The contractor alleged the government constructively suspended the contract. The contract required removal of soil. The contractor claimed it stopped work because the government had indicated it was considering whether to provide a soil holding area. The court found no constructive suspension. Most of the government’s communications didn’t even mention a soil holding area. And none of the communications indicated the contractor should stop work. Unless the government causes the contractor to stop work, there’s no constructive suspension.
Baldi Bros, Inc. v. United States, COFC No. 16-536
Background
Baldi Bros had a contract with the Navy to replace an aircraft ramp. The contract required Baldi to remove tons of existing soil. Baldi thought the Navy was supposed to provide a soil holding area for the removed soil. The Navy said the contract didn’t require a holding area. Baldi filed claims, alleging the lack of a holding area resulted in constructive suspension and constructive change. The Navy denied the claims.
Baldi filed suit in the Court of Federal Claims. The government moved for summary judgment, arguing the contract didn’t require a soil holding area. The government argued resolution or this issue resolved all of Baldi’s claims. The court granted the government partial summary judgment. The court found the contract did not require a soil holding area. Nevertheless, the court believed Baldi’s suspension and change claims could still stand on their own. The government filed a second motion for summary judgment on the claims.
Analysis
Constructive Suspension
Baldi alleged the Navy’s response to a request for information and to various submittals resulted in a constructive suspension. Baldi contended these responses indicated the Navy was considering a soil holding area, which caused Baldi to stop work.
The court wasn’t persuaded. To prove a constructive suspension, a contractor has to establish the government directly caused delays. Here, most of the government’s communications did not even mention a holding area. And none of the communications indicated Baldi should stop work while the Navy considered a holding area. The court granted the government summary judgment on the constructive suspension claim.
Constructive Change
Baldi contended the Navy constructively changed the contract by requiring the company to use a soil tracking form. The court denied the government’s motion on this change theory. The court reasoned there were still issues of fact as to whether soil tracking form had been incorporated into the contract.
Baldi also claimed the Navy constructively changed the contract by requiring Baldi to conduct additional testing on the soil. The court rejected this argument. The contract required Baldi to dispose of the soil offsite. Baldi was therefore responsible for any soil testing required by the offsite facility.
Baldi is represented by William J. Braun of Braun & Melucci. The government is represented by Vijaya Surampudi of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
