Melvin Wilner, D/B/A Wilner Construction Company v. United States

SCHALL, Circuit Judge.

The United States appeals from the June 26, 1992 judgment of the United States Claims Court.¹ Following a trial, the Claims Court (i) awarded Melvin Wilner, d/b/a Wil-ner Construction Company (Wilner), an additional $26,271.49 plus interest on his claim for delay compensation under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 601-613 (1988 & Supp. IV 1992); and (ii) denied the government’s claim for the return of certain sums previously paid to Wilner.² On May 24, 1993, a divided panel of this court affirmed the judgment of the Claims Court.³ The government filed a petition for rehearing and suggestion for rehearing in banc. On August 2, 1993, we accepted the suggestion for rehearing in bane, vacated the judgment of the panel, and withdrew the panel opinion. We now vacate the judgment of the Court of Federal Claims and remand the case with instructions.

BACKGROUND

Wilner was awarded a contract by the United States Department of the Navy to construct an Operational Trainer Facility at Camp Pendleton, California. Wilner, 26 Cl. Ct. at 262. Although the contract called for a completion date of October 1, 1986, the project experienced delays which postponed its completion by 447 calendar days. Id. Wilner submitted a claim to the Navy’s contracting officer, alleging compensable government-caused delay to the completion of the project. Id. at 272. On August 1, 1989, Contracting Officer William N. Lindstrom issued a final decision on Wilner’s delay claim. Id. Finding that Wilner was entitled to 260 calendar days of compensable delay, the contracting officer credited Wilner with delay-based compensation of $133,094.79. After deducting previous unilateral increases to the contract price to avoid double compensation, he made a net award to Wilner of $17,259.46 plus interest for the delay. Id. at 273-74.

Dissatisfied with the contracting officer’s award, Wilner brought an action on the claim in the Claims Court under the CDA, contending that government conduct was the legal cause of all of the delay to the project, from the original contract completion date through the date the Navy accepted the project as completed. Wilner’s claim was directed mainly to alleged delay costs arising from duct revision work, open web joist (OWJ) revision work, and smoke detector work. Id. at 263.⁴ On its part, the government asserted that it was entitled to return of the $133,-094.79 that the contracting officer had credited to Wilner, since Wilner could not establish that he was entitled to any delay compensation.

At trial, Wilner presented evidence relating to the duct revision work, the OWJ revision work, and the smoke detector work. Id. at 264-72. Although the Claims Court found that the government was responsible for delay to each of these activities, it determined that the evidence presented by Wilner was inadequate to establish the critical path of the project, so as to enable Wilner to prove that government-caused delay had delayed the overall completion of the project.⁵ Nevertheless, the court examined the evidence presented at trial to determine whether there was a basis, despite the absence of a critical path analysis, for determining that any of these activities was on the critical path of the project. The court sua sponte admitted into evidence the written decision of the contracting officer and also heard the testimony of the contracting officer, who was called as a witness by the government.

Eventually, following a careful and thorough review of the evidence presented at trial, the Claims Court found that the only critical path delay attributable to the government resulted from the duct revision work and that that delay extended the project from February 27, 1987, to May 29, 1987, a total of 91 calendar days. Id. at 275. Having so concluded, the court stated: “The problem that the court perceives is that its determinations thus far reflect the government-caused delays as proved by plaintiff at trial, rather than what the court perceives, but plaintiff failed to prove, to be the actual government-caused delays.” Id. at 277 (emphasis added). The court also stated that, “[d]ue to the absence of a critical path analysis,” and without considering the contracting officer’s final decision, it was “unable to determine whether delays caused by the Navy were properly compensable as critical path delays.” Id. at 279. Thus, the court made it clear that Wilner had failed to prove his case.

