Anthony Grace & Sons, Inc. v. The United States

charges, counts, minor were allegation upholding sustained. In familiarity” -“undue the basis widely-separated

three non-business tele- binding

phone calls,

quartermaster inspector to an absolute

standard of non-fraternization which courts, applied

not been other tribu- high nals, or executive administrative my shows, opin- officers. The record

ion, charge trivial. support, evidence also fails to re- spect relating to the count falsifica- JJ., Laramore, Davis dissented vouchers, travel the administra- part. finding deliberately tive any event, parte par- falsified. the ex

ticipation by attorney the Government

in the administrative decision makes it my

impossible, view, apply the “sub-

stantial evidence” test to this case. That presupposes

test the decision was process. arrived at fair Cf. St. Jo-

seph Stock Yards Co. v. United

298 U.S. L.Ed. S.Ct. (1936) (Brandéis, concurring). J., SONS,

ANTHONY & GRACE INC.

v.

The UNITED STATES.

No. 133-61.

United States Court Claims.

May 14, 1965. Fromson, City, Y.,

David Garden N. plaintiff. Orlikoff,Washington, C., David D. with Atty. whom was John Asst. Gen. W. Douglas, Mary Turner, J. defendant. Washington, C.,D. was on the brief. COWEN, Judge, and Before Chief LARAMORE, DURFEE, DAVIS and Judges. COLLINS, Judge. COWEN, Chief plaintiff to recover this action seeks allegedly damages deposit its bid by de- incurred as a result of cancellation by the made commitments fendant plain- Department of Air Force to military of a for the construction tiff Capehart housing project Act.1 under the on defend- the court The is before case summary judgment on ant’s motion for grounds plaintiff has failed exhaust its administrative remedies for which re- fias failed to a claim state granted. may lief to Trial This motion was referred Arens, Rule Richard under Commissioner 54(b), opinion recommenda- for his tions for a of law. Commis- conclusion opinion sioner Arens has submitted and recommendations. The defendant sought both, and the case was review argument. set for submit- pre- ted on the briefs but the defendant argument. sented oral I plain- The first issue whether tiff exhaust its administrative failed 1594-1594j; denied, 1. 42 U.S.C. §§ §§ U.S.C. 161 Ct.Cl. cert. explanation 1748-1748i. For a brief U.S. 84 S.Ct. L.Ed.2d procedures Act, Capehart (1963). Anthony Miller, see P. Inc. v. United having appeal Appeals, reached its the Board of Contract remedies because its solely Appeals on time- cancellation decision the matter Gontract (and plaintiff’s appeal, deposit) liness of did not con- refusal to return its (as held). untimely Com- sider other issue. the Board opinion missioner Arens’ concludes The Trial Commissioner recommended untimely conten- the decision defendant’s dismissing Board erred in it on that tion that fails to state cause of agrees ground. (with slight The court only action should be resolved after trial. modifications) portion with that view, Trial Commissioner’s opinion (set Commissioner’s in forth precisely framed; issues are not now III, infra) adopts it, Part and as so modi- parties evidence as to the conduct fied, rejecting the basis for de- may light issues, shed some on the and argument fendant’s is that are there unresolved issues fact. suing barred from in this court because Even where a motion sum for properly it failed to exhaust its adminis- mary judgment meets the technical re remedy. trative quirements granting for mo whether, tion, may deny The second is in issue the court in its discretion event, 64; a states cause action. motion. See Ct.Cl.R. Fed.R.Civ. 56; irrespective P. Defendant contends Williams v. Howard Johnson’s Washington, (4th Inc. of issue exhaustion administra- 323 F.2d 102 remedies, plaintiff may 1963); tive Cir. not maintain S. J. Groves & Sons Co. v. Turnpike Commission, its action because Ohio under the terms of the 315 F.2d 235 (6th acceptability plaintiff 1963). letter of could not Cir. Denial of the motion legal Capehart appropriate refuse to “close” a contract when issues are disagreement particular significance, over particularly a administra- or complex, legal appropriate tive determinations of mini- or where the issues can be wages housing project, intelligently only upon fully mum and resolved a subject developed Kennedy that such determinations record. See are v. Silas judicial Co., Mason review. 334 U.S. 68 S.Ct. 92 (1948); L.Ed. 1347 Pacific American pleaded petition in Plaintiff has its Fisheries, Mullaney, Inc. v. 191 F.2d 137 “unilaterally scope defendant altered the (9th 1951). Cir. We believe this be provisions” “wage of work and issued proper a case for the exercise that disc in schedules direct contravention its retion.2 obligations,” contractual and that defend- impossible plain- ant’s action made it II perform tiff to continue in its efforts to Having determined that the Armed the contract. Plaintiff further Appeals Services Board of im- Contract interpretation contends that properly refused to consider plans specifications “in is correct (Part hereof), on its merits III we light given interpretation such suspend must consider whether we should plans specifications by custom and plain- action this court direct the usage in the trade.” Board, tiff to return case to the or disagreement Thus, parties deny are in whether we should defendant’s mo- presented litigation over the nature the issue and remand our and, course, the Armed Board Trial Services Commissioner. 2. See Moore F.P. 16 comments light “ evaluate complicated take * (2d 6 * ^[*] care Bd. not to pp. 1953), legal legal character 2158-2159: issues; adjudicate issues, §§ must 56.15 former either of necessarily difficult or record [6], section should 56.- private denied adequate praisal States v. trial. N.X.1959). may * factual Small, public nature, upon * demand that the motion * 24 ” basis. the case F.R.D. 429 See A also proceed to sound United an (S.D. ap- in-

