Beacon Construction Company of Mass. v. United States

• Decision Date: 10 May 1963
• Docket Number: No. 44-58.,44-58.
• Citation: 161 Ct. Cl. 1,314 F.2d 501
• Parties: BEACON CONSTRUCTION COMPANY OF MASSACHUSETTS v. The UNITED STATES.
• Court: U.S. Claims Court

161 Ct. Cl. 1, 314 F.2d 501 (1963)

BEACON CONSTRUCTION COMPANY OF MASSACHUSETTS v. The UNITED STATES.

No. 44-58.

United States Court of Claims.

March 6, 1963.

Rehearing Denied May 10, 1963.

Robert J. Sherer, Boston, Mass., for plaintiff. Frederick W. Roche, Boston, Mass., was on the briefs.

Philip W. Lowry, Washington, D. C., with whom was Joseph D. Guilfoyle, Acting Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and WHITAKER, LARAMORE, DURFEE, and DAVIS, Judges.

DAVIS, Judge.

This breach-of-contract case arises out of the plaintiff's agreement with the Public Housing Administration to construct, at Presque Isle, Maine, a defense housing project consisting of 275 dwelling and 7 laundry units. The Government required plaintiff to bear the expense of certain work which is said to be outside the contract obligations. We find that, for the most part, plaintiff is not entitled to recover.

The first claim is for weather-stripping the windows of the project units. The contract provided for storm-windows (in addition to the regular windows) and plaintiff installed those. But plaintiff's officers did not read the contract as calling for weather-stripping on the normal windows which were to be protected by storm-windows, and no such weather-stripping was furnished. After completion of the project, the defendant insisted that stripping was part of the contract and should have been supplied; on plaintiff's refusal to do this work, the Government entered into a substitute contract with another contractor, expending $16,144.81 which was withheld from plaintiff. Relief was denied by the contracting officer and the head of the agency, both of whom decided that the contract documents required that metal weatherstrips be furnished and installed on all regular windows. Since the dispute is a legal one, turning on the meaning and application of the contract terms, neither plaintiff nor this court is bound by the adverse administrative rulings within the Public Housing Administration. See 41 U.S.C. § 322; Allied Contractors, Inc. v. United States, 124 F.Supp. 366, 370, 129 Ct.Cl. 400, 407 (1954); Ready-Mix Concrete Co., Ltd. v. United States, 158 F.Supp. 571, 577, 141 Ct.Cl. 168, 176 (1958); Kayfield Construction Corp. v. United States, 278 F.2d 217, 218 (C.A. 2, 1960) (cf. Salem Products Corp. v. United States, 298 F.2d 808, 810 (C.A. 2, 1962)); Kenny Construction Co. v. District of Columbia, 105 U.S.App.D.C. 8, 262 F.2d 926, 928-929 (1959).

The specifications, which accompanied the invitation for bids and constituted a part of the contract, were prepared by a firm of Boston architects hired by Public Housing Administration. In pertinent part, they provided that:

"Weatherstrips for entrance doors shall be brass, bronze, zinc or stainless steel strips not less than .017 inches thick, one or two member, manufacturer\'s standard type, providing a weather tight seal on all 4 edges of doors and casement and double hung sash. They shall adjust themselves to the swelling and shrinking of the sash and frames without impairing their efficiency or the easy operation of the sash and doors. * * * Weatherstrip shall be provided for all doors, opening out, in service building." (emphasis added)

(In the building industry, "sash" is a generic term for a window; "double hung sash" is the ordinary type of window which moves up and down). One of the drawings supplied with the invitation for bids contained the notation "metal weatherstrips — see specifications," and a large red arrow pointed from this note to a double-hung regular window; in addition, there was a notation "metal sill covering" (a part of the weather-stripping of a window), again with an arrow pointing to the design of a window.

Anyone reading these contract papers as carefully as a prospective builder could not help but notice that, with respect to the weather-stripping of windows, something was gravely askew. The written specification starts by referring only to strips for entrance doors, not windows — but then that very opening sentence ends by requiring a weather-tight seal "on all 4 edges of doors and casement and double hung sash i. e., windows." The next sentence, too, refers to an adjustment of the weatherstrips to windows, as well as to doors; and the drawings twice link the ordinary windows of the units to weather-stripping. We think it undeniable that there are surfacial inconsistencies, at the least, within the specification itself and between the specification and the drawing — part of the specification appearing to provide weather-stripping only for the entrance doors, while another part as well as the drawings seem to cover windows as well — which were and must have been obvious to plaintiff from the time it began to prepare its bid.

Plaintiff did not, however, consult the defendant's representatives in settling this problem, but decided for itself that weather-strips were required solely for the doors and not for windows. Presumably it reached this conclusion on the basis of (i) the wording of the first part of the first sentence of the specification dealing with weather-stripping, plus (ii) plaintiff's understanding that the trade practice was that, even in Maine, weather-stripping is not installed on a regular window which is to be protected by a storm sash (as were the windows in this project). Accordingly, plaintiff calculated its bid and ordered its windows on the assumption that there would be no weather-stripping. It still asserts that this is the correct interpretation of the contract, emphasizing that, despite continuous supervision and regular inspections, defendant's officials never mentioned the absence of strips on the windows until after completion of the project when tenants began to complain of the drafts.¹ The Government urges that the omission of a requirement for window-stripping at the beginning of the pertinent specification was wholly inadvertent,² and that the remainder of the specification together with the drawings demonstrates that windows were included.

As a matter of pure contract-construction, there is something to be said for both sides to this dispute, but in any event the important handicap is the express warning given to plaintiff, before it bid, that plain ambiguities of this type, in the specifications and drawings, were to be taken up with the Public Housing Administration. Article 2 of the contract (which was, of course, known to plaintiff before it made its bid) declared that "In any case of discrepancy in the figures, drawings, or specifications, the matter shall be immediately submitted to the contracting officer, without whose decision said discrepancy shall not be adjusted by the contractor, save only at his own risk and expense." The invitation to bid stated that requests for interpretation of the specifications and drawings could be made in writing to the Public Housing Administration, and that every interpretation made to a bidder would be issued as an addendum to the specifications and become part of the contract. We do not reach or decide the question of whether the provisions of Article 2, quoted above, would have any effect on the contractor's rights if the ambiguity creating the issue of contract-interpretation first appeared, or the problem...