BD Click Co., Inc. v. United States
| Decision Date | 23 January 1980 |
| Docket Number | No. 247-78.,247-78. |
| Citation | 614 F.2d 748 |
| Parties | B. D. CLICK COMPANY, INC. v. The UNITED STATES. |
| Court | U.S. Claims Court |
Jimmy L. Browning, Breckenridge, Tex., attorney of record for plaintiff.
Emory J. Bailey, Wheaton, Md., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.
Before SKELTON, Senior Judge, and KASHIWA and BENNETT, Judges.
ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
This is an appeal by the plaintiff, B. D. Click Co., Inc., under the Wunderlich Act (41 U.S.C. §§ 321-322 (1970)) from an adverse decision of the Armed Services Board of Contract Appeals (the Board) in ASBCA No. 18647. The plaintiff asserts that the decision of the Board was arbitrary, capricious, and not supported by substantial evidence and, consequently the decision should be reversed and judgment entered in its favor. The plaintiff, alleging a changed condition, seeks an equitable adjustment in the amount of $3,000 for installing a fire sprinkler system in a building constructed by it pursuant to a contract with the Department of the Air Force.
The facts show that on December 9, 1970, plaintiff was awarded Contract No. F41641-71-C-0116 in the lump sum amount of $24,960.00, for the construction of a storage paint and dope building at Laredo Air Force Base, Texas. Incorporated by reference in the contract as general provisions were the Changes, Differing Site Conditions, Specifications and Drawings, and Disputes clauses usually found in military construction contracts. Another general provision was entitled "CONTRACT DRAWINGS, MAPS AND SPECIFICATION (1965 Jan/ASPR 7-602.45). The contract provided, among other things, the following:
b. The site of the work is at Laredo Air Force Base, Laredo, Texas. SW-02 PRINCIPAL FEATURES: The work to be performed includes the following principal features:
The title page of the Technical Provisions of the contract provided:
Another technical provision entitled "SPRINKLER SYSTEMS, FIRE PROTECTION" contained eleven pages of various requirements. In paragraph 7-02 the following appears:
The contract also included one drawing, Drawing No. 33-17-03. Detail of the drawing shows the outside connections of the sprinkler system.
The eleven pages of the requirements of the sprinkler system set forth in the specifications of the contract described in minute detail the components of the sprinkler system including, among others, the following: gauges, caulking, flanges, steel pipe, cast-iron pipe, wrought iron pipe, pipe fittings, plumbing fixtures, gasket material, nuts and bolts, pressure fittings, standpipe and hose systems, water spray system, rubber gasket joints, square and hex bolts and screws, spare sprinklers, pipehangers, valves, shop drawings, welding, installation of material and equipment, workmanship, pipe installation, joints, bracing and clamping, control valves, excavation, trenching and backfilling, flushing, working pressure, special couplings, reducers, pipe supports and hangers, pipe sleeves, escutcheons, drains, protection against freezing, types of sprinklers, waterflow indicators, alarm check valves, sterilization, alarm facilities, repairs, tests, instructions for test, inspection, operation and preventive maintenance, and a one-year guarantee by the contractor.
A dispute arose between the plaintiff and the contracting officer in March, 1971, as to whether the plaintiff was required to install a complete fire protection sprinkler system in the building. The contracting officer contended that the contract required the plaintiff to install the system. The plaintiff argued that paragraph 7-02 of the Technical Provisions stated that: "the contract drawings indicate the extent and general arrangement of the sprinkler system," but that those drawings did not show a requirement for any plumbing of the sprinkler system other than that shown on Detail A of Drawing No. 33-17-03, which showed only outside connections and alarms for the system. Such drawing did not show a requirement for overhead piping, heat-sensitive sprinkler valves, or any other part of the sprinkler system. The contracting officer required the plaintiff to install the complete sprinkler system. The plaintiff says this was a change order for which it was entitled to be paid the cost of the system in the sum of $3,000 over and above the contract price.
The plaintiff installed the system and accepted the final payment for the full contract price on June 3, 1971, and signed a release without taking any exception, or otherwise reserving any claim arising out of the performance of the contract. Later, the plaintiff filed a claim with the contracting officer for $3,000 for installing the sprinkler system, which claim was rejected by the contracting officer as untimely since plaintiff had not asserted a claim prior to accepting final payment. The plaintiff says that it accepted the final payment and signed the release under duress in that the contracting officer and another official of the Government threatened that otherwise the company's record with the Government would be ruined and it would not be awarded any future government contracts.
The plaintiff filed an appeal on July 31, 1973, with the Board seeking an equitable adjustment. The Board denied the appeal. In the present suit the plaintiff seeks review of the Board's decision pursuant to the provisions of the Wunderlich Act, alleging that the Board's decision was arbitrary, capricious, unsupported by substantial evidence and so grossly erroneous as to imply bad faith. The case is before us on cross-motions for summary judgment.
Our review is limited to whether the Board's findings are fraudulent, arbitrary, capricious, so erroneous as to imply bad faith, or not supported by substantial evidence. United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Marley v. United States, 423 F.2d 324, 191 Ct.Cl. 205 (1970). The plaintiff has the burden of making such a showing, otherwise the Board's findings must be deemed to be final pursuant to the Wunderlich standards of review. In our opinion, the plaintiff has wholly failed to sustain this burden.
The Board found that the invitation for bids and the ensuing contract were not so complicated as to require "sophisticated construction." The Board found further that:
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