Ambrose-Augusterfer Corporation v. United States

• Decision Date: 10 May 1968
• Docket Number: No. 377-63.,377-63.
• Citation: 394 F.2d 536,184 Ct. Cl. 18
• Parties: AMBROSE-AUGUSTERFER CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

184 Ct. Cl. 18, 394 F.2d 536 (1968)

AMBROSE-AUGUSTERFER CORPORATION v. The UNITED STATES.

No. 377-63.

United States Court of Claims.

May 10, 1968.

COPYRIGHT MATERIAL OMITTED

Eldon H. Crowell, Washington, D. C., attorney of record, for plaintiff, David V. Anthony, C. Stanley Dees, Sellers, Conner & Cuneo, Washington, D. C., Allen J. Levin, and Folz, Bard, Kamsler, Goodis & Greenfield, Philadelphia, Pa., of counsel.

Mary J. Turner, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

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

SKELTON, Judge.

The plaintiff, on behalf of its subcontractor, seeks an equitable price adjustment under a contract with the General Services Administration (GSA) for the installation of a central air-conditioning system and, alternatively, damages for breach of that contract.¹ More specifically, on March 23, 1960, the defendant through the GSA awarded plaintiff a fixed-price contract in the amount of $2,389,000. The contractual scope of work included "the furnishing of all labor and materials and performing all work required for the alterations, additions, repairs and miscellaneous changes in construction of architectural, structural, mechanical and electrical work for the installation of a new air conditioning system at the United States Post Office (Main) at 30th & Market Streets, Philadelphia 4, Pennsylvania; all as shown on * * *," specified contract drawings "and as may be directed." (Section 2-1).

Thereafter, the plaintiff awarded a subcontract to Willard Electric Construction Company for the performance of all electrical work covered by the prime contract. The issue presented to the General Services Administration Board of Contract Appeals (GSABCA) after denial of the claim by the contracting officer, was whether plaintiff was entitled to additional compensation for work performed under protest by its subcontractor in connection with the removal, rehanging, and recircuiting of 2,398 lighting fixtures at the direction of the contracting officer. The problem was accentuated by the fact that the disputed fixtures were physically attached to existing ductwork in the building, which ductwork the plaintiff was obligated to remove. This demolition work constituted 90 percent of the total contract work. Naturally, we will explore the crucial facts and contentions of the parties in detail, but first we will summarize the factual and legal conclusions of the Board.²

The Board concluded, after analysis of the contract provisions and consideration of the competing interpretations, that the disputed work was a normal and expected procedure in the course of completion of such a job and required by the contract. It also found that plaintiff, "paying due heed to all requirements of its total commitment, reasonably should have known under the prevailing circumstances that the disputed fixtures were affixed to the ducts and provided with essential wire connections, or at the least could have ascertained such information had logical and prudent inquiry timely been made prior to bidding." Accordingly, the appeal was denied.

At the outset, we note that the factual findings of the Board are binding here, as they have not been upset by a showing of inadequate evidentiary support or any comparable infirmity. We also have determined that in all material respects, its legal conclusions are correct.

The plaintiff asserts two claims in connection with the lighting fixtures in dispute. The first claim consists of the cost of removing the fixtures and replacing them with new hangers after removel of the ducts to which they were originally attached. The second claim is for the cost of relocating the wiring after the removal of the ductwork in which the wiring had originally been encased.

As formulated by the parties, the dispute before the Board (as in this court) focused on the meaning and relationship of numerous contract provisions.

Indeed this case is a prime example to illustrate the principle that in the construction of a contract, "to its words we at first resort, but not to one or a few of them but to all of them as associated, and as well to the conditions to which they were addressed and intended to provide for." Merrill-Ruckgaber Co. v. United States, 241 U.S. 387, 392, 36 S.Ct. 662, 664, 60 L.Ed. 1058 (1916).

The material facts, however, must first be related.

The post office building in which the work was to be performed contained five floors in addition to a penthouse and sub basement. Each floor measured four and one-half acres in area and approximately 20,000 lighting fixtures were located throughout the building and situated twenty feet above the floor.

