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Merritt-Chapman & Scott Corp. v. United States

United States Court of Claims

July 15, 1970, Decided

No. 44-66

Opinion

 [*851]   [**431]  This Wunderlich Act suit was referred to Trial Commissioner Louis Spector for preparation and filing of his opinion and recommended conclusion of law. The commissioner has done so in a report dated February 25, 1970. The Government has requested review. The plaintiff supports the commissioner's report. The case has been submitted to  [**432]  the judges on oral argument and briefs. We agree with Commissioner Spector.

Wholly apart from the Suspension of Work clause, it is established that under the Changes and Changed Conditions articles the equitable adjustment can include increased costs which were the direct and necessary result of the change or the changed condition, where that condition or change directly leads to disruption, extra work, or new procedures. See Paul Hardeman, Inc. v. United States, 186 Ct. Cl. 743, 406 F. 2d 1357 (1969); Ivey Bros. Constr. Co., Eng. BCA No. 1764 (1960). At least a portion of the claimed cost increase in this case -- it is unnecessary to determine how large [***8]  a portion -- falls within this class and would be recoverable even if a Suspension of Work clause had been omitted from the contract.

A Suspension of Work provision was included, however,  [*852]  and under that clause the remainder of the cost increase, to the extent properly proved, can be recovered in this proceeding.  There is no doubt, as the trial commissioner holds, that the work was in fact suspended and delayed for the Government's convenience, and also that there was a significant change in design.  It is immaterial, in this instance, whether or not the suspension and delay was due, in whole or in part, to the Government's fault. There are occasions for the Suspension of Work clause to operate when the Government is at fault, as we recently noted (See Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 705-08, 421 F. 2d 728, 731-33 (1970)), but the clause can likewise be effective, as we have also held, when there is a suspension not due to the Government's fault, dereliction, or responsibility.  See T. C. Bateson Constr. Co. v. United States, 162 Ct. Cl. 145, 319 F. 2d 135 (1963); John A. Johnson & Sons v. United States, 180 Ct. Cl.  [***9]  969 (1967). An instance of the latter category is a suspension and delay which lasts so long (regardless of the absence of government fault) that the contractor cannot reasonably be expected to bear the risk and costs of the disruption and delay. That is one type of suspension and delay "for an unreasonable length of time causing additional expense", within the meaning of the clause. Depending on the circumstances, a delay due to a non-fault suspension by the Government can obviously be so protracted that it would be unreasonable to expect the contractor to shoulder the added expense himself. We think that in its terms and its purpose the Suspension of Work clause covers that situation, among others.

The trial commissioner has properly concluded that that is the situation here. On this record, and with this project, it is impossible to hold other than that the delay-due-to-suspension of 419 days (considerably more than one year) 1 was "for an unreasonable length of time." The contractor, informed by the Suspension of Work article that it would receive compensation for unreasonable delays due to a non-fault suspension, would not expect (and rightly so) to bear the costs of a delay [***10]  of this character and magnitude. The delay was  [*853]  therefore "unreasonable". There is no finding by the Board, and defendant does not claim, that some lesser part of this 419 days would have been a "reasonable" delay (cf. Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 712-13, 421 F. 2d 728, 735-36 (1970)). In any event, the circumstances of the case would preclude a finding that any delay after April 20, 1960 would have been a "reasonable" one for which plaintiff should bear the extra expense.

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192 Ct. Cl. 848 *; 429 F.2d 431 **; 1970 U.S. Ct. Cl. LEXIS 157 ***

MERRITT-CHAPMAN & SCOTT CORPORATION v. THE UNITED STATES

Prior History: Appeal of Merritt-Chapman & Scott Corp., 1963 Eng. BCA LEXIS 89 (Corps Eng'rs B.C.A., Aug. 1, 1963)

CORE TERMS

contractor, change condition, dam, contracting, suspension, suspension of work, rock, Changes, excavation, costs, fill, elevation, ancient, river channel, encountered, embankment, equitable adjustment, upstream, contract price, specifications, trench, season, suitable, clauses, delayed, river, modifications, progress, revised, conditions

Public Contracts Law, Contract Terminations, Damages, Contract Provisions, Changes Clauses, Costs & Prices, General Overview, Dispute Resolution, Sanctions, Contract Performance, Excusable Delay