811 1039]; 820, 822, United 88 L.Ed. accepted principle that is an It Co., Holpuch Joseph A. remedy v. in States administrative where the longer S.Ct. [66 328 U.S. re party adequate, no cases These remedy pre 1192]. 90 L.Ed. aas quired to exhaust exception to this set forth the maintaining also an action requisite rule, however, is that con- Law, Davis, § Administrative court. suing prevented tractor is not (1951).3 entertained This court has the administra- court where requiring recourse further action without provided appeal procedure in its pro tive administrative contractual inadequate is, fact, contracting contract officer where the cedures case, Blair required unavailable. In the a decision refused to render recognized (p. Supreme Court delayed his deci or has the contract U.S., p. 64 S. Corp. 823 of excessively. [of v. Dress Maxan sion Ct.]): 439, 126 F.Supp. Ct.Cl. United “ Casualty (1953); United States ap- ‘If it were shown that 950, F.Supp. States, 107 Co. v. United 67 provided peal in the procedure (1946). has rule The same 46 Ct.Cl. inadequate in fact contract was * * * agen applied head of the where quite been we would have cy similarly Oil erred. Southeastern different case.’ States, F. Florida, 115 United Inc. v. Holpuch “Likewise, in deci- (1953); Heid 198, Supp. 480 Ct.Cl. 127 sion, Supreme stated that Court States, Bros., 704 69 Ct.Cl. United Inc. v. U.S., p. 66 (p. 1003 240 328 [of Co., Inc. v. (1930); Cape Ann Granite S.Ct.]): denied, 53, States, cert. Ct.Cl. 100 United “ of some ‘And in the absence 1080; 785, L.Ed. 88 64 S.Ct. 321 U.S. appeal pro- clear evidence that States, 289 100 Ct.Cl. Hele United Cf. v. inadequate or is unavail- cedure (1945). (1943) 103 Ct.Cl. 472 pur- able, procedure must be supra, Florida, Oil a con- Southeastern sued and exhausted before gov- transport complain plaintiff contracted had tractor can be heard contracting gasoline. offi- in a court.’ The ernment plaintiff re- cer determined that having case, “In this sponsible of some contamination for the depart- appealed the head moneys gasoline due withheld depart- ment, and the of the head pur- The contractor the contract. under having than ment failed for more the contract sued his remedies years he whether two to indicate Navy. Secretary appealed to the jurisdiction not take would would up- years appeal was not acted 2 For jus- appeal, This on, filed suit. and the contractor regarding administra- tified in commented, 484: 127 Ct.Cl. court procedure inadequate appeal tive filing in its in this court. suit argues because “Defendant Having suit, filed it was not re- head of the quired and re- to abandon that suit pending, department this still procedure. sume the administrative plain- jurisdiction court has no query the de- con- is true that a We must now whether tiff’s claim. It Bianchi v. Carlo adminis- cision in United States tractor exhaust must Inc., Co., 83 S.Ct. provided in the con- & 373 U.S. trative remedies bring (1963) the rule 10 652 alters L.Ed.2d tract entitled before Since in cited above. announced eases United States v. suit in court. this down, handed 730, 735, Bianchi case was this Blair, S.Ct. 321 U.S. [64 (E.D.N.C.1958); Blake, F.Supp. generally, 161 76 Lum- & Koester Brister See States, Wessel, States, v. United Duval & Co. Corp. F.2d 188 v. United ber (S.D.N.Y.1954). F.Supp. 1951); (D.C.Cir. v. States United S.Ct. 4 L.Ed.2d U.S. 202 [80 failure decided adjudi- certainly perform stay contracting his Such would 1165]. officer to justified department permits catory an action to be be where the functions any adequate pro- fur- had failed to make maintained in this court without proceedings, C. that could be administrative J. vision record sub- ther judicial Langenfelder Sons, jected scrutiny, & United for it was Inc. v. legislative Ct.Cl., 600, February clearly part pur- F.2d Zachry uniformity pose B. in H. Co. v. United to achieve this respect. States, Ct.Cl., 352, April 16, in 344 F.2d in which And case contracting department remedy We if a failed to 1965.4 believe particular procedural allows immediate substantive or officer’s failure to act courts, inadequacy, a for- defect or recourse it follows the sanction judgment for the that a similar lack of action contractor would tiorari always per- appeals a contract board should also available to the court.” mit such immediate to the courts. resort foregoing comment must read light Supreme’s in the Court’s Langenfelder The decisions expedite policy disposition such Zachry, supra, in the case dictate that litigation policy stated the same —a us, before we retain case trial in opinion page U.S., page at 717 of 373 this court. 1415 of 83 S.Ct. follows: We believe that result is accord “* * * consequences of [T]he Supreme with the Court’s decision procedure [duplication such a case, supra. Harlan, Bianchi Justice many would instances be a trials] speaking majority case, for in the that duplication evidentiary needless of following made the on observation the hearings heavy and a additional bur- imposed by sanctions to be this court expense required den in the time and unacceptable when confronted with an bring litigation to an end.” (373 administrative record. U.S. suspension proceedings A 1415): 717-718, 83 S.Ct. by in this court for additional action “ * * * Second, in situations an administrative board should be or the where that the court believed only suspension dered where the will existing record not did warrant such actually expedite handling litiga of the course, departmental a but that the Supreme tion or Court where determination could not be sustained stay proceedings indicated that a of court under the standards down justified. laid emphasized is It should be Congress, why no we see reason power that have we no remand in these stay proceed- Therefore, court could not own appeals cases. where ings pending jurisdiction some further action be- board case, has refused in a agency fore the prior involved. Cf. Penn- or where its decisions demonstrate sylvania States, R. jurisdiction Co. v. United that it will entertain 4. rejected by cases where the court’s decision which had been adminis- contrary untimely. to that of the administrative trative board as The issue suspend not, boards and the had proceedings board made no find whether ings equitable quantum time, squarely court; on the of an ad that before the justment due, only marginally determined to be this court the issue was raised permitted retained the case and a trial defendant and was not briefed. Since issue, Sales, time, cases, E. H. Inc. v. United in this and several other States, 75-61, Ct.Cl., January argument, No. we have had the benefit States, briefs, 1965. Ct.Cl., Jack Stone Co. v. United and more detailed reflection on 370, April 16, question. Therefore, 344 F.2d the conclusion see, Mining not, But Utah Construction and case does Utah in view of the made, Co. v. United 339 F.2d De circumstances which it was cember solved, where the court re foreclose our reconsideration of the is- hypothetical basis, on a dis sue. position aggregate of the concrete claim Base, tracting Officer, dispute, Air Force particular of the Otis a return Massachusetts, ges- clarifica- and obtain proceedings a useless to the board is submitting prior only In- productive a bid. ture which will be given litigation.5 delay transmitted formation further all known interested bidders. Bianchi, It is to noted it, Supreme provisions did not have before Court of Title “5. Under discuss, Housing