The Claims Court, however, did not enter judgment based upon its finding of 91 calendar days of government-caused delay. Rather, relying upon J.D. Hedin Construction Co. v. United States, 347 F.2d 235, 171 Ct.Cl. 70 (1965), for the proposition that “the findings of a contracting officer are entitled to a strong presumption of validity, subject to rebuttal,” Wilner, 26 Cl.Ct. at 277, the court described the contracting officer’s decision as “evidence before the court that must be considered and weighed.” Id. at 279. After summarizing Mr. Lindstrom’s testimony explaining how he had reached his decision, the Claims Court stated: “Plaintiffs failure to present a critical path analysis at trial is an insufficient basis to reject the contracting officer’s determinations of critical path delay days based on the technical analysis [presented to the contracting officer].” Id.

After considering Mr. Lindstrom’s final decision, the Claims Court modified his calculations to increase the delay compensation awarded to Wilner by $26,271.49 plus interest, based upon 259 calendar days of government-caused critical path delay (instead of the 260 days of critical path delay found by the contracting officer). Id. at 280-81. The court also rejected the government’s claim for repayment of $133,094.79 in delay compensation already paid to Wilner for lack of jurisdiction. Id. at 279.⁶

DISCUSSION

I

The government contends that the Claims Court erred as a matter of law by failing to conduct a proper de novo review pursuant to the CDA. Specifically, the government argues that, in ruling for Wilner, the Claims Court “deferred completely to the contracting officer’s decision” and therefore made improper use of the decision under the CDA. The government does not challenge the finding of the Claims Court that the evidence at trial established that the Navy was responsible for 91 calendar days of critical path delay. Neither does the government challenge the Claims Court’s dismissal of its claim for repayment of the $133,094.79 credit. The government does, however, seek repayment of the $17,259.46 net award to Wilner. Wilner, on the other hand, contends that the Claims Court conducted a proper de novo review and that its decision was based upon evidence admitted at trial, which included both the contracting officer’s testimony and his final decision.

In view of the contentions of the parties, resolution of this appeal requires a two-step process. First, we must determine the method by which the Claims Court decided the case. Then, we must determine whether, as a matter of law, that method of decision was proper under the CDA. It is to the former question that we turn first.

II

We disagree with Wilner’s contention that the contracting officer’s testimony at trial provides support for the Claims Court’s decision and that the Claims Court relied upon both the contracting officer’s testimony and final decision. We have carefully reviewed both the contracting officer’s testimony and the decision of the Claims Court. As far as the contracting officer’s testimony is concerned, the contracting officer did not provide testimony which independently established 259 calendar days of government-caused delay. Mr. Lindstrom testified that, in making his decision, he attempted to weigh equally the interests of the Navy and the contractor, and he noted that it was the practice of his office to ascertain that a com-pensable delay had occurred before granting delay compensation. Mr. Lindstrom stated that his final decision was based upon the results of a technical review performed by the Navy’s Engineering Construction Division and upon the opinions of a Navy technical analyst, a consultant, and counsel, who conducted a legal review of the technical analysis. However, Mr. Lindstrom did not conduct an independent analysis of Wilner’s delay claim. In addition, he had no firsthand knowledge of the events that transpired during performance of the contract and no specific recollection of the documents he reviewed in making his final decision. Significantly, at no point in his testimony did Mr. Lindstrom state why he believed that the delays which Wilner experienced fell on the critical path of the project so that they delayed the overall completion of the project. Moreover, counsel for Wilner asked no questions designed to elicit such information. Thus, this is not a case in which the contracting officer testified to any facts underlying the claim. Mr. Lindstrom merely explained the process he followed in making the award. In short, Mr. Lindstrom explained what he relied upon for the conclusions in his final decision. His testimony, however, added nothing to, and provided no support for, those conclusions.

