Free Motion for Summary Judgment - District Court of Federal Claims - federal

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No. 01-351 C (Judge Merow) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS CLEARWATER CONSTRUCTORS, INC, Plaintiff, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director JAMES M. KINSELLA Deputy Director

J. REID PROUTY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., - 8th Floor Washington, D.C. 20530 Tele: (202) 305-7586 Fax: (202) 514-7969 Attorneys for Defendant July 20, 2005

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TABLE OF CONTENTS I. II. Nature Of The Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement Of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

LAW AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. II. Standards For Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Corps Effected No Constructive Change Upon The Contract . . . . . . . . . . . . . . . . . . 4 A. Requiring Compliance With The Terms Of The Contract Is Not A Constructive Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Corps Merely Required Compliance With The Contract . . . . . . . . . . . . . . . . 5 1. 2. III. The Contract Specified Wind Loads Of 40 Pounds Per Square Foot . . . . 5 The Contract Required A 60 Pound Rail . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B.

Clearwater Is Not Entitled To Recover Upon Any Allegedly Defective Specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Clearwater May Only Recover For Alleged Defective Specifications If Fleming Was Misled By Them And The Alleged Defect Was Not Obvious . . . . 8 Fleming Was Not Misled By The Allegedly Defective Specifications . . . . . . . . . 9 1. The Contractual Requirement For A 3/4 Inch Rail Height Was Not Misleading . . . . . . . . . . . . . . . . . . . . . . . 9 Fleming Should Have Been Aware Of Any Design Defect Regarding The Top Rollers For The Door Leaves . . . . . . . . . . . . 10

B.

2.

3.

Fleming Was Aware That The 60 Pound Rail Would Affect The Bottom Roller Size . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Fleming Was Aware That The Contract's Requirement For Leading And Trailing Safety Edges Posed Difficulties . . . . . . . . . . . . . . 11

4.

IV.

5. The Pedestrian/Personnel Doors Were Not A Design Defect . . . . . . . . . 12 The Corps Is Not Liable For Any Difficulties Clearwater May Have Had In Obtaining Specialty Steel From Its Subcontractor . . . . . . . . . . . . . . . . . . . 12

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V.

Clearwater Cannot Collect Damages For Reasonable Actions Of Contract Administration Undertaken By The Corps . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. The Corps Is Only Liable For Additional Work Performed Pursuant To The Contract If It Is At Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The Corps Required No Extra-Contractual Work By Fleming . . . . . . . . . . . . . . 14

B.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES CASES Al Johnson Construction Co. v. United States, 20 Cl.Ct. 184, (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Aydin Corp. v. Widnall, 61 F.3d 1571 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CEMS, Inc. v. United States, 59 Fed.Cl. 168 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Clearwater Constructors, Inc. v. United States, 56 Fed. Cl. 303 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Curtis v. United States, 144 Ct. Cl., 194, 199, 168 F. Supp. 213 (1958), cert. denied 361 U.S. 843 (1959) . . . . . 4 E.L. Hamm & Associates v. England, 379 F.3d 1334 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Franklin E. Penny v. United States, 207 Ct. Cl. 842, 542 F.2d 668 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Interwest Constr. v. Brown, 29 F.3d 611 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Miller Elevator Company, Inc. v. United States, 30 Fed.Cl. 662 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 NVT Technologies, Inc. v. United States, -iv-

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370 F.3d 1153 (Fed. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rixon Electronics, Inc. v. United States, 536 F.2d 1345, 210 Ct. Cl. 309 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Robins Maintenance, Inc. v. United States, 265 F.3d 1254 (Fed. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Spirit Leveling Contractors v. United States, 19 Cl. Ct. 84, 89 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sweats Fashions, Inc. v. Pannill Knitting, Inc., 833 F.2d 1560 (Fed. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 White v. Edsall Const. Co., Inc., 296 F.3d 1081 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

