477 at GOV_00012196. On September 14, 2011, MW Builders sent a letter informing the Army Corps that their failure to secure the easements, which was their responsibility under the Contract, and was delaying MW Builders' work. JX 26. On September 22, 2011, Mr. Caskie, the Army Corps' Geographical Administrative Contracting Officer, sent an email to Mr. Probst, the Army Corps' Project Manager, to inform him that Army Corps made a "big goof' in not securing the easements, because it was "prohibited from awarding a contract wherein [its] real estate interests [were] not covered" and "the design should never have required work on lands that the Government does not have the right to access." PX 267. On October 29, 2011, MW Builders sent the Army Corps a Request for Information ("RFI") concerning the offsite ductbank easement. PX 481.
On December 5, 2011, MW Builders also sent another letter to the Army Corps, complaining that "delays in the delivery of permanent power" could affect completion of the Project. JX 31 at 1. MW Builders attributed these delays to the Army Corps' failure to secure utility easements, prior to the start of the construction. JX 31 at 1. Specifically, NV Energy required an offsite easement to continue the underground electrical work and an "Access To Equipment Agreement," signed by the Project owner, to allow NV Energy employees to monitor the equipment on site. JX 31 at 1. MW Builders warned that, unless permanent power was in place by May 21, 2012, it could not complete the Project by August 30, 2012. JX 31 at 1.
On February 9, 2012, an NV Energy representative sent an email to the Army Corps requesting that a senior Army official sign the Access To Equipment Agreement. PX 18.
It took until February 28, 2012, for an Army Corps representative to respond to MW Builders' July 9, 2011 email and September 2011 follow up requesting that a senior Army official sign the Access To Equipment Agreement. PX 18. On March 16, 2012, an Army Reserve Major General signed a letter authorizing NV Energy to enter the Project site. JX 49.
To provide permanent power, NV Energy also required a signed "Line Extension Agreement" (also called a "Rule 9 Agreement"). PX 4 at GOV_0010874 ("Prior to going to construction, [the applicant must] sign one or more of the following agreements: Line Extension Agreement (LEA)[.]"); DX 221 at 7 (providing that NV Energy "shall deliver the Rule 9 Agreement and final cost estimate to Applicant"); see also TR at 38-39 (Probst).
At trial, Katherine Creveling, NV Energy's Senior Project Coordinator, testified that she remembered preparing an initial draft of a Line Extension Agreement with the understanding that MW Builders would sign the agreement, not a government agency. TR at 1001, 1004-05 (Creveling). Although Ms. Creveling was unable to locate a copy of the draft Line Extension Agreement in this case, she remembered that an initial draft Line Extension Agreement was rejected by MW Builders, because MW Builders was not the "applicant" for permanent power. TR at 1005-06 (Creveling).
On March 13, 2012, Mr. Probst, the Army Corps Project Manager assigned to the Project, hosted a conference call that included representatives of: the 63rd RSC; MW Builders; NV Energy; and Mason & Hanger. JX 44 at 1 (3/13/12 email summary of conference call). During the conference call, it was agreed that, by March 16, 2012, NV Energy "will have sent draft contract for review to 63[rd] RSC (Jeffrey Reed[s])[
On March 13, 2012, Mr. Rial also sent an email to Mr. Probst, wherein he explained that
JX 45 at 2.
On March 14, 2012, Ms. Creveling sent an email to the 63rd RSC with a "Government Line Extension Agreement." JX 47 at 1. The Line Extension Agreement provided:
On that same date, "uncertainty" arose as to whether or not a representative of the 63rd RSC would sign the Line Extension Agreement. TR at 81-82 (Probst). Mr. Probst opined via email to other Army Corps officials that: "I anticipate [the Army Corps] will become involved in the review and possibly signature on the contract with NV Energy depending [on] what the nature of the document is." JX 46 at 1-2.
Later in the day, Ronald L. Musgrave, an Army Corps Contracting Officer's Representative,
PX 501 at GOV_00005390.
That evening, however, Mr. Musgrave reported that
JX 46 at 1.
On March 19, 2012, Mr. Probst hosted a second conference call with the Army Corps and NV Energy. PX 60A. MW Builders, however, was not invited to participate. TR at 84-85 (Probst). During this conference, the participants "determined that each party will tentatively consider an arrangement whereby the [Army Corps'] Construction Contractor—MW Builders may enter the agreement with NV Energy since this supports the typical means [the Army Corps] obtains electric serv[ice] for new projects and has provisions in the [Army Corps]-MW Builders Construction Contract." PX 60A. On that same date, MW Builders provided NV Energy with a renewed "Project Information Sheet." DX 88A. Unlike the earlier March 19, 2012 Project Information Sheet, the March 20, 2012 version stated that the "Customer/Legal Owner/Responsible Party on Contracts" was MW Builders, not the Army Corps. DX 88A.
On March 20, 2012, Mr. Musgrave learned that NV Energy "ha[d] issues with the contract," particularly with respect to the Line Extension Agreement's five year term and indemnification provision. PX 60B.
On March 21, 2012, MW Builders informed the Army Corps that it would not sign the Line Extension Agreement, because it "flatly" exceeded the scope of the September 10, 2010 Contract, unless the Contracting Officer (the "CO") ordered it to do so. PX 528. On that same date, Mr. Probst also hosted another telephone conference with NV Energy, but again excluded MW Builders. PX 60C. During that conference, the participants agreed to procure a letter from a "competent contracting authority of US Army Corps of Engineers . . . confirm[ing] that the [Army Corps] construction contract with . . . MW Builders requires MW Builders to provide a complete and working electric system to serve the Army Reserve Center at Sloan Road." PX 60C.
On March 22, 2012, Mr. Musgrave informed Mr. Probst that MW Builders still "will not move forward without [a] directive from the [Army] Corps," and suggested that the Army Corps not engage in a "letter writing campaign regarding interpretation" with MW Builders, but instead recommended that the Army Corps should "[m]ake them do it and let the chips fall where they may." PX 27.
On March 26, 2012, Mr. Probst hosted a third telephone conference that included MW Builders, wherein the participants discussed obtaining a letter from the CO to NV Energy, to explain MW Builders' responsibilities regarding electrical power. DX 109 at 2. The issue of who would sign the Line Extension Agreement was not resolved, but the permanent power delivery date remained as April 9, 2012. TR at 185 (Probst); DX 109 at 2.
On March 28, 2012, Ms. Creveling, the NV Energy Senior Project Coordinator, sent an email to the Army Corps stating that "I have not received the letter that states MW Builders can sign the LEA [i.e., the Line Extension Agreement] contract yet." PX 504. Johnny Ringstaff, an Army Corps Administrative Contracting Officer, responded that "I am holding the letter since we are not in a position to sign the agreement. Our contractor has taken exception to some of the agreement. Once that it is resolved we will send the letter." PX 504.
On March 29, 2012, MW Builders' Operations Manager Greg Herriott, sent an email to Mr. Ringstaff, reiterating that MW Builders remained opposed to signing the Line Extension Agreement, because "[i]t appears that this Agreement is intended to be signed by the end user, as it obligates the Applicant to a 5 year term of service . . . with the Utility and puts the Applicant at risk of additional costs after the 18 month `Allowance true-up[.]"' DX 102 at 1. Mr. Herriott also stated that the Line Extension Agreement permitted multiple signatories and suggested that MW Builders could potentially sign the Line Extension Agreement along with either the Army Corps or the 63rd RSC, provided that "certain language could be modified to limit MW's responsibilities after project completion and acceptance by the Government." DX 102 at 1.
On April 2, 2012, Mr. Ringstaff provided Ms. Creveling with a letter, signed by the CO, stating that MW Builders was: responsible for providing a "complete and working electric system;" required to follow NV Energy's guidelines; and responsible for paying the "fee required by [NV] Energy to bring electric service to the site." PX 502 at GOV_00005419. The April 2, 2012 CO letter, however, did not state that MW Builders was obligated to sign the Line Extension Agreement or that MW Builders was authorized to sign it. PX 502 at GOV_00005419. On that same date, Ms. Creveling responded that she had received the letter, but was "under the impression from our meeting . . . that some things still need to be ironed out between MW Builders and the Army before I can start my contract." DX 109 at 1.
On April 6, 2012, MW Builders sent a "Notice Of Potential Delay" to inform the Army Corps of a "delay to the project schedule due to a lack of permanent power at the projected site referenced above." JX 58. Although MW Builders completed the "primary duct bank and installed electrical switchgear in accordance with the Contract Documents and Nevada Energy requirements," there was still no permanent power at the site, because "the Line Extension Agreement between the Government and Nevada Energy [was] not yet in place, subsequently delaying permanent power installation and startup." JX 58. Once the site had permanent power, however, MW Builders still needed "additional time and compensation" to make up the time it was unable to work, because of the delay caused by the Army Corps' failure to sign the Line Extension Agreement. JX 58.
On April 19, 2012, the Army Corps' counsel, Mr. Kevin M. Finley, sent an email to Ms. Creveling questioning the terms of the Line Extension Agreement. JX 60. Mr. Finley also shared his concerns with NV Energy's in-house counsel, Ms. Rebecca Risse. TR at 1066, 1073 (Finley). On April 26, 2012, Mr. Finley also sent an email to Ms. Risse, to begin contract negotiations about the Line Extension Agreement and summarized the issues, as follows:
JX 61 at 1-2. In the alternative, Mr. Finley requested that the Army Corps sign an agreement that governed construction and the 63rd RSC sign an agreement that governed operations, after construction was completed. JX 61 at 2.
At trial, Ms. Risse testified that she did not read Mr. Finley's April 26, 2012 email, until the following week and "didn't really understand why [Mr. Finley] was making these various requests," because she thought "we were having the contractor [i.e., MW Builders] sign" the Line Extension Agreement, based on the March 21, 2012 conference call. TR at 607-09 (Risse). In her opinion, the email also was "strange," because it appeared that Mr. Finley was attempting to negotiate a contract on behalf of MW Builders, which was not his client. TR at 608-09 (Risse). On April 30, 2012, Mr. Finley sent a follow-up email, because Ms. Risse did not respond to his first one. JX 61 at 1.
On May 2, 2012, MW Builders again reiterated that it would not sign the Line Extension Agreement. PX 31. On May 15, 2012, Mr. Probst arranged a telephone call between Ms. Risse and Mr. Finley. DX 127. Thereafter, Ms. Risse and Mr. Finley began renegotiating the terms of the Line Extension Agreement via email. JX 68 (email chain running from 5/17/12 to 6/8/12).
On May 23, 2012, MW Builders sent another letter to the Army Corps, entitled "Permanent Power Delay," emphasizing that the "lack of permanent power to the jobsite continues to have significant cost and schedule impacts," i.e., MW Builders was required to "build the entire project with temporary power;" MW Builders was unable to start up and test equipment; and MW Builders was unable to "install building finishes which require conditioned air in the buildings." PX 44. MW Builders attributed the permanent power delay to "the Government's failure to timely acquire the onsite and offsite easements and execute the necessary agreements with the electric utility provider (Nevada Energy)[.]" PX 44. MW Builders also stated that it "fulfilled its contractual obligations as relates to the power," but NV Energy still would not "give[] a final price or begin work until the Government execute[d] the Line Extension Agreement." PX 44. MW Builders advised the Army Corps that it had no alternative but to request the additional costs incurred as a result of the delay. PX 44.
On May 25, 2012, Mr. Finley resumed email negotiations with Ms. Risse, requesting that the Line Extension Agreement be modified, so that its terms were enforceable and consistent with federal law. JX 68 at 4-5. Negotiations continued over the next four weeks. PX 500. On May 29, 2012, Mr. Finley told Ms. Risse: "I would just like to get there sooner than later because we are looking at having to bring in generators so that construction can continue. That is a costly proposition that we would like to avoid." JX 68 at 4. Mr. Finley also explained that "I think the main issue is indemnity (limitations of damages)" and asked Ms. Risse to provide him with a "sample" agreement that NV Energy previously entered into with a military customer. JX 68 at 4. On June 4, 2012, Mr. Finley sent another email to Ms. Risse, wherein he stated that "I haven't received any reply to my [emails] of May 25 or May 29[.]" JX 68 at 3. On June 7, 2012, Ms. Risse responded, opposing Mr. Finley's proposed change to the enforceability provision. JX 68 at 3.
On June 15, 2012, Ms. Risse sent another email to Mr. Finley, describing his proposed changes, but complained: "NV Energy has already compromised by agreeing that the government's contractor can be the applicant instead of the [g]overnment." DX 143 at 2. Ms. Risse also questioned why Mr. Finley wanted to change the Line Extension Agreement's choice of law provision, "given that NV Energy's counterparty isn't the federal government but rather the government's contractor." DX 143 at 2.
On June 18, 2012, Mr. Finley responded:
DX 143 at 1. On that same date, Ms. Risse replied that she too was confused, because her understanding was that the Line Extension Agreement was to be between NV Energy and MW Builders. PX 500 at GOV_00005315. So, on June 20, 2012, Ms. Risse sent an email to MW Builders' in-house counsel, Harold Mitts, stating that, "[i]t was NV Energy's understanding that MW Builders was going to sign" the Line Extension Agreement. JX 72 at 1.
On June 21, 2012, Mr. Finley and Ms. Risse arranged for a telephone conference call with Mr. Mitts. JX 75 at 1. At trial, Ms. Risse testified that it was only after this call that she actually understood that MW Builders was not signing the Line Extension Agreement. TR at 597-98 (Risse). Thereafter, Ms. Risse resumed negotiations with Mr. Finley. JX 75 at 1 (6/21/12 email from Ms. Risse to Mr. Finley with proposed changes to Line Extension Agreement); see also TR at 598-99 (Risse). Negotiations continued from June 21, 2012 until July 7, 2012, during which "drafts were exchanged quickly," because the parties were no longer confused as to who was actually signing the agreement. TR at 598-600, 626 (Risse).
PX 294 (emphasis added).
On July 7, 2012, Ms. Risse sent a draft Line Extension Agreement to Mr. Finley. JX 83 at 1. At trial, Ms. Risse testified that the parties "[came] to an agreement on all of the terms" by that date. TR at 600 (Risse).
On July 12, 2012, the Army Corps signed the Line Extension Agreement. Jt. Stip. ¶ 25. On July 17, 2012, MW Builders paid NV Energy's service fee. Jt. Stip. ¶ 26. On July 23, 2012, NV Energy signed the Line Extension Agreement. Jt. Stip. ¶ 25.
On September 19, 2012, the Army Corps was notified that MW Builders was preparing to submit a claim for costs
By September 26, 2012, NV Energy was supplying permanent power to all buildings at the Project, except the pump house. Jt. Stip. ¶ 27. On October 12, 2012, MW Builders informed its subcontractors that the Project had permanent power and directed them to "return to the project and complete all remaining work immediately." JX 85.
In early October 2012, MW Builders began to install climate sensitive materials, including Acoustic Ceiling Tiles ("ACT") and Vinyl Composition Tiles ("VCT"), inside the Training Building. PX 343 at 3. This work could not have been performed without permanent power, required for the Training Building's heating, ventilation, and air conditioning ("HVAC") system to function. PX 343 at 3.
On December 27, 2012, MW Builders submitted a certified claim to the CO requesting a 169-day time extension and $2,139,215.00 for "costs incurred" by MW Builders as a result of delay caused by "the Government's failure to execute the required `Line Extension Agreement' with Nevada Energy . . . by the date required to allow [NV Energy] to bring power to the jobsite as scheduled." JX 88 at 1-2. MW Builders again stated that it was not responsible for signing the Line Extension Agreement. JX 88 at 1. MW Builders' claim included ten subcontractor claims in the amount of $985,874.00, including Bergelectric's claim for $296,300.00. JX 88 at 3. MW Builders' claim itemized: (1) $181,678.00 for "Material & Equipment" costs; (2) $14,716.00 for tax reimbursement; (3) $19,639.00 for overhead; (4) $17,283.00 for general contractor's profit; (5) $687,999.00 for "Jobsite Overhead Costs;"
JX 88 at 1; see also 41 U.S.C. § 7103(b).
The General Conditions Worksheet was prepared by MW Builders' Operations Manager Mr. Daniel "Sparky" Campbell in November 2012; the December 27, 2012 claim letter was prepared by Mr. Greg Herriott, an MW Builders employee and Operations Manager. TR at 1171-72, 1174 (Campbell).
On January 3, 2013, MW Builders submitted a request to the Army Corps for reimbursement of the fee MW Builders paid to NV Energy. DX 200 at 2.
On May 15, 2013, MW Builders submitted a revised certified claim ("Amended Certified Claim") to the CO, wherein MW Builders again stated that it was not required to sign the Line Extension Agreement, because certain provisions about the conveyance of property rights could only be provided by the Project site owner. JX 89 at 1-2. MW Builders added that the "[t]he failure of the Government to timely execute the Line Extension [A]greement implicated the Government[']s general duty to cooperate and to do nothing that unreasonably hinders the contractor's performance." JX 89 at 2. MW Builders also revised and increased the claim amount to $2,562,049.00, but did not change any of the estimated costs. JX 89 at 2.
On June 10, 2013, the Army Corps CO issued a final decision denying MW Builders' claim for both the company and its subcontractors, but granted a non-compensable time extension of 146 days. DX 218 at 4. Therein, the CO also found that, although significant delay incurred as a result of difficulties surrounding the execution of the Line Extension Agreement, it "was beyond the control of the Contractor or the Government," and therefore was "excusable, but not compensable," pursuant to the Federal Acquisition Regulation ("FAR"). DX 218 at 1-3; 52.249-10.
With respect to the apportionment of responsibility, although Contract Drawing ES-002 "places much of the responsibility of arranging for power to the site on the Contractor," it "does not specifically place responsibility of the Line Extension Agreement on the Contractor." DX 218 at 4. As such, NV Energy's delay in providing electrical power to the Project "was beyond the Contractor's control."
On December 13, 2013, the Army Reserve accepted the completed Project from MW Builders. DX 225. The Project's original completion date was August 30, 2012. Jt. Stip. ¶ 7. During the course of the Project, however, the parties made 85 contract changes and extended the completion date by 413 days, extending the contract completion date to October 17, 2013. DX 241.
On December 27, 2013, MW Builders filed a Complaint ("Compl.") in the United States Court of Federal Claims: Count One alleged that the Army Corps breached its duty to cooperate; Count Two alleged that the Army Corps caused an unreasonable delay; and Count Three alleged that the Contracting Officer improperly classified the delay as "non-compensable." ECF No. 1. As a result, MW Builders alleged that it was owed "a compensable time extension of at least 169 days," as well as $2,562,094.00 in damages. ECF No. 1.
On May 13, 2014, the Government filed an Answer. ECF No. 8.
