*1 received, upon inquiry, points.8 orders were I would affirm the district court’s responded “your Air Force judgment, future as- findings for its have not been signment mystery error, is as much a as ever”. shown to be in clear or its conclu- months, He remained at home for nine sions incorrect in law.

during he which time obtained civilian em-

ployment.7 Bates was carried on an excess during period

leave status he remained 503(a),supra,

at home. Under 37 U.S.C. § pay purposes over leave status is treat- identically

ed with AWOL status. Secretary of the Air Force later cor- military rected Bates’ record to show that MAINTENANCE, EMERALD charged leave, he had not been with excess INC., Appellant, duty during but had served on active v. period. Air Force did not declare military STATES, Appellee. Bates “absent from control” even The UNITED though he remained at home for the same No. 90-1185. period reported as Thomas and had not Appeals, United States Court of installation, person “any” military as the Federal Circuit. majority finds that Thomas should have done. 12, Feb. 1991. nightmare”, No “administrative as antici- pated by majority, appeared. has since ready

Thomas remained for valid orders.

Indeed, Thomas referred to a letter from Components

the Reserve Personnel and 10,

Administrative Center dated March

1983, addressed to him at his Tulsa ad-

dress, informing being him that he was pro-

considered for retention under the

gram. sum, Army could have terminated

Major Thomas’ Active Guard/Reserve sta- Bragg

tus at the time he declined Fort

orders, expressly recognized as was at the Fleming

time Colonel and others. It did

not do so. The board held Thomas’ duty April

active not end until status did correctly and the district court pay

awarded Thomas the and benefits of duty during period July

active status through April and inac- thereafter, including appurte-

tive status

nant veteran’s benefits and retirement military majori-

7. In Bates the court held that the back affected Thomas’ reservist career. The pay period for the Bates ty’s remained at home was statement that he "should not ... forfeit offset, military pay because quotation retirement or other benefits” is a depends fixed statute and on the member’s court, from the decision of the district which is status, not on his or her actual service. being here reversed. stigma attaching There can be no to the at- simply 8. The issue is not Thomas’ entitlement tempt preserve ques- the benefits earned over a benefits for the nine months in tion, majority suggests; appears military from lifetime of service. adversely the record that the Board’s decision *2 McHale, Di- Asst. Stephen and J. Director rector, Also on Washington, D.C. Au, Corps Army brief, Robyn U. U.S. was Div., Fort Ocean Engineers, Pacific Shatter, Hawaii, counsel. NIES, Judge, NEWMAN

Before Chief LOURIE, Judges. Circuit LOURIE, Judge. Circuit 3, August from the appeal This is an Armed Board 1988, Services decision ASBCA No. 36628 Appeals, of Contract ¶ (CCH) 21,103, 36632, 88-3 B.C.A. 97169, dismissing appel- certain of 1988 WL roofing con- involving two claims lant’s Army, and States tracts with United decision of September 37026, 36628, Board, No. ASBCA ¶ 22,719, (CCH) 1989 WL 90-2 B.C.A. 222697, claims for com- denying appellant’s contracts. We affirm. pensation under the

BACKGROUND 1985, September the United On No. Army awarded Contract States DACA83-85-C-0131, “Reroofing entitled Area, Harbor, Housing Pearl of a Hokulani Maintenance, Oahu, Hawaii,” to Emerald $474,322.02. price of a Inc. with contract Army also awarded On No. DACA83-85-C- to Emerald Contract “Reroofing of Catlin Park entitled Harbor, Areas, Oahu, Ha- Pearl Housing $913,949.10. waii,” price awith to, inter required Emerald These contracts alia, remove, repair existing replace, housing. military on roofs pro- contained a Each of these contracts incorporated the Davis-Bacon vision that clause, as 40 Act rate codified U.S.C. 276a(a) (1988), which stated that: § mechanics ... will be laborers and [a]ll Smith, Sewell, Q. Currie & Han- George paid unconditionally ... the full amount Atlanta, Ga., cock, argued, appellant. fringe wages and bona fide benefits brief, Flynn. John T. him on the With (or time equivalent) thereof due at cash less rates not computed at Kronheim, payment Atty., M. Commer- Jonathan than those deter- Branch, Justice, contained Litigation Dept, of cial Secretary Labor mination D.C., argued, appellee. Washington, hereto and made which is attached brief, were Stuart M. him on the With Cohen, Gen., Gerson, Atty. M. Asst. David [of contract].... added). tions an Emerald subcontractor under

