*1 invention, equivalents, claimed or their
functioning substantially the same
way produce substantially the same
result.
Straussler v.
Rich-
ards microtomes slicing thin off
instruments sections biologi-
pieces organic matter, such as specimens, microscopic
cal examina- normally specimen, tion. The soft
pliant, workplate is frozen solid to a bond, knife ice then with a sliced which top back and forth across moves Freezing specimen. speci- JJ., Laramore, Davis and dissented only workplate men secures it to part; Collins, J., dissented. slicing. rigid easy but also makes gem nothing Richards teaches about relating problems nor to their stones
manufacture. As claims 1 and 3 must invalidity
be construed to avoid above,
section discussed Richards biological speci- anticipate
does not since gem equivalent are
mens stones
“difficultly manageable workpieces,” slicing equivalent polishing,
nor is
grinding buffing “precision treat-
ment.” an- therefore does not Richards
ticipate 1 and 3 as claims claims those
are herein construed.
WOODCREST COM CONSTRUCTION PANY, Indemnity Inc. and the Home Company, Surety Completing
The UNITED STATES.
No. 32-67.
United States Court Claims.
March 1969. *2 Foreman, City,
Albert York at- New torney record, plaintiffs. M. Carl Levine, Morgulas Foreman, & New York City, of counsel.
Douglas Smith, M. with whom was Atty. Weisl, Jr., Asst. Gen. Edwin L. Greene, for defendant. H. Thomas Wash- ington, C., D. of counsel. COWEN, Judge,
Before Chief LARAMORE, DURFEE, DAVIS, COL- LINS, SKELTON, NICHOLS, Judges. FOR claimed MOTION
ON PLAINTIFFS’
information
contained
bidding
AND DE-
documents
JUDGMENT
was false
SUMMARY
MOTION erroneous
it didn’t
CROSS
since
FENDANT’S
disclose subsur-
face water on the
JUDGMENT
site
re-
FOR
SUMMARY
quire
dewatering
pumping
extensive
*3
Judge*
DURFEE,
operations,
It claims that
it relied
the
received,
it
information
basically
The
herein was
a
when it later discovered the subsurface
unit
the construction
water,
defendant,
it notified
in accord-
the
of modifications
and additions
to
ance with Article 4 of the
contract.
Building
Tele-
Central Control
and the
contracting officer disallowed
claim
phone Exchange Building
Cape
the
the
compensation.
for additional
Kennedy)
Woodcrest
(now Cape
Canaveral
Missile
proceeded
protest,
requested
under
Base,
but
Test Annex at
Air Force
Patrick
perform
extension
time
of
the
to
Florida. After
a number of contract
required by
work
the
extensions,
contract. Defend-
modifications
time
request,
ant denied the
insisted
Wooderest’s
contract was terminated
Woodcrest
maintain
the
default,
Indemnity
the
Home
Com-
schedule. Woodcrest
pany,
surety,
claims that
completed
Wooderest’s
the
thus
to incur
job.
alleged
increased
completions,
ex-
late
Because of
penses,
for which it now
contracting
seeks reim-
speci-
the
officer withheld
bursement.
liquidated
damages
fied
from Wood-
Indemnity’s progress
crest’s and Home
appeal by
The denial of the
BCA
the
payments.
plain-
on the conclusion
based
tiff knew or
the
should have known of
separate causes of
Plaintiffs
four
high ground-water
existence of a
action.
the con-
The determinations
of
site,
project
at the
and thus it
tracting
appealed to the
officer were
misled
defendant’s erroneous
failure
Corps
Engineers
of
Board of Contract
ground-water
to show the
the
table on
Appeals,
a
rendered
af-
which
decision
boring logs.
firming
contracting
find-
the
officer’s
Although
may
ings.
there
appealed
some
evidence
This decision was
to
support
plaintiff
Appeals,
this conclusion
Board of Contract
knew or
appeal
should have known
ex-
Board
on the
of
dismissed
ground-water
high
istence of a
appeal
Corps
level, we
of
particular
think
Engineers
Appeals
facts of
case
Board of Contract
finding
make
such Board
appeal
was the
erroneous
last administrative
au-
supporting
Thus,
thorized under
contract.
evidence is
sub-
attacking
stantial.
tiff is here
of
Engineers
Corps of
Board of Contract
claim
“under”
Since the
is one
Appeals
supported by
as not
substantial
governed by
suit
is
evidence. Since
are several causes
there
Act, 41
Wunderlich
U.S.C.