nor a situation did it where Amendments of IV juris- appeals principle amended, board has refused contract the total mortgages Court in that case diction. But of the amount [sic] problems squarely things among limited, addressed itself to the to the other delay. Accordingly, eligible we conclude that amount of the bid in this However, case trial retention this the Davis-Bacon builder. 212(a) court best accords with the enunciated Na- Act and Section litigation.6 policy speeding Housing contract as amended Act re- tional wages paid quire laborers Ill prevailing and mechanics be opinion Commissioner Arens’ on the wage Secretary as determined timeliness (90) ninety more than of Labor not Appeals, Board of Contract as modified days prior commencement adopted by court, follows: than more of construction. Since days may elapse ninety (90) August 22, 1958, Department On Bids For Invitation date this Air issued an invitation for Force of construc- commencement military bids for construction In- tion, called for the bids Capehart housing Topsham units at Air pro- include For Bids will vitation invitation, Force Station Maine. adjustment dollar vision setting purposes after forth specified to reflect amount therein Capehart Act, provided pertinent part: the tentative between difference carefully “4. should The bidder attached schedule minimum provisions examine of the form applicable minimum and the hereto Housing hereto, Contract attached finally wage determined as schedule including Drawings Specifi- and Any Secretary by of Labor. part thereof; cations made a visit adjustment in an will be such housing projects; the site and Commis- amount determined fully inform to differences, himself as all condi- to reflect such sioner any tions and matters which can in acceptable the lowest the amount of financing manner affect re- FHA total bid and the estimated constructing construction and the projects placement will cost housing projects or their cost. amount so deter- be amended discrepancies Commissioner; except Should the bidder find by the mined from, in, or adjustment omissions such Draw- that, if would such ings Specifications or other the amount of bid above increase hereto, statutory attached documents should the amount other meaning, he be in doubt as to their applicable maximum insurable notify eligible he should at once mortgages, the Con- will builder 1962) ; 5. The Armed Services Board of Contract see also Centex Constr. Co. v. Appeals consistently States, (1963). held did 211 United 162 Ct.Cl. jurisdiction not have to- review the de- Schultz, New See Wunderlich Revisited: Housing cisions of the Federal Commis- on Administra- Limits Judicial Review of sioner contracts sueh as that in issue Con- tive Determination Government here, Associates, Len Co. and 1962 BCA Contemp.Prob. Disputes, tract & 29 Law (ASBCA 1962); Anthony 17854 Grace (1964); Spector, “Bian- Is It Sons, Inc., (ASBCA & 1962 BCA 17882 “Much About chi’s Ghost” —Or Nothing”?, Ado (1964). Ad.L.Rev. reducing Department bid or furnished option of his have the mortgage proceeds. statutory than At- maximum or other to such withdrawing to ceptable family payment bond. In the time feited and become the prescribed, the Government as made ing of an effect a submit closing with FHA within the time ceptability, including est “8. Each bidder ^[*] the amount insure that acceptable necessary Treasurer Department prescribed every housing acceptable performance with closing bidder X his effort his bid his preliminary bidder fails to if with units he will deposit bid. he is $25,000, -X- finds that he has the Letter of a certified check FHA within the damages effect such clos- United the lowest event will be for- total of 177 property required to X furnishing payable steps perform the low- effect unless Ac- X ac- Appraisal employed prescribed in such statements. less than the his tention bor. A tentative tached hereto. Such tentative in accordance with such revision see bor prior to actual start of construction scale determined attached hereto. The bidder required X “22. The x pay sites subcontractors, requirements. is, however, subject all mechanics and laborers is to X x invited to pay eligible builder, working directly upon Eligibility prevailing wages housing projects paragraph the fees and X x wage Secretary Secretary For the effect of will be FHA’s scale x Statements x to revision required 5 above. and all of La- of La- Final costs X- X at- “Bid and extends time Form: to effect closing. such accepta- If the lowest understands “3. The bidder ble timely closing bidder effects if to be this bid is determined with the FHA the amount of his de- bid, Depart- acceptable lowest posit will be refunded to him 24 to him a will issue Letter ment hours closing after the initial Acceptability in foim attached deposits FHA. The of unsuccessful Bids, and For the Invitation bidders will be returned to them not agrees upon issuance bidder later days than opening after the Acceptability be- such Letter of he * * * of the bids. obligated carry out its terms comes ‘Timely Closing’ “a. as referred stated, within the times therein paragraph in of the Invita- expense, condi- his within the own closing period For Bids and security, of his and without tions referred elsewhere in these forms award, acceptance, further advice is period construed to approx- be of by Department. action other the imately days from the of date obligations obliga- an Such include opening of bids. by performance the cause maximum total mortgages ^[*] “12. Bidders are advised that the ^{[*] [*]} of the insurable ^{[*] [*]} mortgagor-builder corporations, be formed every act required by the bidder, of it of the each Letter and Acceptability, may execu- to cause the the lesser of not exceed by being mortgagor-builder cor- (1) of of tion porations said items amount three Housing bid, (2) acceptable of a Contract con- the FHA lowest taining terms, conditions, replacement the Total of the estimated same Drawings Speci- provisions projects property and and cost the or or of average specimen per family form of (3) fications as the an unit good Housing $16,500 and suf- Contract less the estimated value required surety or sureties as the ficient usable within utilities specified therein, property projects within the where owned times Acceptability. and ments he is tional “4. The ^[*****] in accordance aware of the Housing Act, Davis Section Bidder Bacon Act 212(a) of with the statutory require- as represents amended, Letter the wages Na- and which contained was a tentative tory language: but Attached to the Contract as dar «* days in no ^[*] after date event later *» expeditiously minimum invitation following than 450 calen- closing. wage as possible, introduc- for bids schedule paid wage mechanics and to laborers “The determination latest employed by Secretary in the construction made of Labor for required less projects country to be are in which is the work