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S.J. Amoroso Construction Co. v. United States

Decided: December 17, 1993.

S.J. AMOROSO CONSTRUCTION CO., INC., PLAINTIFF-APPELLANT,
v.
THE UNITED STATES, DEFENDANT-APPELLEE.



Appealed from: U.S. Court of Federal Claims. Judge Lydon

Before Archer, Michel, and Plager, Circuit Judges.

Archer

ARCHER, Circuit Judge.

S.J. Amoroso Construction Co., Inc. (Amoroso) appeals the summary judgment of the United States Claims Court,*fn1 S.J. Amoroso Construction Co. v. United States, 26 Cl. Ct. 759 (1992), denying Amoroso's claim for additional compensation under a contract with the Army Corps of Engineers (Corps). We affirm.

I.

The facts underlying this appeal are set forth more completely in the opinion of the Claims Court, 26 Cl. Ct. 759, and a familiarity with that opinion is presumed. On August 17, 1987, the Corps and Amoroso entered into a $10,786,274.20 contract for the construction of a commissary building at the Presidio, San Francisco, California. The contract was subject to the requirements of the Buy American Act (BAA), 41 U.S.C. §§ 10a-10d (1982), and corresponding Federal Acquisition Regulations (FAR) see 48 C.F.R. §§ 52.225-1 to -14 (1986). Instead of using the FAR clause for construction contracts, 48 C.F.R. § 52.225-5 (hereafter clause 34), however, the contract included the FAR clause pertaining to nonappropriated fund supply contracts, 48 C.F.R. § 52.225-3 (hereafter clause 79). Amoroso does not dispute that the contract in this case is a construction contract.

Amoroso subcontracted with Bostrom-Bergen Metal Products (Bostrom) on September 25, 1987, for structural steel, miscellaneous steel, structural welding, ultrasonic inspection of welds and steel joists. After Bostrom informed Amoroso that it intended to purchase material from a foreign mill, Amoroso notified Bostrom by letter dated December 28, 1987 that its "products are not preassembled, therefore each item that is delivered to the site must be American made." Amoroso enclosed with the letter a Corps compliance memorandum entitled "Updated Guidance on Buy American Act," dated December 9, 1982, which, inter alia, provided:

4. . . . construction materials means articles, materials and supplies brought to the site for incorporation in the building or work. Components means articles, materials and supplies directly incorporated in construction materials.

5. Where the construction material has only one part it becomes synonymous with component. A Japanese beam is made of one component, hence the beam is 100% Japanese. Since the beam must be 50% 'domestic' (or excluded) components, it is rejected.

In January 1988, Amoroso requested that Bostrom confirm in writing its compliance with the BAA. Bostrom responded in a January 21, 1988 letter in which it set out the total cost for foreign steel purchased as $70,882.60 and the total cost of "domestic product" as $101,767.64. The actual cost figures for "domestic product" apparently were adjusted downward because Amoroso thereafter informed the Corps that foreign steel costs were $70,000.00 and that domestic costs were $88,820, comprising the following:

DOMESTIC--LABOR & MATERIAL

Cost to detail & cut raw material

into specified lengths (beams) $8,000

Cost to install domestic ...


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