§§
sepa-
each one
action,
discuss
will
we
(1964),
finality
which accords
rately.
by a
Board’s decision on matters covered
Disputes
Clause unless
is “fraudulent
“Changed Conditions” Claim
I —
capricious
arbitrary
grossly
or
or so
July 15, 1966,
On
necessarily
imply bad
erroneous
Board
faith,
supported by
or is not
substantial
(hereinafter
BCA).
referred to as the
de
scope
evidence.”
court’s
review
This
“Changed
appeal
nied Wooderest’s
under the
Act
Wunderlich
same
Conditions” cause
action.
appeals
of Federal courts of
opinion incorporates
portions
This
Conditions,”
court
reaches
different
opinion prepared by Commissioner Mastín
result
from
Commissioner.
respect
G.
opinion.
White. With
to the
The facts
are stated
Corp. nished with
information
should
Universal Camera
the standards
Board,
have alerted him
to the existence of
Relations
Labor
National
ground,
L.Ed. 456 mafrost below the
was aware
71 S.Ct.
U.S.
Co.,
permafrost
some
Inc.
be en-
(1951).
Bianchi
See Carlo
countered.
court stated:
States, 167 Ct.Cl.
86 S.Ct.
U.S.
cert. denied 382
These data furnished
L.Ed.2d
defendant
in connec-
clearly
supra,
papers
Camera,
with the bid
issue
In Universal
reviewability
reasonably
sufficient
indicate to
orders of
was the
prudent
permafrost
bidder
light
Administrative
NLRB
Taft-Hartley
widespread in the area of the
Act.
two ex-
Procedure Act and
might
cavation
en-
sites
well be
was whether
test enunciated
*4
performing
in
countered
the excava-
record
substantial evidence
**
sites,
tion
at
work
the two
*.
a whole.
In
instant
considered as
Id.
case,
at
F.2d at 541.
evidence
not substantial
there is
a
plaintiff “knew” that there was
borings
Had
rectly
Government core
cor-
addition,
ground-water
high
In
level.
indicated that
water was
actually
relatively
affect-
area
small
say
present,
plaintiff
we could
ground-water
mili-
by
high
level
known
con-
should have
of subsurface
plaintiff
against
finding
a
tates
ditions.
general
known” of the
“should have
argues
although
Government
ground-water
high
level or
presence of
may
plaintiff,
it
pres-
have misled
the con-
danger
may
that it
have been
specifications
whole,
a
in
as
addi-
ent.
general knowledge
expert
tion
and
to
only
one-third of
The BCA found
readily
knowledge
plaintiff,
to
available
Telephone
area of the addition to the
the
Exchange Building required
put plaintiff on
should have
the alert.
dewatering,
Board,
denying plaintiff’s appeal
in
a
of the area
that mere one-tenth
and
argument,
point,
made
same
this
Building
addition
the Central
when
that:
it said
fact,
operation.
In
view of
such an
* * *
Camera,
in Universal
su-
what
said
many factors
there were so
pra,
special
has
relevance :
readily
appellant
to
known
available
* *
*
presence
high
a
water
substantiality
of evidence
predicted, that
could
have been
in
must take into account whatever
appellant knew
have known
fairly
or should
its
record
detracts from
**
*
BCA,
weight.
of the existence
thereof.
at
S.Ct.
Id.
26,696.
p.
