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advertising displays present in Alabama. The fifth is not truly a factor-it is a restatement of what we were there seeking to ascertain. To state it as a factor is to assume that which is to be proven. However, with regard to his fifth criterion, the trial judge made certain remarks which need to be discussed.

Talking about the pole signs located on plaintiff's own land, these were found to be improvements to land for the following reason:

* [T]he evidence in the record shows that the erection of a pole sign attracts customers to, and increases the business of, the nearby 7-Eleven store. Thus, a pole sign in combination with a 7-Eleven store on land owned by the plaintiff undoubtedly conferred an economic benefit on, increased the value of, and constituted an improvement to the particular parcel of land. With regard to pole signs on leased property, it was pointed out that "the pole signs added to the value of, and represented an improvement to, the plaintiff's leasehold interests in the lands."

This first quoted passage indicates that an asset which increases the level of business done by a person, and thus confers an economic benefit on him, must be an improvement to the land on which that business is conducted. This does not logically follow. Improving the level of business conducted on the land does not, of itself, make the asset an improvement to the land on which the business is carried on. A portable sign mounted on a trailer and placed in front of one of plaintiff's stores would also increase that store's level of business. Yet no one would contend that such a sign is an improvement to the land within the meaning of Treas. Reg. §1.48-1(c). Conferral of economic benefit should therefore not be a factor in deciding whether the asset is an improvement.19

Nor does it follow that an asset's increasing the value of the land makes it an improvement to land. The second quoted passage indicates that an asset placed on land, if it

19 It is implicit in Treas. Reg. §1.48-1(c) that a sign's bestowing an economic benefit on the business does not make the sign an improvement to land. A sign attached to a building is there classified as tangible personal property, which means it is not an improvement. Yet such a sign, if advertising the business conducted by the store on which it is mounted, could confer as much benefit as these 7-Eleven pole signs.

222 Ct. Cl.

increases the value of that land, must be an improvement. Such an assumption proves too much and is therefore not an appropriate factor. Whenever an asset is placed on land, assuming the asset has value, the land and asset considered together will always be worth more than the land without the asset on it.

CONCLUSION OF LAW

Upon the foregoing opinion, the facts as stipulated by the parties, the briefs and oral argument of counsel, the court concludes as a matter of law that the plaintiff is entitled to recover its overpayments for 1970 and 1971, plus assessed and statutory interest, and judgment is entered to that effect. The amount of recovery will be determined by subsequent proceedings pursuant to Rule 131(c).

611 F.2d 354

MONROE M. TAPPER & ASSOCIATES v. THE UNITED STATES

[No. 329-70. Decided December 12, 1979]

OPINION

Contracts; disputes; Contract Disputes Act of 1978; election under Act; interest on judgment.-This case has been the subject of three decisions by this court; in 221 Ct. Cl. 27, 602 F. 2d 311 (1979), plaintiff prevailed on the merits and the court entered judgment for $26,805.94. Plaintiff contended that it was entitled to an equitable adjustment for the use, as a backfill for utility trenches, of gravel required by the contracting officer and concurred in by the contract appeals board, rather than the excavated earth urged by plaintiff in connection with the subject contract entered into in June 1968. Plaintiff, in its memorandum request to elect to proceed under the Contract Dsiputes Act of 1978, seeks to recover interest on the judgment from the date of the contracting officer's final decision of December 1968, contending its claim falls within Sec. 12 of the Act. It is held that plaintiff's claim for extra costs was not pending "then" (i.e. the effective date of the Act, March 1, 1979) before the contracting officer within the meaning of Sec. 16 of the Act, and accordingly plaintiff is not entitled to proceed under the Act and to benefit from the interest provision of Sec. 12 of the Act. 28 U.S.C. § 2516(a) prevails in this case. Plaintiff's memorandum

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request to elect to proceed under the Act and for interest as provided in the Act is denied.

Interest; claims against the United States.

[1] Interest cannot be recovered against the United States upon unpaid accounts or claims absent an express provision to the contrary in a relevant statute or contract.

United States 110

Contracts; disputes; Contract Disputes Act of 1978.

[2] The word "then" in the phrase "any claim pending then before the contracting officer" in Sec. 16 of the Contract Disputes Act of 1978 refers to the effective date of the Act, March 1, 1979, not to the date of enactment, November 1, 1978.

United States 73(9)

Contracts; disputes; Contract Disputes Act of 1978.

[3] Once a contracting officer has rendered a final decision on a claim, that claim is no longer pending before the officer within the meaning of Sec. 16 of the Contract Disputes Act of 1978. The language and legislative history of the Act explicitly prevents a claim which is before the agency board, after having been the subject of a contracting officer's final decision, from being transferred to the Court of Claims under the Act's provisions.

United States 73(14)

Contracts; disputes; Contract Disputes Act of 1978; interest on claims against the United States.

[4] Since once a contracting officer has rendered a final decision on a claim, that claim is no longer pending before the officer within the meaning of Sec. 16 of the Contract Disputes Act of 1978, for purposes of Sec. 12 of the Act the contractor is not entitled to proceed under the Act and to interest on the claim.

[blocks in formation]

Contracts; disputes; Contract Disputes Act of 1978.

