S & E Contractors, Inc. v. United States

PETITIONER: S & E Contractors, Inc.
RESPONDENT: United States
LOCATION: University of Wisconsin-Oshkosh

DOCKET NO.: 70-88
DECIDED BY: Burger Court (1972-1975)

CITATION: 406 US 1 (1972)
REARGUED: Mar 20, 1972
DECIDED: Apr 24, 1972
ARGUED: Oct 21, 1971

Geoffrey Creyke, Jr. - for petitioner
Irving Jaffe - for respondent

Facts of the case


Media for S & E Contractors, Inc. v. United States

Audio Transcription for Oral Argument - October 21, 1971 in S & E Contractors, Inc. v. United States

Audio Transcription for Oral Reargument - March 20, 1972 in S & E Contractors, Inc. v. United States

Warren E. Burger:

We'll here arguments next in number 70-88, S & E Contractors against the United States.

Mr. Creyke, you may proceed whenever you're ready.

Geoffrey Creyke, Jr.:

Mr. Chief Justice, may it please the Court.

This case is also here for re-argument, and it comes from the United States Court of Claims.

It involves the finality under a 1961 Federal Construction Contract of an administrative disputes decision favorable to the contractor, allowing payment for certain routine contract changes, which decision was accepted by the contractor and by the agency, the Atomic Energy Commission.

What was collaterally attacked by the Comptroller General on his own initiative precluding payment and forcing us to suit in the Court of Claims.

There is no issue as to the authority to enter the contract, obligate funds or indeed to conduct the disputes process.

Neither is there any allegation of any fraud, wrongdoing or impropriety whatsoever on the part of anyone connected with the contractor or the AEC.

The matter is simply one in which we say the Comptroller General in an overreaching of his powers has blocked payment of the resolution of this matter under the disputes process, forcing the contractor into litigation.

The Department of Justice here, takes the position that the action of the Comptroller General is immaterial and although it is not supported by the Atomic Energy Commission in it's pursuit of this, nevertheless contends that this creates a right of judicial review of this procedure.

The case was decided by the Court of Claims in a 4 to 3 Opinion, the majority holding that regardless of what precipitated the litigation, there would be a judicial review conducted under the standards of the Wunderlich Act of 1954.

And the case was remanded to the Commissioner of the Court of Claims for hearing on the merits.

Therefore the case is not here on the merits as such, but on the question of the finality of this determination under the disputes process and the rights of the contract, to which he is asserting to hold that disputes process having been accepted by the agency was final.

And it is not subject to collateral attack.

The case therefore involves a contract between the agencies and an interpretation of this Wunderlich Act.

If I may briefly review the history of the case itself, it is laid out as a chronology on page one of the appendix.

It was a Lump sum competitively bid Federal construction contract to build a portion of the Atomic Reactive Test Station for the navy in Idaho.

The original sum was $1,272,000 and the contract performance period was 180 days or to run from August 1961 to February 1962.

The contract was entered into on a US Standard Form 23, 23A and so forth, well with the contact of the 1953 edition with the normal and usual act, with adjustment clauses for changes, change conditions and other factors in the contact.

It worked, however, due to extra work and extra time, actually consumed 325 days or in effect approximately double the time of performance and the expenditures involved.

Six claims arose out of this and amounting to $1,950,000 and claims for an additional 120 days in time extensions.

They are routine claims.

Nothing extraordinary other than the magnitude of them in relation to the basic contract and the type of thing that is encountered in almost all federal construction contacts.

Denied by the Contracting Officer, a timely appeal taken, they were referred by the Atomic Energy Commission under it's then existing practice to an examiner, who heard in a 13-day hearing, the claims in an adversary proceeding found in December of 1962, for the appellant here on liability.

The matter was remanded by him to the contacting officer to negotiate quantum.

The Contacting Officer appealed to the commission itself.

This proceeding to this extent being a little different from your normal Board of Contract Appeals type of proceeding which is prevalent throughout most of the Federal departments today.

The full Commission --

William J. Brennan, Jr.:

Including this Commission, Mr. Creyke?

Geoffrey Creyke, Jr.:

Sir today, they have a Board of Contract Appeals, just as does the Department of Defense does, yes sir.