On July 7, 2014, the parties filed a Joint Preliminary Status Report. ECF No. 9. On July 17, 2014, the court issued a Scheduling Order allowing fact discovery to proceed from July 16, 2014 until July 15, 2015. ECF No. 10. On July 24, 2014, the Government filed an Unopposed Motion For Entry Of A Discovery Order Concerning Materials As To Which Privileges May Be Asserted, that the court granted the same day. ECF Nos. 11-12.
On January 12, 2015, the Government filed a Motion To Compel Production Of Documents. ECF No. 13. That motion requested the court to order MW Builders to respond to the Government's First Set Of Document Requests. ECF No. 13 at 1. The court convened telephone status conferences on January 26, 2015 and March 23, 2015. During the March 23, 2015 Status Conference, the Government voluntarily withdrew the January 12, 2015 Motion To Compel. See ECF No. 14.
On July 14, 2015, the parties filed a Joint Status Report And Joint Motion To Enlarge The Discovery Period until October 30, 2015. ECF No. 15. That same date, the court granted the parties' July 14, 2015 Motion. ECF No. 16.
On September 2, 2015, the parties filed a Status Report And Second Joint Motion To Enlarge The Discovery Period until January 13, 2016. ECF No. 17. On September 9, 2015, the parties filed a Joint Motion For Scheduling Order, including with a proposed schedule. ECF No. 18. On September 10, 2015, the court issued an Order adopting the parties' proposed schedule. ECF No. 20.
On December 30, 2015, the Government filed a Status Report And Consent Request For Status Conference Regarding Productions Of Documents And Trial Issues. ECF No. 23.
On January 6, 2016, the court convened a telephone status conference. On January 8, 2016, the parties filed a Joint Motion For Scheduling Order. ECF No. 24. The same date, the court entered that Order. ECF No. 25. On January 29, 2016, the Government filed a Motion In Limine To Exclude Testimony Of Witnesses Not Properly Disclosed.
On February 17, 2016, the Government filed a Motion For Leave To Amend Its Answer To Assert Counterclaims And Affirmative Defenses, together with a proposed Amended Answer ("Gov't Amend. Answer"). ECF No. 27. The February 17, 2016 Amended Answer asserted counterclaims, based on: the Special Plea In Fraud, 28 U.S.C. § 2514; the anti-fraud provision of the Contract Disputes Act, 41 U.S.C. § 7103(c)(2); and the False Claims Act, 31 U.S.C. §§ 3729-3733. ECF No. 27 at 1. The Amended Answer also asserted the affirmative defenses of accord and satisfaction, and waiver. ECF No. 27 at 1.
On February 22, 2016, MW Builders filed a Response To Defendant's Motion In Limine. ECF No. 29. On February 23, 2016, the court convened a telephone status conference. That same date, the Government filed a Status Report that detailed ongoing discussions with MW Builders to resolve the Government's January 29, 2016 Motion In Limine and requested that the court order MW Builders to produce any remaining waivers or releases. ECF No. 30 at 5. The Government also requested the court's leave to take a deposition of one of MW Builders' non-retained expert witnesses, pursuant to Rule of the United States Court of Federal Claims ("RCFC") 30(b)(6). ECF No. 30 at 5. On February 23, 2016, MW Builders filed a Status Report Noting The Parties' Agreement Pertaining To The Matters Subject To The Status Conference Scheduled For February 23, 2016. ECF No. 31.
On March 2, 2016, the Government filed a Status Report Regarding Plaintiff's Expert Disclosure. ECF No. 32. That same date, MW Builders filed a Status Report Regarding Plaintiff's Expert Disclosure. ECF No. 33. On March 4, 2016, the Government filed a Status Report, indicating that the parties reached an agreement and the Government was withdrawing the January 29, 2016 Motion In Limine. ECF No. 34.
On March 7, 2016, MW Builders filed a Response To Defendant's February 17, 2016 Motion To Amend. ECF No. 35. On March 15, 2016, the Government filed a Reply. ECF No. 36. That same date, MW Builders filed a Sur-Response To Defendant's Motion (ECF No. 37), and the Government filed a Response To Plaintiff's Sur-Response (ECF No. 38). On that date, the court issued an order granting the Government's February 17, 2016 Motion To Amend. ECF No. 39.
On March 24, 2016, MW Builders filed: a Motion To Dismiss Defendant's Counterclaims, Pursuant To Rule 12(b)(6), And Alternative Answer To Defendant's Counterclaims (ECF No. 42); a Motion For Leave To Supplement Its Expert Report, Initial Exhibit List, And Initial Witness List To Respond To The Government's Late-Filed Fraud Counterclaim (ECF No. 43); and a Motion For Authorization Of Service Of Subpoenas More Than 100 Miles From The Place Of Trial (ECF No. 44); and a Request For A Status Conference (ECF No. 45).
On March 25, 2016, the Government filed Responses To MW Builders' March 24, 2016 Motion For Authorization Of Service Of Subpoenas and March 24, 2016 Motion To Supplement. ECF Nos. 46-47. The Government also included a Cross-Motion In Limine To Deny Introduction Of Late Produced Documents At Trial. ECF No. 47. That same date, MW Builders filed a Reply. ECF No. 48.
On March 28, 2016, MW Builders filed a Reply to the Government's March 25, 2016 Response And Cross-Motion In Limine. ECF No. 49. On March 29, 2016, the Government filed a Reply In Support Of The Cross-Motion In Limine. ECF No. 50.
On March 29, 2016, the Government filed a Motion For Extension Of Time To Serve Responses To Plaintiff's Interrogatories And Document Requests And For Leave To Take Deposition. ECF No. 51. That same date, the court issued an Order granting MW Builders' March 24, 2016 Motion For Leave To Supplement and denying the Government's March 25, 2016 Cross-Motion In Limine. ECF No. 52.
On March 31, 2016, the Government filed a Status Report Regarding Motion For Extension Of Time And For Leave To Take Deposition, explaining it was withdrawing the March 29, 2016 request for an extension of time to respond to MW Builders' interrogatories, but still was seeking leave to take a RCFC 30(b)(6) deposition of an unnamed fact witness. ECF No. 54. On April 5, 2016, the court issued a Scheduling Order that provided additional deadlines for discovery production. ECF No. 59. On April 8, 2016, MW Builders filed a Pre-Trial Submission that detailed MW Builders' proposed findings of fact, proposed conclusions of law, witness list, exhibit list, and preliminary objections. ECF No. 62. On April 12, 2016, MW Builders filed a Supplemental Disclosure Regarding Its Pre-Trial Filings that included an exhibit MW Builders inadvertently omitted from the April 8, 2016 Pre-Trial Submission. ECF No. 63.
On April 14, 2016, the Government filed a Status Report And Request For Status Conference to resolve a dispute regarding the trial schedule. ECF No. 64. On April 15, 2016, MW Builders filed a Response to the Government's April 14, 2016 Status Report. ECF No. 65.
On April 18, 2016, MW Builders filed the written direct testimony of Mr. Neil W. Miltonberger ("Miltonberger Direct") and attachments ("Miltonberger Direct Atts. 1-6.5"), together with the written direct testimony of Mr. Denny Lee ("Lee Direct") and a Second Supplemental Designation of Experts. ECF No. 68. On April 19, 2016, the Government filed Proposed Findings Of Fact And Conclusions Of Law. ECF No. 76.
On April 22, 2016, the Government filed a Motion In Limine To Preclude Privileged Trial Testimony Of Attorney Witnesses (ECF No. 78) and a Motion In Limine To Admit Into Evidence Plaintiff's Binding Admissions (ECF No. 79). On that same date, MW Builders filed a Motion In Limine (ECF No. 80) to exclude the expert testimony of Mr. Stephen Weathers and a Motion In Limine Regarding Any Evidence That Supports The Government's Fraud Allegations (ECF No. 81).
On April 25, 2016, the Government filed a Motion Regarding Procedural Matters At Trial, requesting that the court enter a proposed order governing witness disclosure. ECF No. 82. The Government also filed a Response to MW Builders' April 22, 2016 Motion To Exclude Expert Testimony. ECF No. 83. On that same date, MW Builders filed a Response to the Government's April 22, 2016 Motion To Exclude Privileged Testimony (ECF No. 84), as well as a Response to the Government's April 22, 2017 Motion To Admit Plaintiff's Binding Admissions (ECF No. 85).
On April 26, 2016, the parties filed a Joint Stipulations Of Trial And Pre-Trial Procedure. ECF No. 86. MW Builders also filed a Response to the Government's April 25, 2016 Motion Regarding Procedural Matters. ECF No. 87. On that same date, the Government filed a Response to MW Builders' April 22, 2016 Motion To Exclude Evidence Related To Fraud Claims. ECF No. 88. On that date, the Government also filed the Written Direct Testimony of Mr. Stephen Weathers, together with seven tabs ("Weathers Direct Tabs A-G"). ECF No. 89.
On April 27, 2016, the court issued an Order denying both of the Government's April 22, 2016 Motions In Limine, and both of MW Builders' April 22, 2016 Motions In Limine. ECF No. 90. The court also denied the Government's April 25, 2016 Motion Regarding Procedural Matters, as moot. On the same date, the Government filed a Revised Exhibit List. ECF No. 91. On April 28, 2016, MW Builders filed a Third Supplemental Exhibit List. ECF No. 92. On the same date, the parties filed a Joint Stipulations Of Fact. ECF No. 93.
On May 2, 2016, MW Builders filed a Fourth Amended Exhibit List. ECF No. 94. On the same date, the Government filed a Response to MW Builders' April 28, 2016 Third Supplemental Exhibit List and May 2, 2016 Fourth Amended Exhibit List. ECF No. 95.
A trial took place from May 4, 2016 to May 10, 2016 in Austin, Texas. TR at 1-1329. On May 9, 2016, and at the request of the court, the Government filed the Updated Written Direct Testimony of Mr. Stephen Weathers ("Weathers Rev. Direct"). ECF No. 96. At the close of trial, the court left the record open to allow both parties' experts to file supplemental damages testimony, if they wished to do so. TR at 1314.
On May 27, 2016, the Government filed an Unopposed Motion To Admit Into Evidence Deposition Exhibits, i.e., the depositions of Mr. David Cimpl and Mr. Daniel Campbell. ECF No. 97.
On June 14, 2016, the court granted the Government's May 27, 2016 Motion and issued a Scheduling Order setting a deadline of August 1, 2016 for MW Builders to file a Post-Trial Proposed Findings of Fact And Memorandum Of Law. ECF No. 108 at 1. The Order also set a deadline of September 1, 2016 for the Government to file the same. ECF No. 108 at 1.
On July 13, 2016, MW Builders filed an Unopposed Motion For Leave To Extend Post-Trial Briefing Deadlines to August 15, 2016 and for the Government's extension to September 15, 2016. ECF No. 110. On July 14, 2016, the court granted MW Builders' July 13, 2016 Motion.
On August 4, 2016, the Government filed a Response to MW Builders' March 24, 2016 Motion To Dismiss Counterclaims. ECF No. 111. On August 17, 2016, MW Builders filed a Motion To Enter Additional Evidence, i.e., Mr. Neil Miltonberger's Supplemental Expert Report. ECF No. 114. On August 18, 2016, the parties filed a Joint Motion For Entry Of Order On Trial Exhibits. ECF No. 115. On August 19, 2016, MW Builders filed its Post-Trial Proposed Findings Of Fact And Memorandum Of Law ("Pl. Post Tr. Br."). ECF No. 116.
On August 26, 2016, MW Builders filed a Motion To Enter PX 679, PX 680, and PX 681 into evidence. ECF No. 118. The August 26, 2016 Motion asserted that the Government waived any objections to these exhibits at trial and failed to show how it would be prejudiced by their admission. ECF No. 118 at 2-6.
On September 2, 2016, the Government filed Responses To MW Builders' August 26, 2016 Motion (ECF No. 120) and MW Builders' August 17, 2016 Motion To Enter Additional Evidence (ECF No. 121). On September 9, 2016, MW Builders filed a Reply In Support Of The August 17, 2016 Motion To Enter Additional Evidence. ECF No. 122.
On December 8, 2016, after receiving 80 days of extensions, the Government filed its Proposed Findings Of Fact And Conclusions Of Law ("Gov't Post Tr. Br."). ECF No. 127.
On December 19, 2016, MW Builders filed a Motion For Leave To File Additional Post-Trial Briefing in response to the Government's December 8, 2016 Post-Trial Brief. ECF No. 128. On December 21, 2016, the Government also filed a Response To MW Builders' December 19, 2016 Motion. ECF No. 129. On the same date, the court granted MW Builders' December 19, 2016 Motion. ECF No. 130. On January 30, 2017, MW Builders filed a Reply To The Government's December 8, 2016 Proposed Findings Of Fact And Conclusions Of Law ("Pl. Post Tr. Reply Br."). ECF No. 131.
On February 28, 2017, the Government filed a Motion For Leave To File A Reply Brief. ECF No. 132. On March 21, 2017, the court issued an Order granting the Government's February 28, 2017 Motion. ECF No. 133. On March 31, 2017, the Government filed a Reply To Plaintiff's January 30, 2017 Brief ("Gov't Post Tr. Reply Br."). ECF No. 134.
On June 9, 2017, the court issued an Order granting MW Builders' August 17, 2016 Motion To Enter Additional Evidence and MW Builders' August 26, 2016 Motion For Leave To File Plaintiff's Exhibits PX 679-81. ECF No. 135. The June 9, 2017 Order also permitted the Government to file a Rebuttal Report prepared by the Government's expert, Mr. Stephen Weathers ("Weathers Rebuttal"). ECF No. 135.
The United States Court of Federal Claims has jurisdiction, under the Tucker Act, to adjudicate any claim arising under the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 7101-7109, and that has been submitted to a CO for a final decision. See 28 U.S.C. § 1491(a)(2) ("The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 7104(b)(1) of title 41 . . . on which a decision of the contracting officer has been issued[.]"); see also 41 U.S.C. § 7104(b)(1) ("[I]n lieu of appealing the decision of a [CO] . . . to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims.").
The term "claim" is defined "as a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract." 48 C.F.R. § 52.233-1. Although a CDA claim need not be submitted in any particular form or use any particular wording, it must contain "a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim." Contract Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987). The CDA also requires that the claim indicate to the CO that the contractor is requesting a "final" decision. James M Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996).
A claim "arises under" the CDA if it is based on,
In this case, the December 27, 2013 Complaint includes three CDA claims: Count One alleges that the Government breached the duties to cooperate and not hinder; Count Two alleges that the Government caused unreasonable delay; and Count Three alleges that the CO improperly classified the delay as non-compensable delay. Compl. ¶¶ 22-36. MW Builders requested the same relief for all three Counts; i.e., $2,562,049.00 in damages and a 169-day extension of time. Compl. ¶¶ a-d.
MW Builders' August 19, 2016 Post-Trial Proposed Findings Of Fact And Memorandum Of Law characterizes Count One as "primarily rest[ing] on the implied duty of good faith and fair dealing." Pl. Post Tr. Br. at 6. The Government responds that the court does not have jurisdiction over any claim arising from a breach of the implied duty of good faith and fair dealing, because "[t]here is no mention of good faith" in MW Builders' May 15, 2013 Amended Certified Claim. Gov't Post Tr. Br. at 105 (citing England v. The Swanson Grp., Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004) ("[J]urisdiction over an appeal of a contracting officer's decision is lacking unless the contractor's claim is first presented to the contracting officer and that officer renders a final decision on the claim."). MW Builders replies that the duty not to hinder and the duty to cooperate are both aspects of the implied duty of good faith and fair dealing and MW Builders' May 15, 2013 Amended Certified Claim put the Government on notice that MW Builders alleged a violation of that duty. Gov't Post Tr. Br. at 32 n. 145. In addition, the May 15, 2013 Amended Certified Claim stated that "[t]he failure of the Government to timely execute the Line Extension [A]greement implicated the Government[']s general duty to cooperate and to do nothing that unreasonably hinders the contractor's performance." JX 89 at 2. Therefore, the court construes Count One to allege a breach of the September 10, 2010 Contract and a violation of the duty of good faith and fair dealing. Regarding the latter, the United States Court of Appeals for the Federal Circuit has held that "[b]oth the duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith and fair dealing." Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014) (emphasis added) (quoting Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010)). It also has held that the United States Court of Federal Claims may adjudicate a claim, if it arises from the "same operative facts" and requests "essentially the same relief," as a claim presented to the CO, even if the complaint at issue alleges a "slightly different legal theory." Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). In addition, "[t]his standard . . . does not require rigid adherence to the exact language or structure of the original administrative CDA Claim." Id. Therefore, the fact that MW Builders' certified claim did not use the words "good faith" does not divest the court of jurisdiction to adjudicate this claim. See Transamerica Ins. v. United States, 973 F.2d 1572, 1578 (Fed. Cir. 1992) ("[C]ertain magic words need not be used and . . . the intent of the claim governs.").
For these reasons, the court has determined that it has jurisdiction to adjudicate the claims alleged in Count One of the December 27, 2013 Complaint.
Count Two of the December 27, 2013 Complaint alleges that the Army Corps' improper actions caused an "unreasonable delay." Compl. ¶ 28-32. The May 15, 2013 Amended Certified Claim alleges that the Government "unreasonably hinder[ed] the contractor's performance" and that, "for reasons not totally known to MW Builders, the Line Extension Agreement went unsigned for 6 months after MW Builders presented it to the Government for execution[.]" JX 89 at 2. As such, Count Two of the Complaint arises from the "same operative facts" as those presented in the May 15, 2013 Amended Certified Claim. See Scott Timber Co., 333 F.3d at 1365.
For these reasons, the court has also determined that it has jurisdiction to adjudicate the claims alleged in Count Two of the December 27, 2013 Complaint.
Count Three alleges the CO's decision improperly classified the cause of the delay. The court considers this Count to be redundant. Therefore, the discussion of MW Builders' claims will concern only the legal injuries alleged in Counts One and Two.
The United States Supreme Court has held that "the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined "as of the commencement of suit[.]" Rothe Dev. Corp. v. Dep't of Def., 413 F.3d 1327, 1334 (Fed. Cir. 2005) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 570 n.5, (1992)). "The party invoking federal jurisdiction bears the burden of establishing [standing]." Lujan, 504 U.S. at 561. The United States Supreme Court held in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) that, to establish standing,
Id. at 180-81.
In addition, "[t]o have standing to sue the sovereign on a contract claim, a plaintiff must be in privity of contract with the United States." Anderson v. United States, 344 F.3d 1343, 1351 (Fed. Cir. 2003). In other words, the contract in issue must be between the plaintiff and the Government. See Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990) ("To maintain a cause of action pursuant to the Tucker Act that is based on a contract, the contract must be between the plaintiff and the [G]overnment.").