prevail- being performed in the those contained than is included herein. wage ing complete of the Secre- determination is incor- The determination that, Labor, tary order porated specifications and in the contract statutory provi- comply regardless with these of whether Contractor subject sions, price in- employ all of labor- the classes by amount de- an crease or decrease ers and mechanics listed.” Housing Federal termined The set forth the schedule minimum (hereinafter called Commissioner wages per rates hour for certain class- ‘Commissioner’) represent mechanics, appren- es of and laborers ‘Total Estimate of difference tices, building personnel, construction Proj- Replacement of the Total Cost heavy highway per- construction and ect,’ according computed to the in the The rates schedule sonnel. wage Invita- schedule attached to the heavy highway per- construction Bids, computed tion For accord- were lower than the for the sonnel rates wage ing as amended schedule building personnel. The construction ‘prevailing determina- expiration Sep- date of schedule bore in Para- defined as that term is tion’ 18,1958. tember specimen graph form of 19 of were also attached to the invi- There Housing Contract attached bids, specifications de- tation Moreover, For Bids. Invitation scope of the work to fined the and situs if amount Bidder realizes performed. specified in Letter his bid as specifications a break- These included thereby Acceptability, increased on-site, prepa- into down “Section 1 site maximum total so to exceed the on-site, ration” and Excava- “Section mortgages amount of insurable Back-filling Filling tion, for Build- Commissioner, determined para- ing 1 of Section Construction.” option of have the Bidder shall specifications provided graph 1-18 of the reducing amount bid to the his part: mort- insurable total maximum gages the Commis- as determined “On Site withdrawing sioner, his bid. Preparation Site mence the withdrawing if he does Paragraph Drawings 15 calendar sued closing, ^[*****] work called a Letter and that and not exercise bidder work called days his above, Specifications within for Acceptability, agrees that, after bid he will by the he pursuant for will com- option of complete Housing date of by if is- forming with “1-18 nishing backfilling plete, appliances, “(a) in strict accordance excavation, BACKFILLING EXCAVATION, The SYSTEM: all all for utilities and plant, operations work materials, labor, consists of fur- trenching, TRENCHING, FOR in connection system, equipment, and UTILITIES with this in com- per- AND and George specifications and the On October section of the applicable Mr. S. drawings. Robinson, deputy special for assistant in- specifications provided: BUILDING excavation under included Section line specifications. ings or other ing “2-01 systems occurring appurtenances «* “(b) All walls Scope feet outside ^[*] under or CONSTRUCTION, *» excavation appurtenances structures paragraph thereof, this within and of section grading for utilities and out to a is covered and 2-01 of of build- walls or enclos- for sent to its bid following: scheduled among was to make project, including ity” lowest The letter of ments before the stallations, Department gations in which acceptable plaintiff of was further advised complete arrangements $2,866,093, prior acceptability specified plaintiff a before “Letter of to the bid; “closing” a number of additives, was advised that January 8, of for and, closing which was Acceptabil- Air in arrange- was the housing was the which, Force, obli- “ (a) The work cov- Work Included. application through “n. Make Specifica- ered this section Contracting Officer, Otis Air Force furnishing plant, in tions consists all Base, Massachusetts, to the Secre- labor, equipment and and materials tary appropriate of Labor for an operations performing all in in con- wage determination, necessary, if excavating, filling, with nection backfilling (on Department of Labor Form rough grading, com- and supplied DB-11 upon which will be plete building for the and for build- request by Contracting Officer) ing point (5) utilities lines to five for use in the construction line, feet foundation outside the and project, copy and furnish such other related items in strict accord- wage determination to the Contract- Specifi- with Section ance this ing Officer and the Commissioner. applicable Drawings, cations and the Such determination will be subject and condi- terms used the Commissioner to in- tions of the contract. price crease or decrease the bid “(b) Clearing specified your Work not Included. manner bid.” grubbing, excavation, filling acceptability provided letter of also grading parking areas, roads, for part: walks, drainage, sewers other perform “2. Failure to all obli- systems, sub-surface ex- utilities gations prior prescribed to the time building for cavation utilities closing just for will be cause can- beyond planes (5) five feet outside celling all commitments undertaken building line are not included you in connection with the Specifica- Section housing project recovery and for the Stripping topsoil tions. speci- your security liquidated under damages Preparation.” fied Section Site $25,000, in the sum to- September 30, 1958, plain- gether On or about damages with actual tiff submitted Department, damages its bid construct the such actual housing project price $2,- at a base be itemized and determined 653,022, price $213,- with an Contracting additional Officer, whose decision alternatives, for certain writing additive will be reduced to and fur- price $2,866,093. at a total you Plaintiff nished to mail or otherwise. deposit, submitted with its bid a as re- Such decision shall be final and con- quired by paragraph unless, days invitation clusive within 30 bids, $25,000. in the receipt thereof, you amount 28, 1959, 29, 1959. contained a retary forth struction of Streets and set forth priate struction struction of 177 chanics, apprentices and nection with decisions, writing ment or less determined petent fraudulent tunity with necessarily sentative, trary, supported final and conclusive. your ing bility, provided that will indicate for the 8, graph dence that the closing writing upon your out sion description On November tions acceptability, plaintiff ^[*] “6. obligations specified 1959, rates Officer wage Secretary of Labor two bid and beyond your any appeal in you or You closing personnel. jurisdiction there were issued ofOne his written documented delay support obligations be heard and to offer evi- ^[*] description and his decision by determination. will be so Capehart may or are of work rates substantial duly your inability to expiration imply your heavy grossly was of Labor head of the capricious 19, 1958, pursuant family required by extend the date ^[*] of control.” for laborers and me- afforded an Letter of authorized separate decisions contained failure to do so caused The other decision bad a court your appeal. before