It is undisputed that the contract drawings showed the existence of the ductwork, but gave no information whatsoever with respect to the existence of the disputed fixtures. Additionally, the contract drawings provided specifically for the removal, rehanging and recircuiting of 308 lighting fixtures which were located in certain designated areas known as air handling rooms. No work thereon is in issue here, and it is pertinent to note that comprising the 308 fixtures were 144 new fixtures which were to be furnished and installed and 164 existing fixtures which were to be removed and relocated.

Prior to bidding, the subcontractor's estimator testified that he had thoroughly reviewed the detailed specification requirements and had correlated them with the work indicated on all the contract drawings. The estimated cost of the electrical work was not determined until after the estimator had visited the site. On such visit, he confirmed the view of the scope of the work gained from the prior study of the contract documents, and verified the actual count of 308 fixtures as shown on the drawings.

After the subcontract was executed, the subcontractor's project engineer visited the site to evaluate the project in terms of the labor force necessary to do the required work. He reevaluated the earlier estimate and concurred in its conclusion, including specifically that only the 308 fixtures were a contract responsibility. It is also to be noted that prior to bidding, the plaintiff's vice president had also made an inspection of the work site.

At, or shortly after commencement of the demolition work, a dispute arose when the construction engineer directed the subcontractor to remove and replace a then undetermined amount of lighting fixtures in excess of the 308 fixtures specifically portrayed on the contract drawings. The subcontractor notified the plaintiff and requested a contracting officer's decision. The subcontractor claimed that removal and replacement of lighting fixtures in any quantity in excess of the 308 fixtures noted on the contract prints was not within the intent of the contract documents.

As mentioned earlier, the subcontractor complied with the verbal order given by the construction engineer,³ but proceeded under protest. Sometime later, the construction engineer recommended payment of the plaintiff's requested change order covering the additional electrical work on the basis that the work was not covered in the contract drawings or specifications.

Pursuant to a review by GSA representatives, the architect-engineer was advised by the Acting Chief, Design and Construction Division, that the work was required by the contract. The reasons advanced were that it appeared that the removal and reinstallation of the disputed fixtures which hung to the bottom of the ductwork should have been noted when a pre-bid inspection was made; that it should have been all the more apparent that the fixtures were to be reinstalled, since the ductwork was required to be removed.

The contracting officer concurred in the above decision, and notified the plaintiff that no additional payment could be justified in light of the contract provisions which adequately covered the subject work as an integral part of the contract. The Board affirmed the contracting officer's conclusion that the work was a contractual obligation. These administrative proceedings gave birth to judicial review in this court.

The plaintiff now challenges the decisions of the Board under the Wunderlich Act, 41 U.S.C. §§ 321-322 (1964). Only the administrative record is before us. On that record we discuss the two issues which in our opinion control resolution of the controversy. They are whether the contract papers required the performances of the disputed work; and whether the contract documents which were furnished were misleading and failed to give the plaintiff the benefit of superior knowledge which the defendant allegedly possessed and withheld.

The plaintiff's contractual obligations and present contentions, as well as the administrative actions, are best understood if the key contractual provisions are set forth initially.

Section 1

General Conditions

* * * * * *

1-4. CONDITIONS AT SITE OR BUILDING

The Contractor shall be responsible for having ascertained pertinent local conditions readily determined by inspection and inquiry, such as the location, accessibility and general character of the site or building, labor conditions, the character and extent of existing work within or adjacent thereto, and any other work being performed thereon at the time of the submission of his bid.

* * * * * *

Section 2

Special Conditions

2-1. SCOPE OF WORK: The work to be done hereunder includes the furnishing of all labor and materials and performing all work required for the alterations, additions, repairs and miscellaneous changes in construction of architectural, structural, mechanical and electrical work for the installation of a new air conditioning system at the United States Post Office (Main) at 30th & Market Streets, Philadelphia, 4, Pennsylvania; all as shown on Drawings 27-01 (Cover Sheet) and Drawings Nos. 27-20 thru 27-57 inclusive, and Standard Detail Drawings as listed...