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EVANSVILLE CEMENT FINISHERS INC. v. VILLAGE OF NEW

June 28, 1991

EVANSVILLE CEMENT FINISHERS INC., Plaintiff,
v.
VILLAGE OF NEW HAVEN, ILLINOIS, Defendant



The opinion of the court was delivered by: FOREMAN

 JAMES L. FOREMAN, CHIEF JUDGE.

 This matter is before the Court on defendant Village of New Haven's (Village) motion to dismiss. This motion is well taken, and the Court concludes that the mandatory contract clauses set forth in the 1982 interim rule governing procurement actions taken by recipients of Environmental Protection Agency funds under the Clean Water Act are not incorporated into the contract between the Village and Evansville Cement Finishers, Inc.

 The complaint filed in this case alleges that plaintiff Evansville Cement Finishers, Inc., (ECF) entered into a contract with the Village to construct sewage facilities. The plan for these facilities was prepared by Hunter H. Martin & Associates. The Village received partial funding for this project from the United States Environmental Protection Agency (EPA) under the Clean Water Act, 33 U.S.C. §§ 1251 et seq.

 The complaint further alleges that, during the course of its performance of the construction contract, ECF encountered subsoil conditions which were materially different from those represented by the contract or bid specifications. Specifically, plaintiff alleges that the subsurface conditions included far more rock than anticipated, excessive ground water, and quicksand. All these conditions made ECF incur greater expenses. The complaint alleges that the Village orally authorized ECF to perform additional work due to the different subsoil conditions, and that the Village orally promised to pay ECF for the additional work. ECF is now seeking recovery on a variety of theories, ranging from breach of contract to negligent misrepresentation.

 The Village has now moved to dismiss Count I of the complaint on the merits. Count I of the complaint is titled "Breach of Contract and Federal Regulations." The allegations of Count I are that the contract entered into between Evansville Cement and the Village was subject to the regulations promulgated by the EPA as Part 33 of 40 Code of Federal Regulations, 40 C.F.R. §§ 33.001-33.1145. These regulations include model clauses for agreements made for projects partly funded by the EPA. 40 C.F.R. § 33.1030. ECF alleges that the regulations in effect at the time this contract was entered into require the contract to include provisions for oral modifications of the contract and for an adjustment in the contract price if the specifications given for the project were defective. 47 Fed. Reg. 20,474, 20,483 (1982). The contract does incorporate provisions required by the EPA relating to adjustments in the contract price. Exhibit B to ECF's Motion, pp. EPA-2, EPA-12. The provisions attached to the contract, however, are drawn from a later set of regulations. See 48 Fed. Reg. 12,922 et seq. (1983). The provisions attached to the contract provide for written modifications of the contract only. 48 Fed. Reg. 12,926 (1983).

 With regard to Count I, ECF's theory of recovery is that the EPA regulations governing procurements by recipients of EPA funds are automatically incorporated into each such contract. ECF further argues that the interim rules contained in 47 Fed. Reg. 20,474 (1982) apply to this contract, not the final rules contained in 48 Fed. Reg. 12,922 (1983). Therefore, the interim rules are incorporated into the contract, despite the fact that the parties attached to the contract and expressly incorporated the final rules.

 ECF's legal theory consists of two prongs. The first is that EPA regulations are automatically included in each procurement contract entered into by a recipient of EPA grant money. The second is that the interim final rules applied to the contract to the exclusion of the final rules. Since the Court concludes that the EPA regulations at issue are not automatically included in each procurement contract entered into by a recipient of EPA grant money, it does not have occasion to determine whether the interim final rules or the final rules applied to the contract.

 This case involves two contracts. The first is the grant by the EPA to the Village for the construction of the sewage treatment facility. See 33 U.S.C. § 1283(a) (grant is deemed a contractual obligation of the United States). The regulations promulgated by the EPA are incorporated in this contract. United States v. Bills, 822 F.2d 373, 377 (3d Cir. 1987); but see Heritage Bank & Trust Co. v. Abdnor, 906 F.2d 292, 302 n. 10 (7th Cir. 1990) (clause which states that the contract is subject to present and future regulations should not be interpreted to mean that every agency regulation, no matter how trivial, is incorporated in contract). If the Village had failed to include provisions required by the regulations in its contracts for the construction of the sewage treatment facility, the EPA would have a remedy.

 The Village's obligation to include the EPA provisions in the contract between the Village and ECF derives from its contract for the grant money from the EPA. In order for these provisions to be automatically included in the contract, ECF must show that the provisions were intended for its benefit. In other words, ECF must show that it is a third party beneficiary of the EPA regulations. A beneficiary is an intended beneficiary of the promise if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intended to give the beneficiary the benefit of the promise. Restatement (Second) of Contracts § 302 (1981); see also III E.A. Farnsworth, Farnsworth on Contracts § 10.3 at 13 (1990). ECF does not satisfy either part of the test for an intended beneficiary.

 It was not the intention of the parties in requiring the contractual provisions of 40 C.F.R. § 33.1030 to be included in all procurement contracts to allow additional claims by the contractor. "These regulations appear to be designed primarily to protect the public treasury from excessive expenditures, rather than to protect private contractors whose agreements contain provisions not as generous as those available in the regulations." J.A. Jones Construction Co. v. City of New York, 753 F. Supp. 497, 502 (S.D.N.Y. 1990). *fn2" Allowing a contractor to recover damages based on provisions not expressly included in the contract would not serve to effectuate the intent of the parties to safeguard the public treasury from excessive expenditures.

 ECF does not meet the second part of the test for an intended beneficiary either. The performance of the grant conditions would not satisfy an obligation by the Village to pay ECF money. The obligation to pay the equitable adjustment (if such an obligation exists) arose after the grant to the Village. Thus, it cannot be said that the Village received the EPA grant to pay a debt owed to ECF.

 Nor did the EPA and the Village intend to give ECF the benefit of the grant. The purpose of the grant was "to require and to assist the development and implementation of waste treatment management plan and practices. . . ." 33 U.S.C. § 1281(a). The Village did not ...


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