5726, at
at 464.
pro-
looking
By
large,
the various
area
not have
and
did
sub-
visions,
ex-
that the
we are not convinced
it,
how
surface water
high
a
nec-
table must
istence
water
a “con-
should have known
such
tiff
essarily
them. The refer-
by
follow from
is
the facts.
dition”
not demonstrated
dewatering
draining
attempt
ence to
may
An
to show
there
have
just
easily
could
as
been
have
water
in or-
been subsurface
condition
operations
referring to
necessitated
plaintiff
prove
have
der
what
should
dewatering
rainfall; moreover,
known,
flies
of the fact that
face
general,
equipment
by condition did not
be
exist.
ordered
could
used to remove
as a
rainwater
well
In Morrison-Knudsen Co. v. United
high
As-
table’s
water
subsurface water.
4H knowledge changes drawings personal spec- in the opinion own on their and/or “general” knowl- ifications of if this within its area. When of the logs, general scope. changes, against If edge up such cause is lined plaintiff, an increase or decrease conclude that the Con- difficult it is of, required for, experts, sought should tractor’s cost time or he out had logs. equita- rather than an believed them adjustment only testify there experts ble shall be made and could water; writing possibility modified of subsurface accord- awas * * * ingly. parties however, We none. If borings, showed fail wrong agree upon adjustment made, say plaintiff cannot dispute following most shall be determined as “The most reliable borings provided *.” specific Clause 6 of these indicator —the General —* supra,, [relating See, “Disputes”] al. Provisions et United Contractors 166-167, at 598. 368 F.2d Although contracting mislead- fact did view of the officer boring logs not, ing contemplated lead a contractor in the as provision, change conclude no written orders issue water, coupled respect when with other evidence with matters to the now under way, evidently consideration, we was inconclusive either Wood- theory determination BCA’s crest’s extra find that items work, materials, expensive known is knew or should have or the more supported by alleged evidence. substantial of it result Accordingly, ly interpretations Condi- erroneous of contract drawings specifications action, we re tions” cause of find or should be garded flowing time. tiff was entitled to extension of from constructive changes pertinent contract draw “Changes” Claims ings specifications and, therefore, II — *6 compensable “Changes” pro under the July 15, 1966, the opinion dated In its vision of the contract. Jack Stone Cf. Engineers Contract Board of Corps of States, 376, Co. United 370, 344 F.2d claims Appeals decisions rendered also 281, (1965) ; Gholson, 170 Ct.Cl. allega- by under Woodcrest submitted Byars and Holmes Construction Co. v. that, of erroneous the result as tions States, 987, 994-996, 351 F.2d per- terpretations by defendant’s the ; 374, 388-390, (1965) 173 Ct.Cl. specifi- drawings or contract of sonnel Turnbull, States, 1007, Inc. v. United 389 F.2d required to cations, had been 1012, 1010, (1967). 180 Ct.Cl. 1020 types ma- work, of or to use extra do terials, contemplated the “changes” Woodcrest’s claims drawings specifica- or tinent contract Corps Engineers were denied the of tions, interpreted. properly These as 15, Appeals July Board of sought contract increases the claims 1966. As the these Board’s decisions on for extensions the and also time (with exception) the claims involved one con- the the work under of drawings interpretation contract (with resulting diminutions specifications, administrative deci damages liquidated de- assessed questions law, and sions related to delay comple- fendant because binding the Board’s are decisions work). tion of court, is authorized preceding mentioned The claims (41 section Act second the Wunderlich “equita- apparently paragraph were for (1964)) to consider U.S.C. these § adjustments” under ble legal questions de novo. v. Unit Schmid provision provision contract. This of the 654, 351 F.2d 173 Ct.Cl. part as follows: stated 302, 309, (1965) ; Merritt-Chapman & may, any Corp. Contracting Officer Scott time, by order make 174 Ct.Cl. written “changes” (among claims will be tion.” This sheet contained The several things) diagrams subsequent para- indicating separately in other discussed opinion. manner of graphs construction for five com- this manholes, C-l, C-2, munication Nos. C- of Woodcrest’s Manholes: One 3, C-4, and C-5. question “changes” involved claims presentation particular In the of this drawings, as contract of whether claim, Woodcrest asserted before the upon Wood- properly interpreted, called Board of Contract couple of communi construct a crest to preparation of its designated manholes, at C-l cation bid, drawings