101 Ct. Cl. 516 | Ct. Cl. | 1944
Lead Opinion
delivered the opinion of the court:
The plaintiff’s claim is based upon a misstatement by the Government, on a contract drawing, as to the level of the ground water at the site of a building which the plaintiff constructed for the Government. The drawing was one of, the papers submitted to prospective bidders for the contract, to enable them to compute their bids intelligently without feeling obliged to assume the possibility of adverse conditions which did not in fact exist, and raise their bids accordingly. The statement on the drawing was that the level of the ground water had been found at elevation —3 to —5 in ten test pits dug by the Government’s agents during December 1936 and January 1937. When the plaintiff, having obtained the contract, began to excavate in May, 1937, it found the water level at elevation +4.5, or from seven to nine feet higher than the test pit drawing stated. It cost the plaintiff $3,936.06 more to do the work than it would have cost if the water level had been as stated on the drawing, and this suit is for that amount.
The Government offers no explanation of the misstatement. When the plaintiff discovered the actual level of the ground water and said that it expected to be paid its extra costs of coping with it, the Government’s reply was that the drawing disclosed the ground water level as of December, 1936, and January, 1937, and that the level varied with the seasons. The plaintiff’s evidence shows that there was no substantial variation from the end of May to the middle
The Government says that it is immune from liability because of the following language in the standard instructions to bidders, which had been sent to the plaintiff:
Bidders must make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty of weather, and all other contingencies.
This language does not require bidders to presume the possible falsity of information such as that given on the water level drawing, for the purpose of inducing bids carefully adjusted to the stated conditions. See United States v. Atlantic Dredging Co., 253 U. S. 1, 10.
The Government says that certain statements in the specifications were inconsistent with the statement on the drawings about the ground water level, and that the specifications provided:
In case of difference between drawings and specifications, the specifications shall govern.
The inconsistent statements in the specifications relied on by the Government are (1) that excavations should be kept free of water during the placing of concrete, and (2) that the wooden portion of composite piles should be cut off at elevation —3.25. As to (1) it is urged that if the water level had been at —3 to — 5, as the drawing stated, there would have been no point in the requirement that excavations should be kept free of water since there would have been no water at the level of any of the excavation. .This contention is not sound, for regardless of the level of the ground water, heavy rains while excavations are open always cause an accumulation of water which should be pumped out before concrete is poured. As to (2) the language of the specifications was:
*531 The’ top of the tenon on the wood section in place shall not be above elevation —3.25, referred to mean low-water at the site, when the pile has been driven to required bearing.
Piles driven to —3.25 would have been submerged, if the water level had been at —3. The drawing said it was at —3 to —5. Since the specifications said that the tops of the piles “shall not be above” -3.25, and since the custom of the trade required that they be submerged, the contractor could well have been expected to drive them the small distance beyond —3.25 which would have submerged them if the water level had been at —5, the lowest level stated on the drawing. We therefore find no such difference between the drawing and the specifications as to require the drawing to be discarded from the contract.
The Government points to the fact that a drawing showing the detail of the subbasement contained a prohibition against the development of hydrostatic pressure, and that there could have been no hydrostatic pressure if the statement on the other drawing about the water level had been true. It says this should have warned the plaintiff that the statement was not true. But the excavation for the subbasement was to go to —2, and in one corner to —2.75. This was so near to the —3 of the water level drawing that the prohibition against hydrostatic pressure was not, by any means, obviously unnecessary. Even if there was a discrepancy which due care would have discovered, the plaintiff is not disabled from recovering, for reasons stated hereinafter.
The Government relies on Article 12, page 1 G-4 of the specifications, which provides in part:
In any case of discrepancy in the figures, drawings, or specifications, the matter shall be immediately submitted to the contracting officer, without whose decision such discrepancy shall not be adjusted by the contractor, save only at his own risk and expense.
We think that this article has nothing to do with our problem. Fairly interpreted, it contemplates a situation where the contract papers in one place seem to direct that one thing be done, and in another place another. A choice has
The most meritorious contention which the Government makes is that, as we have found, a construction engineer in excavating as near to tidal water as this site was known to be would have reasonably expected to encounter ground water at an elevation above rather than below mean low water. We have, then, a situation in which the Government, apparently negligently, since no explanation is offered, and there is no reason to suppose intentional misrepresentation, misstated a material fact and thereby misled the plaintiff, to its damage. But the plaintiff was negligent in not discovering the misstatement and ascertaining for itself what the facts were before it submitted its bid. If the Government’s representation had been intentionally false, the plaintiff’s negligence in relying on it would not, in the other circumstances here present have prejudiced the plaintiff’s position. It not being intentionally false, but both parties being negligent, we think their position is that of persons who have made a mutual mistake as to a material fact relating to the contract. We should, therefore, in effect reform the contract by putting them as nearly as possible in the position they would have occupied but for the mistake.
As we have said, the plaintiff was misled by the misstatement. It included in its computation of its bid only
The plaintiff may recover $3,936.06.
It is so ordered.
Dissenting Opinion
dissenting:
Plaintiff contends that it is entitled to recover the additional cost of $3,936.06 incurred by reason of encountering water at an elevation higher than that shown on the contract drawings upon the theory (1) that the defendant’s drawing 110-25 made a positive representation of a material fact
In its brief defendant answers these contentions by attempting to show that they are not sustained by the record, as the contracting officer and the head of the department held in their decisions on the same questions.
Article 15 of the contract, quoted in finding 16, provided for final decisions by the contracting officer and the head of the department of “all disputes concerning questions of fact arising under this contract.” Paragraph 12 (b), page 1G-A, of the specifications, constituting a part of the contract, provided that “The opinion of the contracting officer as to the proper interpretation of the drawings and/or specifications shall be final, subject to written appeal by the contractor, within thirty (30) days, to the Administrator, whose decision shall be final and conclusive upon the parties hereto.” Neither party mentions these provisions in their briefs, but I think we cannot escape consideration of their effect on plaintiff’s right to recover the increased costs claimed. Plaintiff’s agreement to be bound by the decisions of the officials named is a fact to be considered in connection with all other facts in the case, and if the disputes which plaintiff presented to the contracting officer and the head of the department were disputes concerning questions covered by these provisions, as I think they were, those decisions must be treated as final here. It is not alleged and there is not sufficient evidence to show that the decisions were arbitrary or so grossly erroneous as to imply bad faith. On the contrary the record shows that the decisions were made in good faith. This being so plaintiff may not recover even though those decisions may have been incorrect.
I would dismiss the petition.