546 F.2d 367 | Ct. Cl. | 1976
Lead Opinion
delivered the opinion of the court:
This contract case, before us under the Wunderlich Act, 41 U.S.C. §§ 321-22, arose from plaintiff S.O.G. of Arkansas’ agreement to construct Lock and Dam No. 4 on the Arkansas Liver. The project, one unit of a system of seventeen locks and dams, was designed to help provide a navigable channel from the Mississippi Liver to Catoosa, Oklahoma. S.O.G., a joint venture formed to obtain and perform the contract, responded to a Corps of Engineers’ invitation for bid (IFB) issued in October 1974. The Government’s bid documents included a schematic diagram of cofferdams to be constructed of steel sheet piling cells in the river areas and embankment dikes on .the existing river banks. This plan unmistakably indicated that the cofferdams were to be built within the existing river banks, and that the purpose was to permit, first, one-half of the lock and dam construction to be built “in the dry,” and then the other half. On the face of the diagram was a notation stating that the diagram was “schematic and for the purpose of estimating only.” Accompanying the diagram were detailed specifications that outlined various requirements that the contractor had to meet during the two stages of river diversion and construction. The notation on the diagram also stated that “[djesign of the diversion scheme will
S.O.G. ‘and its engineering consulting firm reviewed the plans and specifications and devised what they considered to be the best plan for diverting the river during construction. S.O.G.’s scheme diverted the river beyond its banks onto its flood plain, so that the entire river bed would be dry at onetime and the lock and dam could be built in one continuous effort; unlike the plan indicated on the Government’s diagram, S.O.G’s arrangement did not confine the diversion within the natural channel of the river, nor did it provide that part of the river would at all times be flowing in its normal channel.
After the Government awarded the contract to S.O.G., plaintiff submitted its diversion plan for the Corps’ approval. The Government thoroughly considered S.O.G.’s plan over a period of three weeks. Although subordinates of the contracting officer thought that the plan could be implemented if a number of modifications were made, the contracting officer eventually rejected it on the ground that it did not comply with the contract specifications. S.O.G. was thereafter required to implement the river diversion plan depicted on the contract diagram, causing plaintiff (it asserts) to incur $2,000,000 in additional expenses.
S.O.G. contends that the Government’s diagram was in no way binding since it was designated as “schematic and for the purpose of estimating only.” As for the specifications, they were thought to be merely general criteria establishing end-performance standards; accordingly, plaintiff
_ In order to resolve this dispute, we need not agree with either party’s interpretation of the contract. The case presents another example of a contractor who, faced with a patent ambiguity in Government bid documents, did not meet his responsibility to have the ambiguity resolved before bidding. See, e.g., Space Corp. v. United States, 200 Ct. Cl. 1, 5-6, 470 F. 2d 536, 538-39 (1972); Jamsar, Inc. v. United States, 194 Ct. Cl. 819, 827, 442 F. 2d 930, 934 (1971); Woodcrest Constr. Co. v. United States, 187 Ct. Cl. 249, 260, 408 F. 2d 406, 412-13, cert. denied, 398 U.S. 958 (1970); J. A. Jones Constr. Co. v. United States, 184 Ct. Cl. 1, 12-13, 395 F. 2d 783, 789-90 (1968); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 496, 346 F. 2d 962, 972-73 (1965); Beacon Constr. Co. of Mass. v. United States, 161 Ct. Cl. 1, 6-7, 314 F. 2d 501, 503-04 (1963). We therefore confirm the decision of the Corps of Engineers Board of
From the contractor’s point of view, there was obviously a patent ambiguity in the IFB documents. Plaintiff itself says in its reply brief (p. 2) that an “important and salient point” is that “the contract documents in this case are subject to at least two reasonable interpretations; the one made by S.O.G. in proposing its Diversion Plan (which is the basis of its claim for equitable adjustment) and the one argued for by the Government in its Brief (which the Government contends is the only reasonable interpretation).” There is no doubt that the bid documents contain significant expressions favoring each side. On the one hand, the defendant can point to the contract diagram which was utterly irreconcilable with plaintiff’s scheme. If the diagram itself could be entirely disregarded (because of the legend that it was “schematic” and “for the puipose of estimation only”) then there were specific parts of the specifications which appeared to implement the general plan of the diagram and were very hard to harmonize with plaintiff’s position.
Kather than ask for clarification, and despite the warning given it by the bid documents, S.O.G. ignored the conflict inherent in these documents and assumed the right to disregard the diagram and those parts of the specifications that would appear to limit its freedom of design. The extra expenses which S.O.G. now claims may well have been covered if, prior to bidding, S.O.G. had acted to clarify its responsibilities under the contract. If it had inquired and discovered what the Government wanted it may not have bid on the project or, if it decided to bid, it may have been able to tailor more advantageously its design and the concomitant costs. S.O.G. acted without seeking to resolve this patent ambiguity, and while the plan it submitted may have been as reasonable as the one proposed by the Government, under the circumstances the latter had the right to reject a scheme not in accordance with its conception of the project.
