Gelco Builders & Burjay Const. Corp. v. United States

• Decision Date: 16 December 1966
• Docket Number: No. 374-63,169-66.,374-63
• Citation: 177 Ct. Cl. 1025,369 F.2d 992
• Parties: GELCO BUILDERS & BURJAY CONSTRUCTION CORP. v. The UNITED STATES.
• Court: U.S. Claims Court

177 Ct. Cl. 1025, 369 F.2d 992 (1966)

GELCO BUILDERS & BURJAY CONSTRUCTION CORP. v. The UNITED STATES.

Nos. 374-63, 169-66.

United States Court of Claims.

December 16, 1966.

COPYRIGHT MATERIAL OMITTED

Lewis Stockman, New York City, for plaintiff; Robert R. Hume, New York City, attorney of record.

Sheldon J. Wolfe, Washington, D. C., with whom was Acting Asst. Atty. Gen. J. William Doolittle, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

PER CURIAM:

This case was referred to Trial Commissioner Saul Richard Gamer, with directions to make recommendation for conclusions of law on plaintiff's motion and defendant's cross-motion for summary judgment. The commissioner has done so in an opinion and report filed on March 28, 1966. Plaintiff filed a request for review of the commissioner's opinion and the case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Therefore, plaintiff's motion for summary judgment is denied, defendant's cross-motion for summary judgment is granted and plaintiff's petition is dismissed as to that portion of plaintiff's claim set forth in the original petition filed on December 27, 1963, in case No. 374-63.^*

Commissioner Gamer's opinion,^** as modified by the court, is as follows:

Plaintiff is a joint venture that contracted with the Public Building Service, General Services Administration, to install, at a contract price of almost $2,200,000, central air conditioning in the United States Post Office at 8th Avenue and 33rd Street, New York City (and the Morgan Annex on 9th Avenue). Its complaint is that it was required, contrary to the alleged proper interpretation of the specification provisions, to install insulation covering on certain supply ducts. It seeks compensation of over $385,000 for such allegedly extra work.

The dispute arose during contract performance, plaintiff demanding a change order, and the contracting officer finally formally directing plaintiff to cover the ducts in question without extra compensation. Plaintiff, under the contract Disputes clause, appealed to the GSA Board of Review, which, after holding a hearing, denied the appeal as well as plaintiff's subsequent motion for reconsideration (the Board by that time becoming known as the GSA Board of Contract Appeals). This suit followed.

After a determination by this court that plaintiff's action was, pursuant to United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), and Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct. Cl. 757 (1965), to be determined on the basis of the Board record, plaintiff filed a motion for summary judgment and defendant has cross-moved.

The controversy revolves about an addendum to the specifications which defendant issued prior to the opening of bids. The original Invitation for Bids, which included the project specifications as part of the bidding documents, was issued January 22, 1960, and set February 19, 1960, as the bid opening date. There is no dispute about these specifications requiring the covering of the supply ducts in question. The specifications were divided into 28 sections, and section 26, entitled NON-CONDUCTIVE COVERING, contained in its opening paragraph 26-1, headed SCOPE OF WORK, the following sentence (the second sentence in the paragraph) which specifically required the supply ducts to be covered:

All air conditioning air handling units, fresh air intakes, all air conditioning new and existing supply ducts, and all return ducts located in non-conditioned spaces, shall be covered. (Emphasis supplied.)

Furthermore, GSA had, since August 1957, a STANDARD SPECIFICATION FOR NONCONDUCTING COVERING, and the next following paragraph 26-2, headed STANDARD SPECIFICATION, provided that "All covering shall be furnished in accordance with" such specification "except as otherwise specified herein." Another paragraph in the same section, 26-11, entitled COVERING FOR AIR CONDITIONING DUCTS, provided "See Paragraphss 82 * * *" of such Standard Specification, and paragraph 82, set forth under a general heading COVERING FOR AIR CONDITIONING DUCTS, ETC., also explicitly provided that: "The following shall be covered: All supply ducts * * *" (Emphasis supplied.) Thus, there could reasonably be no question whatsoever that, by specific mention in the project specifications themselves, as well as by reference to the Standard Specification, which also contained such an explicit requirement, all the supply ducts had to be covered.

