Womack v. United States

• Decision Date: 19 January 1968
• Docket Number: No. 269-62.,269-62.
• Citation: 389 F.2d 793,182 Ct. Cl. 399
• Parties: Travis T. WOMACK, Jr. and John R. Vorhies, Formerly Partners of Petroleum Ownership Map Company (a Dissolved Partnership) v. The UNITED STATES.
• Court: U.S. Claims Court

182 Ct. Cl. 399, 389 F.2d 793 (1968)

Travis T. WOMACK, Jr. and John R. Vorhies, Formerly Partners of Petroleum Ownership Map Company (a Dissolved Partnership) v. The UNITED STATES.

No. 269-62.

United States Court of Claims.

January 19, 1968.

Scott P. Crampton, Washington, D. C., attorney of record, and Jules G. Korner III, Washington, D. C., for plaintiffs, Korner, Doyle, Worth & Crampton, Washington, D. C., of counsel.

Ray Goddard, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, SKELTON and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner George Willi with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on April 10, 1967. Exceptions to the commissioner's report were filed by the parties and the case has been submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the commissioner's findings, opinion and recommended conclusion of law, with minor modifications, it hereby adopts the same as modified as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiffs are entitled to recover and judgment is entered for plaintiffs in the sum of $19,440.17.

Commissioner Willi's opinion, as modified by the court, is as follows:

In the early 1950's the Department of the Interior, through its Bureau of Land Management (BLM), initiated a study directed to a program for the comprehensive revision and modernization of the record system covering title and usage of Federal lands in 17 Western States, including Utah.

Plaintiffs, whose regular business was the preparation and sale of oil and gas maps for the petroleum industry, were generally aware of BLM's planned undertaking and were interested in participating in it as a private contractor. Accordingly, they maintained contact with BLM's Washington personnel throughout the preliminary study phase of the program. Their views and recommendations were solicited by and were furnished to BLM.

By 1955 the methods and procedures for this large and unique undertaking were settled upon.

It was decided that all phases of the project, except the initial one, would be performed by private concerns under contracts awarded and administered by BLM. A special staff was established by BLM to administer and coordinate the entire project. Mr. Earl Thomas, Associate Director of BLM, was the responsible head of the overall program. Mr. Everett Eynon, now deceased, as Manager of the so-called Records Improvement Project, supervised day-today operations and performance by private contractors. Mr. Harold K. Johnson served as Mr. Eynon's general assistant and performed inspection functions at contractors' premises as well. Mr. Fred W. Heine, an attorney versed in land law, had basic responsibility for drafting the supply contracts, including the contract in suit, let by BLM under the program.

During a period of approximately one year, from August 1955, BLM itself microfilmed all previously unfilmed title and usage source documents in its files and in the files of various other Government agencies. In all, some four million documents were microfilmed. Each roll of film negative contained approximately 1600 document images. For control purposes BLM assigned a number to each film roll and prepared an index showing the subject matter to which each roll related.

When the microfilming was finished, BLM awarded Recordak Corp. a contract to make 35 mm. positive celluloid prints of the negative rolls.

Next, a contract was let to the Filmsort Division of the Dexter Folder Company for cutting the positive print rolls into individual images and mounting them in the window area of aperture-type tabulating cards.

The next step in the project was the preparation of a so-called Control Document Index for each of the 17 States involved. This operation, performed by the York Tabulating Service under a unit-price BLM contract¹ awarded October 13, 1955, consisted essentially of identification and sorting of the aperture cards. Specifically, York viewed each aperture card and key-punched into it the subject matter depicted in its film image. When that subject matter related to more than one township of the State to which the card pertained, a cross-reference-type tabulating card was prepared for each additional township involved. After these operations were completed, all cards were segregated by State and the cards for each State arranged according to meridian, township and range.

