# In the United States Court of Federal Claims

No. 18

- 1943C (Filed: August 11

, 2020 )

HCIC ENTERPRISES, LLC, d/b/a HCI GENERAL CONTRACTORS,

Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Keywords: Failure to State a Claim; RCFC 12(b)(6); Sua Sponte; Contracting

Officer Final Decision

Frank V. Reilly

, Fort Lauderdale, FL , for Plaintiff.

Robert C. Bigler , Trial Attorney, Commercial Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for Defendant, with whom were Steven J. Gillingham , Assistant Director, Robert E. Kirschman, Jr. , Director, Joseph H. Hunt , Assistant Attorney General.

ORDER

KAPLAN, Judge.

This case

— which is before the Court on its o rder to s how c ause why the c omplaint

s hould n ot be d ismissed

— involves a contract to repair roofs at the Federal Correctional Institution in Estill, South Carolina (“FCI Estill”)

. 1 In its ini tial complaint, Plaintiff HCIC Enterprises, LLC (“HCIC”) alleged that the Federal Bureau of Prisons (“FBOP”) breached the contract when it failed to provide HCIC’s crews “access” to the worksite. Before the agreed

upon discovery period closed, HCIC filed a motion for summary judgment ( which it styled a motion for judgment on the pleadings)

, and to which the government responded by filing its own

cross

- motion for partial summary judgment concerning an issue of contract interpretation

.

After holding oral arg ument, t he Court denied HCIC’s motion for summary judgment and granted the government’s cross

- motion. It held that contractual provisions promising HCIC

1 The Court has set forth a more detailed recitation of the relevant facts in its previous orders.

See generally HCIC Enters

. , LLC v. United States , 147 Fed. Cl. 118 (2020) (denying HCIC’s motion for summary judgm ent and granting the government’s cross

- motion for partial summary judgmen t ); HCIC Enters., LLC v. United States , 2020 WL 4197996 (Fed. Cl. July 9, 2020) ( denying HCIC’s second motion to amend its complaint ).2 “access” to the worksite must be read in light of applicable security requirements . Those requirements dictated that HCIC’s workers must be accompanied by prison escorts while at FCI

Estill , and which stated that FBOP was only required to make two escorts available for that

purpose

. Id.

In the meantime, HCIC filed a mo tion to amend its complai nt t he day before the Court

ruled on the cross

- motions

. See ECF No. 27

. Then, the day before the government’s response to

th at motion was due, HCIC filed a second motion to amend

. See ECF No. 29.

The Court denied HCIC’s first motion to amend on moot ness grounds

. It subsequently denied HCIC’s second motion to amend on July 9, 2020

, because none of the claims HCIC set
forth in its proposed amended complaint would survive a motion to dismiss. The Court ordered

HCIC to show cause why its initial (and still op erative) complaint should not be dismissed pursuant to Rule 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”)

.

HCIC filed a response to the Court’s show cause order on July 27, 2020 . In it, HCIC
present s several new theories of recovery : 1) th at the government and not HCIC “ control led the

schedule ” so that “the delay [in completion of the roofing repairs] was beyond HCIC’s control as

a matter of law” ; 2) t hat HCIC has a claim under the differing site conditions clause because “ a review of the physical conditions at the jobsite prior to bid did not plainly reveal that the FBOP’s required 12

- month project duration was impossible ” ; and 3) that FBOP constructive ly chan ge d

the contract by extending its duration beyond the original one

- year performance period

. Pl.’s Resp. to This Ct.’s July 9, 2020 Order to Show Cause (“Show Cause Resp. ”) at 4

– 7 , ECF

No. 38.

At the outset, the Court notes that because none of the claims HCIC presents in its

response are in the operative (original) complaint , its response does not comply with the Court’s

show cause order . That order, as noted, required HCIC to explain why its initial complaint should not be dismissed, sua sponte, for failu re to state a claim. Further, even assuming HCIC

were to file yet another motion to amen d the original complaint

, and assuming the Court were willing to entertain it, none of HCIC’s new contentions would survive a motion to dismiss.

F or example

, HCIC argu es that its project delays were “excusable and compensable”

because FBOP has supposedly “ successfully argued as a matter of law that it controlled the

schedule and that HCIC did not .” Id. at 4. (emphasis removed). The Court does not follow this

argumen t ; t h is Court never held that HCIC “controlled the schedule

. ” I t determined that under

the contract HCIC ’s crews “could only work on one roof at a time, with one escort on the roof and one on the ground.” HCIC Enters. , 147 Fed. Cl. at 125. Therefore, it held, to the extent that the delays were caused by enforcement of the security requirements, HCIC was not entitled to an equitable adjustment of the performance period or the contract price.

Second, HCIC h as n ever made factual allegations tha t would support a claim based on FAR 52.236

- 2 (entitled “differing site conditions”)

. See Show Cause Resp. at 3. It has n ever alleged that delays in the project were caused by “ subsurface or latent physical conditions at the site which differ materially fr om those indicated in this contract, ” or “ unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the3 contract. ” FAR 52.236

- 2 . Nor has it identified what the alleged “latent” or “unknown” physical conditions were that precluded it from timely completing performance. Indeed, to date, the only specific FBOP action that HCIC has contended caused performance delays was F BOP’s enforcement of its security requirements.

HCIC’s constructive change claim (as well as its “cardinal change” argument) simila rly

appear to have no factual or legal basis. As HCIC did in its motion for summary judgment, HCIC simply regurgitate s boilerplate legal propositions without tying them to any supporting factual allegations. See HCIC Enters. , 147 Fed. Cl. at 124 (observing that HCIC “does not identify what

it claims are the undi sputed facts and therefore cannot explain how the application of the legal standards it recites entitles it to judgment as a matter of law ”).

Nor does it appear that HCIC ever presented the claims it is floating in its response to the

show cause order to t he contracting officer . This Court therefore would lack jurisdiction to

consider them under the Contract Disputes Act. See 41 U.S.C. § 7104; M. Maropakis Carpentry,

Inc. v. United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing James M. Ellett Constr. Co. v.

United States , 93 F.3d 1537, 1541

– 42 (Fed. Cir. 1996)) (explaining that a court’s exercise of jurisdiction over a Contract Disputes Act claim “ requires both a valid claim and a contracting

officer ’ s final decision on that claim ”).

In short, t his Court’s decision granting the government’s motion for partial summary judgment effectively dispose d of the sole discernible claim in HCIC’s o riginal complaint , i.e.,

tha t HCIC was entitled to an equitable adjustment of the performance period and contra ct price because FBOP had breached the contract by refus ing to provide HCIC “access ” to the worksite. Compl. ¶ ¶ 13 , 15 , ECF No. 1

. Further, HCIC has now failed on multiple o ccasions to provide

facts and a theory that would support a ny other claim or claims that could withstand a motion to dismiss under either RCFC 12(b)(1) or 12(b)(6 ).

CONCLUSION

For the foregoing reasons, the Plaintiff’s complaint is DISMISSED with prejudice pursuant to RCFC 12(b)(6) for failure to state a claim. The Clerk is directed to enter judgment accordingly. Each side shall bear its own costs.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN Judge