United States District Court, M.D. Georgia, Columbus Division
UNITED STATES OF AMERICA, for the use and benefit of DEBOURGH MANUFACTURING COMPANY, Plaintiff,
GSC CONSTRUCTION, INC., and ALLIED WORLD SPECIALTY INSURANCE COMPANY, f/k/a Darwin National Assurance Company, Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF
November 2014, the United States Army Corps of Engineers
(“Army”) awarded a contract for a renovation
project on Fort Benning to Defendant GSC Construction
(“GSC”). Pursuant to the Miller Act, 40 U.S.C.
§ 3131-34, GSC posted performance and payment bonds,
with Defendant Allied World Specialty Insurance Company
(“Allied”) as surety. As part of the renovation,
the Army required GSC to install storage lockers in the
buildings. GSC solicited quotes from multiple subcontractors
for the manufacture and installation of lockers that complied
with the contract specifications. GSC submitted various
locker options to the Army that GSC believed complied with
the specifications. Nevertheless, the Army rejected all but
the most expensive option, a storage locker with woven wire
mesh manufactured by Plaintiff Debourgh Manufacturing Company
(“Debourgh”). The woven wire lockers cost $321,
943.52. After completion of the project, GSC only paid
Debourgh $172, 494.07. Debourgh subsequently brought this
action and alleged claims of breach of contract and quantum
meruit. Debourgh also brought a claim on the Miller Act
payment bond. Debourgh also sued for unexpected costs it
allegedly incurred during installation and for an award of
attorney's fees. Defendants contend that Debourgh
improperly caused the Army to reject the lower-cost proposals
and to insist on Debourgh's more expensive product. GSC
therefore argues that Debourgh should be equitably estopped
from recovery. GSC also brought a counterclaim against
Debourgh for tortious interference with its contract with the
Army. Debourgh filed a Motion for Partial Summary Judgment on
its Miller Act claim, against GSC's counterclaim, and for
the costs of the action (ECF No. 17). Because Defendants
cannot establish that Debourgh's communications with the
Army influenced the Army's requirement for woven wire
mesh lockers, the Court grants Debourgh's motion with
respect to its Miller Act claim and GSC's counterclaim.
Further, because Defendants pointed to no evidence or law to
the contrary, the Court concludes that Debourgh is entitled
to accrued finance charges on GSC's unpaid balance.
Finally, the Court denies Debourgh's motion for costs
pending the outcome of Debourgh's remaining claims.
judgment may be granted only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In determining whether a genuine
dispute of material fact exists to defeat a motion
for summary judgment, the evidence is viewed in the light
most favorable to the party opposing summary judgment,
drawing all justifiable inferences in the opposing
party's favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A fact is material if it
is relevant or necessary to the outcome of the suit.
Id. at 248. A factual dispute is genuine if
the evidence would allow a reasonable jury to return a
verdict for the nonmoving party. Id.
in the light most favorable to the non-movants, the record
reveals the following:
Debourgh's 2013 Project
in 2013, Debourgh manufactured and installed woven wire mesh
TA-50 equipment storage lockers for a different project on
Fort Benning. Salo Dep. 37:13-17, ECF No. 25-2.
Debourgh's point of contact with the Army for that
project was First Lieutenant Aaron Boyer. GSC was not
involved in the 2013 project.
Buildings 2944-2945 Project
November 2014, the Army awarded GSC a contract for the
renovation of Buildings 2944 and 2945 on Fort Benning. One of
the requirements of the contract was to install equipment
lockers in the renovated buildings. The contract set forth
some specifications for the lockers, but it did not require
the use of woven wire mesh. In January 2015, GSC vice
president John Phillips sent an email to Debourgh requesting
a quote for lockers that complied with the specifications in
the contract. Phillips attached pictures of the Debourgh
lockers from the 2013 project to his email. Phillips
explained that the lockers in the attached pictures were the
ones that GSC needed for the 2944-2945 project. Berg Decl.
Ex. A, Email from Phillips to Debourgh Sales (Jan. 30, 2015),
ECF No. 17-2 at 10. In response, Debourgh sales
representative Patrick Berg sent GSC a quote of $309, 480.10
for the woven wire mesh lockers that matched the lockers in
the picture. Berg Decl. Ex. B, Woven Wire Mesh Quote (Feb.
16, 2015), ECF No. 17-2 at 21. Berg also sent GSC a quote of
$265, 124.38 for expanded metal mesh lockers. Berg Decl. Ex.
C, Expanded Metal Mesh Quote (Feb. 16, 2015), ECF No. 17-2 at
also solicited quotes from Lyon Workspaces, a competing
locker manufacturer. In June 2015, GSC submitted Lyon lockers
to the Army at a cost of $170, 065.00. Def. Allied's
Resp. Ex. D, Letter from GSC to Army, ECF No. 24-4 at 13-17.
In July 2015, the Army rejected this submittal. In its
rejection, the Army explained to GSC that the lockers used in
the 2944-2945 project “[m]ust replicate existing 3/75
Quad COF TA50 lockers exactly . . . .” Def.
Allied's Resp. Ex. F, Gov't Review Remarks (July 30,
2015), ECF No. 24-6 at 1. GSC submitted another Lyon product
in August 2015, which was also rejected by the Army because
it “[did] not meet the owner
requirements.”Def. Allied's Resp. Ex. F, Gov't
Review Remarks (Sept. 2, 2015), ECF No. 24-6 at 2.
September 2015, after the Army rejected the Lyon lockers, GSC
submitted the Debourgh woven wire mesh lockers to
the Army for approval. The Army accepted this proposal on
September 30, 2015, giving GSC the go ahead to order the
lockers. Berg Supplemental Decl. Ex. B, Army Approval for
Woven Wire Mesh Lockers, ECF No. 27-1 at 23-26. On November
6, 2015, GSC emailed Berg and placed an order for the
expanded metal mesh lockers, not the woven wire mesh
lockers that had been submitted to and approved by the Army.
Berg Decl. Ex. E, Email from GSC to Berg (Nov. 6, 2015), ECF
No. 17-2 at 29-31. To meet the deadline for the project,
Debourgh began processing the order immediately. Berg
Supplemental Decl. Ex. A, Email from Berg to GSC (Nov. 9,
2015), ECF No. 27-1 at 16-17.
Replacement Locker for the 2013 Project
the same time, Berg and Lieutenant Boyer began discussing a
replacement locker for the 2013 project. Sometime before
August 2015, someone vandalized a locker from the 2013
project. Salo Dep. 40:10-21. On August 24, 2015, Lieutenant
Boyer sent an email to Debourgh about repairing or replacing
the vandalized locker. In his email, Lieutenant Boyer asked
Debourgh whether it had “been able to identify a model
number or a price of the wall lockers in the photos [Boyer]
sent last week?” Def. Allied's Resp. Ex. B, Email
from Boyer to Debourgh (Aug. 24, 2015), ECF No. 24-2 at 19.
Berg replied to Boyer and said he was “working out how
to get you a replacement locker . . . .” Id.,
Email from Berg to Boyer (Aug. 24, 2015), ECF No. 24-2 at 18.
Berg told Boyer that he was working with GSC on the 2944-2945
project. Berg explained that he had not yet received the
purchase order for the 2944-2945 project, but that if the
lockers for the purchase order matched the locker that Boyer
sought to replace, Berg “would be willing to just add
on an additional locker” to the 2944-2945 project run
to keep the cost down ...