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No. 01-351 C (Judge Merow) ______________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS CLEARWATER CONSTRUCTORS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ______________________________________________________________________________ DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT ______________________________________________________________________________ Pursuant to Rule 56(b) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests that the Court enter summary judgment in our favor because there are no genuine issues of material fact in this case and defendant is entitled to judgment as a matter of law. In support of our motion, we rely upon plaintiff's pleadings, our brief, and the accompanying Proposed Finding of Uncontroverted Facts. I. Nature Of The Case Plaintiff, Clearwater Constructors, Inc. ("Clearwater"), was engaged by the United States Army Corps of Engineers ("the Corps") to construct a hangar for B1-B bombers at Grand Forks Air Force Base ("AFB") in North Dakota. DPFUF 1.1 Clearwater subcontracted the work on the sliding steel hangar doors to Fleming Steel Company ("Fleming"). DPFUF 2. Almost

"DPFUF__" refers to a paragraph of Defendant's Proposed Findings of Uncontroverted Facts, which we are filing separately today.

1

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immediately upon the beginning of performance of the relevant contract to build the hangar ("the contract"), Fleming and the Corps disagreed upon the requirements of the contract. Generally, Fleming argued that the Corps was requiring that the hangar doors meet standards beyond those necessary for the job. In turn, the Corps argued that it was merely holding Fleming to the terms of the contract. In some instances, as described at more length below, the Corps required Fleming to comply with the terms of the contract as understood by the Corps; in other instances, the Corps compromised by either permitting Fleming to fabricate the doors as it desired or by otherwise relaxing the requirements for Fleming to adhere to the strict letter of the specifications. Clearwater ultimately filed a claim on behalf of Fleming with the contracting officer. DPFUF 26. In the claim, Clearwater asserted the following areas of dispute: 1) that the Corps required the doors be able to sustain a wind load of 40 pounds per square foot while Fleming believed that designing for a load of 30 pounds per square foot was sufficient under the contract, Comp. 13-252; 2) that the specifications regarding the top rollers for the door were allegedly ambiguous and required more rollers than necessary, Comp. 26-35; 3) that the tread diameter of the bottom wheels of the hangar doors was inadequate and that the Corps required the rail that these wheels traveled upon to be larger than that dictated in the specifications, Comp. 36-43; 4) that the design requirement that the rail height be 3/4 inch above flush to the ground was a design error, Comp. 44-46; 5) that the Corps caused extra expense by requiring multiple submittals upon the braking system before approving it, Comp. 71-80; 6) that the Corps delayed approving Fleming's proposed safety edge design, Comp. 81-93; 7) that the Corps required use of a type of steel that was not available at the time of construction, which created additional

2

"Comp. __" refers to a paragraph of Clearwater's complaint in this case. -2-

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costs, Comp. 94-103; 8) that the Corps required pedestrian doors to be placed in different locations than those required by the contract, Comp. 111-15; 9) that the Corps required Fleming to accelerate its construction of the door, Comp. 104-10; and 10) that the Corps' failure to approve all of Fleming's contractual submissions prior to a personal meeting with Corps representatives should make the Corps responsible for Fleming's travel costs to that meeting and other administrative expenses.3 Comp. 116-19. The contracting officer denied the claim in its entirety. DPFUF 26. II. Statement of Facts For our statement of facts, we respectfully refer the Court to the accompanying Proposed Finding of Uncontroverted Facts. LAW AND ARGUMENT To prevail upon a constructive change claim, a plaintiff must prove that "the Government, without more, expressly or impliedly order[ed] the contractor to perform work that is not specified in the contract documents." Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990). Contrary to Clearwater's claims all work the Corps required of Fleming was specified in the contract documents. Indeed, Fleming, itself, initially interpreted many of the disputed portions of the contract exactly as the Corps has. To the extent that any portions of the specifications were defective, any such deficiencies were patent and Fleming had an obligation to seek their clarification from the Corps. White v. Edsall Const. Co., Inc., 296 F.3d 1081, 1085 (Fed. Cir. 2002). Indeed, although Fleming was aware of all the alleged deficiencies in the Clearwater also re-presented elements of a claim previously submitted to the Corps. This Court previously granted our motion to dismiss upon these portions of the claim, see Clearwater Constructors, Inc. v. United States, 56 Fed. Cl. 303 (2003), thus. we have omitted them here. -33