Housing” to have of work as “Con- and terms the Contract- In connection erroneous made a housing faith, Roads “General Con- evidence, dates building in the letter to be for an ^[*] highway this shall, On or arbi- Accepta- January of com- Depart- submis- wage oppor- repre- condi- the Sec- January ,para- ready carry proof request and set in con- been appro- units” un- ^[*] April con- rate con- parties, cluded that of the was to was was ing of the work than the letter tained higher construction rates for should be fications, and that bility, feet rates for all work that under the but construction of streets and roads. Be- while and cause of difference between the dicated arising plaintiff’s be an tration advised ties the rates promulgated personnel or plaintiff power able rector After By On pay correspondence construction on matter. original closing required required outside the was that under the highway May set letter of March conferences increase was operators and require Secretary rates. in point, except receiving wage out justify plaintiff for the Federal there had and that forth interpretation. for either of the decisions it was increased, extended on several occasions higher building the effect of the decisions some acceptability, work rates it construction descriptions plaintiff pay only building pay rates for a to of essence, requested a determina- provided were held building construction categories the letter beyond pay beyond Labor, had been increase plaintiff’s foregoing that he following heavy and in accordance with date been no wage for work Housing work that there would meetings foundation higher building specifications plaintiff’s rate to reflect plaintiff the above-in- higher by rates allowed this greater area had not construction to a rates; but, lower based January 8, where the work con- change in exchanges bid increased, decisions, decisions Adminis- required covering highway point accepta- point parties build- heavy speci- price posi- upon been line, con- par- di- it Force personnel. Department the Air instance struction As tion of wage interpretation minimum the tentative schedule relative to from which pertinent invitation for documents attached to the bids, entitled it was the rates set forth in the rate concluded $85,834 in heavy highway con- increase decisions for the to an additional By personnel price. June letter of struction were lower than the George building Robin- per- S. advised rates for the construction son, deputy special for installa- assistant sonnel. Force, tions, Department Air of the that the cancellation that commitments plaintiff’s compelled plaintiff's “repeated position. concur in he did was not perform obligations to its continued: refusals under The letter Acceptability, its bid and Letter of you you closing, a “If effect intend to necessary that it with result to promptly in should advise me order plans project,” and revise rebid the may Acceptability the Letter of that request that return for the you be amended. decide not to If deposit bid was denied. For some closing, your effect or advice as to a unexplained reason, the letter Octo- intention is withdrawn in not 19, 1959, plaintiff’s ber did not reach days, acceptability letter of counsel, who, prompted concern that be withdrawn.” reply had he no received his letter to July 2, 1959, plaintiff On Mr. wrote to 7, 1959, inquiry by October made tele- approve Robinson of his that it did phone 4, 1959, on defendant December decision; delay as a result of the copy and was then furnished a matter, plaintiff in the had sustained 19, 1959, letter of October which he re- monetary losses; and, considerable that 9,1959. ceived on December plaintiff position was not in a to set a By 16, 1959, dated letter December closing definite date until the matters plaintiff’s counsel wrote to Secre- were resolved. tary of the Air Force follows: By letter dated October Mr. Anthony “As counsel for Grace & Robinson advised that letter its Sons, Inc., requested I have been to July 2, 1959, “indicating of ingness an unwill- appeal George the decision of Mr. S. closing to set a date constitutes 1st, Robinson dated October 1959. your your part a obligations perform failure on to your 7th, formally bid 1959, and under “On October I acceptability.” letter appealed The letter the decision in Robinson’s indicated an through ing date, charged continued: responsibility dressed to Mr. By bility, agraph housing project, rights with cels all commitments undertaken “3. damages.” ^[*****] letter dated you its with Accordingly, pursuant 2 of the letter of counsel, unwillingness Department in connection for the then respect October Robinson, plaintiff, reserving all its denied that it had Air to Force with the hereby existing prob- with recovery set accepta- to can- par- clos- ad- with Mr. Samuel nished client’s bid cerning from Mr. never received sent my reply requested Mr. Robinson’s December set nothing further, letter 1959, I partment October October forth facts dated my me called 19th, 7th, Hanenberg of the Air 9th, reply office Mr. Robinson on with a October deposit 1959. by my allegations. Hearing on December office my Hanenberg copy contradiction to Force, received I 1st, office. wherein check and also This thereafter, return appeal 1959 and in letter the De- a letter he fur- spoke dated reply con- 4th, my on lems, requested deposit, return bid hereby my “You are in- notified reserving stated “is all tention to of Mr. the decision rights recovery respect with Robinson to withdraw cancel the damages due to the failure of the De- Acceptability Letter of dated Octo- partment comply Air Force to 29th, ber 1958 and his refusal- to re- regula- all of the bid instructions $25,000.00 deposit. turn the I am thereby creating tions the situation opinion cir- the facts and exists.” my cumstances set forth letter By forwarded Mr. Mr. Robinson Octo- dated October letter 7th, 1959, clearly replied ber sets forth that counsel Robinson only appeal; delays corre- the Govern- tute caused government spondence Agencies it im- made involved ment comply appealable decision within constituted an possible builder disputes from Ac- the was the letter Letter of clause of the with the terms ceptability. 