It is undisputed that MW Builders was in privity of contract with the Government. Compl. ¶ 4 ("MW Builders and the Government, acting by and through [the Army Corps], are parties to a firm, fixed price Contract No. W912 QR-10-C-0078 . . . for the construction of a new Army Reserve Center in Las Vegas, Nevada[.]"). The December 27, 2013 Complaint also alleges that MW Builders incurred financial injury that is concrete, particularized, and fairly traceable to the Army Corps' actions. And, any financial injury established by MW Builders can be addressed by a monetary award.
For these reasons, the court has determined that MW Builders has standing to seek an adjudication of the claims alleged in Count One and Count Two of the December 27, 2013 Complaint.
Count One of the December 27, 2013 Complaint alleges that the Army Corps violated the duty of good faith and fair dealing and Count Two alleges that the Government caused an unreasonable delay. Compl. ¶¶ 22-31. The gravamen of the December 27, 2013 Complaint is: (1) the September 10, 2010 Contract required the Army Corps to sign the Line Extension Agreement with NV Energy; (2) the Army Corps failed to secure easements, as required by the September 10, 2010 Contract, and did not sign the Line Extension Agreement in a timely manner, thereby breaching the September 10, 2010 Contract; and (3) the Army Corps eventually changed its position, but nevertheless violated the duty of good faith and fair dealing in its discussions with NV Energy that substantially delayed MW Builders' work on the Project.
The parties agree that the September 10, 2010 Contract was ambiguous as to which party was required to sign the Line Extension Agreement with NV Energy. Pl. Post Tr. Br. at 7; see also TR at 104 (Government's counsel conceding that the September 10, 2010 Contract was ambiguous as to the Line Extension Agreement). Therefore, the court must look to extrinsic evidence of the parties' intent as to which party was responsible for signing the Line Extension Agreement. Pl. Post Tr. Br. at 7-8 (citing D'Andrea Bros. LLC v. United States, 96 Fed. Cl. 205, 219 (Fed. Cl. 2010)).
Prior to issuing the Solicitation, the Army Corps, Mason & Hanger, and the 63rd RSC, began to work on the "Design Phase" of the Project. TR at 16, 27, 159 (Probst). During the Design Phase, each of these entities refused to sign NV Energy's Design Initiation Agreement. PX 45 at GOV_17874-75. As a result, Mason & Hanger, sua sponte, amended Contract Drawing ES-002 to require the construction contractor to sign the Design Initiation Agreement. Pl. Post Tr. Br. at 31-32. Thereafter, in a May 6, 2009 memorandum, NV Energy, the utility, advised all concerned that a signed Line Extension Agreement was required before permanent power would be provided and nothing in Contract Drawing ES-002 changed that obligation. PX 4; see also DX 6 at 4 (5/6/09 Memorandum).
At trial, the witnesses agreed that Line Extension Agreements and similar types of contracts typically are formed between utilities and the owners/end users of new construction, not between utilities and the contractor. Pl. Post Tr. Br. at 8-12. For example, Robert Caskie, an Army Corps employee, openly hostile to MW Builders' claim,
All of this evidence demonstrates that the parties did not intend the Contract to require MW Builders to negotiate, sign, or be responsible for the Line Extension Agreement. Pl. Post Tr. Br. at 37. MW Builders adds that the plain language of the Contract requires only that MW Builders: (1) build the Project in such a way as to meet NV Energy's Technical Requirements; and (2) sign the Design Initiation Agreement. Pl. Post Tr. Br. at 40 (citing PX 422 at 3). There is no express requirement that MW Builders sign a Line Extension Agreement. Pl. Post Tr. Br. at 40 (citing PX 422 at 3). Nor can the Contract reasonably be read as requiring MW Builders to sign the Line Extension Agreement, because the term was for five years, i.e., 1,826 days; the term of the construction Contract was only 660 days. Compare PX 449 ¶ 14.1 ("This [Line Extension] Agreement . . . will continue for a term of five (5) years[.]"), with PX 52 at GOV_12823 ("The Contract shall . . . complete [performance] within 660 calendar days[.]").
In addition, the canon of expressio unius est exclusio alterius, i.e., "the expression of one thing is the exclusion of the other," is relevant, because the September 10, 2010 Contract required that MW Builders sign a Design Initiation Agreement, but does not mention the Line Extension Agreement. Pl. Post Tr. Br. at 46-47; see also Design & Prod., Inc. v. United States, 18 Cl. Ct. 168, 198-99 (Fed. Cl. 1989) (determining that a theater construction contract that expressly required installation of seats implicitly did not require construction of interior walls, under the doctrine of expressio unius est exclusio alterius). Likewise, it is well established that government contracts that contain latent ambiguities are construed against the Government. See SIPCO Servs. & Marine, Inc. v. United States, 41 Fed. Cl. 196, 215-16 (Fed. Cl. 1998) (determining that contractor's reasonable interpretation of latently ambiguous contract should be construed against the Government). Therefore, MW Builders reasonably interpreted the latent ambiguity in the September 10, 2010 Contract concerning the Line Extension Agreement, not to require assumption of that responsibility. Pl. Post Tr. Br. at 49.
Finally, the Government's argument about the Line Extension Agreement is "riddled with myopic inconsistency." Pl. Post Tr. Br. at 16. Initially, the Army Corps decided the 63rd RSC was required to sign the Agreement; after the 63rd RSC refused, the Army Corps attempted to convince MW Builders to sign the document. Pl. Post Tr. Br. at 16. After MW Builders refused, the Army Corps considered having multiple signers, before stepping up to the plate and signing the Agreement. P1 Post Tr. Br. at 16. The fact that the Army Corps' position shifted so many times evidences that the Army Corps was well aware that MW Builders was not required to sign the Line Extension Agreement. Pl. Post Tr. Br. at 19, 28-29. As MW Builders argued, "how a party applies a contract during the performance period of a contract is evidence of how a party interprets the contract," and "how a party interprets a contract is good evidence of what that party intended that contract to mean." Pl. Post Tr. Br. at 28-29.
The Government responds that MW Builders offered "no evidence" at trial that the September 10, 2010 Contract required the Army Corps to sign the Line Extension Agreement. Gov't Post Tr. Br. at 108. The plain language did not impose any permanent power-related obligations on the Government. Gov't Post Tr. Br. at 108. In fact, Contract Drawing ES-002 expressly required MW Builders to provide a "complete and working electrical system" at the Project, i.e., MW Builders needed to ensure that NV Energy would extend a line to the Project. Gov't Post Tr. Br. at 110.
The Government agrees that the September 10, 2010 Contract is ambiguous, but the extrinsic evidence shows that the parties intended MW Builders to be responsible for the Line Extension Agreement. Gov't Post Tr. Br. at 110-11. This is so, because MW Builders was required to provide a complete and working electrical system and doing so required the execution of a Line Extension Agreement. Gov't Post Tr. Br. at 111. And, multiple witnesses testified that they had no knowledge about the Line Extension Agreement during the Design Phase. Gov't Post Tr. Br. at 111-12.
In addition, the course of performance supports a finding that MW Builders was required to execute the Line Extension Agreement, because Contract Drawing ES-002 required MW Builders to coordinate with NV Energy and, pursuant to that obligation, MW Builders signed the Design Initiation and Design Approval Agreements with NV Energy. Gov't Post Tr. Br. at 113. For this reason, the Army Corps executed an "NV Energy Consultant/Third Party Contact Authorization Form," authorizing MW Builders to be NV Energy's "sole contact" with respect to the Project work. Gov't Post Tr. Br. at 113; see also DX 30 (3/29/11 Contact Authorization Form). Although MW Builders argues that Line Extension Agreements typically are signed by owners, and not by construction contractors, that does not mean all such agreements need to be signed by property owners. Gov't Post Tr. Br. at 114.
Moreover, interpreting the Contract to require that the Government was responsible for entering the Line Extension Agreement would render the September 10, 2010 Contract invalid under the Anti-Deficiency Act, 31 U.S.C. § 1350. Gov't Post Tr. Br. at 116. Under that Act, the Government cannot lawfully enter into obligations for which there is no appropriation from Congress. Since the Line Extension Agreement includes open-ended provisions regarding future events, the Government could not sign the agreement without violating that Act. Gov't Post Tr. Br. at 116-17.
Contract interpretation is a question of law. See NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). In interpreting a contract, the court begins with the language of the agreement. Id. ("Contract interpretation begins with the language of the agreement."); see also C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 1543 (Fed. Cir. 1993) ("A contract is read in accordance with its express terms and the plain meaning thereof."). "When the contract's language is unambiguous it must be given its `plain and ordinary' meaning and the court may not look to extrinsic evidence to interpret its provision." TEG-Paradigm Envtl. Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 2006) (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 2003)). If a contractual provision is susceptible to more than one reasonable interpretation and is ambiguous, the court should consult extrinsic evidence to determine the parties' intent. See Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986) ("It is a generally accepted rule . . . that if a contract is reasonably susceptible of more than one interpretation, it is ambiguous."); see also Metro. Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260 (Fed. Cir. 2006) ("Having found the contract ambiguous, we may appropriately look to extrinsic evidence to aid in our interpretation of the contract.").
When contract language is ambiguous, the court must determine whether "that ambiguity was patent so as to impose a duty to seek clarification, or only latent." Interwest Constr. v. Brown, 29 F.3d 611, 614 (Fed. Cir. 1994); see also Newsom v. United States, 676 F.2d 647, 649 (Ct. Cl. 1982) ("If a patent ambiguity is found in a contract, the contractor has a duty to inquire of the contracting officer the true meaning of the contract before submitting a bid."). Whether an ambiguity is patent or latent is a question of law. See Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996). When the ambiguity is patent, United States Court of Appeals for the Federal Circuit precedent requires a departure from the ordinary rule of contra proferentem, under which ambiguities in government contracts are construed against the drafter, i.e., the Government. See Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) ("The doctrine of patent ambiguity is an exception to the general rule of contra proferentem which construes an ambiguity against the drafter[.]").
A patent ambiguity has been defined as "an obvious omission, inconsistency, or discrepancy of significance." Beacon Constr. Co. v. United States, 314 F.2d 501, 504 (Ct. Cl. 1963).
The reason that the September 10, 2010 Contract is ambiguous as to which party was required to sign the Line Extension Agreement, is because the language of Contract Drawing ES-002 is subject to more than one reasonable interpretation. As MW Builders argues, it is reasonable to read Contract Drawing ES-002 as not requiring MW Builders to sign the Line Extension Agreement, because there is no express instruction requiring MW Builders to sign it. TR at 104; see also Gov't Post Tr. Br. at 110 ("Contract Drawing ES-002 does not expressly say which party was to execute the Line Extension Agreement; the drawing itself does not refer to a `Line Extension Agreement.' In that respect, it is ambiguous.")
Contract Drawing ES-002 begins by stating that the "Contractor is responsible for providing all electric infrastructure, equipment, and wiring for the Project unless specifically noted as provided by NV Energy in the division of responsibility." DX 14. But, this requirement speaks only to physical construction requirements. The "Division of Responsibility (Power)" table that accompanies the text lists a number of physical items to be constructed, e.g., a "transformer," a "transformer pad," a "primary duct bank," and a "secondary duct bank;" it does not discuss the execution of documents. DX 14. Next, Contract Drawing ES-002 states that the "Contractor shall contact NV Energy prior to bidding to verify that NV Energy will provide everything noted in the table below." DX 14. This clause also unambiguously concerns only the physical construction requirements, reflected in the Division of Responsibility table. The sentence immediately following, however, provides that "Contractor is responsible for providing a complete and working electrical system, and shall include all costs in this bid." DX 14. It is here that ambiguity arises, because "complete and working electrical system" can be read as requiring more than just building the physical items listed in the Division of Responsibility table. But, this ambiguity is "latent," because nothing "obviously [is] omitted" from the surrounding language and it is not inconsistent with the surrounding sentences. "All costs," reasonably could be interpreted as relating to all costs incurred by MW Builders' to facilitate the installation of electrical power, e.g., building the ducts and paying the fee associated with the Design Initiation Agreement. In any event, the issue of responsibility for signing the Line Extension Agreement did not arise until March 19, 2012, when the Army Corps changed its view that the responsibility was the 63rd RSC's and instead insisted that MW Builders was responsible for signing this document. Compare JX 44 at 1 (3/3/2 conference call summary, wherein parties agreed that the Line Extension Agreement "will be executed between NV Energy and 63D RSC such that staging of equipment can start on or about 19 March 2012"), with PX 60A (3/9/2 conference call summary, wherein Army Corps announced intention to "consider an arrangement whereby . . . MW Builders may enter the agreement with NV Energy").
Contract Drawing ES-002 also provides that "The electrical distribution system shown on the plans is the preliminary layout discussed with NV Energy during the project design and may not match the final design required by NV Energy. Electrical manholes are not shown, but shall be provided per NV Energy requirements. The electrical design must be coordinated with the communications design provided[.]" DX 14 at 1. This language also does not require MW Builders to enter into any contracts with NV Energy. Although the Government placed considerable emphasis on the term "coordinate," as the court observed during trial: "[c]oordinate doesn't mean to enter into a contract." TR at 414. The term "coordinate," in this context, means that the electrical work had to be coordinated with the telecommunications work performed, in accordance with the communications design. DX 14 at 1.
The next sentence appears to require MW Builders to enter into a contract with NV Energy: "The contractor will be required to sign a Design Initiation Agreement with NV Energy and pay fees as shown in the bid schedule." DX 14 at 1. This language, however, refers to the fact that MW Builders was responsible to sign that specific contract. The fact that there was no mention of the Line Extension Agreement was not necessarily an "obvious omission." See Beacon Constr., 314 F.2d at 504. Instead, "when parties list specific items, without any more general or inclusive term, they intend to exclude similar items, even though they are similar to those listed." 2 E. ALLEN FARNSWORTH, FARNSWORTH ON CONTRACTS § 7.11 at 293-94 (3d ed. 2004) (emphasis added). In this case, Contract Drawing ES-002 required MW Builders only to sign one specific type of agreement with NV Energy, but did not require MW Builders to enter into "contracts" with NV Energy. Therefore, a reasonable construction contractor could read Contract Drawing ES-002 as requiring MW Builders only to sign the Design Initiation Agreement. To require MW Builders to sign more than just the Design Initiation Agreement, the Army Corps could have required MW Builders to "enter into any agreements necessary for the provision of permanent power" or otherwise be required to "contract with" NV Energy to provide such power. Instead, Contract Drawing ES-002 requires that "[t]he contractor shall contact NV Energy and determine the scope and costs of this work prior to submitting a proposal. The contractor's proposal shall include all work and all costs associated with providing electrical power for the project." DX 14 at 1 (emphasis added). This, however, was not a directive to MW Builders to sign the Line Extension Agreement.
Contract Drawing ES-002 expressly requires MW Builders to provide "all electric infrastructure, equipment, and wiring for the Project." DX 14 at 2. Contract Drawing ES-002 also requires MW Builders to provide "a complete and working electrical system." DX 14 at 2. In addition, Contract Drawing ES-002 requires the contractor to "contact" NV Energy and "obtain written documentation of all transactions with NV Energy and provide them to the [Army Corps]." DX 14 at 2. But, this contractual provision could be interpreted to require MW Builders to serve as a middleman between the Army Corps and NV Energy. Contract Drawing ES-002 further provides that "The contractor is responsible for all guidelines and requirements within Nevada Power Company's [i.e., NV Energy's] Electric Service Requirements, which can be found on their website below." DX 14 at 2. But, this sentence requires MW Builders to abide by the "Electrical Service Requirements," found at the website: a 432 page document consisting of technical requirements related to construction, including, "how deep power lines need to be buried." TR at 459 (Matson); see also PX 680. The term "Line Extension Agreement" does not appear anywhere in this document. PX 680.
For these reasons, the court has determined that the September 10, 2010 Contract is ambiguous as to which party was responsible for signing the Line Extension Agreement, but that ambiguity was latent.
Because there was a latent ambiguity in the September 10, 2010 Contract as to which party was required to sign the Line Extension Agreement, the rule of contra proferentem applies, meaning that any ambiguity may be construed against the Army Corps. That rule, however, is one "of last resort" and should be applied only if the ambiguity cannot be reconciled after "looking to the circumstances attending the transaction and the circumstances under which [the parties] executed the contract." See Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1352 (Fed. Cir. 2006) (quoting Chris Berg, Inc. v. United States, 455 F.2d 1037, 1044 (Ct. Cl. 1972)). Therefore, "before resorting to the doctrine of contra proferentem, [the court] `may appropriately look to extrinsic evidence'" to aid in the interpretation of the contract. See Gardiner, 467 F.3d at 1352 (quoting Metro. Area Transit, Inc., 463 F.3d at 1260).
As a threshold matter, the Government argues that there is "no evidence" that the Army Corps was "specifically aware of the Line Extension Agreement prior to Contract award." Gov't Post Tr. Br. at 110. The trial testimony about the pre-award "Design Phase" of the contract supports this assertion: Army Corps and Mason & Hanger witnesses testified that, during the Design Phase, they were concerned with the Design Initiation Agreement and not with the Line Extension Agreement. TR at 16-17 (Probst); TR at 975-78 (Miller). In addition, although the May 9, 2009 letter attached to the draft Design Initiation Agreement mentioned a "Line Extension Agreement," it was in the context of requiring the applicant for permanent power to "sign one or more of the following agreements: Line Extension Agreement (LEA); Large Project Service Agreement (LPS Agreement); Contribution in Aid of Construction Agreement (CIAC Agreement); Non-Refundable Construction Agreement (NRCA)." DX 6 at 5. Consequently, it appears that the Army Corps was not aware of the significance of the Line Extension Agreement before awarding the September 10, 2010 Contract to MW Builders. But, any assertion that the Army Corps was not aware of the Line Extension Agreement, and nevertheless intentionally bargained for MW Builders to sign that Line Extension Agreement, is logically inconsistent. In other words, the Army Corps cannot insist on a requirement, if it was not aware the requirement existed. Recognizing the flaw in its reasoning, the Government next argues that since the September 10, 2010 Contract did not expressly require the Army Corps to sign the Line Extension Agreement, that obligation fell on MW Builders. Gov't Post Tr. Br. at 108-09. This argument is not supported by any evidence and ignores the fact that the Army Corps was aware of industry practice. See, e.g., Jowett, Inc. v. United States, 234 F.3d 1365, 1369 (Fed. Cir. 2000) (explaining that the court may look to industry practice where a "term with an accepted industry meaning [was] omitted from the contract"). In this case, both NV Energy and Army Corps witnesses testified that it was industry practice for building owners of new construction ("end users") to execute Line Extension Agreements. Ms. Risse, the NV Energy in-house attorney responsible for negotiating Line Extension Agreements,
It is true that Ms. Creveling, another NV Energy employee, testified that NV Energy once entered into a Line Extension Agreement with a contractor, instead of the Government end-user, but this occurred on a "much smaller" project.
