Grunley Construction Co., Inc. v. The Architect of the Capitol ( 2011 )

NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
GRUNLEY CONSTRUCTION CO., INC.,
Appellant, '
V.
THE ARCHITECT OF THE CAPITOL,
Appellee.
2010-6001 _
Appeal from the G0ve1'nment Acc0un1;ability OfEce,
Contract Appeals B0ard, CAB N0. 2009-1.
¢».--»..__.¢._____-----------
GRUNLEY CONSTRUCTION CO., INC.,
Appellee,
V.
THE ARCHITECT OF THE CAPITOL,
Appellant.
2011-6011
GRUNLEY CONSTRUCTION V. AOC 2
Appeal from the Government Accountability OfEce,
Contract Appeals Board, CAB No. 2009-1.
Before NEWMAN, SCHALL, and DYK, Circu,it Judges.
NEWMAN, Circuit Ju.dge.
0 R D E R
The Architect of the Capitol (AOC) moves to dismiss
Grunley Construction Co.’s appeal from the Government
Accountability OfEce, Contract Appeals Board, and its
own conditional cross-appeal, for lack of jurisdiction.
Grunley opposes. AOC replies.
In April 2004, AOC issued to Grunley a fixed-price
contract to provide construction services to m0dernize
portions of the Supreme Court of the United States. The
contract required that “[c]ertain events during the con-
struction period will require the Contractor' to suspend
work for given periods of time, including but not limited
to key events indicated on the Court calendar." That
clause further provided that for bidding purposes "the
Contractor shall anticipate sixteen (16) days per calendar
year of interrupted work days."
During the course of performance, the Marsha1 of the
Supreme Court began imposing work restrictions during
days the court was in session or in conference Grunley
alleges that those restrictions effectively precluded it from
performing the work on time and on budget as expected
In October 2005, Grunley shifted some day work to night
shifts as a result of the Marshal’s imposed restrictions In
late 2006, however, Grunley determined that it would be
more productive to work all but specified night trades in
the normal work day and to have crews sit out the hours
on court days.
On Ootober 1, 2008, Grunley certified a single claim
seeking an equitable adjustment from the contracting
officer (CO) for $1,095,128 as a result of the Marshal’s
l
1
1
3 GRUNLEY CONSTRUCTION V. AOC
imposed restrictions. Grunley alleged that the restric-
tions constructively changed the contract resulting in
increased costs associated with the work between October
2005 and December 2007 . Grunley’s claim consisted of
two components: (1) costs for night shift premiums and
night-time inefficiency costs from October 2005 through
December 31, 2006; and (2) standby costs incurred during
the day. The CO denied Grunley’s claim on the grounds
that pursuant to the events clause Grunley budgeted for
delays during court days. _
On cross-motions for summary judg1nent, the Con-
tract Appeals Board held that Grunley’s claim for an
adjustment for standby costs incurred during the day was
prohibited under the contract’s "no damage for delay"
clause. However, with regard to its night shift premium
and inefficiency cost argument, the Board disagreed with
the CO’s interpretation of the events clause. lnstead, the
Board agreed with Grunley that any interruptions more
than 16 days per calendar year could be entitled to com-
pensation but only under the “suspension of work" clause.
The Board held that "Grunley is entitled to recover the
night shift differential that was necessarily incurred and
was not for work otherwise required to be performed at
night, so long as the conditions of the suspension of work
clause are met." The Board expressly declined to reach
certain issues on summary judgment, e.g., declining to
decide whether the contracting officer engaged in any acts
to suspend work because of "insufticient undisputed facts
in the record." Grunley filed an appeal seeking review in
this court. The issue of Grunley’s entitlement to compen-
sation under the suspension clause remains open.
The AOC contends that Grunley’s appeal from the
Board’s summary judgment order is not final We agree.
Although Grunley presents its claim as having multiple
cost components, it certified only a single claim arising
out of essentially interrelated services and closely con-
GRUNLEY CONS'l``RUCTION V. AOC 4
nected facts. See Teller E'nvtl. Sys. v. U.S., 802 F.2d 1385,
1389 (Fed. Cir. 1986) (rejecting characterizing of multiple
claims when the demands for adjustments involved
interrelated services and closely connected facts). The
matter of Grunley’s entitlement to an adjustment remains
open. Allowing for an appeal from an order resolving in
part motions for summary judgment, before all issues are
determined, would undermine the primary purpose of the
Hnal judgment rule in avoiding the inefficiencies of
piecemeal litigation. See Catlin v. U.S, 324 229, 233
(1945).
Accordingly,
IT ls 0RDERED THAT:
(1) The motion to dismiss is granted Both appeals
are dismissed. Grunley may appeal the matter after final
judgment.
(2) Each side shall bear its own costs. ``
FOR THE COURT
dl.ll_ 1 2011 /s/ Jan Horbaly
Date J an I-Iorbaly
C1 k FI E
er u.s. count olF A9>zALs son
cc: Herman M. Braude, Esq.
Steven J. Gillingham, Esq.
s19
lssUED As A MANDA'rE; ill 7 2911
THE FEDERAL CIRCU|T
JUL 0-7 2011
JAN HORBALY
CLERK