(Emphasis The above-mentioned Determination, i.e., job began Labor also schedule of an unrelated contract. titles, wages, fringe investigation for similar under job descriptions, an violations benefits, By a letter dated prepared by contracts. *3 10, 1986, part September contracting contract. It the officer and was of the of Labor fringe benefits for notified Emerald of the area hourly rates and stated employees separate categories classifying paying of workers in- all who ninety alia, requested cluding, following: the worked on roofs as Roofers and inter payments that it make restitution for un- Fringe Basic

Hourly Bene- derpaid employees thirty days, pro- within Rates fits payments, prop- vide of such evidence erly classify employee each for the remain- 5.05 $ ROOFERS $16.95 requested correc- der of contracts. The LABORERS Subsequent- tive action was never taken. Group 13.75 4.50 Group Group 12.75 14.75 4.50 4.50 ly, contracting officer withheld a total $110,104 “Withholding under Group Group 14.25 13.25 4.50 4.50 contracts,1 provision Funds” of the paid money directly to workers who Group 7.00 2.75 paid according incorrectly had been did not de- Wage Determination various rates for laborers. job responsibilities roofers, scribe the Emerald then submitted a claim to the according to their but classified laborers contracting payment officer for of the con- responsibilities. At the time these money. contracting officer withheld executed, practice gov- tracts an area were appealed to the denied the claim. Emerald contracts erning performance of the Board, complaint containing four claims employees on required that all who worked (or counts). alleged Wage I that Count roofing clas- part roofs as of a contract be amounted to a defective Determination Building Roofers. sified as See & Con- II, govern- specification; count Dept., v. Don- struction Trades’ AFL-CIO misrepresented the rate at which ment had (in ovan, (D.C.Cir.1983) 712 F.2d performing roofing work could “laborers” pro- comply the Davis-Bacon order to with III, government paid; count contract, clas- visions of a workers must be proper superior knowledge as to the had according used sified to the classifications workers; IV, and count locality per- the contract is which mistake was made with re- that a mutual formed). parties stipulated that Both have practice. of the area gard to the existence practice at neither was aware of this area government, On motion executed. the time the contracts were Board, 3, 1988, August dismissed counts on contracting, Emer- Prior to the time of jurisdic- matter I and II for lack of Noles, project manager, Billie J. had ald’s govern- It denied that of the tion. for the estimated the labor and materials III to dismiss counts and IV ment’s motion so, doing Noles referred to the bids. they focused on because concluded Repair Remodeling 1984 Means contracting role in the con- officer’s text de- The “Forward” of this Guide. went to pleaded tracts and matters which factors local union restrictions as scribed obligations parties. rights However, affect cost. Noles did not which In its later decision of regard any area unions with consult knowledge superior it determined that practices. their (III) count had been abandoned because stipulated neither of 19,1986, began parties had May Labor an investi- both On practice at the alleged Act viola- them was aware of the area gation of Davis-Bacon contracting full amount provision officer laborers and mechanics ... 1. This allows the payments wages required by to withhold "so much of the accrued the contract.” necessary may be considered or advances as that, counts, in these Emerald time of contract. The Board then conclud- determined ed, IV, job reviewing contesting adequacy count that a mutual mis- assumption underlying the con- descriptions, take as to a basic which is an attack on ap- Wage did not exist. Emerald It con- the contracts tents of the Determination. that, pealed. Determination cluded since Labor, Disputes and the prepared Concerning provision Standards Labor ISSUES resolution of la- the contracts2 limited the concluding 1. Whether the Board erred Labor, contracting disputes bor appellant’s jurisdiction that it lacked over responsible agency was not deter- misrepresenta- specification and defective mination’s content and the Board did not *4 tion claims. jurisdiction these counts. have over concluding Board erred in 2. Whether alia, argues, that Appellant inter govern- appellant’s contracts with the Disputes provision does not create an ex- ground ment not be reformed on the should Act, Disputes ception to the Contract of mutual mistake. which, says, gives jurisdiction the Board present dispute, to decide the and that the DISCUSSION interpretation Disputes pro- of the Board’s appeal, our standard of review is set On contrary that act. We do not vision is 609(b) (1988), in 41 as fol- forth U.S.C. § agree. lows: Disputes provision of the contracts any ques- The on the decision [Board] clearly provides disputes arising final or out of tion of law shall not be conclu- sive, provisions any question of standards of the con- but the decision on labor subject final and conclusive and tracts are not to be to the Contract fact shall be Act, Disputes shall not be set aside unless the decision but are to be resolved “in fraudulent, arbitrary, capricious procedures or or of the De- accordance with necessarily (which grossly partment clearly or so erroneous as means of Labor” faith, imply or if such decision is not department). question bad The then supported by substantial evidence. particular problem arises whether be- out of” the stan- fore us labor “aris[es] questions us are Since both issues before provisions. dards law, of of we are not limited our review the Board’s decision. closely parallel The facts in this case Appellant argues that the Board erred those Intern. Service Co. v. Collins IV, I, II, concerning its decision counts States, (Fed.Cir.1984). 