This makes sense, because the Line Extension Agreement governs utility payments for at least a five-year term—long after the construction contractor's work is over. TR at 473 (Rial) ("A Line Extension Agreement is the contract between the utility and the owner on how the money is to be collected, the breakdown on the money, and then, also, how the moneys will be refunded[.]").
The bottom line is the Army Corps could have contracted to depart from ordinary industry practice by expressly placing the obligation to enter into a utility contract on the contractor.
The parties' performance also evidences that there was no agreement that MW Builders was required to sign the Line Extension Agreement. Prior to any controversy regarding the Line Extension Agreement, the Army Corps restricted MW Builders' ability to negotiate contract changes on behalf of the Army Corps, by modifying the terms of NV Energy's Third Party Authorization Form. Compare JX 14 at 11 (Unsigned and undated Third Party Authorization Form draft, providing that MW Builders would have authority to "communicate and authorize all change requests"), with PX 15 (3/29/11 Third Party Authorization Form, including Government modifications, deleting "and authorize"). Other paperwork filled out by MW Builders identified the Army Corps as the "Customer/Legal Owner" of the Project. PX 15 (3/29/11 Third Party Authorization Form); PX 567 (3/29/11 Project Information Sheet). Similarly, on the April 27, 2011 Design Initiation Agreement, the Army Corps was identified as the "Applicant" for permanent power. JX 19 at 10.
In addition, when NV Energy sent the Line Extension Agreement to MW Builders and the Army Corps, all parties held a March 13, 2012 conference call together with the 63rd RSC and concluded that the Agreement should be signed by the 63rd RSC. JX 44 at 1 ("The contract will be executed between NV Energy and 63D RSC such that staging of equipment can start on or about 19 March 2012."). The fact that the Army Corps first took the Line Extension Agreement to the 63rd RSC is inconsistent with the Army Corps' later claim that MW Builders was responsible for entering into the Line Extension Agreement. TR at 1077 (Finley). It was only after the 63rd RSC refused to sign the Line Extension Agreement that the Army Corps took the position that it was MW Builders' responsibility. PX 501 at GOV_00005389 (Mr. Musgrave's email that: "I really don't know why MW cannot sign the contract as they a[re] paying the fee and the cost for service until it is acceptable.").
In any event, the Army Corps changed its position as to which party was obligated to sign the Line Extension Agreement and the CO never issued a directive ordering MW Builders to sign it. PX 528; TR at 1132 (Ringstaff) ("[i]f the contractor feels that something is out of the scope and [the Army Corps] feel[s] like it is in scope, we can direct them to do the work."). And, as Mr. Probst explained in his June 29, 2012 email, the CO refused to take this step, because doing so "would expose the Government to a potential Request for Equitable Adjustment (REA) and a contract ratification if an REA was upheld." PX 294. In short, the Army Corps refused to order MW Builders to sign the Line Extension Agreement, because it was cognizant that doing so would entitle MW Builders to a Request for Equitable Adjustment. Therefore, the extrinsic evidence demonstrates that the parties did not intend for MW Builders to sign the Line Extension Agreement with NV Energy, but instead agreed to follow the industry practice of having the end user sign.
Finally, the Government argues that the September 10, 2010 Contract could not have placed responsibility for the Line Extension Agreement on the federal government, because it would be unenforceable under the Anti-Deficiency Act. Gov't Post Tr. Br. at 116 (citing 31 U.S.C. § 1350 (imposing criminal sanctions for knowingly spending funds in excess of those appropriated by Congress)). It is true that certain sections of the Line Extension Agreement obligated payments that were not in sum certain for future years and the Anti-Deficiency Act only allows spending that is authorized by Congress. JX 72 at 5 (Draft Line Extension Agreement providing that applicant's refund could be reduced via an "Allowance True-Up"). The Army Corps, however, removed those provisions prior to finally executing the July 23, 2012 Line Extension Agreement with NV Energy. Compare JX 72 at 5 (6/20/12 draft Line Extension Agreement providing for a potential reduction of an Applicant's refund via an "Allowance True-Up"), with JX 94 at 125 (7/23/12 executed Line Extension Agreement intentionally omitting "Allowance True-Up" provisions). Therefore, the fact that the draft Line Extension Agreement included language to which Army Corps could not have agreed, is irrelevant since the September 10, 2010 Contract did not include any terms contrary to the Anti-Deficiency Act.
For these reasons, the court has determined that the Army Corps was obligated to sign the Line Extension Agreement and breached the September 10, 2010 Contract by failing to do so in a timely manner.
MW Builders argues that the duties to cooperate and not to hinder are two "sub-duties" of the broader duty of good faith and fair dealing. Pl. Post. Tr. Br. at 107. In this case, MW Builders had a reasonable expectation that the Army Corps would not hinder or interfere with MW Builders' Project Schedule. Pl. Post. Tr. Br. at 108.
The Army Corps first unreasonably failed to secure necessary easements, despite representing in the September 10, 2010 Contract that offsite property rights would be available to MW Builders so permanent power could be connected to the Project site. Pl. Post Tr. Br. at 111. In addition, the Contract Drawings provided by the Army Corps indicated that MW Builders would be able to build offsite ductbanks at the intersection of Arville Street and Ray Way (the "Arville Hub"), and then work with NV Energy to "pull" a utility wire to the Project site. Pl. Post Tr. Br. at 61 (citing PX 267). Although the Contract Drawings suggested that MW Builders would be able to perform construction work in this area, MW Builders subsequently learned that the Army Corps failed to secure the necessary easements for MW Builders to construct the necessary offsite ductbanks. Pl. Post Tr. Br. at 62 (citing JX 26). MW Builders raised this issue with the Army Corps in July 2011, but the Army Corps did not resolve the issue until March 2012. Pl. Post Tr. Br. at 67. In fact, the Army Corps recognized that failure to secure the easements was a "big goof" and, under ordinary circumstances, the Army Corps would work to secure the necessary easements before opening up a project to bidding. Pl. Post Tr. Br. at 63 (citing PX 239); see also TR at 378-79 (Caskie) ("I wouldn't have let the bids be open if I knew there [were] real estate issues[.]"). Therefore, the Army Corps acted unreasonably when it took months to resolve the easements issue, despite knowing of its critical importance. Pl. Post Tr. Br. at 111.
NV Energy also needed to inspect MW Builders' ductbank work before pulling a wire to connect the Project site to the utility grid. Pl. Post Tr. Br. at 65 (citing PX 453, JX 26). This required permission from the Army Corps so NV Energy provided both with an "Access To Equipment Agreement" in September 2011. Pl. Post Tr. Br. at 67 (citing PX 18). But, the Army Corps decided that it could not agree to several provisions in the Access To Equipment Agreement. PX 18 (2/28/12 email regarding Access To Equipment Agreement). The Army Corps, however, did not inform MW Builders and NV Energy of its disagreement with those provisions until February 28, 2012, i.e., several months after first receiving that Agreement. PX 18. Although none of this delay directly affected MW Builders' critical path, the Army Corps' failure to secure the necessary easements and extended negotiations about NV Energy's Access To Equipment Agreement narrowed the window within which a Line Extension Agreement could be executed, without pushing tasks onto the critical path that would delay the Project. Pl. Post Tr. Br. at 70. Consequently, when the Army Corps later failed to sign the Line Extension Agreement in a timely manner, the resulting delay had a considerably greater impact on the Project's completion date than it otherwise would have had. Pl. Post Tr. Br. at 70.
Most importantly, during the March 13, 2012 conference call, when the Line Extension Agreement was first discussed with NV Energy and MW Builders present, the Army Corps stated that the 63rd RSC would sign the Line Extension Agreement. Pl. Post Tr. Br. at 74 (citing JX 44). But, the Army Corps changed its position and later insisted that MW Builders was responsible for signing the Line Extension Agreement. Pl. Post Tr. Br. at 76-77 (citing PX 501, at GOV_5390). The Army Corps' bad faith is also evidenced by the fact that on March 19, 2012, the Army Corps purposely excluded MW Builders from a second conference call with NV Energy, when it explained the Army Corps intended to make MW Builders sign the Line Extension Agreement. Pl. Post Tr. Br. at 77 (citing TR at 85 (Probst)).
MW Builders, however, was completely candid as it informed the Army Corps on numerous occasions that it would not sign the Line Extension Agreement. Pl. Post Tr. Br. at 78-84 (citing TR at 182 (Musgrave), 198 (Probst); PX 528; JX 58). Nevertheless, on April 26, 2012, the Army Corps made misleading and confusing statements to NV Energy, to make it appear that MW Builders would be the counterparty to the Line Extension Agreement. Pl. Post Tr. Br. at 85 (citing JX 61). And so, negotiations dragged on. Pl. Post Tr. Br. at 85-86. It was not until June 21, 2012, that Ms. Risse, NV Energy's Representative, was clearly informed that the Army Corps, instead of MW Builders, would sign the Line Extension Agreement. Pl. Post Tr. Br. at 89 (citing TR at 597 (Risse)).
The "contemporaneous project schedules [also] establish the duration and causation" of the "critical path" delay caused by the Army Corps' violation of the duty of good faith and fair dealing. Pl. Post Tr. Br. at 93. MW Builders began work by creating an initial "baseline schedule." TR at 509-10 (Stone). As the Project progressed, MW Builders' schedule was updated on a monthly basis and was reviewed by Management Solutions, the third party scheduling consultant retained by the Army Corps. TR at 512 (Stone). The February 2012 updated critical path schedule showed that the Project would be completed 27 days ahead of schedule. PX 336. By the March 2012 Update, however, the lack of permanent power caused a delay and the updated schedule showed a completion date that was ten days late. TR at 517-18 (Stone). Nevertheless, the Army Corps continued to decline to sign the Line Extension Agreement and MW Builders' Schedule Updates continued to show delay. Pl. Post Tr. Br. at 96-97. By the April 2012 Update, the anticipated delay reached 52 days and, by May 2012, the delay increased to 86 days. Compare PX 338 at 1 (April 2012 Update), with PX 339 at 2 (May 2012 Update). Management Solutions' review of the April 2012 Schedule Update identified several changes and the Army Corps was asked whether it agreed "with the changes such as the change in original duration of Nevada energy-wire/transformer/es, added activities, and logic changes?"
MW Builders' scheduling expert, Mr. Miltonberger, also estimated that the Project was delayed a total of 413 days that could be divided into three "windows" or time periods. Miltonberger Direct at 3-5. "Window 2" concerns 170 days of delay and is the subject of this case.
The Government responds that MW Builders did not meet the "heightened burden" to establish a breach of the implied covenant of good faith and fair dealing by evidencing "specific intent to injure." Gov't Post Tr. Br. at 100, 105 (citing Austin v. United States, 118 Fed. Cl. 776, 790 (Fed. Cl. 2014)). Government officials are presumed to act in good faith. Gov't Post Tr. Br. at 100-01 (citing Schism v. United States, 316 F.3d 1259, 1302 (Fed. Cir. 2002)). Specifically, there is no evidence that the Army Corps acted with animus towards MW Builders or otherwise intentionally targeted MW Builders and Mr. Probst and Mr. Finley acted in good faith. Gov't Post Tr. Br. at 105-06. Therefore, the Army Corps did not unreasonably delay negotiations surrounding the Line Extension Agreement, but acted "reasonably and diligently," and in good faith. Gov't Post Tr. Br. at 117-18.
It was NV Energy, a third party over which the Army Corps had no control, that insisted on provisions that the Army Corps could not agree to by signing the Line Extension Agreement. Gov't Post Tr. Br. at 118. The Army Corps' attorney, Mr. Finley, worked diligently with NV Energy's attorney, Ms. Risse, to resolve the Army Corps' legitimate concerns regarding the Anti-Deficiency Act, venue, and the law that would govern any future disputes. Gov't Post Tr. Br. at 32 (citing DX 143). Although MW Builders argues that Ms. Risse's confusion was "understandable," because Mr. Finley appeared to be negotiating on behalf of three separate parties (MW Builders, the 63rd RSC, and the Army Corps), she should have been tipped off by the "telling" fact that MW Builders' lawyers were not included in the email conversation. Gov't Post Tr. Br. at 120. The Army Corps had "no incentive" to cause confusion as to which party was to sign the Line Extension Agreement. Gov't Post Tr. Br. at 121. In any event, the Army Corps and NV Energy were able to resolve their dispute "very quickly," after Ms. Risse's confusion was resolved. Gov't Post Tr. Br. at 121.
To establish a breach of the duty to cooperate, MW Builders must establish that the delay was the fault of the Army Corps. Gov't Post Tr. Br. at 99. In this case, MW Builders assumed the risk of any delay caused by problems with NV Energy, because MW Builders contracted to provide "a complete and working electrical system." Gov't Post Tr. Br. at 107 (citing DX 14 at 1). Therefore, MW Builders should be barred from recovery, because it caused the delay. Gov't Post Tr. Br. at 121. This is so, because Contract Drawing ES-002 obligated MW Builders to contact NV Energy about its permanent power requirements, but MW Builders did not inform the Army Corps about the Line Extension Agreement until March 14, 2012. Gov't Post Tr. Br. at 122.
In addition, "to properly demonstrate delay[,] . . . the [Critical Path Method] schedule must be kept current to reflect any delays as they occur." Gov't Post Tr. Br. at 123 (quoting PCL Constr. Servs., Inc. v. United States, 47 Fed. Cl. 745, 801 (Fed. Cl. 2000). In this case, MW Builders' schedules did not reflect a potential permanent power delay until March 28, 2012. Gov't Post Tr. Br. at 124 (citing DX 72 at 4). "This assumption was based upon ignorance and nothing more." Gov't Post Tr. Br. at 124. At trial, MW Builders' Scheduling Engineer, Mr. Stone, testified that he could have incorporated the logic changes made in the March 2012 Schedule Update, if he had been aware of the permanent power issue. Gov't Post Tr. Br. at 124 (citing TR at 565 (Stone)). Therefore, if "MW Builders had managed the project in a diligent manner, it would have identified the Line Extension Agreement as a potential problem in 2011, if not sooner." Gov't Post Tr. Br. at 124. Mr. Rial, the consultant employed by MW Builders to assist with NV Energy, testified that he informed MW Builders about the Line Extension Agreement in July 2011. Gov't Post Tr. Br. at 124-25; see also TR at 484-85 (Rial). Therefore, to avoid a critical path delay, the Line Extension Agreement needed to be signed at least "nine weeks before" May 3, 2012, i.e., by March 1, 2012. Gov't Post Tr. Br. at 125; see also TR at 892 (Miltonberger). But, the Army Corps did not receive the Line Extension Agreement until March 14, 2012. Gov't Post Tr. Br. at 125.
As for MW Builders' arguments about easement delays and how they "pushed the Line Extension Agreement onto the critical path," they "are based solely on speculation and not on any evidence." Gov't Post Tr. Br. at 127-28. In any event, the easement delays were not solely caused by the Government. Nor was all of the delay the fault of the Army Corps. Gov't Post Tr. Br. at 127-28. Since any such delay was "concurrent or intertwined," MW Builders did not meet its burden of separating the delays it caused from those that may have been caused by the Army Corps. Gov't Post Tr. Br. at 129 (citing Blinderman Constr. v. United States, 695 F.2d 552, 559 (Fed. Cir. 1982). Therefore, the court should dismiss MW Builders' claim. Gov't Post Tr. Br. at 129.
MW Builders replies that Metcalf Construction Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014), does not require a plaintiff to show bad faith or targeting by a federal government official to establish a breach of the implied duty of cooperation, which is part of the duty of good faith and fair dealing. Pl. Post Tr. Reply Br. at 29 (citing Metcalf, 742 F.3d at 994). Instead, the relevant standard is whether the Government willfully or negligently interfered with a contractor's performance and reasonable expectations. Pl. Post Tr. Reply Br. at 32 (citing Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir. 1988) ("[S]ubterfuges and evasions violate the obligation of good faith, as does lack of diligence and interference with or failure to cooperate in the other party's performance") (internal citations and quotations omitted)). Therefore, the Government's argument that MW Builders needs to establish that it was intentionally "targeted" by the Army Corps is not correct as a matter of law. Pl. Post Tr. Reply Br. at 30.
With respect to easements, MW Builders replies that the Army Corps' delay in securing the easements consumed Project "float" time, i.e., the time between when an activity is first scheduled to occur and the last date the activity can be completed. Pl. Post Tr. Reply Br. at 34. As the Government's expert testified, securing the easements was a "predecessor activity" to the Line Extension Agreement. TR at 1312 (Weathers). Therefore, the Army Corps' delay in securing those easements lengthened the delay initially caused by the Army Corps. Pl. Reply at 36-37.
With respect to the Government's argument that any delay connected to the Line Extension Agreement was attributed to Ms. Risse's "confusion," it was the Army Corps that misled and misrepresented that MW Builders was going to sign the Line Extension Agreement when it cut out MW Builders from participating in telephone conferences with Ms. Risse. Pl. Reply at 42; TR at 85 (Probst).
With respect to MW Builders' schedules, they were accurate and described as "well managed and sufficiently detailed" by Management Solutions, the consultant hired by the Army Corps, in contrast with the Government's retained scheduling expert, Mr. Weathers, who opined that the schedules lacked sufficient detail. "[C]ontemporaneous project records[, however,] are more credible than the opinions of witnesses who contradict those records years later during trial testimony." Pl. Reply at 46.
With respect to the Government's contention that MW Builders should have advised the Army Corps of the Line Extension Agreement earlier, there is no evidence that doing so would have changed anything. Pl. Reply at 47. As the Government's expert conceded, securing the easements was a predicate condition that had to be accomplished before the Line Extension Agreement could be signed. Pl. Reply at 47 (citing TR at 1312 (Weathers)).
Finally, the Government's assertion that MW Builders failed to apportion delay is "flatly wrong," because MW Builders' expert performed an apportionment analysis and concluded that 140 days of delay could be attributed to a single cause, i.e., the Army Corps' failure to execute the Line Extension Agreement in a timely fashion. Pl. Reply at 44 (citing Miltonberger Direct at 11-18).
The Government concedes that its argument that evidence of "bad faith" was required to establish a breach of the duty to cooperate was "too broad," but there is no evidence that the Army Corps breached the implied duty of good faith and fair dealing, because it worked hard to resolve the issue when it became aware of the Line Extension Agreement in March 2012. Gov't Reply at 8-9. It was MW Builders' fault that the Government did not learn about that agreement until March 2012. Gov't Reply at 9. As such, the delay was caused by NV Energy and MW Builders, not the Army Corps. Gov't Reply at 10. In addition, no critical path delay was caused by the easement issue. Gov't Reply at 9.