19, 1959, Robinson of October Mr. that since that letter was not received aforementioned, “In view 8, 1959, until the letter of De- December Acceptability should Letter of the 16, 1959, plaintiff’s cember containing from counsel the con- terminated for have been appeal timely. the notice was the the Government and venience of Plaintiff Mr. also contended that Robin- deposit $25,000.00 returned son, deputy special the assistant in- Sons, Anthony Inc. Grace & signed stallations, pertinent who letters Ap- request Notice of “I that this on defendant’s was not the con- behalf my previously peal, set forth in tracting purposes officer for the 7th, 1959 be dated October letter disputes clause, plaintiff and that had al- processed in accordance with ready by appeal filed its the time the of the Armed Services Board Rules contracting had, by officer his letter of Appeals. Upon receipt of Contract 22, 1959, December made decision. his Docketing I will of Notice of file The Board concluded that letter of Complaint. formal Bill of 1, 1959, October from Mr. Robinson con- sincerely request ap- “I that appealable stituted an decision and was peal expedited in that a order regarded by plaintiff; at the time so hearing possi- be held at earliest 7, 1959, the letter from October ble date.” plaintiff’s counsel did not contain “a then * * * present By 22, 1959, intent to invoke the letter dated December right contracting appeal,” and, procurement hence, did con- officer advised not appeal disputes plaintiff stitute an Robinson had been act- within the that Mr. ing regard 16, 1959, in his clause. Since the to cancella- December behalf containing plaintiff’s letter from the commitments and that he counsel agreed appeal period notice was after with the action taken Mr. Rob- days 1, 1959, letter, from the October inson. appeal the Board found that the was not 16, 1959, The letter of December to timely. Regarding status of Mr. Secretary of Air from Force Robinson, the Board stated effect plaintiff’s counsel was docketed repre- he had been “the Government’s Ap- Armed Services Board of Contract dealings legal sentative all conse- peals 31, Thereafter, on December signed quence parties,” between the had government the appeal moved to dismiss the bids, the invitation letter of ac- grounds on the that Mr. Robin- pertinent ceptability, and various other canceling 1, 1959, letter son’s of October letters, including from letter which plain- the commitments undertaken appealed, had contended it decision”; tiff, and, appealable was “an contracting officer “was all appeal that no written was taken from stranger” plaintiff. times a virtual that letter from Mr. Robinson’s letter Board, Accordingly, June 19, 1959, days, within 30 October granted government’s motion provided paragraph 2 of the letter appeal. and dismissed the acceptability. considering Plaintiff before Board In issue of contended time 1, 1959, plaintiff’s appeal liness of that the letter of October from to the Armed Appeals, Robinson was a final decision Services Board of Contract it is Mr. apparent “disputes (paragraph question presented, clause” within the 2) namely, interpretation acceptability, provisions the letter of but nevertheless, of October of the contract which documents set forth the letter specifics did consti- of an and the cor- counsel opportunity responding interpretation be afforded an to be effect allegedly sup- “de- heard to offer evidence in of letters constituted question port your “appeals,” appeal.” cisions” and/or law; hence, it and factual is- related light foregoing disputes independently sues are be resolved clause, pertinent let us turn to the lan- though court sole even record guage of the letter October before is the administrative from Mr. Robinson to deter- Corp. record. P. L. S. & v. Suit Coat if mine was therein a there “decision” States, F.Supp. 400, 148 United which would become “final and conclu- (1960); Ct.Cl. 296 Beacon Construction appealed sive” unless from within 30 Co. v. United 314 F.2d reads; days. pertinent language This (1963); Enterprises, In- Ct.Cl. WPC ***** corporated States, v. United 323 F.2d Accordingly, pursuant par- “3. to (1963); 163 Ct.Cl. 1 Stein Bros. agraph acceptabil- 2 of the of letter Mfg. States, v.Co. United F.2d ity, Department hereby the cancels (1963); Wingate 162 Ct.Cl. 802 Con- all commitments undertaken with struction Co. v. United Ct.Cl. you housing in connection with the January 24, 1964. project, reserving rights all its with respect recovery damages.” to the agreed parties The are the that governing provisions the contract doc reading provisions A fair regarding appear appeal uments an disputes compels clause conclu- paragraph 2, “disputes clause,” contracting sion that decision though acceptability which, the letter of only language officer should include not forth, repeating heretofore set for bears canceling commitments, but also lan- examination, closer as follows: guage setting regard- forth a conclusion ing recovery security of the bid perform obliga- “2. Failure to all damages itemization of such actual which prior prescribed tions to the time contracting officer determined should closing just will be cause for be recovered. cancelling all commitments undertak- you en with language connection with pertinent It is clear from the housing project recovery 1, 1959, of the October letter that all your security liquidated under bid required elements of a decision damages $25,000, disputes in the sum of present, to- clause not are gether damages with only actual to damages because the reference Department, (whether damages liquidated such actual actual) or is that de- be “reserving itemized and rights determined fendant was all its Contracting Officer, respect recovery whose with decision to the of dam- ages.” writing Upon reading will letter, be plain- reduced to and fur- you by tiff could nished not mail or tell whether otherwise. defendant had decided liquidated damages, Such decision shall final recover and con- unless, days claiming clusive whether within 30 defendant from actual damages receipt thereof, you amount, appeal or in what or even writing Depart- expected to the when head defendant to reach a con- duly repre- liquidated as to or ment or his authorized clusion actual dam- ages. sentative, shall, Conceivably, plaintiff and his decision un- could have compe- less a concluded there determined court of if was to be no recovery jurisdiction sought by liqui- tent to have been defendant fraudu- damages damages, capricious arbitrary, lent or or dated or actual it so grossly necessarily would for the commitments erroneous as satisfied imply faith, appeal; supported by to be bad not canceled and would not evidence, but, plaintiff could not make intelli- substantial be final and an gent determination on matter from conclusive. connection with paragraph you It the contents the letter. under this conclud- Appeals opportunity to a of Contract did constitute letter not ed that brought clause, disputes on the merits the issues consider within the “decision” out, plaintiff’s appeal to that though, points before it as defendant even paragraph correspondence 2 of the letter of subsequent Board under holdings prior acceptability. the October “decision” in did refer support which the Having the action I, 1959, con- Bianchi reached this letter. ruling today, estab- unnecessary orders but clusion, to consider calling upon guideposts tous new lished October the letter whether or not reappraise position. requesting our earlier plaintiff’s counsel advising deposit return of the Supreme held Court In Bianchi “reserving all boards, general, rights recovery respect