744 F.2d 812 United regarding argue but does not error count Collins, wage disputes In clause in the III. thus count III to have We consider government and the between abandoned, been as did Board. “require[d] contracting contractor offi- cer, dispute in the case of a over [the] Specifica- A. Counts I and II—Defective workers], ‘submit [of Misrepresentation tion and question together with his recommenda- * * * tion, II, Department I to the of Labor its treatment of counts * ” * * dealing specification and for final determination.’ The court with defective misrepresentation, respectively, the Board stated that contract ... clear “[t]he [wa]s Department "Disputes Concerning 2. The Labor Standards” cedures of the of Labor set forth provision states that: Disputes CFR Parts and 7. within arising meaning [disputes disputes out of the labor standards of this clause include (or provisions any this contract shall not be between the Contractor of its subcon- general Disputes to the Clause of this contract tractors) contracting agency, and the the U.S. [i.e., Disputes Act the Contract Labor, employees or the (1988), provided U.S.C. 601-13 for in §§ representatives. their disputes Provision 43 of the Such contract]. added). (Emphasis pro- be resolved in accordance with the shall authority has final to settle Labor the contracts and as such were not sub- wage disputes_” ject Id. at 815. jurisdiction. to the Board's dispute here also concerns con- B. Count IV—Mutual Mistake appli- tracts’ determinations and their style cation. However Emerald chooses to Appellant asserted the Board speci- complaint, whether as a defective that the mutual lack of awareness of the misrepresentation, fication or a the essence practice classifying local area the sub complaint of its rate it relates ject workers as Roofers was a mistake that doing roofing had to all workers parties. was made both The Board de listing job categories and the appellant termined that did not consider the surely rates in the contracts is one of area to be relevant to the contracts provisions. dispute labor standards because it company non-union here thus out of” the stan- labor “aris[es] appellant’s knowledge of it would not contracts, provisions dards and the price. have affected its bid The Board Disputes provisions require that it be re- concluded that the mistake on the solved Labor. the contractor was more a mistake of law Disputes The Contract Act is not to the fact, than of and decided that there was no *5 contrary. “applies any express This act mutual mistake assumption as to a basic implied or than a Maritime necessary granting [other reformation. by ... entered into an executive Contract] Appellant argues to this court that it is agency procurement [inter alia] for— entitled to Spe- relief for mutual mistake. construction, alteration, repair main- cifically, parties it asserts that both mistak- property.” tenance of real 41 U.S.C. enly believed that Emerald could labor- 602(a)(3)(1988). 8(d) Act, Section of the § wages er to some workers under the con- 607(d) (1988),gives 41 U.S.C. § tract, that that mistake a basic as- appeals jurisdiction boards of contract “to contract, sumption underlying the and that any appeal decide from a decision of a materially the mistake affected the con- (1) contracting officer relative to a contract price. tract However, agency....” made Appellant also asserts that the contracts contracts, specific Disputes provision of the expressly do not allocate the risk of mis- agreed appellant disputes that labor over take and that Emerald did not assume it. subject standards are to the position parties Its is that both were un- general disputes clause. While Emerald aware of the area and believed may have had little choice the matter they regarding knew the facts the correct Act, due to the Davis-Bacon there is little wage rates. Allocation of the risk of mis- objective reading doubt that an of the con- give govern- take to Emerald would parties tracts indicates that the intended sought, expected, ment a windfall it neither specific Disputes provision, stating that the to, according nor is to Emerald. entitled disputes arising that out of labor standards general are not to be dis- agree. purpose We do not clause, putes but are to be resolved reforming a contract on the basis of mutual procedures of the De- accordance with writing mistake is to make a con defective Labor, partment predominates over agreement parties upon form to the of the juris- general provision that the Board has meeting which there of the minds. was a any appeal decide from a con- diction to Dines, American President Ltd. v. United tracting It that officer. is well established States, (Fed.Cir.1987). 821 F.2d specific governs general, over the and factor, mutual mistake as to a fact or “[A] language provisions compels of these one, support even a material will not relief the result. puts if the contract the risk of such a party asking We therefore conclude that the Board did mistake on the reforma- tion_” deciding Flippin not err in that counts I and II Materials Co. v. Unit States, (Ct.Cl.1963). provisions arose out of the ed 312 F.2d labor standards 45(a) CONCLUSION contract states of the Provision that: did not err that the Board We conclude appellant’s II acknowledges dismissing it has counts I and Contractor [t]he jurisdiction reasonably necessary complaint for lack steps