The duty of good faith and fair dealing includes "the duty not to interfere with the other party's performance and not to act so as to destroy the reasonable expectations of the other party regarding the fruits of the contract." Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005). "Both the duty not to hinder and the duty to cooperate are aspects of the implied duty of good faith and fair dealing." Metcalf, 742 F.3d at 991 (quoting Precision Pine & Timber v. United States, 596 F.3d 817, 820 n.1 (Fed. Cir. 2010)). Although it "is rarely possible to anticipate in contract language every possible action or omission by a party that undermines the bargain," the terms of the contract and the "nature of that bargain" inform the reasonable expectations of the parties. See Metcalf, 742 F.3d at 991. Therefore, "the implied duty of good faith and fair dealing cannot . . . create duties inconsistent with the contract's provisions." Precision Pine, 596 F.3d at 831.
The United States Court of Appeals for the Federal Circuit has held that the Government may violate the implied duty of good faith and fair dealing without "specifically targeting," but nevertheless deprive the contractor of the fruits of the contract. See Metcalf, 742 F.3d at 994. In addition, the Government may violate that duty when its acts or omissions are "inconsistent with the contract's purpose and deprive the other party of the contemplated value." Id. at 991. For example, an unreasonable "lack of diligence" may violate the implied duty of good faith and fair dealing. Id. at 991 (quoting Malone, 849 F.2d at 1445). A party also may violate the duty of good faith and fair dealing by engaging in "subterfuges and evasions." See Malone, 849 F.2d at 1445; see also RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (AM. LAW INST. 1981) ("Subterfuges and evasions violate the obligation of good faith in performance even though the actor believes his conduct to be justified.").
The Line Extension Agreement was first discussed during a March 13, 2012 conference call that included NV Energy and MW Builders, wherein the participants agreed that the "contract will be executed between NV Energy and 63D RSC." JX 44 at 1. It was only after the 63rd RSC refused to sign the Line Extension Agreement on March 14, 2012, that the Army Corps tried to obtain MW Builders' signature, at the suggestion of Mr. Musgrave, an Army Corps Contracting Officer's Representative. PX 501 at GOV_00005389. On March 19, 2012, the Army Corps convened a conference call with NV Energy, in part "to determine a strategy so that MW Builders would sign the Line Extension Agreement." TR at 85 (Probst). But, the Army Corps excluded MW Builders from that telephone conference. TR at 84-85 (Probst). Ms. Risse, NV Energy's attorney, present during the March 19, 2012 telephone conference, testified that NV Energy "wouldn't have been asked to consider" having MW Builders sign the Line Extension Agreement, "if MW Builders wasn't on board with it." TR at 590-91 (Risse).
On March 21, 2012, MW Builders informed the Army Corps that it would not sign the Line Extension Agreement, without a directive from the CO. PX 528. Nevertheless, the Army Corps proceeded to convene a second telephone conference with NV Energy that again excluded MW Builders. PX 60C. After this second call, NV Energy's attorney, Ms. Risse, "thought [her] work was done[,] unless MW Builders came back and had concerns that we needed to discuss and change the extension agreement if necessary." TR at 609 (Risse). The purpose of the Army Corps' conduct was to convince NV Energy that MW Builders would sign the Line Extension Agreement. At the same time the Army Corps made these representations to NV Energy, it knew that MW Builders would not sign the Line Extension Agreement, without a letter from the CO directing them to do so.
On April 26, 2012, the Army Corps first contacted Ms. Risse to begin negotiating the Line Extension Agreement, because the critical path was being affected. JX 61 at 1-2. Ms. Risse testified that she found the April 26, 2012 email confusing and "strange," because it appeared to suggest that MW Builders was going to sign the Line Extension Agreement (as suggested during the conference calls in March), but also listed various complaints that the Army Corps and 63rd RSC had with the Line Extension Agreement. TR at 608-09 (Risse). Moreover, Mr. Finley appeared to be negotiating terms on the behalf of MW Builders, who was not his client. TR at 608-09 (Risse).
By May 23, 2012, confusion about who was to sign the Agreement continued and was causing delay on the Project. JX 68. On June 15, 2012, Ms. Risse sent an email to Mr. Finley, stating that "NV Energy has already compromised by agreeing that the [G]overnment's contractor can be the applicant instead of the [G]overnment." DX 143 at 2. Three days later, Mr. Finley responded that "What I have been trying to draft is an agreement between the [Army] Corps and NV Energy. We seem to be working toward different goals." DX 143 at 1. On June 21, 2012, Mr. Finley and Ms. Risse had a telephone conference with MW Builders' attorney, Mr. Mitts, where the Army Corps agreed that MW Builders was not responsible for signing the Line Extension Agreement. JX 75 at 1. Thereafter, "drafts were exchanged quickly" and the Army Corps signed the Line Extension Agreement on July 12, 2012. TR at 626 (Risse); see also Jt. Stip. ¶ 25.
Regarding the Government attempt to fault Ms. Risse for the uncertainty about the Line Extension Agreement, no such evidence was proffered to excuse the Army Corps' conduct of not being candid with NV Energy about MW Builders' refusal to sign the Line Extension Agreement—and to exclude MW Builders' lawyers from those discussions. The fact that the Line Extension Agreement issue ultimately was quickly resolved evidences that it was the Army Corps that was responsible for the uncertainty and delay caused by the Army Corps' failure to sign the Line Extension Agreement in a timely manner.
Likewise, the Government's attempt to shift the blame for lack of the permanent power— citing the fact that MW Builders did not raise the issue of the Line Extension Agreement until March 2012, when it was "too late[:] only weeks before permanent power was due"—belies the record. (Gov't Post Tr. Br. at 123). Securing easements was a necessary predicate to providing permanent power to the Project site, that was not addressed by the Army Corps until February 6, 2012. PX 4 (the "[P]roject will not be released for construction scheduling until after all of the necessary property rights have been provided to NV Energy."); Jt. Stip. ¶ 21. In fact, the Army Corps did not even provide an "access letter" to NV Energy until March 16, 2012. Jt. Stip. ¶ 23.
Based on this record, the Army Corps' conduct regarding the Line Extension Agreement implicated the duty to not interfere with the other party's performance, the duty not to hinder, and the duty to cooperate. Although the September 10, 2010 Contract assigned some electric utility obligations to MW Builders, no specific party was directed to sign the Line Extension Agreement, because all the parties were aware of industry practice. Therefore, MW Builders entered into the bargain with a "reasonable expectation" that the Army Corps was obligated to make arrangements with respect to the Line Extension Agreement. See Centex Corp., 395 F.3d at 1304 ("The covenant of good faith and fair dealing . . . include[s] the duty not to interfere with the other party's performance and not to act so as to destroy the reasonable expectations of the other party regarding the fruits of the contract."). The Army Corps, however, attempted to impose that obligation on MW Builders by misleading, dilatory, and bad faith conduct. See Metcalf, 742 F.3d at 991.
The Government is correct that the United States Court of Appeals for the Federal Circuit has held that a Government agency did not violate the duty of good faith and fair dealing with respect to the contract when it failed to cooperate with a separate, unrelated third party. See Precision Pine, 697 F.3d at 830. In that case, the United States Forest Service failed to cooperate with the Fish and Wildlife Service with respect to consultations required under the Endangered Species Act ("ESA"). Id. But, the "plain language" of the Precision Pine contract stated that its "provisions [could] be modified, suspended, or even canceled to comply with the ESA." Id. at 830-31. The September 10, 2010 Contract contains no such reservation. Nevertheless, the Army Corps represented and continued to represent to NV Energy that MW Builders could or would sign the Line Extension Agreement, although the Army Corps knew that was not the case. This evidences that the Army Corps acted in bad faith.
For these reasons, the court has determined that the Army Corps violated the duty of good faith and fair dealing. Metcalf, 742 F.3d at 991.
The United States Court of Appeals for the Federal Circuit also has held that a contactor may recover for an unreasonable delay, if the Government is "the sole proximate cause of the contractor's additional loss, and the contractor would not have been delayed for any other reason during that period." Triax-Pacific v. Stone, 958 F.2d 351, 354 (Fed. Cir. 1992); see also Essex Electro Eng'rs, Inc. v. Danzig, 224 F.3d 1283, 1295 (Fed. Cir. 2000) ("A contractor seeking to prove the government's liability for a delay must establish the extent of the delay, the contractor's harm resulting from the delay, and the causal link between the government's wrongful act and the delay."). In addition, any Government-caused delay must be "unnecessary or unreasonable in duration." P.R. Burke Corp. v. United States, 277 F.3d 1346, 1360 (Fed. Cir. 2002). As a result, the contractor may not recover, if there is a concurrent delay caused by the contractor or some other third party. See Triax-Pacific, 958 F.2d at 354 (holding that a contractor could not recover where a delay was caused, in part, by the contractor's failure to timely complete prior projects). But, a contractor may recover when other factors contribute to the delay, provided that there is proof of a "clear apportionment of the delay and the expense attributable to each party." T. Brown Constructors, Inc. v. Pena, 132 F.3d 724, 734 (Fed. Cir. 1997) (quoting Coath & Goss, Inc. v. United States, 101 Ct. Cl. 702, 714-15 (Ct. Cl. 1944)).
In this case, the Government argues that MW Builders is barred from recovery, because it failed to apportion the delay caused by the Army's conduct with respect to the Line Extension Agreement. Gov't Reply at 7-8. The trial record, however, reflects that the delay was solely caused by the Army Corps. As such, MW Builders was not required to provide a "clear apportionment of the delay and the expense attributable to each party," because there was only one party at fault: the Army Corps. See T. Brown, 132 F.3d at 734.
The Government next argues that MW Builders' contemporaneous Critical Path Method schedules are not accurate and do not support a finding of unreasonable delay. The United States Court of Federal Claims determined in Blinderman Construction Co. v. United States, 39 Fed. Cl. 529 (Fed. Cl. 1997), aff'd 178 F.3d 1307 (Fed. Cir. 1998), that a contractor may not recover damages, even though it established that the Government caused an unreasonable delay, where the contractor did not demonstrate that the delay affected the critical path and the schedules submitted were not updated in a timely manner, to reflect the delay. Id. at 584-85.
MW Builders' contemporaneous schedule updates, however, evidence that the permanent power delay affected the critical path and that delay continued to accumulate:
By the time the Line Extension Agreement was executed on July 23, 2012, MW Builders' contemporaneous Schedule Updates showed a 140-day delay to the critical path; i.e., the difference between the original completion date of September 19, 2012, and the adjusted completion date of February 6, 2013. Therefore, unlike the contractor in Blinderman Construction Co., MW Builders proffered critical path schedules, as they existed before, during, and after the delay. In addition, MW Builders proffered contemporaneous evidence that the delay in securing power affected critical path activities, particularly the temperature sensitive indoor construction work in the Training Building.
Nevertheless, the Government argues that, even if the delay was attributable to the Army Corps, it was "reasonable in duration." Gov't Reply at 10. The Army Corps, however, was the sole cause the delay, because it failed to obtain the necessary easements, unreasonably attempted to shift responsibility for executing the Line Extension Agreement to MW Builders, engaged in misleading discussions with NV Energy and failed to cooperate with MW Builders, causing a 116 day delay. See P.R. Burke, 277 F.3d at 1360 (Government-caused delay is unreasonable, if it is "unnecessary or unreasonable in duration") (emphasis added).
For these reasons, the court has determined that the Government violated the duty of good faith and fair dealing, and caused an unreasonable delay to the Project.
The Government's February 17, 2016 Amended Answer asserted the following affirmative defenses: (1) MW Builders' claims are barred, in whole, or, in part, by accord and satisfaction; (2) MW Builders' claims are barred, in whole, or, in part, by waiver; and (3) the pass-through claims of MW Builders' subcontractors are barred, in whole, or, in part, by waiver. Gov't Amend. Answer ¶¶ 39-41. The Government's December 8, 2016 Proposed Findings Of Fact And Conclusions Of Law, however, presented only an argument relating to the waiver of one of MW Builders' subcontractors, Bergelectric. Gov't Post Tr. Br. at 95.
The Government argues that any pass-through claim from Bergelectric is waived. Gov't Post Tr. Br. at 98. Under the December 6, 2010 subcontract, Bergelectric was required to sign a periodic form release, as a condition of payment from MW Builders. JX 9 at 2 (12/6/2010). The language in the form releases signed by Bergelectric unambiguously waived any claims against MW Builders and, therefore, against the Government. Gov't Post Tr. Br. at 97 (citing DX 124 at 2 (4/15/12 Bergelectric Waiver)). Because the language in the releases was unambiguous, the court must consider their plain meaning, instead of extrinsic evidence of the parties' course of dealings or oral testimony. Gov't Post Tr. Br. at 97.
Assuming arguendo that the court may consider extrinsic evidence, Bergelectric's claims still are waived. Gov't Post Tr. Br. at 97. MW Builders required its subcontractors to sign a release to protect MW Builders from liability. TR at 715 (Campbell). The Government contends that MW Builders was aware of the need to modify the scope of the release, if Bergelectric intended to preserve any pass-through claims, but MW Builders did not do so. Gov't Post Tr. Br. at 98. The testimony of Justin Knippel, Bergelectric's Regional Manager for Las Vegas and Phoenix, was irrelevant, because he was not the company representative who signed the releases. Gov't Post Tr. Br. at 97 (citing TR at 774-75 (Knippel)). Likewise, Mr. Campbell's testimony is irrelevant, because he was not a Bergelectric representative and had no personal knowledge about Bergelectric's intent, when it signed the releases. Gov't Post Tr. Br. at 98 (citing TR at 717 (Campbell)).
MW Builders required Bergelectric to sign a standard form release to receive payment, but neither party intended the releases to waive any claim arising from the permanent power delay. Pl. Post Tr. Br. at 128. Instead, these releases were a contractual prerequisite to Bergelectric getting paid each month. Pl. Post Tr. Br. at 128. The conduct of the parties after Bergelectric signed the releases also shows that the parties did not intend for Bergelectric to waive any claims, e.g., Bergelectric filing a Complaint against MW Builders in the United States District Court for the Western District of Texas on November 26, 2014; executing an agreement to toll the statute of limitations on Bergelectric's claims; and passing Bergelectric's claims through to the Government in this suit. Pl. Post Tr. Br. at 128-31. And, as Messrs. Knippel, Campbell, and Sawyer testified at trial, the parties never intended to waive any claims Bergelectric may have against the Government. TR at 672-73 (Campbell), 776 (Knippel), 812-13 (Sawyer). Since the standardized form releases were not intended to waive Bergelectric's pass-through claims and the Government has not introduced any other evidence waiving Bergelectric's claims, the Government has failed to establish that Bergelectric's claims are barred. Pl. Post Tr. Br. at 130-31.
As a matter of law, a subcontractor may not independently file a claim against the Government, without being in privity. See Severin v. United States, 99 Ct. Cl. 435, 442 (Ct. Cl. 1943) ("The subcontractor could not sue the Government since it has not consented to be sued except, so far as relevant to this case, for breach of contract. But the Government had no contract with the subcontractor, hence it is not liable to, nor suable by him."); see also Erickson Air Crane Co. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) ("The [G]overnment consents to be sued only by those with whom it has privity of contract, which it does not have with subcontractors."). Instead, the prime contractor must bring a "pass-through" claim in its own name on behalf of its subcontractor. See Severin, 99 Ct. Cl. at 443. The prime contractor, however, may pursue a subcontractor's damages claim against the Government, only if the prime contractor is liable to the subcontractor for those damages. Id.
MW Builders' subcontract required Bergelectric to sign and execute lien waivers each time it requested a progress payment. JX 9 at 2 (12/6/10 Bergelectric subcontract). During the Project, Bergelectric signed periodic waivers as a condition of receiving payment from MW Builders. DX 124 at 2 (5/9/12 waiver, covering payment until 4/15/12). These waivers stated:
DX 124 at 2 (emphasis added).
This is a general release, because Bergelectric "irrevocably and unconditionally" waived "any . . . claims whatsoever in connection with th[e] Contract" through the end of "the period covered by this Application." DX 124 at 2. Generally, "[t]he rule for releases is that absent special vitiating circumstances, a general release bars claims based upon events occurring prior to the date of the release." Augustine Med., Inc. v. Progressive Dynamics, Inc., 194 F.3d 1367, 1373 (Fed. Cir. 1999) (quoting Johnson, Drake & Piper, Inc. v. United States, 531 F.2d 1037, 1047 (Ct. Cl. 1976)). In this case, Bergelectric signed periodic waivers for the entire period of permanent power delay; i.e., from March 13, 2012, when the Line Extension Agreement was first presented to the Army Corps, through September 26, 2012, when permanent power was made available at the Project. DX 124 at 2 (5/9/12 waiver, covering payment unti l4/15/12); DX 124 at 4 (6/22/12 waiver, covering payment through 5/15/12); DX 124 at 6 (7/20/12 waiver, covering payment through 6/15/12); DX 124 at 8 (8/22/12 waiver, covering payment through 7/15/12); DX 124 at 10 (10/01/12 waiver, covering payment through 8/29/12); DX 124 at 16 (10/31/12 waiver, covering payment through 9/30/12); DX 124 at 18 (11/26/12 waiver, covering payment through 10/31/12.
In addition, the Government alleges three counterclaims against MW Builders, based on: the anti-fraud provision of the Contract Disputes Act, 41 U.S.C. § 7103(c)(2); the Special Plea in Fraud statute, 28 U.S.C. § 2514; and the False Claims Act, 31 U.S.C. § 3729. Gov't Amend. Answer ¶¶ 49-57.
Under the Federal Courts Administration Act, 28 U.S.C. § 1503, the United States Court of Federal Claims has jurisdiction "to render judgment upon any set-off or demand by the United States against any plaintiff in such court." In addition, the court has jurisdiction to adjudicate "any setoff, counterclaim, claim for damages, or other demand [that] is set up on the part of the United States against any plaintiff making claim against the United States[.]" 28 U.S.C. § 2508.
Because the court has jurisdiction to adjudicate the claims alleged by MW Builders' December 27, 2013 Complaint, the court also has jurisdiction to adjudicate the counterclaims alleged in the Government's February 17, 2016 Amended Answer. See Martin J. Simko Constr., Inc. v. United States, 852 F.2d 540, 547 (Fed. Cir. 1988) ("The Claims Court has jurisdiction to hear government counterclaims asserted under the False Claims Act."); see also Computer Wholesale Corp. v. United States, 566 F.2d 1189 (Ct. Cl. 1977) ("If plaintiff had pleaded a proper claim, defendant would be able to claim a setoff or counterclaim for the liquidated damages under 28 U.S.C. § 1503 or § 2508.").
