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749 F.2d 724

Docket Appeal No. 84-1247.

Maintenance Engineers v. United States

United States Court of Appeals for the Federal Circuit

Decided Dec. 10, 1984.

United States Court of Appeals for the Federal Circuit · decided 1984-12-10

2 counsel of record

Key passage — most relied on by later courts

“the purchaser agrees to buy all of its needs for specified goods or services from a particular supplier, and the supplier agrees to fill all of such needs during the period of the contract.”

quoted by 1 later decision, including Banner Fibreboard Company v. Clinton Paper Company, Banner Fibreboard Company v. Clinton Paper Company

“to order a minimum value of ... services during the life of the contract while retaining the right to obtain additional such services from any source it chose.”

quoted by 1 later decision, including Crown Laundry Dry Cleaners Inc v. United States

Applies 41 U.S.C. § 609

Relies on American Sterilizer Co. v. Sybron Corp. · Torncello v. United States · Torncello v. United States

Good law ✅— No negative treatment on recordhow we know

Opinion by MILLER · Decided 1984-12-10

How this case has been cited

Cited by 16 later decisions — most recently October 2024

8 federal appellate ·

5019841990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*725Roger K. Stewart, Fresno, Cal., submitted for appellant.

¶2Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Sandra P. Spooner, and Helene M. Goldberg, Washington, D.C., submitted for appellee.

¶3Before BALDWIN, Circuit Judge, SKEL-TON, Senior Circuit Judge, and JACK R. MILLER, Circuit Judge.

¶4JACK R. MILLER, Circuit Judge.

¶5This appeal is from that portion of the decision of the Armed Services Board of Contract Appeals (“board”), Maintenance Engineers, ASBCA No. 25,464, 84-1 BCA 11 17,100 (1983), denying appellant additional compensation (under its contract with the Department of the Navy for maintenance of family housing facilities at Naval installations in the San Diego, California, area) for an alleged breach by the Government in conducting a voluntary self-help program under which tenants residing in the facilities performed minor maintenance (e.g., painting) on their housing units.1

¶6The “BIDDING INFORMATION” issued with the Invitation For Bids states inter alia:

20. OPEN END CONTRACT. This is an “open end” contract with no fixed contract price. The actual amount of work to be performed and the time of such performance will be determined by the Officer in Charge or his properly authorized representative, who will issue written work orders to the Contractor. The only work authorized under this contract is that which is performed upon receipt of such a work order. The Government makes no representation as to the number of work orders or actual amount of services which will in fact be requested, nor is the Government obligated to accept any specified amount of service. However, during the term of this contract [12 months], a minimum of 40% of the dollar value [$471,000] of Bid Item No. 1 worth of services will be ordered. Amount of work to be ordered shall not exceed maximum of 100% over Bid Item 1.[2]

¶7Tie General Provisions of the contract include a standard clause 45, “REQUIREMENTS,” which provides, inter alia:

(a) This is a requirements contract for the supplies or services specified in the Schedule....
(b) Except as otherwise provided in this contract, the Government shall order *726from the Contractor all the supplies or services set forth in the Schedule which are required to be purchased by the Government activity identified in the “Orders” clause. [Emphasis added.]

¶8The SPECIAL PARAGRAPHS portion of the contract provides:

12. ORDER OF PRECEDENCE: In the event of an inconsistency between the provisions of this solicitation, the inconsistency shall be resolved by giving precedence in the following order: (a) the Schedule ...; (b) Terms and Conditions of the solicitation, if any; (c) General Provisions; (d) other provisions of the contract, when attached ...; and (e) the Specifications and sketches.
26. WORK BY OTHERS: The Government reserves the right to accomplish work within the scope of this contract by Government forces or by another separate contract at the discretion of the Officer in Charge. This will apply on circumstances involving enormous magnitude of work that is beyond the capability of the Contractor to accomplish ... within the time frame favorable to the Government.

¶9To the extent that there may be an inconsistency between the “WORK BY OTHERS” provision and the “OPEN END CONTRACT” provision, quoted earlier, the latter prevails under the contract’s “ORDER OF PRECEDENCE” clause.

¶10Notwithstanding clause 45 of the General Provisions, the Contracting Officer correctly determined that the contract is not a requirements-type contract, which is one in which the purchaser agrees to buy all of its needs for specified goods or services from a particular supplier, and the supplier agrees to fill all of such needs during the period of the contract. Mason v. United States, 615 F.2d 1343, 1346, 1349, 222 Ct.Cl. 436, cert. denied, 449 U.S. 830, 101 S.Ct. 98, 66 L.Ed.2d 35 (1980). We conclude, as did the Contracting Officer, that this is an indefinite quantities contract3 under which the legal obligation of the Government was to order a minimum value of maintenance services during the life of the contract while retaining the right to obtain additional such services from any source it chose.

¶11This legal obligation of the Government was to order 40% of $471,000, or $188,400, of maintenance services from appellant. Thus, the $188,400 of services was the amount required to be purchased. The difference between the $471,000 maximum that could be ordered and the $188,400 required to be purchased, or $282,600, was not required to be purchased from appellant (or from anyone else). Compare Ralph Construction, Inc. v. United States, 4 Cl.Ct. 727 (1984). As noted earlier, the Government’s orders from appellant amounted to approximately $134,600 in excess of the minimum required to be purchased.

¶12In view of the foregoing, the board’s decision is affirmed.4

¶13AFFIRMED.

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