taken no mutual mis- concluding that there was location of the the nature and ascertain parties justifies of the work, take on investigated it has and that of the contracts. reformation general and as to the satisfied itself which can local conditions affect AFFIRMED. [a]ny of the cost ... work or its failure described to take the actions Contractor NEWMAN, Judge, PAULINE Circuit acknowledged paragraph in this will dissenting. respon- not relieve the Contractor from dissent, change for this respectfully I the diffi- estimating properly sibility for terms wage the Davis-Bacon successfully performing culty and cost contracts, made of Emerald’s two success- proceeding or for were en- government after the contracts addition- fully perform the work without the risk performed, is not at tered into and expense al to the Government. liability of the contractor. added). (Emphasis holding Emerald erred in The Board government’s must bear the cost contractor, by provision, the above that all of post-contract determination itself and expressly contracted to inform “laborers”, in the six laborer classifications Determina- work on the basis contracts, must be reclassified set in the as set forth tion stipulated paid as “roofers”.1 It was acknowledged investigat- It Labor. *6 government nor the that neither the fact condi- as to the local ed and satisfied itself practice”. an “area contractor knew of such tions, practice in classi- which include area Army procurement process the During the workers, could affect the fying and which prepared la- Engineers and Emerald each under the contract. performing cost of demolition of bor cost estimates wherein 45(a) language of the con- The of Provision cleanup, for exam- existing roofs and any very providing tracts is clear at the Davis-Ba- ple, were done laborers to take the actions failure of the contractor specified for dem- wage rates con laborers’ acknowledged not re- would described and work, cleanup not roofers at olition and performing responsibility for lieve it from The con- roofers’ rates. the Davis-Bacon expense to the additional the work without into, bid, accepted, entered tracts were was thus on The risk of loss government. performed on this basis. compensated Emerald and it should not be can not con- resulting Emerald does not and incurring expenses While added the correctness of the government test this action assuming that risk. from inadequate Department of Labor’s determination Emerald’s responsible is requiring that the laborers’ practice, area investigation.3 expense dispute perform additional to the work without that there is no as to The dissent states 3. rates, waiver, wage applicability government. the local That which Emerald party made, which is to bear the issue is freely controls. It then responsibility for the increased cost. regulations assigning that risk to cites cases and Army 1. between Emerald and The contracts government. are two answers to that There Engineers provide that the contractor will fol- II, that, as to counts I and The first is assertion. general wage determina- low the Davis-Bacon dispute to the Determina- still relates July with for Hawaii that is dated tion tion, dispute have been raised and that should schedule, specified which modifications. This Department It was not. of Labor. with the contracts, wage rates is included in the shows Moreover, away any right Emerald contracted categories defined at for laborers in six responsible when it be for added costs not to agreed (in- ranging per hour $9.75 $18.25 from investigate any failure on its benefits); cluding fringe the schedule shows the cost of the the local conditions that affect per hour. obligation $22.00 roofers’ rate of would work not relieve it of paid work the Davis-Bacon schedule pute be between Emerald and the contracting rate, at the roofers’ neither the contracts agency concerning liability for increased between agency, oper- Emerald and the nor performance costs of change by due to the law, ation of absolves the of liabili- government contracts’ ty wages for the increased it retroactively classification terms. dispute This is sub required pay. the contractor to On the ject to “Disputes Clause”, contracts’ legal contractor’s theories of mutual mis- and is decided under the Disputes Contract take, misrepre- defective specification, Act, 41 seq. U.S.C. 601 et The Board's §§ sentation, the contractor is entitled to re- precedent own E.g., Ralph clear. Con lief. struction, Inc., ASBCA No. 88-2 20,731, BCA II 88-3 BCA reaffirmed