On March 24, 2016, MW Builders filed a Motion To Dismiss The Government's Counterclaims, arguing that they were not alleged with sufficient particularity, pursuant to RCFC 9(b), and should be dismissed for failure to state a claim, pursuant to RCFC 12(b)(6). ECF No. 42. Although the court agrees that the Government's pleading could have been pled with more specificity, during the May 4-10, 2016 trial, the court allowed the Government leave to proffer additional testimony to provide more detail about the Government's counterclaims, rendering MW Builders' March 24, 2016 Motion To Dismiss moot.
The Government's February 17, 2016 Amended Answer alleges entitlement to recover penalties, under the CDA and False Claims Act, because MW Builders submitted a fraudulent claim to the Army Corps. Gov't Amend. Answer ¶¶ 52-57. The Government also alleges that MW Builders' damages claim is forfeited under the Special Plea in Fraud statute, because MW Builders attempted to practice fraud against the Government by submitting a certified claim with an intent to deceive the Army Corps. Gov't Amend. Answer ¶¶ 49-51. Therefore, the February 17, 2016 Answer alleges that the Government suffered an injury that is concrete, particularized, and fairly traceable to MW Builders' actions. See Friends of the Earth, 528 U.S. at 180-81 ("[To establish standing,] plaintiff must show . . . it has suffered an `injury in fact' that is . . . concrete and particularized . . . [and] fairly traceable to the challenged action[.]"). In addition, any financial injury established by the Government can be redressed by a monetary award. Id. (holding that, to establish standing, the alleged injury can "be redressed by a favorable decision").
For these reasons, the court has determined that the Government has standing to seek an adjudication of the counterclaims alleged in the February 17, 2016 Answer.
All three of the Government's counterclaims are based on the identical allegations of falsity and fraud. The February 17, 2016 Amended Answer alleges that MW Builders' December 27, 2012 certified claim, as revised on May 15, 2013, is false and fraudulent, because "MW Builders knowingly and deliberately overstated its incurred costs." Gov't Post Tr. Br. at 83-88. Specifically, when Mr. Campbell prepared MW Builders' certified claim, he should have submitted the actual cost data reflected in MW Builders' COMET accounting system; instead, Mr. Campbell elected to estimate the costs claimed, in a manner that was higher than MW Builders' actual costs. Gov't Post Tr. Br. at 55-73.
In addition, on the General Conditions Worksheet submitted by MW Builders, together with the certified claim, Mr. Campbell estimated each employee's labor burden, by using a single 38.75% plug number "across the board." TR at 1203 (Campbell). The Government, however, contends that the 38.75% was "contrived and unsupported" and MW Builders did not submit any documentary evidence to the contrary. Gov't Post Tr. Br. at 83. The actual labor burden, however, was lower than 38.75%, as evidenced by cost reports derived from MW Builders' COMET accounting system. Gov't Post Tr. Br. at 63. For example, Job Cost Summaries printed out from COMET on October 26, 2015, show that the labor burden costs incurred by each employee assigned to the Project from December 5, 2010 to September 14, 2014 were lower than those reported on the claim. DX 243, DX 244.
In addition, the Claims Worksheet included estimated "Housing" and "Vehicle, Gas, [and] Maintenance" costs that were "not calculated[,] based upon actual data in the accounting system." Gov't Post Tr. Br. at 68. Instead, Mr. Campbell, estimated an employee's "Vehicle, Gas, [and] Maintenance" cost was $7,200 over a period of 24 weeks, but the COMET accounting system reflected that employee's "Miscellaneous Auto Costs" were zero. Compare JX 88 at 8 (12/27/12 Claims Worksheet), with DX 243 at 3-4 (10/26/15 COMET printout).
The Claims Worksheet also accounted for employee time billed to the Project when certain employees were not assigned to the Project, i.e., from approximately April 2012 to September 26, 2012. Gov't Post Tr. Br. at 71. For example, the Claims Worksheet reflected that Mr. Campbell was working on the Project 100% of the time, but the COMET accounting system printout shows that he did not start billing work to the Project until September 9, 2012. DX 243 at 30.
Plaintiff's expert at trial also confirmed the "overstated and unsupported nature" of the costs claimed by MW Builders' certified claim as he "essentially started over" to ascertain MW Builders' incurred costs and calculated a daily jobsite cost rate of $3,262.00, a rate lower than the $4,071.00 daily jobsite cost rate listed in MW Builders' December 27, 2012 certified claim. Gov't Post Tr. Br. at 74-75 (citing Miltonberger Direct at 5, 21). The Government's damages expert also confirmed that the December 27, 2012 certified claim's daily jobsite rate contained "overstated" and "unsupported" costs and the 38.75% labor burden figure was "not supported by any underlying documents." Weathers Rev. Direct at 60-62.
The December 27, 2012 certified claim represented that MW Builders requested to recover costs "incurred" both by the company and subcontractors, as a result of delay of the Line Extension Agreement delay. JX 88 at 1. The dictionary definition of "incur" is: to "become liable or subject to through one's own action." Gov't Post Tr. Br. at 56 (citing www.dictionary.com/browse/incur). Therefore, MW Builders' use of the past tense, i.e., "incurred," represented that that MW Builders was liable for those costs in the past. Gov't Post Tr. Br. at 56. Although some of the entries in the General Conditions Worksheet were identified as "estimates," other costs that Mr. Campbell testified about at trial—e.g., the "Housing" and "Vehicle, Gas, [and] Maintenance" expenses— were not. Gov't Post Tr. Br. at 89. MW Builders, however, could have corrected the estimated costs, but did not do so either in the May 15, 2013 revision to the claim or in the December 27, 2013 Complaint. Gov't Post Tr. Br. at 89, 91.
Mr. Campbell, MW Builders' Project Manager, also testified that he prepared the Claims Worksheet with the expectation that negotiations with the Army Corps would ensue. Gov't Post Tr. Br. at 85. A fundamental purpose of the CDA's certification requirement, however, is to prevent contractors from overstating claims for bargaining purposes. Gov't Post Tr. Br. at 79 (citing Fiscbach and Moore Int'l Corp. v. Christopher, 987 F.2d 759, 763 (Fed. Cir. 1993) (holding that the purpose of certification requirement was to "discourage the submission of unwarranted contractor claims and to encourage settlements"); see also Daewoo Engineering and Constr. Co., Ltd. v. United States, 557 F.3d 1332, 1338-41 (Fed. Cir. 2009) (affirming the determination that a contractor committed fraud when it knowingly submitted a claim, based upon a "baseless calculation" as a negotiating ploy). If Mr. Campbell intended to estimate future costs in good faith, the two certified claims should have stated that MW Builders was submitting estimated, rather than actual, costs. Gov't Post Tr. Br. at 92.
The deposition testimony of David Cimpl, the Chief Financial Officer of MW Builders' parent company, also confirmed that actual costs incurred could have been verified by MW Builders' COMET accounting system. Gov't Post Tr. Br. at 55. According to Mr. Cimpl, "[i]f I wanted to look at actual job cost . . . I would go to look at what actual job costs are recorded in the accounting system."4/12/16 Cimpl Dep. at 87-88. This testimony is "binding" on MW Builders. Gov't Post Tr. Br. at 77 (citing Zip-O-Log Mills, Inc. v. United States, 113 Fed. Cl. 24, 32 (Fed. Cl. 2013) ("The testimony of a [RCFC] 30(b)(6) witness is binding[.]"). In light of this testimony, the court should find that the costs submitted in MW Builders' certified claim were contradicted by information available in MW Builders' records and therefore constituted a "fraudulent" claim under the Special Plea in Fraud, the anti-fraud provision of the CDA, and the FCA. Gov't Post Tr. Br. at 84 (citing Ry. Logistics Int'l v. United States, 103 Fed. Cl. 252, 256-259 (Fed. Cl. 2012) (determining that a contractor's certified claim was fraudulent, although contractor argued at trial that claim was based on "rough estimates," because those estimates were contradicted by contractor's invoices). The United States Court of Federal Claims also has determined that a contractor violated the CDA, the FCA, and the Special Plea in Fraud statute, when it failed to "utilize the best and readily available evidence, and did not indicate that it was ignoring the best and readily available evidence," in submitting a certified claim for payment. Gov't Post Tr. Br. at 87-88 (quoting UMC Elecs. Co. v. United States, 43 Fed. Cl. 776, 801-04 (Fed. Cl. 1999)).
The Government concludes that MW Builders submitted the December 27, 2012 certified claim in violation of three separate fraud statutes. First, MW Builders knowingly and intentionally submitted a certified claim that it could not support, in part, because of a misrepresentation of fact or fraud, violating the CDA anti-fraud provision, 41 U.S.C. § 7103(c)(2). Gov't Post Tr. Br. at 93. Therefore, MW Builders is liable for "an amount equal to the unsupported part of the claim plus all of the Federal Government's costs attributable to reviewing the unsupported part of the claim." Gov't Post. Tr. Br. at 93-94 (citing 41 U.S.C. § 7103(c)(2)). The "unsupportable" part of MW Builders' claim is $179,647.00, i.e., the daily jobsite rate of $4,071.00, multiplied by 169 days, minus Mr. Weathers' calculated daily jobsite rate of $3,008.00, multiplied by 169 days. Gov't Post Tr. Br. at 94. In addition, the Government requests the cost of reviewing MW Builders unsupported claim in the amount of $10,105.00, reflecting the costs incurred for Mr. Weathers' review. Gov't Post Tr. Br. at 94 (citing DX 269, DX 268). Therefore, MW Builders is liable under the CDA for $189,752.00. Gov't Post Tr. Br. at 94.
Second, MW Builders violated the Special Plea in Fraud Statute, 28 U.S.C. § 2514, by attempting to practice fraud against the Government, either recklessly or with the specific intent to deceive. Gov't Post Tr. Br. at 93. Under the Special Plea in Fraud statute, a claim against the Government is forfeited in its entirety, if the contractor: (1) knew that a claim was false; and (2) intended to deceive the Government by its submission. Gov't Post Tr. Br. at 78 (citing Daewoo Eng'g, 557 F.3d at 1341); see also American Heritage Bancorp v. United States, 61 Fed. Cl. 376, 391 (Fed. Cl. 2004) (determining that a contractor may violate the Special Plea in Fraud statute, even if it does not know "for certain" that the statements were false, if the statements were made with "reckless disregard for the truth."). To establish the requisite element of scienter in this case, the Government needs to demonstrate only that Mr. Campbell and MW Builders acted "recklessly" by submitting the December 27, 2012 claim. Gov't Post Tr. Br. at 93.
Third, MW Builders knowingly presented a "false or fraudulent claim for payment," in violation of the FCA. Gov't Post Tr. Br. at 80 (citing 31 U.S.C. § 3729(a)(1)). A person may act "knowingly" for purposes of the FCA, if they act with reckless disregard toward the truth; no specific intent to defraud is required. Gov't Post Tr. Br. at 81 (citing 31 U.S.C. § 3729(b)(1)). Moreover, MW Builders knowingly submitted a false claim and consciously and recklessly disregarded accurate information in its accounting system. Gov't Post Tr. Br. at 83. As such, MW Builders is liable for the FCA's civil penalty of $11,000. Gov't Post Tr. Br. at 85.
MW Builders responds that the "[t]he Government's positions are out of touch with the practical realities of the construction industry, the facts of this case, and controlling caselaw." Pl. Post Tr. Reply Br. at 1. As an initial matter, Mr. Cimpl's testimony that actual costs could be derived from the COMET accounting system is not a "binding" admission of fraud by MW Builders; RCFC 30(b)(6) testimony "is just testimony" and "evidence that can be used like any other evidence." Pl. Post Tr. Reply Br. at 6 (citing A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001) ("[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes.")).
With respect to the statutory arguments, the Government has the burden to establish "clear and convincing evidence" of fraudulent intent under the Special Plea in Fraud statute. Pl. Post Tr. Reply Br. at 7-8. The anti-fraud provision of the CDA requires proof of specific intent to defraud, and defines "misrepresentation of fact" as "a false statement of substantive fact . . . made with intent to deceive or mislead." Pl. Post Tr. Reply Br. at 13-14 (41 U.S.C. § 7109(9) (internal correction omitted)). Only the FCA places a contractor at risk for liability and damages, without evidence of specific intent to defraud, because the standard under the FCA is "reckless disregard for truth," i.e., showing of an "aggravated form of gross negligence, or gross negligence plus." Pl. Post Tr. Reply Br. at 14 (citing UMC Elecs. Co., 43 Fed Cl. at 819 n.15).
MW Builders also rejects the Government's contention that Mr. Campbell's inclusion of his estimated salary was false, because his salary was not reflected in MW Builders' COMET accounting system. Pl. Post Tr. Reply Br. at 21. The fact that the accounting system did not charge Mr. Campbell's salary to the Project does not mean that Mr. Campbell's salary was not incurred, although Mr. Campbell's certified claim was an estimate of the additional costs MW Builders incurred after the Project's scheduled completion. Pl. Post Tr. Reply Br. at 21.
The Government is also incorrect that Mr. Miltonberger's expert testimony should be read as supporting a finding of falsity. Pl. Post Tr. Reply Br. at 22. The primary difference between the $3,262.00 daily cost rate that Mr. Miltonberger calculated (the "Kenrich Rate"), and Mr. Campbell's daily cost rate of $4,071.00 was that the daily cost rate used costs incurred, but not reflected in MW Builders' accounting system for the project, e.g., the non-union "gopher" labor and Mr. Campbell's salary. Miltonberger Direct at 34-37.
Consequently, the only "potentially problematic" portion of MW Builders' claim is the Labor Burden: Mr. Campbell used a Labor Burden of 38.75%, but Mr. Miltonberger used the Labor Burden recorded by MW Builders' cost accounting system between March 1, 2012, and October 21, 2012, or 27.31%. Pl. Post Tr. Reply Br. at 22-23 (citing Miltonberger Direct at 35). The 38.75% Labor Burden, however, was not "baseless," because Mr. Campbell reasonably decided to rely on a Labor Burden that MW Builders used on a change order proposal for additional work completed in November 2011 related to the design of the Project's water lines. Pl. Post Tr. Reply Br. at 23; see also PX 651 (11/4/11 change order proposal); Miltonberger Direct at 11 (discussing the water line modification).
With respect to intent, although Mr. Campbell's preparation of the certified claim could be characterized "sloppy, ignorant, . . . and potentially negligent," it was not made with any intent to defraud. Pl. Post Tr. Reply Br. at 27 (citing TR at 1229). Although the Government cites to cases where the United States Court of Federal Claims determined that a contractor acted with intent to defraud, those cases are distinguishable: Daewoo Engineering involved a contractor that "drastically" inflated its claim by $50 million, 557 F.3d at 1339; and UMC Electronics involved a contractor that charged the Government for materials that the contractor never invoiced nor received, 43 Fed. Cl. at 809. Mr. Campbell, however, admitted his mistake and the Government offered no explanation why MW Builders would commit fraud to claim only $179,647.00.
The Government replies that the following facts "conclusively establish" that MW Builders submitted a claim, with "deliberate ignorance" and "reckless disregard" of its falsity: (1) on December 27, 2012, MW Builders could have retrieved actual cost data from the COMET accounting system; (2) MW Builders knowingly did not use this information, but instead filed a certified claim, based on estimated costs; (3) the December 27, 2012 certified claim sought costs "incurred" by the delay in the delivery of permanent power; (4) Mr. Campbell admitted that the December 27, 2012 certified claim included errors; (5) MW Builders never informed the Army Corps that the December 27, 2012 certified claim included estimated costs; (6) MW Builders did not specify that costs were estimated, nor did it explain the estimating process; (7) MW Builders' December 27, 2013 Complaint included the same costs; (8) Mr. Miltonberger did not testify that the jobsite overhead costs in the December 27, 2012 certified claim were correct, but estimated they were lower; and (9) MW Builders admitted that it should have used actual costs in its claim. Gov't Post Tr. Reply Br. at 1-2. Together, these facts establish that MW Builders violated the FCA. Gov't Post Tr. Reply Br. at 2. The Government adds that these facts also establish that MW Builders acted with specific intent to defraud the Army Corps, and violated the Special Plea in Fraud statute and the antifraud provision of the CDA.
Under the CDA's anti-fraud provision, a contractor that is "unable to support any part of the contractor's claim," as a result of "misrepresentation of fact or fraud," is liable to the Government for an amount equal "to the unsupported part of the claim plus all of the Federal Government's costs attributable to reviewing the unsupported part of the claim." 41 U.S.C. § 7103(c)(2). A "misrepresentation of fact" is "a false statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead." 41 U.S.C. § 7101(9); see also Comm. Contractors, Inc. v. United States, 154 F.3d 1357, 1362 (Fed. Cir. 1998) ("To recover under the CDA, the government is required to establish that the contractor made false or fraudulent statements in its submitted claim with an intent to deceive or mislead the [G]overnment." (emphasis added)). Therefore, to establish a violation of the CDA, the Government must prove, by a preponderance of evidence, falsity and intent to defraud. See 41 U.S.C. §§ 7101(9), 7103(c)(2); see also Daewoo Eng'g, 557 F.3d at 1335 ("The [G]overnment must establish this falsity and intent by a preponderance of the evidence.").
The General Conditions Worksheet included a column, titled "Construction Staff" that listed certain MW Builders employees by name and a column titled "Quantity," that listed the number of weeks they worked, up to a maximum of 24 weeks, i.e., 168 days. JX 88 at 6-9. A percentage column entitled "No." indicated the percentage amount of the "Quantity" period that any particular employee worked. An example from the Claims Worksheet is shown below:
JX 88 at 6.
The General Conditions Worksheet also showed that MW Builders' construction staff cost was based on Mr. Campbell working 100% of the time for a 24 week period, i.e., spending 168 days working on the Project. JX 88 at 6. At trial, Mr. Campbell testified that he did not cite this 24 week time period for a particular period of time. TR at 1191. Instead, he testified that "I am not saying it does comprise of any date. I am just saying it's a calculation of 24 weeks. It was going to take 24 weeks to complete the project. We were delayed 24 weeks, so [it] is the cost we were going to incur over the period of 170 days." TR at 1191.
In addition, the General Conditions Worksheet included "Labor Burden" costs for each of MW Builders' employees, including payroll taxes, workman's compensation, and insurance. JX 88 at 6-9;4/12/16 Cimpl Dep. at 33, 41 (explaining the meaning of labor burden costs). Mr. Campbell calculated each employee's labor burden by calculating an amount equal to 38.75% of each employee's labor costs. TR at 1203 (Campbell). This 38.75%, however, was a "plug number" that MW Builders used to calculate labor burden on a proposed change order submitted during the course of the Project. TR at 1227 (Campbell). In addition to the labor burden, the Claims Worksheet listed the following expenses for each employee: "Relocation;" "Housing Expenses;" "Fringes;" and "Vehicle, Gas, [and] Maintenance." JX 88 at 6-8. At trial, Mr. Campbell testified that he estimated the "Housing Expenses" and "Vehicle, Gas, [and] Maintenance" expenses. TR at 1223 (Campbell). With respect to the "Fringes," Mr. Campbell testified that, although he did not estimate those costs, he now believed mistakes were made in calculating the amount of fringe for at least two employees. TR at 1234 (Campbell).