Turning to the decision of the Claims Court, in awarding Wilner $26,271.49 in additional compensation, the court did not rely upon testimony of Mr. Lindstrom independently establishing 259 days of government-caused delay. Had there been testimony of Mr. Lindstrom upon which the court could, and did, rely, it would not have been necessary for the court to state that, “[d]ue to the absence of a critical path analysis,” and without considering the contracting officer’s final decision, it was “unable to determine whether delays caused by the Navy were properly compensable as critical path delays.” Wil-ner, 26 Cl.Ct. at 279. Furthermore, examination of the pertinent portion of the Claims Court’s decision — which appears under the heading “Contracting officer’s final decision” — id., reflects nothing more than what we have noted above: namely, that Mr. Lind-strom testified as to the process through which he arrived at his decision, not as to supporting facts. In short, the Claims Court’s award to Wilner was not based upon evidence at trial supporting Wilner’s claim. Rather, it was based solely upon the fact that the contracting officer had made an award to Wilner.

We thus conclude that Mr. Lindstrom’s testimony provided no support for the Claims Court’s award to Wilner. We also conclude that the Claims Court made its award to Wilner based solely upon the fact that, in his final decision, Mr. Lindstrom determined that the government was responsible for 260 calendar days of delay to the project. We now address the question of whether the court’s approach was correct.

Ill

The CDA provides that “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 605(a). As far as the contracting officer’s decision is concerned, the CDA states that “[sjpecific findings of fact are not required, but, if made, shall not be binding in any subsequent proceeding.” Id. The CDA further provides that, after a contracting officer renders a decision upon a claim, a contractor may bring an action directly on the claim in the Court of Federal Claims. 41 U.S.C. § 609(a)(1). In the Court of Federal Claims, the action proceeds “de novo in accordance with the rules of the ... court.” 41 U.S.C. § 609(a)(3).

In Assurance Co. v. United States, 813 F.2d 1202 (Fed.Cir.1987), this court addressed the question of the status of a contracting officer’s decision under the CDA. The issue in Assurance was whether the Armed Services Board of Contract Appeals (Board) could legally reduce a contracting officer’s award to a contractor when the contractor, dissatisfied with the award, brought an action before the Board. We concluded that, under the CDA, the Board did have the power to reduce the contracting officer’s award. In reaching that conclusion, we looked to the provisions of the CDA cited above which state (i) that findings of fact by a contracting officer are not binding in any subsequent court proceeding, 41 U.S.C. § 605(a); and (ii) that in a court action following a contracting officer’s decision, the suit is to proceed de novo, 41 U.S.C. § 609(a)(3). In addressing the de novo nature of the proceedings under the CDA, we stated:

[Tjhe Disputes Act itself suggests that, where an appeal is taken to a board or court, the contracting officer’s award is not to be treated as if it were the unappealed determination of a lower tribunal which is owed special deference or acceptance on appeal.

Assurance, 813 F.2d at 1206.

The plain language of the CDA and our decision in Assurance make it clear that when suit is brought following a contracting officer’s decision, the findings of fact in that decision are not binding upon the parties and are not entitled to any deference. The contractor has the burden of proving the fundamental facts of liability and damages de novo. See Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (Fed.Cir.1991) (“To receive an equitable adjustment from the Government, a contractor must show three necessary elements — liability, causation, and resultant injury.”). See also William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984); Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed.Cir. 1982). This means that when the claim being asserted by the contractor is based upon alleged government-caused delay, the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor.

The plain language of the CDA and our decision in Assurance also make it clear that, in court litigation, a contractor is not entitled to the benefit of any presumption arising from the contracting officer’s decision. De novo review precludes reliance upon the presumed correctness of the decision. See Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 23, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974) (de novo proceeding is “unfettered by any prejudice from the agency proceeding and free from any claim that the [prior] determination is supported by substantial evidence”)- Thus, once an action is brought following a contracting officer’s decision, the parties start in court or before the board with a clean slate. In this case, after stating that Wilner had failed to carry his burden of proof with respect to alleged government-caused delay, Wilner, 26 Cl.Ct. at 277, the Claims Court stated that Wilner’s failure to present a critical path analysis was “an insufficient basis to reject the contracting officer’s determinations of critical path delay days based on the technical analysis.” Id. at 279. As discussed above, the court then relied simply upon the fact of Mr. Lindstrom’s decision in making its award to Wilner. Thus, contrary to the mandate of the CDA that a contracting officer’s findings of fact are not “binding in any subsequent proceeding,” 41 U.S.C. § 605(a), and contrary to the conclusion in Assurance that a contracting officer’s award is owed neither “special deference [nor] acceptance,” the Claims Court used Mr. Lindstrom’s final decision to trump the evidence at trial, thereby allowing Wilner to escape the consequences of his failure to meet his burden of proof.⁷ We hold that the Claims Court’s approach constituted legal error because it was contrary to the concept of proceeding de novo, which is mandated by the CDA.