I 1121,136: By dismissing II, I and Counts Board dispute here is not whether the De- deprived opportunity the contractor of the partment of Labor properly has classi- support legal recovery: two theories of fied a employees class of employed the specification theories of defective performance of the pre- contract or the misrepresentation. While the first decision vailing minimum rates. Board, August dated re- ‡ Sc Hí H* ik sponding government’s motion to Rather, dispute concerns who is to dismiss, appears to have limited the dismis- bear the wages burden of increased aspects sal to those I of Counts and II that fringe benefits. This is a proper- matter could interpreted challenging the cor- ly before Board for resolution. rectness of the of Labor’s reclassification, Davis-Bacon 104,756 Board (holding Id. at government re- decision, its second dated sponsible for the contractor’s increased 1989, treated removing the dismissal as government costs when the issued from consideration the merits of Emerald’s determination that was defective because it arguments specification of defective and omitted one class employee). misrepresentation. error, This proce- In Count I Emerald legal raised the theo- dural and substantive. ry the wage specification

Emerald challenge does not the in the correct- solicitation and in the contracts was ness Department defective, of the of Labor’s determi- prejudicially for was different in September nation 1986 that all workers from the that specification was determined on these two contracts who had imposed been classi- and after per- were contracts paid fied and as laborers must be retroac- formed.3 In Count II Emerald raised the tively2 paid and legal reclassified as roofers. wage that the theory clas- erroneous However, not whether or there was a “Dis- specification sification in the contracts pute Concerning Labor Standards” be- should be viewed as a misrepresentation, tween Department Emerald and the authority La- for there that whether or not bor, 5, 6, see 29 C.F.R. Parts (apply- misrepresentation innocent, and 7 such a was it is ing Act, the Davis-Bacon 40 U.S.C. 276a responsibility agency of the that made §§ seq.), et that issue is unrelated E.g., States, to the dis- it. v. Womack United 389 2. The example, job -0131 was awarded description contract 3. For Emerald contracts’ in 16, September on "laborers, 1985. Notice to Proceed was Group Determination for 1” 2, 1985; received on October start- construction trucks; operators included of forklifts and substantially ed on November and was "laborers, job description Group for 2” included 6, complete May on 1986. Work on the -0143 "clean-up demolition ... laborer ... kettlemen substantially complete Septem- contract was on clean-up ...” Demolition and and truck driv- 19, (of investigation ber 1986. An an unrelated ing among required were per- the activities in contract) 1986; begun spring was roofing formance here at issue. contracts 10, agency on 1986 the wrote The did not inform that these Emerald practice" Emerald that there was an "area that paid laborers should have been classified persons working roofing all for a contractor roofers, performance. after contract until paid must be classified and as roofers.

