ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Government contract case, on which we have heard oral argument, is before the court on defendant's motion for summary judgment. We are unable to find, in the particular circumstances of this case, that plaintiff elected to proceed under the Contract Disputes Act of 1978.
On September 28, 1977, plaintiff entered into a contract with the Department of Army Corps of Engineers for the construction of an enlisted men's barracks complex at Fort Bragg, North Carolina. The contract (No. DACA21-77-0166) specified that a substantial portion of the barracks was to be constructed with masonry units, known as CMU blocks. During construction, the parties disagreed as to whether the interior walls of the barracks should be assembled in a stack bond fashion or in a running bond pattern. Although plaintiff had interpreted the contract to call for the stack bond pattern, defendant nevertheless directed plaintiff to lay the CMU blocks in a running bond pattern. Since the use of the running bond pattern significantly increased plaintiff's costs, plaintiff submitted a claim to the contracting officer for an equitable adjustment of the contract to cover its additional costs.
Plaintiff's claim for equitable adjustment was denied by the contracting officer on May 16, 1979. In the denial letter of that date he stated:
In response, plaintiff's project manager advised the contracting officer by letter dated June 4, 1979, as follows:
This letter made no reference to the Contract Disputes Act.
The Armed Services Board of Contract Appeals (ASBCA) processed plaintiff's letter as an appeal to it and informed plaintiff by certified mail
On May 2, 1980, plaintiff petitioned this court, pursuant to the Contract Disputes Act, for a trial de novo on its claim. Defendant at that point refused to proceed with the scheduled negotiations. Defendant now moves for dismissal of the petition but so informs the court that it will not oppose reinstatement of this plaintiff's appeal before the ASBCA. It is defendant's position that the ASBCA appeal foreclosed plaintiff's right to proceed in this court under the Contract Disputes Act. Plaintiff, on the other hand, argues that the mere assignment of a docket number by the ASBCA cannot bar an otherwise valid election and insists that the court's recent holding in National Electric Coil
With the passage of the Contract Disputes Act, a new era in the resolution of Government contracts emerged. One of its most significant reforms was to present an alternative to the administrative appeal in contract disputes. Under the new law, which applies to all contracts entered into on or after March 1, 1979, a contractor either can appeal an adverse final decision to the appropriate board of contract appeals
With respect to pre-March 1, 1979, contracts, section 16 of the act provides that "[n]otwithstanding any provision in a contract made before the effective date of this
That being the case, we must find that plaintiff at an appropriate point elected to have the parties' pre-March 1, 1979, contract governed by the new act. We find that plaintiff has failed to make that election. Although the contracting officer had requested that plaintiff notify his office if plaintiff intended to proceed under the act, plaintiff submitted, pursuant to the procedures set forth in the contract's disputes clause, its notice of appeal to the contracting officer without any mention of the new act. Nor did plaintiff elect to have the dispute subject to the Contract Disputes Act when it received notice of the docketing by the ASBCA.
Plaintiff vigorously argues that it elected to have the dispute subject to the Contract Disputes Act when it instituted the present suit. Having withdrawn the former appeal, plaintiff contends that it was free to elect to proceed in this court under the Contract Disputes Act. We do not agree; plaintiff originally chose to appeal the contracting officer's adverse decision to the ASBCA and now that choice must stand. Plaintiff appealed the contracting officer's final decision to the ASBCA, and once this avenue was chosen for resolution of its dispute, we hold that plaintiff could no longer elect to bring suit directly in this court under the Contract Disputes Act.
It is a fact that the Contract Disputes Act does not set forth a specific time period within which an election to proceed under that act must be made, nor does the act prescribe the manner in which such election must be made. However, it is clear that, for the comprehensive purposes of the act to be implemented, the contractor is under certain compulsions of time and choice that point to a requirement that the contractor make a positive election whether to come under the act at such time and in such manner as are consistent with the options that it has and which remain open to it from time to time. For example, in a pre-March 1, 1979, contract, where a contractor makes a conscious and unwavering election to proceed under the disputes clause of the contract, it obviously must move to implement that election within 30 days of the contracting officer's final decision. Where a contractor makes a conscious and unwavering election to proceed under the act and before a board, it obviously must implement that election within 90 days of the final decision. Where a contractor makes a conscious and unwavering decision to come under the act and proceed directly to this court, it obviously must implement that election by filing a petition here within 12 months of the final decision of the contracting officer. Thus, had plaintiff not responded to the contracting officer and to the board as it did, it clearly could have done nothing for almost 12 months and then could have availed itself of direct access to this court, or abandoned its claim. In choosing direct access it would of necessity have had to invoke the act. Those are not the facts of this case.