At trial, Mr. Campbell also testified that, at the time the certified claim was submitted, he was "very confident" in the costs reported on the General Conditions Worksheet. TR at 1176 (Campbell). But, Mr. Campbell also testified that making estimates led to "multiple errors on [the] form;" some benefitted the Government and some benefitted MW Builders. TR at 1177 (Campbell). In short, the Claims Worksheet was "not accurate," in hindsight. TR at 1176 (Campbell). Mr. Campbell, however, was not concerned about submitting estimates at the time, because of the expectation that the certified claim would lead to negotiations with the Army Corps and, possibly, result in a change order. TR at 1181-83 (Campbell).
Therefore, the Government argues that Mr. Campbell could and should have used MW Builders' accounting system in reporting the "actual costs" that MW Builders incurred from the Line Extension Agreement delay. Gov't Reply at 1-2; see also 4/12/16 Cimpl Dep. at 87-88 ("If I wanted to look at actual job cost . . . I would go to look at what actual costs are recorded in the accounting system."). Instead, Mr. Campbell estimated the costs on the General Conditions Worksheet in November 2012, and submitted with MW Builders' December 27, 2012 certified claim, based on his assumption that the project was delayed by 24 weeks (169 days), as a result of the lack of permanent power:
TR at 1191-92; see also TR at 1238-39 (Campbell) ("I put together the worksheet: This is the typical costs we are going to incur on the job, and calculated an amount for 24 weeks.").
In other words, instead of specifying the exact period in which MW Builders incurred actual costs attributable to the delay, Mr. Campbell estimated the costs MW Builders would incur over a hypothetical 169 days i.e., the time MW Builders' performance was delayed, because of the absence of permanent power. When estimating these costs, Mr. Campbell also used a 38.75% "Labor Burden Percentage" that MW Builders submitted to the Army Corps on a prior Project Change Order Proposal on November 4, 2011. PX 651; see also Miltonberger Direct at 11. Then, Mr. Campbell used these cost estimates to calculate a daily jobsite overhead rate of $4,071.00—a rate higher than the $3,262.00 daily cost estimated by MW Builders' damages expert, Mr. Miltonberger, and the $3,008.00 daily cost estimated by the Government's damages expert, Mr. Weathers.
It is true that MW Builders' December 27, 2012 certified claim did not state that MW Builders reported only estimated future costs, instead of costs incurred over a specific time period, (JX 88 at 1, 9-10; TR at 1209 (Campbell)). And, it is also true that Mr. Campbell testified that he made "multiple mistakes" in preparing the General Conditions Worksheet (TR at 1176, 1216 (Campbell) (admitting that the worksheet was "not accurate")).
The fact that MW Builders should have used actual costs, instead of estimated costs, does not evidence that MW Builders acted with a specific intent to defraud the Government. Although the Government cites to several cases where it was determined that a poorly-supported claim evidenced specific intent to defraud, these cases are distinguishable. The Government cites UMC Electronics Co., a non-precedential opinion, for the proposition that a contractor acts with fraudulent intent and violates the CDA, when it submits a claim based on estimated costs, instead of utilizing the "best and readily available evidence" of actual costs. Gov't Post Tr. Br. at 88. There, the contractor submitted a claim for equitable adjustment that it could be obligated to pay, based on the escalation clauses of vendor purchase orders. See UMC Elecs. Co., 43 Fed. Cl. at 817-18. But, the vendors did not bill the contractor, nor did the contractor pay those amounts. Id. Moreover, the contractor, made "repeated and unequivocal representations" that the costs were invoiced "actual costs." Id. at 798. In addition, when the equitable adjustment was filed, 99% of the vendor invoices were much lower than the amounts claimed. Id. at 820-21. MW Builders, however, neither expressly nor fraudulently characterized their estimated costs as "actual costs." Next, the Government cites Daewoo for the proposition that when a contractor submits a claim as a mere "negotiating ploy," that is tantamount to fraudulent intent. See Daewoo Eng'g and Constr. Co. v. United States, 73 Fed. Cl. 547, 585 (Fed. Cl. 2006), aff'd, 557 F.3d 1332 (Fed. Cir. 2009). But in Daewoo, the claims at issue were inflated by $50 million and "baseless;" MW Builders' claim was not baseless, but its "best knowledge" at the time the claim was submitted. JX 88 at 2.
Understandably, the Government seized on Mr. Campbell's testimony that he submitted the December 27, 2012 certified claim with an expectation it would lead to settlement negotiations with the Army Corps, as proof of intent to defraud. Gov't Post Tr. Br. at 85; see also TR at 1181-82 (Campbell). But, MW Builders' willingness to settle what it believed in good faith to be a valid certified claim does not evidence intent to defraud. TR at 1176 (Campbell) ("At the time I put [the General Conditions Worksheet] together, I was very confident in the costs that were provided in that form, were accurate."). In fact, one reason Congress enacted the CDA's certification requirement to "encourage settlements." See Fischbach and Moore Int'l Corp., 987 F.2d 759, 763 (Fed. Cir. 1993) (emphasis added).
The Government is correct that MW Builders' claim was overstated by $179,647.00. Gov't Post Tr. Br. at 94. But, MW Builders' damages expert explained: part of Mr. Campbell's daily cost rate was higher than Mr. Miltonberger's, but the majority of that difference was attributable to Mr. Campbell including certain non-Union labor and material costs
For these reasons, the court has determined that the Government did not establish that MW Builders acted with an intent to defraud by a preponderance of the evidence or otherwise violated the anti-fraud provision of the CDA in submitting the December 27, 2012 certified claim.
To establish a violation of the Special Plea in Fraud statute, 28 U.S.C. § 2514, the Government must show by "clear and convincing evidence that the contractor knew that its submitted claims were false, and that it intended to defraud the [G]overnment by submitting those claims." Veridyne Corp. v. United States, 758 F.3d 1371, 1376-77 (Fed Cir. 2014) (quoting Daewoo, 557 F.3d at 1342). Proof of "negligence and ineptitude," however, does not evidence intent to defraud under 28 U.S.C. § 2514. See Miller v. United States, 213 Ct. Cl. 59, 69 (Ct. Cl. 1977) (holding that a contractor's "confused and incorrect" invoices, although evident of a "pattern of carelessness and slothfulness," did not rise to the level of deliberate fraud.).
The Government argues that it has shown clear and convincing evidence that the December 27, 2012 certified claim was submitted with the specific intent to defraud. Gov't Post Tr. Reply Br. at 3. But, since the Government did not establish intent to defraud by a preponderance of the evidence, under the anti-fraud provisions of the CDA, as a matter of law, it cannot show an intent to defraud under the heightened clear and convincing evidence standard, under the Special Plea in Fraud statute. See Veridyne Corp., 768 F.3d at 1376-77. In the alternative, the Government argues that it need not show clear and convincing evidence of "scienter," because the United States Court of Federal Claims determined, in American Heritage Bancorp, that a "maker of false statements can have the requisite scienter under [28 U.S.C.] § 2514[,] even if he does not know for certain that his statements are false, as long as the statements are made with reckless disregard for the truth." Gov't Post Tr. Br. at 78 (quoting 61 Fed. Cl. at 391). This non-binding decision, however, is contrary to the express language of 28 U.S.C. § 2514 and is not supported by appellate precedent.
Unlike the FCA, the Special Plea in Fraud statute contains no express language that permits a finding of fraud, based on a contractor's "recklessness." See 28 U.S.C. § 2514 ("A claim . . . shall be forfeited by any person who corruptly practices or attempts to practice any fraud[.]"). "Corruptly,"
For these reasons, the court declines to read the Special Plea in Fraud Statute as permitting a finding of fraud, based upon a contractor's "reckless disregard for truth," and has determined that MW Builders did not violate the Special Plea in Fraud statute by submitting the December 27, 2012 certified claim.
Under the FCA, any person who "knowingly" presents a "false or fraudulent claim for payment" to the Government or who "knowingly makes, uses, or causes to be used, a false record or statement material to a false or fraudulent claim," is liable for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of any damages sustained by the Government. See 31 U.S.C § 3729(a)(1)(A), (B); see also 28 C.F.R § 85.3(a)(9) (adjusting the FCA penalties to $5,500 and $11,000). Again, "[t]he Government must establish a violation of the False Claims Act by a preponderance of the evidence." See Daewoo Eng'g, 557 F.3d at 1340.
"Claim" is defined by the FCA as any "request or demand, whether under contract or otherwise, for money or property" that is presented "to an officer, employee, or agent of the United States." 31 U.S.C. § 3729(b)(2)(A)(i). A claim is "false or fraudulent" when it includes a material misrepresentation. See Universal Health Servs., Inc. v. United States, 136 S.Ct. 1989, 2002-03 (2016) ("A misrepresentation . . . must be material to the Government's payment decision in order to be actionable under the False Claims Act."). A misrepresentation is "material" when it has "the natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." 31 U.S.C. § 3729(b)(4). With respect to knowledge, a person acts "knowingly" for purposes of the FCA, even without actual knowledge of falsity, if the person "acts in deliberate ignorance of the truth or falsity of the information" or "acts in reckless disregard of the truth or falsity of the information." 31 U.S.C. § 3729(b)(1)(A). Reckless disregard may be evidenced by a "pattern of carelessness and slothfulness," such as the "failure to keep an inventory, [a] lack of payroll records . . . and confused and incorrect invoices." See Miller, 213 Ct. Cl. at 69-70. Therefore, a contractor acts with reckless disregard, when an inaccurate claim is submitted for payment without making a minimal examination of the records that is reasonable and prudent under the circumstances. Id. at 70 (holding that a contractor violated the FCA when he did not check the material costs claimed against inventory). The Government asserts that MW Builders recklessly submitted a false claim when it submitted the December 27, 2012 Certified Claim. Gov't Post Tr. Reply Br. at 2.
MW Builders' Senior Operations Manager and on-site Project Manager, Mr. Campbell, Operations Manager Greg Herriott, and MW Builders' President, Jason Evelyn prepared MW Builders' December 27, 2012 Certified Claim. TR at 1172-1176 (Campbell). In November 2012, Mr. Campbell prepared the Claim Worksheet to support MW Builders' claim. TR at 1178 (Campbell).
The court does not disagree with the Government's view that Mr. Evelyn's review was not as thorough as it could have been. But, in other cases where the United States Court of Federal Claims has found FCA liability, there was not even a minimal examination of records. For example, in Gulf General Enterprises Co. v. United States, 114 Fed. Cl. 258 (Fed. Cl. 2013), the general manager of the contracting company testified that he did not examine an attorney-prepared certified claim that he had signed until prior to his deposition during discovery. Id. at 295. If he had examined the claim, he would have discovered that his company claimed approximately $7,000,000 in damages when the Government only could order a maximum of $1,447,457.22 under the contract. Id. at 328. Under these circumstances, the court determined that the contractor acted with reckless disregard of the truth. Id. at 329. Similarly, in Railway Logistics International v. United States, 103 Fed. Cl. 252 (Fed. Cl. 2012), the court found that the contractor knowingly submitted a false claim in violation of the FCA, despite the contractor's argument that it was guilty only of "poor record-keeping," because it submitted an "obviously and grossly inflated" claim that exceeded the actual cost by at least $1,800,000. Id. at 258-59.
In this case, however, the costs reported on MW Builders' Claims Worksheet were not facially false or inconsistent. JX 88 at 6-10. Mr. Campbell's estimated costs were similar to the actual costs recorded in MW Builders' accounting system and most of the difference is accounted for by his decision to include certain costs, such as the non-union labor costs, assigned to the Project. Miltonberger Direct at 34-37. The other difference arose from Mr. Campbell's use of a 38.75% Labor Burden that was used on a prior change order. Miltonberger Direct at 35. Therefore, there was nothing in the December 27, 2012 Certified Claim that appeared to be as glaringly inconsistent as the $5 million of supported costs in Gulf General Enterprises Co. or the $1,800,000 million in Railway Logistics International. As such, the court declines to find that MW Builders' pre-submission review of its claim was reckless, i.e., grossly negligent.
For these reasons, the court has determined that MW Builders did not violate the FCA when it submitted the December 27, 2012 Certified Claim.
Since the court has determined that the Army Corps violated the duty of good faith and fair dealing by attempting to shift the contractual obligation to sign the Line Extension Agreement to MW Builders, the court must determine the extent of the unreasonable delay that was caused by the Army Corps' conduct, and the costs MW Builders.
Mr. Miltonberger was retained by MW Builders to "determine the durations and root causes of delays to MW Builders' work and identify and quantify resulting economic damages to MW Builders." Miltonberger Direct at 2. Mr. Miltonberger performed an "Observational/ Dynamic/Contemporaneous As-Is" analysis, i.e., he: (1) "observed" MW Builders' contemporaneous project schedules; (2) "dynamically" considered changes in schedule "logic," i.e., the order in which activities must be performed, that were incorporated in the schedules, as they were updated; and (3) reviewed the contemporaneous schedules "as-is," i.e., without any after-the-fact changes. Miltonberger Direct at 8.
The initial Project Substantial Completion date was August 30, 2012, but MW Builders did not achieve that objective until October 17, 2013, because the Project was delayed by 413 days. Miltonberger Direct at 3. Mr. Miltonberger divided this delay into three time periods, or "Windows 1, 2, and 3." Miltonberger Direct at 9. Window 1 covered the period from the November 9, 2010 Notice To Proceed through February 22, 2012, including 20 days of critical path delay relating to waterline design revisions. Miltonberger Direct at 9, 11. Window 2 covered the period from February 22, 2012, to October 31, 2012, including 170 days of delay. Miltonberger Direct at 3, 9. Window 3 covered the period from October 31, 2012, when MW Builders began installing temperature and humidity sensitive material, until October 13, 2013, the substantial complete date. Miltonberger Direct at 18-19. Window 3 included 223 days of delay. Miltonberger at 9.
The Window 1 delay was resolved by a January 2012 Change Order, pursuant to which the Project Substantial Completion was extended 20 days, i.e., until September 19, 2012. Miltonberger Direct at 11. The Window 3 delay likewise was resolved by several change orders issued by the Army Corps, that granted MW Builders a total of 247 extra days. Miltonberger Direct at 18-19. The 170-day delay in Window 2 is the subject of this case. Miltonberger Direct at 3.
In the opinion of MW Builders' expert, contemporaneous schedules show that the 170-day delay is solely attributable to a lack of permanent power. Miltonberger Direct at 4. MW Builders' March 2012 Schedule Update first identified the impact on subsequent critical path activity. Miltonberger Direct at 14. For the Project to remain on schedule, permanent power was a necessary prerequisite to multiple critical path activities, including the installation of climate and temperature sensitive materials in the Training Building, equipment start-up, elevator installation and testing, and fire pump start-up and system flush. Miltonberger Direct at 14. Subsequent schedule changes showed the Critical Path delay, as it accumulated, because of the Army Corps' failure to sign the Line Extension Agreement until July 23, 2012. Miltonberger Direct at 14-15.
During Window 2, 140 days of critical path delay occurred between the February 22, 2012 Schedule Update and July 23, 2012, the date the Line Extension Agreement was signed by the Army Corps. Miltonberger Direct at 16. An additional 30 days of delay was attributed to electrical metering activities at the Pump House.
To calculate MW Builders' time-related costs, Mr. Miltonberger reviewed MW Builders' cost-accounting system and identified the following time-related Jobsite Overhead Cost items:
Miltonberger Direct at 20.
These time-related job overhead costs differed during the course of the Project, including "ramp-up" costs at the beginning of an activity and "ramp-down" costs at the end of an activity. Miltonberger Direct at 20. Mr. Miltonberger accounted for these differences by calculating an average daily cost only for Window 2. Miltonberger Direct at 20; see also Miltonberger Direct Att. 5. Contemporaneous Project records also verify that, from March 1, 2012 to October 31, 2012 MW Builders incurred $799,926.00 in time-related costs. Miltonberger Direct Att. 5.
MW Builders also proffered Mr. Denny Lee as an expert in "performing labor review and inefficiency analysis and evaluation of damages and costs incurred in construction projects." TR at 819. Mr. Lee was retained to analyze Bergelectric's uncompensated costs incurred due to the late delivery of permanent power. Lee Direct at 1. Mr. Lee's expert testimony, however, is irrelevant, because the court has determined that Bergelectric waived any pass-through claims.
Mr. Weathers was retained to analyze MW Builders' May 15, 2013 claim for 169 days of compensable delay and respond to MW Builders' expert reports. Weathers Rev. Direct at 8. In performing his analysis, Mr. Weathers reviewed the September 10, 2010 Contract, the Army Corps' contract files, and documents obtained from MW Builders and NV Energy, including MW Builders' schedules and cost records. Weathers Rev. Direct at 8-9.
Mr. Weathers opined that, if the Government is responsible for delay in signing the Line Extension Agreement, the delay was, at most, 71 days. Weathers Rev. Direct at 13. His conclusion was based on an analysis of MW Builders' February 22, 2012 schedule,
MW Builders' February 22, 2012 schedule, however, set aside 28 days for NV Energy to do its work after the Line Extension Agreement was executed. Weathers Rev. Direct at 43-45. The Line Extension Agreement was signed on July 12, 2012, and MW Builders paid NV Energy's fee on July 18, 2012. Weathers Rev. Direct at 43 (citing DX 153, 160). Therefore, according to MW Builders' February 22, 2012 schedule, NV Energy should have finished its work by August 15, 2012, i.e., 28 days after MW Builders paid the fee on July 18, 2012. Weathers Rev. Direct at 44.
Mr. Miltonberger criticized Mr. Weathers' analysis as technically flawed, because he used an "Impact As-Planned" methodology. Miltonberger Direct at 21-25. Mr. Miltonberger created the following table to illustrate how Mr. Weathers' analysis mirrored that approach:
Miltonberger Direct Tbl. 4.
The "Impacted As-Planned" method measures the delay of an activity along a project's planned critical path and assumes it accurately reflects the project's actual critical path delay. Miltonberger Direct at 23-4, 27-8. But, it does not account for the fact that a delay in one activity, along the project's planned critical path, can adversely affect another activity on the critical path, resulting in additional delays not accounted for in the project's originally planned critical path. Miltonberger Direct at 23. For this reason, the "Impacted As-Planned" methodology has been criticized by AACE International, the principal certification body for cost estimators and cost engineers, as it does not account for changes in logic or in durations of activities. Miltonberger Direct at 23 (citing AACE INTERNATIONAL RECOMMENDED PRACTICE NO. 29R-03-FORENSIC SCHEDULE ANALYSIS at 76).