For these reasons, plaintiff’s motion for summary judgment is denied and the defendant’s motion is granted. The petition is dismissed.
Also, S.O.G. proposed a single earthen cofferdam, not two steel cofferdams. Plaintiff’s brief (pp. 3-4) says that the Engineers’ plan “was much more expensive to implement than the S.O.G. Diversion Plan. Specifically, it required diverting the Arkansas River in two steps utilizing two successive cofferdams and building the permanent structures in two separate steps rather than one continuous operation as contemplated by the S.O.G. Plan. Also, the Plan depleted on the [IEB] Drawing showed the use of steel sheet piling in the two cofferdams as opposed to the earth era cofferdam that S.O.G. anticipated using.”
The Government's position is supported, at least to some extent, by S. S. Mullen, Inc. and Dravo Corp., Eng. BCA No. 3241 (7 April 1972), aff’d sub nom S. S. Mullen, Inc. & Dravo Corp., d/b/a Juneau Dam Constructors, 203 Ct. Cl. 750 (1974). In that ease the Board held that a schematic drawing which showed an access road on one side of a river could not be interpreted to allow the contractor to build the road on the river’s other side even though the specifications stated that the alignment shown on the diagram was schematic and that the contractor was responsible for determining alignment and road design.
Paragraph 1-02 (“Diversion Structures”) provided: “* * * Construction of the cofferdams within the river hanks shall not commence until the protective left hank revetment has been completed. Except for those portions of the cofferdams on the existing river hanks -which may be embankment dikes, cofferdams enclosing the work area shall be constructed of new or used interconnected steel sheet piling cells * * *. Stage construction of cofferdams shaU be so laid out and scheduled that at all times during the first stage and any intermediate stages of diversion there will be a minimum clear river opening of 550 feet at elevation 189.0. The completed lock and the first seven completed spillway hays shall he available for river flow during the last stage of river diversion * * (Emphasis added.)
Paragraph 1 — 03 (“Design Data”) provided that “The plan for diversion of the river flow * * * has been prepared by the Government for the use of the contractor and is shown on the drawings,” and expressly refers to two stages of cofferdam construction and to “upstream” and “downstream” portions.
Rehearing
on plaintiff’s motion for rehearing en banc pursuant to RULES 7(d) AND 151 (b)
[March 4, 1977]
ORDER
Thomas M. Phillips, attorney of record, and Ronald L. Palmer, for plaintiff. Baker <& Botts, of counsel
Raymond B. Benzinger, with whom was Acting Assistant Attorney General Irving Jaffe, for defendant.
As for the suggestion for rehearing en bane under Eule 7(d), the matter was considered by the then seven active Judges of the court (Chief Judge Cowen not having yet taken senior status at the time the vote was taken) and was denied.
The motion for rehearing under Eule 151(b) has been considered by the panel listed above. Plaintiff claims that the basis of the court’s decision — application to this case of the principle of “patent ambiguity” — was an unfair surprise to it, not having been previously raised in the litigation. The panel points out, however, that, although the defendant did not base an extended argument on the so-called rule of “patent ambiguity”, that principle was plainly adverted to in at least two separate places in the Government’s main brief filed November 28, 1975.
Even as a general matter it should not have been surprising that the principle of “patent ambiguity” was considered by the court to be implicated in this case. The interpretation of plaintiff’s contract presented an issue of law on which the court was not bound by the decision of the Board of Contract Appeals. In particular, the court was not restricted to choosing between the contentions that plaintiff’s interpretation of the contract had to be accepted because it was at least reasonable and the contrary argument that plaintiff’s interpretation had to be rejected because it was not at all reasonable. It could and should have been foreseen by the parties that included and embraced within those polar antitheses was the middle possibility that, though plaintiff’s position might be reasonable in itself, it rested on contract documents which contained patent ambiguities calling for clarification.
rr is THEREFORE ORDERED that plaintiff’s motion for rehearing be and the same is denied.
At page 39 of that brief, the defendant emphasized certain provisions of the specifications which (In the defendant’s view) plaintiff’s proffered plan could not meet — and then added significantly: "At the least, the emphasized language should have been a signal to plaintiff that it would have to seek clarification of the conflicts between the specifications and its intended diversion plan.” (emphasis added).
See also the following at page 46 of the brief:
“Plaintiff, at page 42 of its brief asks: ‘How In the world Is the contractor supposed to know what parts of the -353 he can disregard . .. The short answer Is that if provisions appear to be ambiguous a reasonable interpretation will disregard nothing. The simple answer to the Question is that the contractor has a duty to inguire when provisions are in conflict (emphasis added)