The trouble is that on February 11, 1960, GSA issued an ADDENDUM No. 1 which informed bidders that the specifications "are hereby modified" in several respects. One of the modifications (No. 15) was to change the above-quoted second sentence of paragraph 26-1 to read as follows:

All air conditioning air handling units, fresh air intakes, and all air conditioning new and existing shall be covered and all return air ducts located in nonconditioned spaces shall be covered. (Emphasis supplied.)

Thus, that part of the original sentence reading "all air conditioning new and existing supply ducts" was changed to read "and all air conditioning new and existing shall be covered". It is upon the omission of the words "supply ducts" in this part of the modified sentence that plaintiff's entire case is based. Plaintiff argued to the contracting officer that the supply ducts were obviously originally required to be covered because the sentence in its unmodified form specifically said so, but that it was equally manifest that the modification, by deleting these crucial words, removed the requirement. Plaintiff's case was that simple.¹

However, it must be evident that the omission of the words "supply ducts" is not the end of the problem, but in fact only the beginning. For the task of seeing what the new sentence says and means without such words cannot be escaped. And as to this, one is compelled to conclude that, by any reasoned usage of words, the clause "all air conditioning new and existing shall be covered" leaves one in a quandary. If "air conditioning" is used as a noun, as the clause seemingly did (instead of as an adjective, as it was originally used), then obviously all "air conditioning" can hardly be covered. The clause becomes quite meaningless. But if "all air conditioning" is attempted to be made meaningful by using it in the sense of the entire air conditioning system — a most inartful way indeed of expressing such a thought — then, in requiring that the entire system installed would have to be covered, it would again be most peculiar. Installing nonconductive covering on the heavy air conditioning machinery itself would hardly be a rational requirement. Besides, if it had such an all-inclusive meaning, then what could possibly be the purpose of the rest of paragraph 26-1, and indeed of the balance of the very second sentence itself, in enumerating in detail the specific ducts and piping both to be covered and not covered?² The modified sentence itself wound up with the provision that "all return ducts located in non-conditioned spaces shall be covered." This meant that all return ducts located in conditioned spaces should not be covered. But how then could this square with the previous all-inclusive requirement in the same sentence that the entire air conditioning system be covered? And similarly, what then could possibly be the purpose of the further delineation contained in paragraph 82 of the Standard Specification of what should be covered, as well as not covered?³

But worst of all so far as plaintiff's case is concerned, if the clause is somehow construed to require covering the entire air conditioning system, then that would necessarily include the "supply ducts" too, so that plaintiff could take no comfort from the omission of those words anyway. The fact of the matter is that grammatically and practically the modified sentence was a puzzle. Something was clearly wrong. The only logical conclusion was that "air conditioning" was obviously intended to be used, not as a noun, but, as it was used in the original sentence, and throughout the balance of paragraph 26-1, as an adjective, and that the word or words which it modified or described were inadvertently omitted. However, proceeding on this reasonable supposition, then what word or words could be considered as omitted? As shown, it could hardly be the entire "system", for, in addition to the reasons already set forth, the paragraph was in a section of the specifications headed "Non-Conductive Covering" which delineated those parts of the system, principally the duct work and the piping, which would have to be covered. Could it then be, as it originally was, the "supply ducts"? Or the "return ducts"? Or some piping equipment?

If ever there was a situation calling for the application of the rule requiring a bidder to make inquiry (Black, Raber-Kief & Associates v. United States, 357 F. 2d 355, 174 Ct.Cl. 302 (1966), and cases therein cited), this was certainly it.⁴ That a contractor would confidently proceed, simply on the basis of the omission of the words "supply ducts" from the sentence upon which plaintiff relies, to delete work from its bid in the alleged amount of over $385,000, without any regard to what meaning was then to be given to the sentence, or how the sentence would then rationally relate to the balance of the specifications, just cannot be understood.

The contracting officer ruled that paragraph 82 of the Standard Specification, referenced by paragraph 26-11 into the same section 26 that contained the sentence upon which plaintiff relies, specifically required the covering of "all supply ducts" and that if it had been defendant's...