Because of York Tabulating's limited financial resources, BLM agreed to a partial-payment arrangement under which York was permitted to bill for cards in lots of approximately 100,000 after they had gone through the initial, or State sort. Each York billing gave a breakdown showing the number of cards that were involved for each State. BLM maintained a current record showing, by State, the cumulative total of cards for which it had been billed.

The final phase in the BLM project, and the one with which the contract in suit is concerned, involved basically a transposition of the information contained in the Control Document Index onto title and use status plats, with an accompanying historical index, that were to be prepared for each township of the State to which the Control Document Index pertained. In such an operation the amount of work involved in annotating the plats and compiling the historical indices varied directly with the number of cards in the Control Document Index for the State in question.

In May 1956, BLM advised the plaintiffs that the Records Improvement Project was progressing satisfactorily and that an invitation for bid on a contract to prepare the annotated plats and historical indices for either Utah or New Mexico, as the lead State in the program, would be issued within the following several weeks.

On August 14, 1956, John Vorhies telephoned BLM's Earl Thomas to inquire as to when the invitation for the Utah contract would be issued. After Mr. Thomas stated that the Utah invitation would be issued shortly, Vorhies asked how many cards there would be in the Utah Control Document Index. He explained that this information would be important for bidding purposes. After consulting briefly with his associates, Mr. Thomas stated that an approximation of the card quantity would be put in the invitation so that it would be made known to all interested bidders. Prior to this request from Mr. Vorhies, BLM had not intended to include any reference in its invitation to the size of the Control Document Index.

On August 17, 1956, at which time it had been billed for 58,691 Utah cards by York Tabulating, BLM issued the invitation for bids on the contract in suit.

The invitation, specifying an opening date of September 18, 1956, called for a fixed-price bid for the preparation of a master title plat, a use status plat and a historical index for each township in Utah, Oregon or both.² The specifications, referring to the Control Document Index, stated: "There are an estimated sixty-five thousand (65,000) mounted aperture and cross-reference cards for the State of Utah * * *." Additionally, the specifications provided that: "A standard diagram shall be used for the basic master title plat as is set forth in the detail information for an estimated eighty-five per centum (85%) of the townships for which the plats are prepared under this contract." Finally, the specifications included the following general provision: "All estimated quantities in this contract are subject to a twenty-five per centum (25%) increase or decrease." (Finding 18, infra.)

The estimate as to card quantity represented the best collective judgment of the members of BLM's Record Improvement Project staff. They based their judgment on the number of Utah cards for which York had billed (58,691) by the time that the invitation was issued and their impressions as to York's percentage of completion on Utah, gained from the bi-weekly inspection visits of BLM personnel to the York premises.

The estimate as to percentage of Utah townships that could be platted on standard diagrams was based on the judgment of Mr. Earl Harrington, Chief of BLM's Division of Cadastral Engineering. Mr. Harrington was a man of 50 years' professional experience and unquestioned competence. In arriving at his standard diagram estimate for Utah, he reviewed 800 plats from locations throughout the State.

The invitation advised interested bidders that a BLM representative would be in Salt Lake City during the week of August 27 to discuss the proposed contract and answer questions. The representative was Mr. Fred Heine, and Travis Womack met with him at the appointed time and place. At their meeting Womack asked why BLM could not be specific as to the number of Utah cards. Mr. Heine explained that use of an estimate was unavoidable because York Tabulating had not completed the Control Document Index for Utah. He added that BLM felt that its estimate was entirely sound and that, while not completely through, York was very close to being finished with Utah. During his stay in Salt Lake City, Womack examined a sufficient number of plats at the Land Office to satisfy himself that BLM was correct in estimating that 85 percent of the Utah townships could be platted on standard diagrams.

Following the Salt Lake City meeting with Mr. Heine, plaintiffs went to work on the formulation of their bid. Among the things that they did to arrive at a bid price for Utah was a time study on the preparation of a historical index and plat annotations for what they deemed a representative 35-section township. The historical index and the plats for such an average township, plaintiffs assumed, would each have 25 information entries; one entry for...