In addition to using a "technically flawed and unreliable" scheduling method, Mr. Weathers also used the wrong schedule, because he relied on the February 22, 2012 Schedule Update. Miltonberger Direct at 25. MW Builders did not realize that permanent power delay affected the critical path until the March 28, 2012 Schedule Update. Miltonberger Direct at 25. But, Mr. Weathers found that the permanent power delay began to accrue on May 16, 2012. Miltonberger Direct at 27. If Mr. Weathers used the March 28, 2012 Schedule Update, however, he would have realized that MW Builders subsequently updated its schedule logic, so that providing permanent power on May 16, 2012 would result in 38 days of delay. Miltonberger Direct at 27.
Mr. Weathers countered that he did not use an "Impacted As-Planned" methodology, because he did not "import" any logic into the February 22, 2012 schedule. Weathers Rev. Direct at 52-53. Instead, Mr. Weathers compared that schedule against the actual date on which permanent power was supplied, i.e., September 26, 2012. Weathers Rev. Direct at 53. In addition, although Mr. Miltonberger argues that the February 22, 2012 schedule did not have schedule logic for permanent power activities, it is not the Army Corps' fault that MW Builders did not amend the schedule to include all the correct activities until March 28, 2012. Weathers Rev. Direct at 54. To the extent that the March 28, 2012 schedule was the first to logically tie together permanent power and conditioned air, these ties should have been included from the outset. Weathers Rev. Direct at 54.
Like Mr. Miltonberger, Mr. Weathers calculated daily jobsite overhead costs for MW Builders by totaling the amount of time-related costs incurred over a period of delay and then dividing that amount by the number of days in the period. Weathers Rev. Direct at 69. Although Mr. Miltonberger based his $3,262.00 a day rate on the 245 days that elapsed between the February 22, 2012 schedule and the signing of the Line Extension Agreement on July 23, 2012, Mr. Weathers used a shorter period. Weathers Rev. Direct at 69.
Mr. Weathers also derived two different daily jobsite overhead cost rates, based on two different sets of data:
Weathers Revised Direct at 70.
Mr. Weathers also analyzed other costs claimed by MW Builders. Weathers Rev. Direct at 59. First, he looked at MW Builders' $155,988.00 claim for materials and equipment costs, based on the cost of renting generators from January 2012 to September 2012. Pl. Post Tr. Br. at 120; see also Weathers Rev. Direct at 71. But, the generator costs cited were incurred well before April 9, 2012. Weathers Rev. Direct at 73. In addition, many of the costs MW Builders claimed were duplicative of Bergelectric's claim. Weathers Direct at 73. For example, during the period from May 3, 2012 to October 19, 2012, MW Builders incurred $1,158.00 in generator and fuel costs. Weathers Direct Tab F. But, that amount was offset by a $1,112.00 credit received for temporary power, so the amount should be $46.00. Weathers Direct Tab F. After that amount is adjusted for taxes and for the 71 day period between June 1, 2012 and August 15, 2012, MW Builders' materials and equipment costs were $20.89 or roughly $21.00. Weathers Direct Tab F.
MW Builders also seeks to recover home office overhead at a rate of 10%. Pl. Post Tr. Br. at 121. But, Mr. Weathers testified that a more reasonable overhead rate would be 3.8%, based upon a total home office overhead of $12,227,059.00 divided by total company billings of $321,939,423.00. Weathers Rev. Direct at 76 (citing JX 88 at 5). Mr. Weathers, however, opined that the 3.8% should be marked up to 5%, since that was consistent with MW Builders' bid sheets that included a "Fee" of less than 4% and an "Operations Overhead" amount of 0.65%. Weathers Rev. Direct at 77 (citing DX 1 at 3).
MW Builders claims that the following costs were incurred as a result of the unreasonable delay caused by the Army Corps' breach of the September 10, 2010 Contract and violation of the duty of good faith and fair dealing:
Pl. Post Tr. Br. at 122.
The Government responds that, if MW Builders recovers extended general conditions costs, it should recover them at the rate and for the delay found by Mr. Weathers, i.e., MW Builders should recover costs at a rate of $2,787.00 a day for 71 days, or a total of $167,911.00. Gov't Post Tr. Br. at 133. Specifically, MW Builders is not entitled to recover $155,988.00 in generator costs, because the September 10, 2010 Contract assigned responsibility for temporary power to MW Builders, and MW Builders subsequently subcontracted that responsibility to Bergelectric. Gov't Post Tr. Br. at 134 (citing TR at 693 (Campbell) (conceding that MW Builders and Bergelectric were responsible for temporary power)). Moreover, the period for which MW Builders claims generator costs is "grossly excessive," because it ran from January 2012 to September 2012, but MW Builders' contemporaneous schedules showed that permanent power was not to be installed until April 2012 at the earliest. Gov't Post Tr. Br. at 134.
With respect to overhead, MW Builders should recover overhead at a rate of 3.8%, as calculated by Mr. Weathers. Gov't Post Tr. Br. at 135 (citing Weathers Revised Direct at 76). And, MW Builders also should not recover profit, because FAR 52.242-14(b) expressly disallows profit, when calculating amounts owed due to a Government-caused delay. Gov't Post Tr. Br. at 135; see also 48 C.F.R. § 52.241-14(b).
The experts in this case used two different methods to calculate the delay caused by the Army Corps. Mr. Miltonberger calculated 140 days of delay, by conducting a "Windows" analysis, analyzing MW Builders' contemporaneous schedules, and dividing the Project into three separate "windows" or delay periods. Miltonberger Direct at 9. In his analysis of "Window 2," Mr. Miltonberger tracked the effect of the permanent power delay, as it was "realized" by MW Builders' schedulers, up until July 12, 2012, when the Line Extension Agreement was signed by the Army Corps. Miltonberger Direct at 16. During that period, as more days accumulated without permanent power, MW Builders' schedulers pushed the completion date outwards with each schedule update. Therefore, although MW Builders' schedules at the beginning of Window 2 estimated a substantial completion date of September 19, 2012 (PX 337), the June 29, 2012 schedule estimated a substantial completion date of February 6, 2013, i.e., 140 days later. Miltonberger Direct at 16 (citing PX 329, 336).
In contrast, Mr. Weathers compared one schedule—MW Builders' February 22, 2012 Schedule—against the actual Project dates. Weathers Direct at 43. MW Builders' February 22, 2012 Schedule set a "late finish date" for permanent power as June 5, 2012, and provided that NV Energy's post-Line Extension Agreement work would take 20 work days or 28 calendar days. DX 75. But, the Line Extension Agreement was not signed until July 12, 2012, and NV Energy's fee was not paid until July 18, 2012. Weathers Direct at 43. Permanent power, however, was not provided until September 26, 2012, or 113 days after June 5, 2012. Weathers Direct at 43. Therefore, based on the February 22, 2012 Schedule, NV Energy should have provided power by August 15, 2012, i.e., 28 calendar days after NV Energy's fee was paid. Weathers Direct at 43. Therefore, Mr. Weathers believed the delay should begin on June 5, 2012 and end on August 15, 2012, or 71 days. Weathers Direct at 43.
Mr. Weathers' main complaint with Mr. Miltonberger's analysis was that it incorporates several logic changes that MW Builders made to schedules during the course of the Line Extension Agreement delay. First, in MW Builders' March 28, 2012 Schedule Update, MW Builders adjusted the schedule to add activities to "track and estimate" potential delay related to the obtaining of permanent power. PX 337. These three activities "represent[ed] the time required, per building, to startup the HVAC system." PX 377 at 2. Then they were logically linked to temperature sensitive activities, such as the installation of VCT, that could not be performed inside buildings until air conditioning was available. PX 377 at 2. This logic change added an additional 10 days to MW Builders' projections. PX 377 at 2. Second, in the April 26, 2012 Schedule Update, MW Builders revised its estimate of how long NV Energy needed to perform its work related to the provision of the permanent power. PX 338 at 2. Previously, MW Builders assumed this work would take 20 work days, or 28 calendar days. PX 338 at 2. But, on April 26, 2012, MW Builders projected that NV Energy's work would take 30 work days, or 42 calendar days. PX 338 at 2. This change in logic resulted in 14 calendar days being added for activities that may occur after the Line Extension Agreement was signed.
The September 10, 2010 Contract required MW Builders to submit schedule updates on a monthly basis to the Army Corps for approval. DX 17 at 3; see also Jt. Stip. ¶ 17. Several of these schedule updates were reviewed by Management Solutions, the Army Corps' scheduling consultant. PX 348. After reviewing the April 26, 2012 Schedule Update, Management Solutions informed the Army Corps that MW Builders made changes to the scheduling logic. PX 348. But, the Army Corps approved those changes in logic and approved MW Builders' schedule. PX 348; see also TR at 1063-64 (Musgrave).
During trial, Mr. Weathers testified that he did not disagree with the "substance" of these logic changes and updates to MW Builders' schedule. TR at 1288 (Weathers). But, he objected to their timing, because MW Builders should have made those changes earlier. TR 1289 (Weathers). In addition, the fact that MW Builders previously underestimated how long NV Energy would take to do its work (i.e., 30 work days instead of 20 work days) cannot be attributable to the Government; it is either MW Builders' fault for not communicating with NV Energy or a third party delay. TR 1293 (Weathers).
In the court's judgment, the logic changes included in the March 28, 2012 schedule were necessary to determine the critical path delay, since the March 28, 2012 schedule was the schedule to logically tie temperature sensitive construction activities to the provision of permanent power and the activation of air-conditioning in the buildings. In addition, Mr. Miltonberger's "Windows" method appeared to be the more reliable method for determining critical path delay, because it reflected the contemporaneous changes to the schedule that occurred as MW Builders continued to operate without permanent power. This is important, because it reflects that MW Builders began to run out of construction activities that did not require permanent power, during the months between when the Line Extension Agreement issue first was raised on March 13, 2012, and July 12, 2012, when the Army Corps fulfilled its contractual obligation to sign the Line Extension Agreement. But, the court also agrees with Mr. Weathers' analysis, in so far as the Government should not be blamed for MW Builders failure to: (a) logically tie certain activities together; and (b) properly estimate the amount of time NV Energy needed to do its work. Weathers Direct at 54-55. Therefore, the court has decided to deduct 24 days from Mr. Miltonberger's calculated delay.
For these reasons, the court has determined that the Army Corps' was responsible for 116 days of delay.
Mr. Miltonberger and Mr. Weathers calculated the daily jobsite overhead rate in the same manner. Miltonberger Direct Att. 5; Weathers Direct 15. First, they both identified the period during which they determined the delay occurred. Miltonberger Direct Att. 5. Second, they added together MW Builders' time related costs for each of those months to obtain a total costs incurred by the delay. Miltonberger Direct Att. 5. Third, they divided that amount by the number of days that elapsed during that period. Miltonberger Direct at 5.
Mr. Miltonberger and Mr. Weathers, however, differed in the periods they selected. Mr. Miltonberger selected a period from March 1, 2012 to October 31, 2012 (i.e., what he determined to be "Window 2"), and calculated a daily rate of $3,262.00.
For these reasons, the court has determined that MW Builders' extended general conditions costs should be calculated at a daily jobsite overhead rate of $3,008.00 a day.
MW Builders claim includes $155,988.00 in Materials and Equipment costs to rent the generators that provided temporary power. Pl. Post Tr. Br. at 122. Included in that amount are generator costs for periods prior to the contemporaneous schedules that set the delivery date for permanent power, i.e., $87,910.00 in generator costs incurred from January 2012 to June 2012. Pl. Post Tr. Br. at 122; see also PX 682 at 2. But, the earliest date identified for NV Energy's provision of permanent power in any of MW Builders' schedules was April 9, 2012, as set forward in the February 22, 2012 Schedule. DX 74. MW Builders, however, did not apportion generator costs between when it agreed to rely only on temporary power and when it expected to purchase power from NV Energy. Although MW Builders likely incurred additional generator costs due to the Line Extension Delay, MW Builders provided no means for the court to apportion those costs.
For these reasons, the court has determined that MW Builders did not establish entitlement to and may not recover $155,988.00 in Materials and Equipment costs.
MW Builders' claim includes home office overhead at a negotiated rate of 10%, previously accepted by and reflected in the Army Corps contract modifications. PX 683 at 823-25 (9/27/12 Contract Modification, wherein the Army Corps agreed to increase the contract price by $39,321.00, including a home office overhead at a rate of 10%). Mr. Weathers, however, used an alternative home office overhead rate of 5%. Weathers Direct at 76. The court, however, sees no reason why the home office overhead rate previously negotiated and agreed upon by the parties is not reasonable.
For these reasons, the court has determined that MW Builders may recover home office overhead at a rate of 10%.
MW Builders claim includes an 8% profit of Extended General Conditions and Material and Equipment costs. Pl. Post Tr. Br. at 122. The September 10, 2010 Contract's compensable delay clause, incorporated pursuant to FAR 52.242-14, however, expressly disallows profit. Gov't Post Tr. Br. at 135. But, MW Builders seeks recovery for a breach of contract and a violation of the duty of good faith and fair dealing, not for a compensable delay. The United States Court of Federal Claims has determined that a contractor may recover profit, when it demonstrates that it was unreasonably delayed by the Government's violation of the duty of good faith and fair dealing. See Fireman's Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 706 (Fed. Cl. 2010) (including profit when calculating damages for an unreasonable delay caused by a breach of the duty of good faith and fair dealing).
For these reasons, the court has determined that MW Builders may recover profit at a rate of 8%.
MW Builders claims a bond fee of 1.07%, and this amount is not disputed by the Government. Pl. Post Tr. Br. at 122.
For these reasons, the court has determined that MW Builders may recover for its bond fee at a rate of 1.07%.
The court has provided the following table summarizing the costs MW Builders incurred as a result of unreasonably delay caused by the Army Corps' breach of contract and violation of the duty of good faith and fair dealing:
For these reasons, the court has determined that the Army Corps breached the September 10, 2010 Contract and violated the duty of good faith and fair dealing, as alleged in Counts I and II of the December 27, 2013 Complaint. The court also has determined that the resulting delay caused by the Army Corps was a compensable delay of 116 days. Therefore, MW Builders is entitled to recover $418,961.90 as damages, together with interest calculated from December 27, 2012, to the date of payment, pursuant to 41 U.S.C. § 7109.
In addition, the court has determined that Bergelectric waived all claims against MW Builders and associated pass-through claims against the Government. The court also has determined that MW Builders did not defraud the Government. Accordingly, the Counterclaims I-III alleged in the February 17, 2016 Amended Answer are dismissed.
The Clerk of Court is directed to enter judgment in accordance with this Post-Trial Memorandum Opinion And Final Order.
IT IS SO ORDERED.
(In order of appearance)
(In order of appearance)
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The following comprise the record regarding the court's Post-Trial Memorandum Opinion And Final Order entered today in this case:
The testimony admitted during the five-day evidentiary hearing held at the United States Federal Court of Claims, 501 West 5
The parties also moved into evidence, without objection, the following exhibits. See Plaintiff MW Builder, Inc.'s Pre-Trial Submission (April 8, 2016), ECF No. 62; MW Builder's Inc.'s Supplemental Disclosures regarding its pretrial filings pursuant to Appendix A of the Rules of the Court of Federal Claims (April 12, 2016), ECF No. 63; Defendant's Exhibit List (April 19, 2016), ECF Nos. 76-3 & 76-4; Joint Exhibit List (April 19, 2016), ECF No. 76-5; Defendant's Notice of Filing Revised Exhibit Lists and Disk (April 27, 2016), ECF No. 91; Defendant's Revised Exhibit List (April 27, 2016), ECF No. 91-1; Revised Joint Exhibit List (April 27, 2016), ECF No. 91-2; MW Builders, Inc.'s Third Supplemental Exhibit List (April 28, 2016) ECF No. 92; Defendant's Unopposed Motion to Admit Into Evidence Deposition Exhibits to Accompany Previously Admitted Transcripts, May 27, 2016, ECF No. 97; Defendant's Letter Re: Deposition Exhibits, June 15, 2016, ECF No. 109; Master Index, Aug. 12, 2016, ECF No. 117; Joint Motion for Entry of Order on Trial Exhibits (August 18, 2016), ECF No. 115. The Court also ruled on certain motions in limine prior to trial concerning certain evidence. Order, April 27, 2016, ECF No. 90. Although the parties initially had objected to certain of the exhibits below prior to trial, neither party objected to the admissibility of these exhibits when offered into evidence during trial. Thus, any objection is waived, and the following exhibits are admitted into evidence:
In addition, on May 2, 2016, Plaintiff submitted a fourth amended exhibit list, MW Builders, Inc.'s Fourth Amended Exhibit List (May 2, 2016), ECF No. 94. The Government objected to Exhibits PX 679, PX 680 and PX 681 on that exhibit list. Defendant's Response to Plaintiff's Supplemental Exhibit Lists (May 06, 2016), ECF No. 95. Also, following trial, on August 17, 2016, Plaintiff filed a motion to enter additional evidence, specifically, exhibit PX 685. Plaintiff's Motion to Enter Additional Evidence (August 17, 2016), ECF No. 114. The Government opposed the motion. Defendant's Opposition to Plaintiff's Post-Trial Motion to Admit "Additional" Evidence (September 2, 2016), ECF No. 121; Plaintiff's Reply in Support of It Motion to Enter Additional Evidence (September 9, 2016), ECF No. 122. On August 26, 2016, Plaintiff filed a motion to enter into evidence Plaintiff's Exhibits PX 679, PX 680, and PX 681, which Defendant opposed. Plaintiff's Motion to Enter Plaintiff's Exhibits 679, 680 and 681 (August 26, 2016), ECF No. 118; Defendant's Response to Plaintiff's Post-Trial Motion to Admit Exhibits 679, 680 and 681 (September 2, 2016), ECF No. 120.
After considering both Plaintiff's and Defendant's arguments, the Court granted an order to admit PX679, PX680, PX681, and PX685. See Order Granting Plaintiff's August 17, 2016 Motion To Enter Additional Evidence, and Plaintiff's August 26, 2016 Motion To Enter Exhibits PX679, PX680 and PX681 (June 9, 2017), ECF No. 135. The Court also granted defendant's request for leave to file the rebuttal report of Stephen Weathers. Id. at 2.
Accordingly, the following Exhibits have been deemed admissible and part of the record:
The following Exhibits were admitted by the Court during trial:
41 U.S.C. § 7103(b).
48 C.F.R. § 52.242-14; see also DX 16A at 169 (9/10/10 Contract incorporating Suspension of Work clause).