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specifications prior to the bid, neither Fleming not Clearwater sought such clarification. Moreover, because the Corps ultimately acceded to Fleming's requested solutions for those contract provisions which Fleming claimed to be defective, and allowed Clearwater to substitute a steel of its choice for that which was required by the contract, Fleming has no basis to collect damages upon these matters. Finally, to the extent that Fleming is alleging that the Corps violated the contract by failing to immediately agree to all of its proposals, such claims are unsupported by law. I. Standards for Summary Judgment The familiar standards of summary judgment need only a brief re-statement here. The procedure of summary judgment is properly regarded not as a disfavored shortcut, but rather as an integral part of the Court rules as a whole, designed to secure a just, speedy and inexpensive determination of every action. Spirit Leveling Contractors v. United States, 19 Cl. Ct. 84, 89 (1989)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)); accord Sweats Fashions, Inc. v. Pannill Knitting, Inc., 833 F.2d 1560, 1562 (Fed. Cir. 1987). "The focus in determining whether summary judgment is appropriate is the lack of disputed material facts. A material fact has been defined as a fact that will make a difference in the outcome of a case." Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213, 216 (1958), cert. denied 361 U.S. 843 (1959). Stated differently, only disputes over facts that might affect the outcome of a suit will properly prevent an entry of judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). II. The Corps Effected No Constructive Changes Upon The Contract The two areas which Fleming alleges the Corps required performance beyond that specified in the contract ­ the wind load and the rail size ­ were plainly directed by the contract

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and, thus, not constructive changes. A. Requiring Compliance With The Terms Of The Contract Is Not A Constructive Change

A Government-directed change in the "method or manner of performance" of a contract is subject to equitable adjustment. 48 C.F.R. § 52.243-4; Aydin Corp. v. Widnall, 61 F.3d 1571, 1577 (Fed. Cir. 1995). To identify a constructive change, the Court should consult the contract language. Aydin, 61 F.3d at 1577; CEMS, Inc. v. United States, 59 Fed.Cl. 168, 203 (2003); Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990)("A constructive change generally arises where the Government, without more, expressly or impliedly orders the contractor to perform work that is not specified in the contract documents."). Of course, an order to comply with the terms of the contract does not constitute a constructive change. Lathan, 20 Cl.Ct. At 128. B. The Corps Merely Required Compliance With The Contract 1. The Contract Specified Wind Loads Of 40 Pounds Per Square Foot

When Fleming initially estimated the wind load required for the contract, it found it to be 40 pounds per square foot and only later revised that number down to 30. DPFUF 8. This original estimate of Fleming's was consistent with the contract. Section 8C, paragraph 3.2.1 of the contract specifies that the contractor would design all hangar doors to "resist all wind . . . loads specified." DPFUF 4. The loads are specified in the Wall Wind Loads Chart on Sheet S44 of the specifications. Id. This Wall Wind Load Chart specifies a 40 pound per square foot load on the Girt (suction) for the low building, which would apply to the hangar doors. Id. Lest there be any doubt that the maximum wind load contemplated for the horizontal rolling doors are 40 pounds per square foot, the figure is repeated in Section 8C, paragraph 3.1.1 of the contract, which provides that: -5-

