Government Contracts Monitor

Court of Federal Claims Tells Contractor to Go Pound Sand

January 25, 2013

The Court of Federal Claims recently granted the Government’s motion to exclude expert testimony in case involving a contractor’s claims for utility location services, finding that the contract was unambiguous.  See Cheaves v. United States, No. 12-228C (Fed. Cl. Jan. 10, 2013).

At issue in the case was the interpretation of a particular line item in a firm fixed price contract calling for the contractor to “locate underground utilities for issuance of dig permits.”  There could be as many as three or more utilities at any one dig location so the question was whether the contractor would be paid per utility or per dig permit site.  Multiplied over the 7,804 locations, the difference amounted to almost $3 million dollars.

The Court held that the “unit” contemplated was the dig permits and not the location of each individual utility as “the end result in each instance is the issuance of a permit.”  The Court refused to consider plaintiff’s expert report on the trade usage of “locate” as the contract was unambiguous and the proposed definition was no different from the definition contained in a “best practices” manual that was already incorporated into the contract.  Thus, the report added nothing new to the interpretation of a contract term which the Court found to be unambiguous.

Technically, the Court merely granted the Government’s motion to exclude the expert report.  However, the Court’s opinion on the interpretation of the contract is likely fatal for the contractor’s claims.

 

Jeffry Cook is the attorney responsible for the content of this article.