The contractor alleged the agency breached by making a cardinal change, by taking too long to respond to requests for information, and by interfering with the performance of a subcontractor. The CBCA entered summary judgment for the government on all the alleged breaches. The cardinal change claim was barred by releases. As to the other claims, the contractor had not established any damages attributable to the alleged breaches.
Williams Building Company, Inc. v. Department of State, CBCA 6650, 7147
Background
Williams Building Company had a contract with the State Department to renovate an office building in Wuhan, China. Delays occurred before performance. The parties entered bilateral modifications to substitute new construction documents and to provide Williams with a 200-day extension. The modifications had release clauses.
Despite the modifications, Williams submitted claims to the agency. In one claim, Williams alleged government-cased delay. In another, Williams alleged State breached by (1) making a cardinal change, (2) interfering with the performance of subcontractor, and (3) taking too long to respond to requests for information. State denied the claims.
Nevertheless, Williams and State settledthe delay claim with yet another contract modification. This modification also contained a release.
Williams appealed its remaining breach claims to the CBCA. While that appeal was pending, State terminated the contract for convenience due to the COVID-19 pandemic. Williams submitted a termination settlement proposal. The proposal wasn’t accepted. Williams appealed the deemed denial of termination settlement proposal to the CBCA.
The board consolidated Williams’ two appeal. State moved for summary judgment on the first, breach appeal.
Analysis
Effect of Termination
Williams argued the board should deny State’s summary judgment as moot. Williams reasoned the appeal of the convenience termination had subsumed the breach appeal—that is, the breach claims had been merged into the termination appeal.
The board rejected this argument, finding it conflicted with Federal Circuit precedent. Under the CDA, a contractor’s entitlement to interest precludes merger of a claim into a termination appeal. CDA interest runs from the date of the claim’s submission without regard to a subsequent termination. This ensures that a contractor receives interest even if the agency terminates. Because Williams would be entitled to interest on its claims, they had not been subsumed by the termination appeal.
Cardinal Change
In Count I of its complaint, Williams alleged the government made design alterations, which resulted in a cardinal change to the contract. The board found this claim was barred by the contract modifications. Those modifications had effectively made the changes part of the contract. Moreover, those modifications contained releases, which precluded any claims against the government arising from the alleged changes. The board granted State summary judgment on cardinal change.
Requests for Information
Williams alleged State had breached by failing to respond in a timely manner to requests for information. The board noted State may have taken a long time to respond to the requests, but Williams hadn’t identified any damages attributable to the delays. Indeed, the board had required Williams to submit a statement of costs. The statement said nothing about damages attributable to the requests for information. The board granted State summary judgment on this claim.
Interference with Subcontractor
Count III of Williams’ complaint asserted State had interfered with the performance of Williams’ subcontractor. Williams said this interference resulted in increased labor costs and necessitated a new subcontractor. Again, however, Williams had not proved any damages associated with this interference. Williams alleged increased labor costs. But it wasn’t clear to the board that Williams’ employees had incurred any overtime or increased hours due to the alleged interreference. The board granted summary judgment on this claim too.
Williams is represented by Kevin M. Cox of Camardo Law Firm, P.C. The government is represented by Randal W. Wax of the Department of State.
–Case summary by Craig LaChance, Senior Editor