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Each set of hangar doors shall be capable of being fully opened, under any wind load conditions up to and including the maximum design wind load condition of 45 pounds per square foot for the tail doors and 40 pounds per square foot for the horizontal rolling doors, from the closed position by electric power within 1 ½ minutes from the time that the controls are activated. DPFUF 4. Moreover, annotations to the contract provide additional support for the 40 pound per square foot figure. Paragraph 4 of the Designer Notes on Sheet S-44 of the contract's specifications indicates that the wind loads upon the chart reflected calculations in accordance with ANSI 58.1-1982 and specified wind speeds and exposures. DPFUF 5. Although those calculations are not re-created in the specifications, the Corps has performed the calculations and found negative pressures (suction) to range from 36 pounds per square foot for areas greater than 500 square feet to 44 pounds per square foot for areas less than 10 square feet. DPFUF 5. Thus, the figure chosen by the designer (40 pounds per square foot) was within the range calculated by the ANSI standards, while the figure posited by Fleming (30 pounds per square foot, see DPFUF 8) finds no support, whatsoever, in the ANSI standards cited. Finally, Fleming's assertion, made in the claim, that the specifications affirmatively called for 30 pound per square foot wind loading (see Comp. 17), is unsupported. The specifications provide that, for "Main Resisting Systems" the wind loads are 30 pounds per square foot for 0 to 30 feet and 35 pounds per square foot for heights between 30 and 70 feet. DPFUF 5. A hangar door, however is not a Main Resisting System, which is defined as: . . . an assembly of major structural elements assigned to provide support for secondary members and cladding. The system primarily receives wind loads from relatively remote locations. Examples include rigid and braced frames, space trusses, roof and floor diaphragms, sheer walls and rod-braced frames. -6-

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DPFUF 6. The hangar doors would be "secondary members or cladding" which were supported by the main resisting system. Id. In any event, because the doors were more than 30 feet high (they were 31 feet, five inches, see Comp. 14), even if they were main resisting systems, they would be required to withstand loading of 35 pounds per square foot and not the 30 pounds claimed by Fleming. 2. The Contract Required A 60 Pound Rail

Fleming recognized from the time it submitted its bid that the rail the hangar doors traversed was to be of the 60 pound variety. DPFUF 12. Their bid paperwork provides for two lower wheels per leaf at 12 inch diameter (later adjusted to 15 inches in Fleming's bid) and that the "specs call for 60 # rail." See A 21, 22.4 This interpretation by Fleming is supported by the plain language of Paragraph 2.6.2 of the contract, which provides that, "[r]ails shall be standard ASCE or AREA rail weighing not less than 60 pounds per yard." DPFUF 11. Thus, to the extent that the 60 pound rail required Fleming to present a different design for the wheels than it might have otherwise contemplated, Fleming is entitled to no recovery because the 60 pound rail was a clear requirement of the contract. Although Fleming has alleged that the 30 pound rail was "more than adequate for the job," Comp. 42, the Court of Appeals for the Federal Circuit has held that, [w]here, as here, the contract states the performance requirements, the contractor is obligated to meet them despite the fact that "the government may require performance both in excess of, or below, the standard normally accepted in a trade." Interwest Constr. v. Brown, 29 F.3d 611, 615 (Fed. Cir. 1994), quoting, Ralph Larsen & Son,

"A__" refers to a page of the appendix attached to Defendants Proposed Findings of Uncontroverted Facts. -7-

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Inc. v. United States, 17 Cl. Ct. 39, 46 (1989). III. Clearwater Is Not Entitled To Recover Upon Any Allegedly Defective Specifications The remainder of Clearwater's claims based upon the terms of the contract allege that the Corps caused Fleming to engage in additional work as a result of allegedly defective specifications. These claims fail because the contract's specifications did not mislead Fleming and Fleming failed to seek clarification from the Corps of any patent ambiguities in the specifications prior to its bid. A. Clearwater May Only Recover For Alleged Defective Specifications If Fleming Was Misled By Them And The Alleged Defect Was Not Obvious

