609 F.2d 984 | Ct. Cl. | 1979
This case comes before the court on defendant’s request, filed December 22, 1978, for review by the court of the recommended decision of Trial Judge George Willi, filed September 29, 1978, pursuant to Rule 166(c) on the parties cross-motions for summary judgment,
Plaintiff criticizes the trial judge’s calling the discrepancy between the specifications and the drawings "patent.” It says if we agree with defendant that the precedence clause should be confined to instances of latent discrepancies, we should consider whether the discrepancy here was not rather a latent one. In the present case the conflict was not in fact noticed before plaintiff bid, and probably never would have been noticed except by one who was seeking light on the specific problem the discrepant provisions dealt with, and in the course of his investigation, placed them side by side. The trial judge did not define what he meant by a patent discrepancy. It is obvious that no careful writer of contracts would deliberately create a discrepancy, patent or latent, and then leave it to be resolved by the precedence clause. A discrepancy even with the precedence clause therefore indicates a probable mistake, which may be more or less serious. We would assume arguendo that a bidder, who noticed or should have noticed a serious mistake in the invitation or other of the contract documents, must divulge what he has or should have noticed to the government, and will not in equity be allowed to profit by not doing so, as it would be an instance of overreaching. That is not this case, whether the discrepancy be patent or latent. Defendant does not accuse plaintiff of overreaching nor could it do so. The standard clause prescribes a precedence only in case of discrepancies, between specifications and drawings, while one in figures, drawings, or specifications, each by themselves, must be promptly reported to the contracting officer. This no doubt reflects defendant’s experience that the latter class of discrepancies is much more likely to be discovered early. We cannot in the circumstances say in face of the precedence clause, our characterization of a discrepancy as patent automatically triggers an obligation to report. The clause itself seems designed to excuse such reporting, instances where equity would intervene aside. Accordingly, we do not deem it necessary to address in a critical manner the characterization of the discrepancy as patent.
Since the court agrees with the trial judge’s recommended decision and conclusion, as hereinafter set forth, it
OPINION OP TRIAL JUDGE
By this suit plaintiff, a construction contractor, seeks reversal of a decision
The parties’ cross-motions for summary judgment present the Board’s decision for review subject to the finality features imparted to it by the Wunderlich Act, 41 U.S.C. §§ 321-22 (1970).
The controversy concerns only the sequence in which vinyl-asbestos floor tile was to be installed on the ground floor of the building in relation to the Gypsum Wallboard (GWB) partitions to be constructed there; the question being whether the tile was to abut such partitions after they were erected on the concrete subfloor or was to be laid first, with the partitions placed on top of it. Incongruity as between the specifications and drawings is at the heart of the parties’ disagreement over priority of installation.
The dispute did not surface until approximately a year into performance when plaintiff had the building under roof and in a weather-tight condition. At that point it began erecting GWB partitions on the concrete surface of the first floor. When it had installed about 5 or 10 percent of them in that manner, the contracting officer rejected the work contending that the contract required that such partitions be placed on top of the vinyl tile with which the floor area was to be finished. Though disagreeing with that interpretation of the contract, plaintiff removed the partitions complained of and complied with the directive. It thereafter filed a claim under the Changes article. It is the Board’s affirmance of the contracting officer’s denial of that claim that precipitated this suit.
As required by the Armed Services Procurement Regulations,
SPECIFICATIONS AND DRAWINGS (JUNE 1964)
The Contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In case, of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at his own risk and expense. The Contracting Officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided. [Emphasis added.]
There are specifications dealing specially with GWB and with vinyl floor tile.
As the Board found,
Pointing squarely in the opposite direction is a note (note 3) on one of the contract drawings,
The notation is not, in terms, related to any of the detail drawings showing cross-sections of the base portion of five different types of interior walls and partitions that are shown above it and none of the partitions that are illustrated is of GWB construction on both sides. All of the cross-sections depicted, however, are oriented at their respective bases to a horizontal plane comprised of two
Relying on a paragraph
The configuration of the drawings affirmatively discredits plaintiffs interpretation. It is undisputed that in no instance was the completed interior floor surface abutting the partitions shown on the drawings to consist of exposed concrete.
In sum, the Board correctly concluded that "Finish Floor” as used in note 3 meant vinyl tile. Although, with
The Board reasoned that congruity resulted if the tile specification’s scope were confined to only the second and third floors of the building, where no GWB partitions were to be found, leaving the drawing note free to govern the areas (primarily the ground floor) calling for such partitions. The difficulty with this approach is that it relieves conflict by means of segregation rather than integration. Thus, the provisions no longer collide only because their respective coverages have been made mutually exclusive. The coordination of which Unicon speaks occurs where competing provisions can reasonably be read to operate compatibly on the same aspect of the contract work. There the court found a flooring specification that was silent on the includability of a steel plate to be open to complemen-tation by a drawing calling for such a plate. The language of the tile specification here involved affords no such latitude. That it does not serves both to distinguish the situation at hand from that presented in Unicon, supra, and to render the specific versus general principle inapplicable. The generality comprehended by that principle must emanate from the contract language.