it relied on sheet 2 of the C-4. showing that communication manholes calling contract, for in addition to C-2, C-3, Nos. and C-5 were “new” and to the Cen- additions the construction of were to be constructed the con- Telephone Building and the tral Control tract, showing that manhole No. C-4 Building, Exchange also involved “existing” facility was an and was thus related works. construction of certain scope outside the Among communication these were some implying that manhole No. C-l was and manholes. ducts “existing” facility an was not since it which the de- invitation bids plan. However, shown on the site to Woodcrest furnished fendant subsequently turned out that communi- prior to submission of bids others cation Nos. C-l and C-4 manholes were proposed numerous included contract existence, not in re- Woodcrest was drawings relating to the work that quired by the defendant to construct performed under contract. Woodcrest, these manholes. To this drawings subsequently in- These amounted to extra work which entitled it of, in, corporated and became compensation to additional and addition- contract. completion al time the con- drawings con- However, 1 of the contract Sheet tract. claim, the Board denied things) legend (among tained other holding that “Sheet was the meaning explained of various controlling drawing that symbols for construction of drawings. used on other system.” the manhole In connection with “Communication case, an obvious dis- Manhole,” legend indicated & Ducts hand, crepancy between, on the one sheet “existing” symbol com- drawings “Site —the square *7 manhole small munication clearly Plan” —which indicated com- clear, space and that with the inner munication manhole No. isting” facility an “ex- C-4 was symbol man- communication for a “new” and, C-l, and omitted No. square the inner with hole was a small hand, relating on the other sheet 33-— space cross-hatched. “Communication Distribution —which drawings was Sheet 2 the contract concerning furnished instructions Plan.” This denominated the “Site manner in which communication man- things) (among depicted other sheet holes C-l and were be con- Nos. C-4 symbolized squares com- small four clearly structed thus indicated C-2, C-3, C- munication manholes. Nos. 4, they scope were within work symbolizing squares and C-5. The performed to be under contract. In C-3, C-2, were cross- Nos. and C-5 situation, upon such a it was incumbent indicating that were hatched thus these Woodcrest, in with the connection sub- “new” communication manholes. bid, of its a clarifica- mission obtain symbol- clear, for No. in- C-4 was thus making an tion from defendant “existing” dicating this was an inquiry as whether communication manhole. C-4 ac- manholes Nos. C-l and drawings tually in existence and thus outside the
Sheet 33 of the contract scope under the Distribu- work to be done denominated “Communication ** bolstering [Emphasis fa new these were or whether fabric. supplied.] bidder successful cilities which the con expected to construct Paragraph required shop 37-03 Co. v. Unit Beacon Construction tract. drawings approval, be submitted for 501, 504, 161 Ct.Cl. F.2d “Drawings further said shall (1963) ; Bros. Construc see Blount shop drawings, clude and erection includ- tion Co. ” * * * ing type of fabric 496, (1965). 972-973, Ct.Cl. (emphasis supplied). circumstances, appears Under the Paragraph provided 37-04 that “Sam- justified in not be court would that the ples required shall be submitted to the overruling reasonable administrative Contracting approval.” Officer for interpretation to effect that sheet proposed to furnish the TC- drawings, re- 33 of the 616 SCHOLASTIC chairs manufactured specifically to communication lated system, Heywood-Wakefield Company. controlling drawing for “was the produced The manufacturer this chair as system.” of the manhole construction covering, a standard item with a muslin Covering: produced slightly higher The addition to and Chair also at a Building price to con the Central Control with rather wide choice fab- theater, covering. rics for tain a by with chairs installed Woodcrest desired One of Wooderest’s to use the Woodcrest. standard chair with the muslin question covering, claims involved the defendant insisted that provisions pertinent technical it had the of whether certain under the tech- proper-' specifications, provisions nical in the contract to select a fabric for the necessary ly covering. interpreted, for chair made it Woodcrest was ultimate- ly op provide Woodcrest to afford the defendant theater chairs covering portunity as with select the fabric use made fabric selected covering the defendant. the theater chairs. Corps Engineers provisions Board