As the Court of Appeals for the Federal Circuit stated in Robins Maintenance, Inc. v. United States, 265 F.3d 1254 (Fed. Cir. 2001), "[t]he test for recovery based on inaccurate specifications is whether the contractor was misled by these errors in the specifications." 265 F.3d at 1257, citing United States v. Spearin, 248 U.S. 132 136 (1918); accord Comtrol, Inc. v. United States, 294 F.3d 1357, 1364 (Fed. Cir. 2002). If a contractor is aware of the defect at the time of entering the contract, it may not recover upon a defective specifications claim. E.L. Hamm & Associates v. England, 379 F.3d 1334, 1338-39 (Fed. Cir. 2004). The contractor must bring any such situation to the Government's attention prior to the bid "if it intends subsequently to resolve the issue in its own favor." Id. at 1339, citing Space Corp. v. United States, 200 Ct. Cl. 1, 470 F.3d 536, 538 (1972). Moreover, the contractor who makes no clarifying pre-bid inquiry may not recover if the alleged design defect is patent, that is, an "obvious omission, inconsistency or discrepancy of significance." E.L. Hamm, 379 F.3d at 1339; see also NVT Technologies, Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004) (failure to inquire about patent ambiguity forecloses -8-

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recovery); White v. Edsall Const. Co., Inc., 296 F.3d 1081, 1085 (Fed. Cir. 2002) citing Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 346 F.2d 962, 972-73 (1965) (implied warranty that accompanies design specifications does not eliminate the contractor's duty to investigate or inquire about a patent ambiguity, inconsistency, or mistake when the contractor recognized or should have recognized an error in the specifications or drawings). B. Fleming Was Not Misled By The Allegedly Defective Specifications

As demonstrated below, Fleming was aware of each and every instance of allegedly defective specifications at the time it estimated the job. Rather than bring the alleged deficiencies to the attention of the Corps and seek an early resolution, Fleming designed the hangar doors by imposing its own solutions to the deficiencies, even when contradictory to the terms of the contract. 1. The Contractual Requirement For A 3/4 Inch Rail Height Was Not Misleading

Sheet S-53, drawing E, "Typical Rail Clamp Detail" plainly demonstrates a 3/4 inch rail height. See DPFUF 14; A 18. Mr. Kohn acknowledged for Fleming that the 3/4 inch rail height is called for in the specifications, but opined that it was atypical and perhaps presented a tripping hazard. A 34-35. Thus, this does not present a misleading defective specification and the Corps was perfectly within its rights to require this rail height. See Rixon Electronics, Inc. v. United States, 536 F.2d 1345, 1351, 210 Ct. Cl. 309, __ (1976) ("you can engage a contractor to make snowmen in August, if you spell it out clearly").

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2.

Fleming Should Have Been Aware Of Any Design Defect Regarding The Top Rollers For The Door Leaves

As described by Clearwater's complaint, the basis for the top roller portion of its claim is the delay created by specifications which required four door rollers for the center leaves (later changed by the Corps) as well as the Corps' continuing to require four top rollers for the remaining door leaves. Comp. 28-29, 31. The second part of this claim is easily dispatched: Specification Section 8C, Paragraph 6.3 states that each door leaf was to be "provided with a minimum of four top guide roller carriage assemblies," Comp. 26, accordingly, it cannot be said to be a misleading design defect for the Corps to require four top rollers for those door leaves for which the Corps insisted upon contract compliance. The damages Clearwater asserts here are, incredibly, that Fleming was required to "re-design the top roller system for the doors to accommodate the Corps' requirement." Comp. 35. In other words, Clearwater is demanding damages for being forced to submit a design in compliance with the plain language of the contract. Of course, no damages may be assessed for requiring compliance with the terms of the contract. Lathan, 20 Cl.Ct. at128. Fleming was similarly not misled by any flaws in the specifications which required four rollers for the central door leaves. The reason for this is that, as acknowledged by Mr. Kohn for Fleming, it is physically impossible for the hangar doors to operate with four rollers attached to the central door leafs. A 27-29. In fact, Mr. Kohn has admitted that he was aware of the problem when he wrote the estimate sheet for the project. A 26. Despite being aware of the problem, Fleming, inexplicably, did not bring it to the attention of the Government prior to the bid. DPFUF 9. Instead, Fleming submitted a workable design for two top rollers for the central door leaves and the Corps ultimately accepted it. DPFUF 18. Thus, Fleming was able to -10-