In response to the contracting officer's notice that questions which are subject to the procedures of the disputes clause may be appealed by written notice to the contracting
Senate Report No. 95-1118
Although this comment is directed to a slightly different set of circumstances, we believe that it expresses the spirit of the act and the intent of the Congress in the circumstances before us. Plaintiff must be held to have made a conscious election to proceed under the disputes clause. Having done so, it is foreclosed from later electing to proceed under the Contract Disputes Act. Having foregone this option it may not bring its case to us without first exhausting its administrative remedies.
Our recent holding in National Electric Coil is not applicable to the facts in this case. In that case, involving a pre-March 1, 1979, contract, the contractor was not informed of its right to elect to proceed under the Contract Disputes Act until after an agency board of contract appeals had docketed the contractor's case. Given those facts, we held that the contractor could not have knowingly elected its forum for appeal since the contractor was unaware that the new act could govern the pre-March 1, 1979, contract. Plaintiff's reliance on that case is misplaced since that is not the situation in the instant case. Here plaintiff was informed by the contracting officer of its right to elect to proceed under the new act, was provided with a copy of the act, and was requested specifically to respond on that point. Plaintiff therefore made a knowing election when it appealed the contracting officer's final decision to the ASBCA.
Assuming that the ASBCA would have allowed plaintiff the right to elect to have the pending appeal governed by the new law, that fact in itself would not allow plaintiff to withdraw the appeal to bring suit in this court under section 10(a)(1) of the act. Section 10(a)(1) provides that "in lieu of appealing the decision of the contracting
Although the ASBCA dismissed the appeal with prejudice, the record indicates that plaintiff might be permitted to renew its claim before that forum. The parties' correspondence with the administrative law judge indicates that the appeal was dismissed with prejudice in order to facilitate the action before this court and bore no relation to the merits of the claim. Consequently, the ASBCA may find it appropriate to vacate its order which dismissed the appeal.
Based on the foregoing, we grant defendant's motion for summary judgment. Plaintiff's petition is dismissed.
KUNZIG, Judge, concurring:
I concur in the result. I would hold that by docketing an appeal with the ASBCA, plaintiff made a binding election of forums under the Contract Disputes Act and is now required to litigate in its chosen arena — the Board — prior to seeking judicial review in this court. See 41 U.S.C. § 609(a)(1) (Supp. II 1978). Cf. National Electric Coil v. United States, Ct.Cl. No. 79-80C (order entered March 17, 1981) (special circumstances exception). This holding is clearcut and easily understandable, fully supported by the statutory language, and potentially lasting in its significance.
The same cannot be said of the approach taken by the court. Its analysis begins with the statement, not in itself controversial, that "the contractor must decide whether to elect to proceed under the new act at all." Ante, at 647. It is the next step in the analysis which troubles me. The court states that said election must be made "at an appropriate point." Ante, at 647. Otherwise, some sort of waiver will be deemed to have occurred. This additional requirement, the basis for the court's reasoning, finds no support whatsoever in the statutory language or legislative history. Compare 41 U.S.C. § 605(c)(5) (Supp. II 1978); SCM Corp. v. United States, Ct.Cl. No. 576-79C (order entered Oct. 10, 1980). Moreover, the test propounded by the court for determining the "appropriate point" is exceedingly vague:
Ante, at 647. Finally, it is worth noting that the rule adopted by the court applies solely to the inherently limited class of contract claims arising out of pre-Act contracts. My proposed rule, by contrast, has no such limitation.
Nothing in the facts of this case shows that plaintiff ever affirmatively waived its statutory right to proceed under the Contract Disputes Act. Instead, when timely filing its petition in this court, plaintiff unequivocally expressed its election to proceed under the Act. The problem, as I see it, is that by earlier docketing its appeal to the Board, plaintiff had already elected its forum and was no longer authorized by the Act to initiate a direct action in this court. Only when the proceedings before the Board have been brought to a finish may this court take jurisdiction of the case. See 41 U.S.C. § 607(g)(1)(A) (Supp. II 1978).
I therefore concur in the result, although, with respect, I prefer to reach it by a different route.