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United States v. GSC Construction, Inc.

United States District Court, E.D. North Carolina, Western Division

August 21, 2017

THE UNITED STATES OF AMERICA for the use and benefit of NETPLANNER SYSTEMS, INC., Plaintiff,
v.
GSC CONSTRUCTION, INC., and LIBERTY MUTUAL INSURANCE COMPANY, Defendants.

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE

         This matter is before the court on the 11 January 2017 motion for summary judgment filed by plaintiff the United States of America for the use and benefit of NetPlanner Systems, Inc., (“NetPlanner”). (DE # 13.) Defendants GSC Construction, Inc. (“GSC”) and Liberty Mutual Insurance Company (“Liberty”) filed a response in opposition on 16 February 2017, (DE # 27), to which NetPlanner replied on 27 February 2017, (DE # 29). The motion has been fully briefed and is ripe for disposition.

         I. BACKGROUND

         This case involves a contractual dispute arising out of a government construction project for the United States Army Corps of Engineers (the “Corps”). GSC was retained as a general contractor by the Corps to construct the SOF Communications Training Facility at Fort Bragg, North Carolina (the “Fort Bragg Project”). (Roberts Aff., DE # 13-3, ¶¶ 6, 14.) As required by the Miller Act, 40 U.S.C. §§ 3131-34, GSC obtained performance and payment bonds for the project from Liberty. (See Ex. 10, DE # 13-12.) On 16 November 2012, GSC entered into a subcontract with NetPlanner to provide cabling and wiring services and materials on the Fort Bragg Project. (Roberts Aff., DE # 13-3, ¶¶ 7, 14). The subcontract set NetPlanner's compensation at $296, 074, subject to additions and deletions provided for under the subcontract. (See Ex. 5, DE # 13-7.)

         In addition to setting forth payment obligations, the subcontract set forth a time requirement for when the work was to be substantially completed. Specifically, Article 9 of the subcontract, which is entitled “Date of Commencement and Substantial Completion, ” states in pertinent part:

9.3 The Work of this Subcontract shall be substantially completed not later than
Per Owner's approved schedule
subject to adjustments of this Subcontract Time as provided in the Subcontract Documents.
9.4 With respect to the obligations of both the Contractor and the Subcontractor, time is of the essence of this Subcontract. *The approved project schedule is available on site. Subcontractor is responsible for reviewing this schedule periodically.
9.5 No extension of time will be valid without the Contractor's written consent after claim made by the Subcontractor in accordance with Paragraph 5.3.

(Ex. 5, DE # 13-7, at 9.) With respect to claims made by the subcontractor, Paragraph 5.3 states:

The Subcontractor shall make all claims promptly to the Contractor for additional costs and extensions of time or other causes in accordance with the Subcontract Documents. A claim which will affect or become part of a claim which the Contractor is required to make under the Prime Contract within a specified time period or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Prime Contract. Such claims shall be received by the Contractor not less than two working days preceding the time by which the Contractor's claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound.

(Id. at 7.)

         NetPlanner began work on the Fort Bragg Project in or around the first quarter of 2014, and completed its contractual scope of work in or around May 2015. (Roberts Aff., DE # 13-3, ¶ 15.) During the course of performance, GSC submitted two change orders for additional work in the amount of $4, 044.28. (Id. ¶¶ 16-17; see also Ex. 7, DE # 13-9.) This increased the total price of the subcontract to $300, 118.28. (Roberts Aff., DE # 13-3, ΒΆ 17.) GSC paid NetPlanner a total amount of $259, 391.33 for work performed on ...


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