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proceed upon the center doors exactly as it intended and any delay attributable to the Corps' consideration of Fleming's new design was a result of Fleming's failure to bring the problem to the attention of the Corps in a timely manner. 3. Fleming Was Aware That The 60 Pound Rail Would Affect The Bottom Roller Size

Fleming cannot claim added expense as a result of needing to change the bottom roller size to accommodate the 60 pound rail because Fleming was not only aware that a 60 pound rail was required, but also planned for it with wheels appropriate to 60 pound rail. DPFUF 12. Mr. Kohn appears to assert that the 60 pound rail, coupled with specifications for 12 inch wheels constituted a design defect, which caused a "domino effect" upon the design of the wheels. A 31-33. Clearwater cannot recover for this, however, because Fleming was aware of the 60 pound rail requirement and planned for it in its bid. Thus, not being misled by the specifications, the contractor is not entitled to recovery. E.L. Hamm, 379 F.3d at 1338-39. Moreover, Clearwater's right to recovery is further precluded because Fleming did nothing to bring this alleged design defect to the attention of the Corps. Id. at 1339. 4. Fleming Was Aware That The Contract's Requirement For Leading And Trailing Safety Edges Posed Difficulties

When Mr. Kohn estimated the contract for Fleming, he was initially unsure whether there would be safety edges (which automatically stop door operation upon encountering an obstacle) on both leading and trailing edges of the hangar doors. DPFUF 20. The language of Section 8C, paragraph 6.10.1 of the contract, however, specifies that "leading and trailing edges of each door in each four-leaf group shall be provided with a double run of safety edge. . ." DPFUF 19. Without explanation, Mr. Kohn's supervisor wrote that the safety edges would only be placed on

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the leading edges of the doors. DPFUF 20. Mr. Kohn now states (and Clearwater claims in its complaint) that safety edges on the trailing edges of the doors would have been impossible as specified because the brackets for the cable system which operated the doors would have interfered with their operation. Comp. 83; A 35-36. Nevertheless, rather than resolve the matter with the Corps prior to the bid, Fleming presented a design contradictory to Section 8C, Paragraph 6.10.1 of the contract. DPFUF 21. Ultimately, Fleming was permitted to utilize the plan it submitted. DPFUF 22. Because Fleming was not misled in any way by these allegedly deficient contract specifications, it cannot claim damages for them. E.L. Hamm, 379 F.3d at 1338-39. Moreover, because the alleged deficiencies were an "obvious inconsistency of consequence," Fleming cannot seek damages as a result of them when it made no effort to bring the inconsistency to the attention of the Corps prior to the bid. Id. at 1339. 5. The Pedestrian/Personnel Doors Were Not A Design Defect

The location of the pedestrian doors was only described relatively generally in the contract. DPFUF 23. Although the Corps initially rejected Fleming's proposed location for the doors, upon further review and discussion with Fleming, it permitted Fleming to locate the doors as it liked. Id. Because this did not mislead Fleming in any way, there is no basis for recovery here. E.L. Hamm, 379 F.3d at 1338-39. IV. The Corps Is Not Liable For Any Difficulties Clearwater May Have Had In Obtaining Specialty Steel From Its Subcontractor Clearwater has no basis for seeking damages from the Corps for difficulties its chosen subcontractor (AFCO) had in obtaining a type of structural steel required by the contract. As we understand the claim, Clearwater directed Fleming to redesign a portion of the doors as a result -12-