Con- Section 37 of the technical introductory denied “Seating.” claim Wooderest’s related to portion for an increase in 37-02, dealing paragraph be- with requirement “Materials,” cause of the that the more declared that: expensive covering fabric be used as the shall Chairs be constructed as here- theater chairs. specified equal in after to TC- [sic] interpretation The Board’s of the 616 SCHOLASTIC chairs as manufac- provisions proper. technical by Heywood-Wakefield tinent Paragraph tured pany, Com- clearly 37-03 Michigan. indicated [sic], Menominee shop drawings should include a Subparagraph paragraph “b” of 37-02 posed “type approval of fabric” for the provided as follows: defendant, subparagraph “b” parts The back shall consist of two paragraph provided for the use —upholstered panel and metal back. *8 upholstering of “the selected fabric.” upholstered panel ply- shall be of Duct Bank: Another of the 3" wood and covered with a “changes” sought extending layer- claims an increase in wide of cotton felted price the contract and top a extension the time across and down both sides se- allegations curely on plywood. the basis of The entire after fastened plywood Woodcrest had drilled the be holes front surface of shall then for duet bank in the hair cable the covered with rubberized curled vault of addi- overall, Telephone Exchange pad tion to the one inch in thickness Build- topper approxi- ing, required by with a rubberized wool the defendant to up- mately thick, and the redrill the selected holes and reinstall the ducts. i/4" sustaining Engineers tive Con- record as this statement. Corps Board of of Furthermore, proof no such on the noted Appeals this claim denied during original the course of examination of ground the installation in accomplished the administrative record. not duct bank the requirements of the with the accordance necessarily It follows that there is no drawing. pertinent contract proper particular basis on which this in motion and plaintiffs, their decision could be administrative over- point- memorandum, supporting ruled. respect the administra- in what out erroneous, point tive decision Ill —Other Claims portions the administrative the disposing In of the consolidated ad- any prop- do not disclose record examined proceedings July 15, ministrative the could which er basis on Engineers Corps the Board of overruled. Appeals by Contract denied a claim Woodcrest extension for a time because In Asbestos-Cement Sheets: part delay sought claim, from Woodcrest another alleged- the work under contract was agency an increase the administrative ly attributable to weather con- adverse price and a extension the contract time ditions, a claim and also denied for a specifications called contract because time extension and an increase in the type material asbestos-cement for a price alleged contract because dimen- manufactured, longer being no that was discrepancies sional draw- necessary to use a substitute and it was ings. material. summary specifications plaintiffs’ for called motion The contract As judgment supporting con- sheets memorandum asbestos-cement use of the forming Specification to Federal SS-S- ask court to review ad- do not began mentioned in the 283. After Woodcrest ministrative decisions unnecessary preceding paragraph, work under the it is formance Specification Federal it SS-S-283, discuss them. was learned related a solid as- which sheet, superseded had been bestos-cement DAVIS, Judge (concurring in SS-B-755, Specification Federal dissenting part): perforated related to asbestos- join opinion I claims the court’s perforated as- The new cement sheet. As for clause. Wood- sheets used bestos-cement aspect, agree I Conditions” crest, approval of with the the defendant. that “the with Commissioner White for an claim increase Woodcrest’s accept, did, reasonably Board could time extension toas the date the Government’s evidence was de- on account of this substitution ground first encoun- when water was nied Board by Woodcrest, and the Govern- tered indicating ment's circumstantial evidence prove had failed to misled that Woodcrest was perforated asbestos- substitution of to show erroneous failure defendant’s ground-water delay any cement sheets caused actual completion of the work or logs.” important Perhaps piece most any cost additional to Woodcrest. volved could, Board of evidence on which the testimony did, rely supporting their Wood- memorandum summary judgment, placed its order crest initial motion plaintiffs *9 dewatering equipment ma- curement of five the substitute state that days ground they prior expensive,” time when do to the more
terial “was any in the water was first encountered administra- not cite evidence
415
378,
my opin
As