[5] A final decision is one which settles rights of parties respecting the subject matter of the suit and which concludes them until it is reversed or set aside. Thus, while a contractor's claim may still be pending when on appeal, within the intent of the Contract Disputes Act of 1978 it cannot be said that the claim is pending before the contracting officer after he renders a final decision, nor pending before that officer because he may settle the claim even while on appeal. United States 73(14)

F. Trowbridge vom Baur, attorney of record for plaintiff. W. Bruce Shirk, of counsel.

R.W. Koskinen, with whom was Acting Assistant Attorney General Alice Daniel, for defendant.

Before COWEN, Senior Judge, KUNZIG, and SMITH, Judges.

222 Ct. Cl.

KUNZIG, Judge, delivered the opinion of the court: This is yet another opinion on plaintiff's claim involving the construction and lease of a Post Office facility in Worchester, Massachusetts.1 After originally filing the claim with the contracting officer in November 1968 plaintiff at last prevailed on the merits and was awarded $26,805.94 by decision of this court dated July 18, 1979, Monroe M. Tapper & Associates v. United States, 221 Ct. Cl. 27, 602 F.2d 311 (1979). Now plaintiff requests interest on its claim from November 1968 until the date of judgment in July 1979, arguing its action falls under the Contract Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 23832 (hereinafter "Act" or "Contract Disputes Act") and the interest provisions thereof. For the reasons discussed below we conclude plaintiff, under these circumstances, may not proceed under the Act. Plaintiff's claim for interest must therefore be denied.3

The facts pertinent to plaintiff's request for interest are as follows. In June 1968, plaintiff entered into a contract with defendant for the construction and lease of a Post Office facility in Worchester, Massachusetts. The contract contained the usual Disputes provision (General Provision 12) which gave plaintiff a 30-day period within which to appeal in writing to the Postmaster General a final decision of the contracting officer rendered on a dispute arising under the contract.4

During construction of the facility a controversy arose in September 1968 as to whether the contract specifications

1 Plaintiff's claim has been the subject of three opinions by this court, Monroe M. Tapper & Associates v. United States, 198 Ct. Cl. 72, 458 F.2d 66 (1972); Monroe M. Tapper & Associates v. United States, 206 Ct. Cl. 446, 514 F.2d 1003 (1975); Monroe M. Tapper & Associates v. United States, 221 Ct. Cl. 27, 602 F.2d 311 (1979). 2 41 U.S.C.A. § 601 et seq. (1979)

3 In its opinion of July 18, 1979, the court in a footnote made reference to its denial without prejudice of plaintiff's claim for interest and stated that plaintiff was free to reinstate such a request. On August 7, 1979, plaintiff filed a motion for leave to file a supplemental memorandum making such a claim, which motion the court granted on August 29, 1979. That memorandum, together with defendant's response, plaintiff's reply and a supplemental memorandum from defendant are now before the court for its determination.

4 The specific language of the Disputes provision provided, inter alia, "The decision of the Contracting Officer shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Lessor mails or otherwise furnishes to the Contracting Officer a written appeal addressed to the Postmaster General. (emphasis added)

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permitted the use of earth as opposed to gravel for backfilling utility line trenches. In a letter dated December 23, 1968, the contracting officer notified plaintiff that the specifications required the use of gravel in backfilling the trenches. This letter stated it was "a final decision pursuant to the Disputes Clause of the General Conditions" and was to be "final and conclusive" unless an appeal was effected within 30 days.

Plaintiff persisted in appealing the contracting officer's decision and though differing problems eventually required three separate opinions of this court, it was determined the specifications permitted the use of earth for backfilling utility line trenches and plaintiff was awarded $26,805.94 because defendant had insisted upon the use of gravel.

Plaintiff's motion now before the court seeks to recover interest on the $26,805.94 judgment from the date of the contracting officer's final decision of December 1968 refusing plaintiff's claim. Plaintiff's interest claim, however, must overcome the "ancient doctrine"5 based upon 28 U.S.C. § 2516(a),6 that "interest cannot be recovered against the United States upon unpaid accounts or claims in the absence of an express provision to the contrary in a relevant statute or contract." United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588 (1947); Cleveland Chair Co. v. United States, 214 Ct. Cl. 360, 557 F.2d 244 (1977). The rule, of course, applies to awards in contract disputes, Poorvu v. United States, 190 Ct. Cl. 640, 658, 420 F.2d 993, 1004 (1970) (Post Office facility construction); Algonac Mfg. Co. v. United States, 192 Ct. Cl. 649, 428 F.2d 1241 (1970); Mar-Pak Corp. v. United States, 203 Ct. Cl. 718, 720 (1973); see Framlau Corp. v. United States, 215 Ct. Cl. 185, 197, 568 F.2d 687, 694 (1977).

Evidently unable to invoke a clause in its contract to support an interest request, plaintiff argues its claim falls within the Contract Disputes Act of 1978 and the provision for the payment of interest on contractors' claims con

5 Singer Co., Librascope Division v. United States, 215 Ct. Cl. 281, 284, 568 F.2d 695, 698 (1977).

6 28 U.S.C. § 2516(a) (1976) reads in its entirety:

"Interest on a claim against the United States shall be allowed in a judgment of the Court of Claims only under a contract or Act of Congress expressly providing for payment thereof."

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