IV

As noted above, in its decision, the Claims Court relied upon J.D. Hedin Construction Co. v. United States, 347 F.2d 235,171 Ct.Cl. 70 (1965). In Hedin, one of our predecessor courts, the United States Court of Claims, determined the extent of government-caused delays arising from a contract for the construction of hospital facilities. In so doing, the court noted that the “grant of an extension of time by the contracting officer carries with it the administrative determination (admission) that the delays resulted through no fault of the contractor.” Id. 347 F.2d at 245. The court further stated that “the findings of the contracting officer have been said to constitute a strong presumption ... or an evi-dentiary admission ... of the extent of the Government’s liability, but always subject to rebuttal.” Id. (citations omitted).

The Claims Court’s reliance on Hedin was misplaced. Hedin predates the effective date of the CDA by more than ten years, and “[w]ith the passage of the [CDA], a new era in the resolution of Government contracts emerged.” Tuttle/White Constructors, Inc. v. United States, 228 Ct.Cl. 354, 656 F.2d 644, 646 (1981). The plain language of the CDA provides that “[sjpecific findings of fact [by the contracting officer] ... shall not be binding in any subsequent proceeding,” 41 U.S.C. § 605(a), and that an action in court on a claim “shall proceed de novo.... ” 41 U.S.C. § 609(a)(3).⁸ Contrary to the plain language of the CDA, however, Hedin makes a contracting officer’s findings binding upon the government as strong presumptions or evidentiary admissions in a subsequent proceeding unless they are rebutted. Also, a court proceeding on a claim cannot fairly be termed “de novo” if the government is said to enter the proceeding with the contracting officer’s decision on the claim constituting a strong presumption or evidentiary admission, subject to rebuttal, of the extent of the government’s liability. Accordingly, we today expressly overrule Hedin to the extent that it stands for the proposition that a contracting officer’s decision constitutes a strong presumption or an evidentiary admission of the extent of the government’s liability, albeit subject to rebuttal.⁹

V

One final point should be noted. Nothing we say today should be viewed as suggesting that a contracting officer is not competent to offer testimony in a board of contract appeals hearing or in a trial in the Court of Federal Claims. Subject to the Federal Rules of Evidence, in any given case contracting officer testimony certainly is admissible. Neither should anything we say today be viewed as suggesting that a contracting officer’s final decision has no place in a board of contract appeals proceeding or in litigation in the Court of Federal Claims. Such a decision — or at least the submission of a claim requesting such a decision — is of course necessary to establish jurisdiction in the board or the court, to give one example that comes to mind. See 41 U.S.C. § 605(a), (e). The critical point is that, in this case, the Claims Court erred as a matter of law by using Mr. Lindstrom’s final decision in a way that was inconsistent with the CDA’s requirement of de novo review of Wilner’s claim.

CONCLUSION

The judgment of the Claims Court in favor of Wilner is vacated, and the case is remanded for further proceedings. The government has asked us to direct the entry of judgment in its favor in the amount of $17,259.46. On the record before us, however, we are unable to say whether it is entitled to such a result. On remand, therefore, the Court of Federal Claims is directed to determine whether either Wilner or the government is entitled to an award in view of the finding — based upon the evidence at trial — that the Navy was responsible for 91 days of critical path delay with respect to the duet revision work. The court should then enter judgment accordingly.

COSTS

Each party shall bear its own costs.