1432 understanding. Like knowledge (1968). their Ct.Cl. 399 F.2d 182 estimator, Army Engineers’ States, Emerald’s Corp. McLane v. United Poirier & Engi- (a engineer in the Cost (1954), civil 117 estimator F.Supp. 128 Ct.Cl. Hawaii) contem- specified neering Branch rate located wherein an error do demolition would plated while the that workers in the contract discovered rates, cleanup at the stated laborers’ being performed, the Court of previously As the roofers’ rate. “misrepresenta- a not at described this as Claims “laborers, 2” included “demo- noted, Group labor tion” of costs: specif- “cleanup”. Such lition laborer” consequently misrepresenta- awas There roofing contracts can designations in ic defendant, perhaps an innocent tion cleanup related only mean demolition one, wage rate for prevailing as to the roof, for was work this laborers, upon one which but unskilled paid Emerald had required. contracts plaintiff relied. wage, as the Group at the these laborers 214,128 at 126. In Poirier the at Ct.Cl. Id. parties to the required. Both contracts theory of mutual granted relief on a court undisputed, expected, it is contracts fact. mistake of in the contracts of the schedule application do not turn on the legal These theories the Davis- requirements of meet the would Department of Labor’s correctness parties were later found Act. Both Bacon classifications, placement but on to have been Department of Labor changes in such classi- of errors or burden established. Mutual mistake was in error. change post-contract fications.4 While case the contracting agency, Labor’s classification includ- responsible for Army Engineers, is dispute, Emerald is gave rise to this not wage determinations and ing the correct challenging placement from foreclosed descriptions in its bid solicitations and work change, in liability the forum for that (f) 1.6(a)(2)(b)and contracts. C.F.R. § challenge. panel established such (1989): holding incorrect in majority is II, I and defective 1.6 Use and effectiveness raised issues Counts § are determinations. misrepresentation, specification and places them. Thus these counts. affirmance subject to Disputes Act, by this resolution for that court I must dissent from the under the is where the dismissal of Contract law ate sible ed in bid solicitations (b) Contracting agencies are sH insuring determination(s) ^[*] :f and contract only sH are ^[*] incorporat- appropri- respon- speci- ^[*] theory of were stipulation of the contractor “area The Board “the bid, practice” at the time mutual and the Board’s Department of Labor was did they did not know of the consider Army Engineers and the mistake. II Emerald’s explicit In view of the the contracts finding legal un- be tions will fications and for shall application wage referred to work ^[*] give in apply. to which such foremost ^[*] resolving the ^[*] Any question designating consideration to area rate schedules Administrator, who ^[*] wage determina- question. ^[*] specifically *8 regarding ^[*] shall (f) may issue a The Administrator there is area scant practice”, aware of the wage after contract award determination were mistaken in dispute that all concerned Corps from Emer- entirety: monies Following 39. The withheld in its is Count II 4. prac- local area ald because maintained COUNT II —MISREPRESENTATION workers, required payment em- tice descrip- job specification provided 37. laborers, ployed at the rate for roofers. to the Deter- of laborers tions attached compensation is entitled 40. Emerald mination. by upon misrepresentation based descriptions upon Emerald these 38. relied descriptions job of labor- Government of the contract. prepared for the when it its bid the contract. ers contained within beginning or Affecting after the of construction if ditions in holding Work” Em- incorporate has failed to solely responsible erald for the conse- wage in a determination contract re- quences of the error in determining the quired prevailing wage to contain rates practices”. “area This clause states: in determined accordance with the 45. SITE INVESTIGATION AND Act, wage Davis-Bacon or has used a CONDITIONS AFFECTING THE determination which its terms or the WORK provisions part clearly of this does not (a) The Contractor acknowledges that it Further, apply to the contract. the Ad- steps has taken reasonably necessary to may wage ministrator issue a determina- ascertain the nature and location of the applicable tion which shall be to a con- work, and that it investigated has and tract after contract award or after the general satisfied itself as to the and local beginning of construction when it conditions which can affect the work or wrong wage found that the determina- cost, (1) including but not limited to incorporated in tion has been the contract bearing upon conditions transportation, description because of an inaccurate disposal, handling, storage and of materi- project agency’s or its location in the als; (2) availability labor, water, request wage for the determination. Un- roads; power, (3) electric and uncertain- circumstances, any der above weather, stages, tides, ties of river or agency shall either terminate and resoli- physical site; (4) similar conditions at the cit the contract with valid de- the conformation and conditions of the termination, incorporate or the valid (5) ground; and equip- the character of wage determination to the retroactive be- ment and preliminary facilities needed ginning through supple- of construction during performance. work The Con- agreement through change mental or- acknowledges tractor also that it has sat- der, That the contractor Provided is com- character, isfied itself quality, as to the pensated any wages increases in re- quantity of surface and subsurface sulting change. from such The method materials or obstacles be encountered incorporation of the valid deter- reasonably insofar as this information is mination, adjustment inspection ascertainable from an price, appropriate, should where site, including exploratory all work done applicable procurement accordance with Government, law. as well as from the drawings specifications made a assigned responsibility This is a determin- Any of this failure of the contract. Con- claim, ing factor Emerald’s for it is tractor to take the actions described and specific dispute. issue acknowledged in paragraph will not Although government argues responsibility relieve Contractor from Emerald must be held to bear the risk of estimating properly difficulty agency’s error rates and classi- successfully performing cost of fication, assumption none of the criteria for proceeding successfully or for of such risk here shown. Restate- See perform the without additional ex- work (Second) (1981). ment Contracts § pense to the Government. parties’ This issue removed stipulation that both sides were unaware of specific This clause is as to certain site *9 practice” by the “area later found the De- conditions, consequences and states the Labor; partment parties both believed reasonably investigate failure to the site. facts, they knew the and there was no wage There is no mention classifications. finding igno- basis for a of either conscious stipulated The fact that both the contractor recognition rance or a that a vital fact was agency and the did not know of and did not required investiga- unknown and further adopt practice” against the “area weighs a tion. holding the contractor did not act rea- panel sonably, Investigation the majority