dam- courts, on issues fact-finders are to be the ages” appeal, because constitutes liability area of contract within their Decem- letter from counsel declared, ex- competence. The Court admittedly consti- ber pressly, “determination of 30-day appeal was tuted an within the departmental finality attached to to be by plaintiff’s period receipt after arising question decision 8, 1959, of defend- counsel on December solely ‘disputes’ on con- clause must rest It is October ant’s letter of de- before the sideration of the record unnecessary ques- to the likewise consider 714, partment” (373 at 83 S.Ct. U.S. at by plaintiff as to the status raised 1413) where “the administrative even Robinson, deputy special Mr. assist- the inadequate, or re- is or defective record ant for installations. some-prejudicial veals the commission of 1415). (373 717, at S.Ct. error” U.S. 83 accordingly plain- It is concluded that that, a means where board To me that timely and, appeal make there- tiff did prejudicial the error committed has fore, exhaust its rem- did administrative refusing timely appeal,1 a the edies, is entitled seek relief to “stay pending proceedings its own should court, this agency further action before the some 717-718, (373 83 S.Ct. involved” U.S. at IV 1415). that, principle The essential at foregoing basis, On defendant’s appro- possible, evidence wherever summary judgment motion for is denied. priate liability under the to an issue of The case remanded to the Trial Com- Disputes taken clause be should proceedings for in ac- missioner further Certainly, board rather than the court. opinion. cordance court’s with the board, a told this court it untimely, wrong an to dismiss DAVIS, Judge (dissenting part): to consider the would hear and undertake agree I with Parts I and III on merits. assume case We cannot opinion, I court’s but from Part dissent otherwise; con- but did if the board required, think, II. We are I judg- refuse, tinue “the sanction always Bian- rationale of United States v. Carlo ment for the would contractor Co., 709, 1409, chi & 373 U.S. 10 (373 S.Ct. at available to U.S. the court” (1963), give delay 718, L.Ed.2d Board 1415).2 83 S.Ct. at not, 1. “the deposit. a case is also in which Such one its con- It will adequate department pass practice, upon had failed to make the correct- sistent provision validity for a record be sub- that could or the the determination ness jected (373 judicial scrutiny” Housing U.S. Administration the Federal 1415). 718, price adjusting S.Ct. at the 'bid after the Secre- tary deter- Labor issues a new In instance there reason this is no Nor Board review mination. will reject think appeal the Board 'that validity correctness grounds on other than untimeli- Department’s wage determination. jurisdic- Labor clearly ness. The Board has initially can, however, pass tion over the claim for return of The Board having hearing error, controversy on be- the merits let now it should on necessarily proceed not the merits fore the board will any before the until board greater having properly than in now a trial the facts have been determined. our 'on merits before Commissioner. Langenfelder Son, C. J. & Neither Inc. is, Bianchi, if the rationale Even States, Ct.Cl., v. United 341 F.2d gives it, predominance Ias understand Zachry decided Feb. nor H. B. finding (on facts issues States, Ct.Cl., v. United Co. 344 F.2d liability) at the administrative level. precedent April decided for is a today. both, what the court In does Bianchi, court has tried Since contracting officer failed an is- to decide (i. e., fact itself contract issues of impliedly sue. re- Since contract arising questions from a contro- factual reasonably quires prompt determina- versy clause) only Disputes within the tion, a refusal to decide is a serious remaining solely problem where the contract, entitling -of the con- breach damages one and the board had bring tractor to fail- suit redress the damages, on considered taken evidence ure. In those circumstances contrac- recovery, or the amount had because it pursue tor need not further his adminis- against decided contractor on the commencing trative remedies before Mfg. merits. See Bros. Co. v. Stein action. But the court did not hold in ei- United 162 Ct.Cl. 337 F.2d ther case once had been be- suit (1963), succeeding cases. That gun, the facts on which the merits of con- decisions, agree, line of I (within clause) Disputes troversies rests the clear demarcation between presented are to be resolved should not be relating liability issues those con- to, by, and found boards but are cerning recovery. measure That Langenfelder, this court alone. distinction embodied in our been findings court based its factual on the (Rule 47(c)), many own rules is found at administrative record before the board. places law, represents other in the Zachry, stay the court was not asked to boundary established an convenient proceedings to allow a board to determine appropriately which can be continue to facts; dictum that dispose utilized after Bianchi to of a pursuing was excused from his adminis- tag-end recovery. issue of amount of But coupled trative remedies was with an ex- my upon it view trenches the Wunder- press refusal to decide that board Act, interpreted Bianchi, lich jurisdiction any had over the matter.3 extend the same rule instances in which decision, my view, supports Neither a board refuses to decide the merits of present ruling. the court’s jurisdic- case because it errs as to its tion, appeal, timeliness an hand, some On the other the refusal to sus- question. similar pend proceedings threshold Under Bian- to allow the Board to chi, the board should plaintiffs’ appeal decide the merits consider the merits properly directly contrary eases recent, before it. If it respect, makes an error in that it does unanimous, position the court Utah jurisdiction gain not lose the court Mining it Constr. & Co. v. United exclusively. After Ct.Cl., court corrects 339 F.2d decided Dec. upon interpretations other involved in correct, issues If those are oth- appeal. instance, may For presented. the Board can er issues question consider the crucial the cor- plaintiff’s interpretation difference, too, rectness of 3. It makes that in such plans specifications— contracting the contract cases the officer frustrates they upon wage process, bear determina- the entire at administrative pass upon outset, refusing tions. The can Board also to make deter- meaning legal appellate determinations. mination. A board, error plaintiff’s interpretations If are errone- after have facts been found ous, clearly contracting officer, there is no either for basis is different in char- recovery deposit damages. or for acter. Appeals of Contract The Board 1964. appeal, the contractor’s had dismissed aggregate claim” on the “concrete ground case, untimeli- on the spe- majority of ness. cifically was not if the claim ruled that but within the breach of contract