Ultimately, the Board alluded to the real crux of this case — the impact of the order of precedence clause. Properly characterizing the interrelationship of the tile specification and drawing note as one of patent conflict, the Board declared: "A contractor may not resolve such a patent conflict between specifications and drawings by resort to the General Provision Article 2 admonition that specifications control over drawings, since that pertains only to such differences as do not require clarification at the bidding stage. See Peter Kiewit Sons’ Company, ASBCA No. 15855, 71-2 BCA ¶ 8959.” 75-1 BCA at 53,160. Though the Board was faithful to the prior holding, albeit obiter, on which it relied to support the limitation that it imposed on the scope of the order of precedence clause,
The plaintiff is entitled to take the Government sponsored order of precedence clause at face value. WPC Enterprises Inc. v. United States, 163 Ct. Cl. 1, 6-7, 323 F.2d 874, 876-77 (1963). Once its right to do so in the present situation is recognized, no conflict sufficient to occasion inquiry
CONCLUSION
Plaintiffs motion for summary judgment is granted, defendant’s cross-motion is denied and the case is re
Franchi Constr. Co., ASBCA No. 17958, 75-1 BCA ¶ 11,159.
Government Contracts, McBride & Wachtel, Vol. 1, §2.180.
32 C.F.R. §§ 7.602, 7.602-2 (1969 Rev.).
75-1 BCA at 53.159.
75-1 BCA at 53,159. Moreover, although the Board did not specifically pronounce that work sequence as representative of normal trade practice, such is the clear implication of its opinion. There was much testimony on behalf of the plaintiff to that effect, none of which was either countered or in any way challenged by the defendant, whose briefing in the present proceeding tacitly concedes the point. Defendant’s Opposition to Plaintiffs Motion For Summary Judgment and Defendant’s Cross-Motion For Summary Judgment, at 17-18. For the significance of trade practice on questions of contract interpretation, see Everett Plywood Corp. v. United States, 206 Ct. Cl. 244, 255, 512 F.2d 1082, 1089 (1975).
Though there is a reference on another drawing, No. 32-02-21, sheet 25, titled "Color & Finish Schedule No. 1,” under the caption "Color Schedule,” to laying vinyl-asbestos floor tile "wall-to-wall,” it is clear on the face of the drawing that the reference is only to color configuration; the directive being that the field color pattern is to extend throughout the rooms in which installed, without a perimeter border of tile of a different color.
That paragraph provided in part:
"22. CONCRETE FLOOR AND ROOF SLAB FINISHES. * * *.
"22.1 Monolithic finish. Except where otherwise specified, the concrete for floor and roof slabs shall be screeded and floated with straight edges to bring the surface to the required finish level with no coarse aggregate visible. The concrete, while still green but sufficiently hardened to bear a man’s weight without deep imprint, shall be wood-floated to a true, even plane with no coarse aggregate visible. Sufficient pressure shall be used on the wood floats to bring moisture to the surface. After the surface moisture has disappeared, surfaces shall be steel-troweled to a smooth, even, dense finish, free from blemishes including trowel marks.”
Paragraph 22.1 of the concrete specifications, note 7, supra, does not apply to the surface texture of concrete that is not to be covered. Such surfaces are governed by paragraph 21.1 of the same specifications. That paragraph, titled "Smooth Finish” directs that: "* * * smooth finish shall be given to interior and exterior concrete surfaces that are to be painted or exposed to view as finished work. * *
75-1 BCA at 53,159-60.
Williston on Contracts (3d ed.), §619, at 743, et seq.; Restatement, Contracts, § 236(c).
Defendant’s Opposition to Plaintiffs Motion For Summary Judgment and Defendant’s Cross-Motion For Summary Judgment, at 19.
In Peter Kiewit Sons’ Co., ASBCA No. 15855, 71-2 BCA ¶ 8959, at 41,648, the Board said: "Even if we assume that appellant’s interpretation of the specification, when read by itself, is correct, the discrepancy between the specification, thus interpreted, and the drawings should have been so great and so obvious as to have imposed a duty on appellant to inquire. Pulis Builders, Inc., ASBCA No. 10953, 66-2 BCA ¶ 6059. That duty was not abrogated by the provisions of General Provision 2, a standard clause in construction contracts. The sentence therein which is relied upon by appellant: Tn case of difference between drawings and specifications, the specifications shall govern,’ clearly applies only to 'differences’ which are not so obvious as to have required such inquiry or have not been resolved even though proper inquiry was made.”
A.A. Maintenance Co., ASBCA No. 7209, 62 BCA ¶ 3307; Harrelson Corp., ASBCA No. 7224, 61-2 BCA ¶ 3107; Jamsar, Inc., ASBCA No. 14850, 71-1 BCA ¶ 8907.
Cf. Merando, Inc. v. United States, 201 Ct. Cl. 23, 26-27, 475 F.2d 601, 602-03 (1973); Bishop Eng’r Co. v. United States, 180 Ct. Cl. 411, 415 (1967); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 346 F.2d 962, 972-73 (1965).
Note 5, supra.
75-1 BCA at 53,160.