The relies on the contract even were Site Investigation However, clause apply. entitled “Site and Con- clause to it is the 1434 wage and had a the rate insuring” the cor- determination “responsible is duty investigate inquire, and thus 29 to wage determinations.

rectness of the In the cost the correct rate. 1.6(a)(2)(b). must bear C.F.R. § States, Int’l Co. v. United Collins Serv. responsibility, in this To cure failure (Fed.Cir.1984) contractor F.2d 812 the 744 changed the unilaterally government discrepancies in the recognized worker change totally was contract terms. This during phase, and the bid classifications the contractor. the control of outside clarify the government refused to when this situation is settled. applies in law made a “best discrepancies the contractor Black, v. & Assoc. United E.g., Raber-Kief wrong; guess” that turned out be 355, (1966); States, 174 Ct.Cl. 302 357 F.2d contractor took that court held that that, where the Government It is settled Collins, Anthony or risk. Unlike Grace pay higher a requires contractor ambiguities in the here there were no obligated to do under wages than he classification, con- no of Emerald to failure contract, States is liable his the United inquiry, no difference duct a reasonable costs. for the additional understanding knowledge between 361, at 312. Id. at 174 Ct.Cl. contracting agency. and the contractor is to bestow on the To hold otherwise fail- suggested The Board that Emerald's unintended government a benefit rates es- this union’s ure to consider that See, e.g., South parties to contract. “more a the area tablished States, Mfg. v. United Welding & Co. west However, of fact”. mistake of law than (reform (1967) 982, 39 179 Ct.Cl. 373 F.2d requirement, as a mat- the record shows no mistake, despite mutual ing contract for law, adopt must that a contractor ter sides, avoiding thus unintend on both error practices that wage and union government at ed enrichment area,5 in uniformly were not followed contractor); v. Walsh Unit expense government. to do with order business 589, 591, States, 121 Ct.Cl. F.Supp. 102 ed legal requirement for indeed If that were igno 546, (1952) (because mutual 554 Hawaii, the withhold- roofing contracts change rate that had been made rance of a from both ing of this information signed, shortly the contract was before contractor is agency and the government recover the increased could contractor grounds for relief. itself price fixed although it was a wage costs McLane, F.Supp. contract); 120 Poirier & agency’s undisputed that until the It is 214, (government re 128 at 127 at Ct.Cl. to Emerald of letter cost where both sponsible for increased contracts classifications of the correct were unaware parties changed place all labor were rate rate, intended that the correct be classification, among instead “roofer” States, Corp. v. United paid); Sunswick which were the six “laborer” classifications 772, 221, denied, 109 Ct.Cl. cert. F.Supp. per- specific jobs directed 1337, 92 L.Ed. 334 U.S. S.Ct. later-imposed practice” “area This formed. (1948) (where Adjustment Board de meaningless Davis-Ba- made the contracts’ substantially carpentry all work as fined categories. con definitions and must reim States waterfront United placing of the burden Board’s on Emerald costs). increased labor contractor burse govern- change by the of this retroactive and law. unsupported fact ment government are The cases cited Thus, respectfully, I dissent. Anthony apt on their facts. Grace less States, 433 F.2d v. United & Sons (1970)

768-69, 252-56 193 Ct.Cl. contractor had inade- held that the

court glaring ambiguity in investigated a

quately *10 practice”. this "area other follow that six contractors 5. The Board found agency did this same with contracts with