Disputes Board was clause—and if the

wrong appeal— timeliness on the should

then the evidence merits “we should

not suggest taken in this court but to the board it consider suspend merits and claim] on the

[the

proceedings until it a reason- here opportunity do so.”

able 339 F.2d at My opinion agreed separate op., position. Slip p. 339 F.2d Judge 618-619. The Chief concurred

in the result. Now the court overrules portion Con- unanimous Utah

struction. joins Judge,

LARAMQRE, in the fore-

going dissenting opinion. Riemer, Washington, C., for

Karl D. plaintiff. Pehle, Mann, Riemer Lux- & NATIONAL METROPOLITAN BANK ford, C., Washington, of counsel. D. OF WASHINGTON C., Rubloff, Washington, D. Gilbert W. v. Atty. F. with whom was Louis Asst. Gen. The UNITED STATES. Moxley for defendant. Oberdorfer C. No. 235-61. Featherston, Lyle Philip M. Turner and Miller, Washington, C., R. D. were on United States Court Claims. brief. 14,May LARAMORE, Acting

Before Chief Judge, DURFEE, COL- DAVIS and LINS, Judges. Judge.

DURFEE, This is an action for refund of income taxes. Plaintiff many was in bank business May 20, years, but on placed voluntary liquidation as- signed all its assets to the American Se- curity Company, and Trust which as- During all its sumed liabilities. subse- quent liquidation, the affairs of

Case Details

Case Name: Anthony Grace & Sons, Inc. v. The United States

Court Name: United States Court of Claims

Date Published: May 14, 1965

Citation: 345 F.2d 808

Docket Number: 133-61

Court Abbreviation: Ct. Cl.