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of the difficulty the AFCO was encountering in procuring the specified steel. Comp. 94. There is no indication that this change to the design was requested by the Corps and it appears to have been solely for the benefit of Clearwater and its subcontractor, AFCO. To the extent that the redesign was required by AFCO's failure to procure the specified steel, that is not the responsibility of the Corps. As the Court of Claims noted in Franklin E. Penny v. United States, 207 Ct. Cl. 842, 542 F.2d 668 (1975), "the obligation to locate a supplier remains where that sort of obligation has always rested ­ upon the contractor." 542 F.2d 675. V. Clearwater Cannot Collect Damages For Reasonable Actions Of Contract Administration Undertaken By The Corps The remainder of Clearwater's claims appear to be premised upon the notion that the Corps' failure to immediately agree to all of Fleming's submissions and the Corps' disagreements with Fleming, requiring further discussion prior to resolution, should make the Corps liable for some damages. See generally, Comp. 104-10, 116-19. Although Clearwater has enunciated no legal theory supporting these claims, we analyze them as, essentially, allegations that the Corps constructively changed the contract by requiring more work from Fleming than required by the terms of the contract. Clearwater cannot prevail upon these claims because none of the alleged extra expenses were the Corps' fault. A. The Corps Is Only Liable For Additional Work Performed Pursuant To The Contract If It Is At Fault

As discussed earlier, a constructive change to the contract, for which the Corps would be liable, would occur only when the Government requires "work that is not specified in the contract documents." Lathan, 20 Cl.Ct. at 128. There are generally two components to a constructive change claim: "the change component and an order/fault component." CEMS, 59

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Fed.Cl. at 203; see also Miller Elevator Company, Inc. v. United States, 30 Fed.Cl. 662, 678 (1994). The change component is whether the performance is different than that required by the contract. The order/fault component describes the reason the contractor did the additional work. CEMS, 59 Fed.Cl at 203. Although the Government need not directly order the additional work, its conduct must "amount[] to an order" for there to be such liability. Al Johnson Construction Co. v. United States, 20 Cl.Ct. 184, 204 (1990). B. The Corps Required No Extra-Contractual Work By Fleming

Except for the braking system, which we have not yet addressed, we have demonstrated that every case of alleged contract delay and requirement for additional submittals and discussion was the responsibility of Fleming. Clearwater concedes that the August 14, 1986 meeting, for which it seeks re-imbursement, was caused because of "the numerous issues which arose regarding Fleming's Hangar Door submittal." Comp. 116. However, it was Fleming which persevered in contract interpretation which were in error (e.g., the 30 pound per square foot wind load and the bottom wheels designed for a smaller rail than the 60 pound per yard rail specified in the contract). Moreover, it was Fleming which was aware of the alleged inconsistencies in the contract specifications before its bid, but chose to make the Corps aware of them for the first time when it submitted its shop drawings in the midst of contract performance. Thus, the Corps is not at fault for any additional work, including the August 14, 1986 meeting, occasioned by Fleming's actions. The issues regarding the braking system, similarly, reflect no fault upon the Corps. The Corps did not order Fleming to propose the particular design which it did; instead Fleming chose to propose a braking system arguably better than that in the contract specifications. DPFUF 26.

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Inherent in the Corps' contractual right to require and approve shop drawings is the right to submit reasonable follow-up questions when the shop drawing does not match the specification provided in the contract. This is precisely what the Corps did here. Because the Corps ultimately permitted Fleming to install the braking system it desired, it cannot be seen as ordering additional work from Fleming. Accordingly, Clearwater has no claim of constructive change upon the braking system. Al Johnson, 20 Cl.Ct. at 204. CONCLUSION For the foregoing reasons, we respectfully request that the Court grant the Government's motion for summary judgment. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/James M. Kinsella JAMES M. KINSELLA Deputy Director s/J. Reid Prouty J. REID PROUTY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor, 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 305-7586 Fax: (202) 514-7969 July 20, 2005 Attorneys for Defendant

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