VACATED and REMANDED WITH INSTRUCTIONS.

1 . The Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 902(a), 106 Stat. 4506, 4516, changed the name of the United States Claims Court to the “United States Court of Federal Claims.” Except where the context requires otherwise, we refer to the trial court by the name which it had while this matter was pending before it.

2 . Wilner v. United States, 26 Cl.Ct. 260 (1992).

3 . Wilner v. United States, 994 F.2d 783 (Fed.Cir.1993) (vacated).

4 . Wilner also requested compensation for weather-related delays. Wilner contended that, but for delays attributable to the government, he would have completed the project before it experienced weather delays. The Claims Court concluded that, because the contract was extended by bilateral modifications, it was impossible for Wilner to prove that he would have completed the project before weather interfered. Id. at 276-77. The issue has not been raised on appeal.

5 . A “critical path” is a way of grouping interrelated activities in a construction project. A delay to an activity that is on the "critical path" usually results in a corresponding delay to the completion of the project. "The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.” G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984), cited with approval in Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1177 (Fed.Cir.1994).

Regarding the duct revision work, the Claims Court stated: "Without a critical path analysis, the court cannot exclude the possibility that the contractor caused concurrent delay on the project.” Wilner, 26 Cl.Ct. at 274. As for the OWJ revision work, the court stated: “The absence of a critical path analysis prevents the court from discerning whether the OWJ design defect may have been discovered earlier, but for a delay of the contractor.... The evidence relating to the OWJ revision work is insufficient for this court to attribute critical path delay to the Navy." Id. at 275-76. Finally, regarding the smoke detector work, the court stated: "The absence of a critical path analysis for the project prevents the court from determining that critical path delay, attributable to the Navy, occurred with respect to the smoke detector work.” Id. at 276.

6 . The contracting officer did not issue a final decision demanding that Wilner return the $133,094.79 credited to him. Accordingly, the Claims Court ruled that, as far as the proceedings before it were concerned, the government was limited to seeking return of the net award of $17,259.46 which the contracting officer had made to Wilner. 26 Cl.Ct. at 279. Having made an award to Wilner based upon its finding of 259 days of government-caused delay, the court denied the government's claim for return of the $17,259.46.

7 . The Claims Court distinguished Assurance on the ground that, unlike Assurance, facts “justifying rejection of the contracting officer’s determination of critical path delay days and additional work days ... are not present in this case." Wilner, 26 Cl.Ct. at 280. The Claims Court continued, "Contracting officer Lindstrom did not disavow or undermine his decision except as to minor adjustments.” Id. However, trader the CDA's de novo standard of review, the government was not required to disavow the findings in Mr. Lindstrom's decision. Once Wilner brought suit in the Claims Court, as a matter of law, Mr. Lindstrom's findings were of no force or effect. Under 41 U.S.C. § 605(a), "[sjpecific findings of fact [by the contracting officer] ... shall not be binding in any subsequent proceeding.”

8 . Moreover, as noted in Assurance, Court of Claims precedent after Hedin held that, in the event of an appeal to a board of contract appeals under the disputes clause of a government contract, the contracting officer's decision was deemed "vacated” and enjoyed "no presumptive validity whatever.” Southwest Welding & Mfg. Co. v. United States, 413 F.2d 1167, 1184-85 (Ct.Cl.1969). "There is no reason to believe that, in enacting the Contract Disputes Act, Congress intended to change this established rule.” Assurance, 813 F.2d at 1206.

9 . Our respected dissenting colleague states that “neither the CDA's 'de novo' provision nor its requirement that the contracting officer's fact findings be nonbinding constituted a change in the law with respect to J.D. Hedin." This statement brings into sharp focus the fundamental point of difference between the majority and the dissent. Our holding today is based upon the conclusion that the CDA did, in fact, constitute such a change in the law with respect to Hedin. In view of this fundamental point of difference, we do not believe that any useful purpose would be served by debating the subsidiary points raised in the dissent.