Dale Ingram, Inc. v. United States

• Decision Date: 16 March 1973
• Docket Number: No. 412-65.,412-65.
• Citation: 201 Ct. Cl. 56,475 F.2d 1177
• Parties: DALE INGRAM, INC., (formerly Florida Builders, Inc.) v. The UNITED STATES.
• Court: U.S. Claims Court

201 Ct. Cl. 56, 475 F.2d 1177 (1973)

DALE INGRAM, INC., (formerly Florida Builders, Inc.) v. The UNITED STATES.

No. 412-65.

United States Court of Claims.

Decided March 16, 1973.

Peter Latham, Washington, D.C., for plaintiff; I.H. Wachtel, Washington, D.C., of record; Glade F. Flake, Washington, D.C., of counsel.

Paul A. Zoss, U.S. Dept. of Justice, Court of Claims Section, Civil Division, with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant; Michael B. Rosenberg, Washington, D.C., of counsel.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

SKELTON, Judge, delivered the opinion of the court:

In this case the plaintiff, Dale Ingram, Inc. (formerly Florida Builders, Inc.), contends that two decisions of the Armed Services Board of Contract Appeals (the Board), one on liability and one on quantum, are erroneous as a matter of law and are not supported by substantial evidence. The plaintiff also seeks reformation of the contract on the ground of mistake.

The contract in question was one for Capehart housing construction upon land in Florida that had been under water and had to be filled in before the housing could be constructed. The land fill was to be accomplished by a different contractor under a different contract (land fill contract) which originally required compacting the land to a maximum density of 95 percent. However, this compaction requirement was reduced to 90 percent before the land fill contract was awarded on April 18, 1960, to Gahagan Dredging Corporation (Gahagan). The compaction requirement was changed again on the date the land fill contract was awarded to eliminate the numerical requirement of 90 percent of maximum density to:

"All embankments and fill shall be dense and uniform."

In the meantime, plaintiff prepared and submitted a bid on the contract in issue before us (the construction contract) which required the construction of 500 houses on the area to be filled in. The Invitation For Bids (IFB) stated that the houses were to be constructed on land to be filled in by another contractor and all bidders were admonished to visit the site and become familiar with the type and quantity of earthwork required in the construction contract. They were further informed that the specifications and drawings of the land fill contract were available for inspection at two different offices, the names and addresses of which were stated. The plaintiff visited the site and worked with a contractor who intended to bid on the land fill contract. By reason of these facts, the plaintiff had knowledge of the basic specifications of the land fill contract, including the original requirement that the fill would be compacted to 95 percent density and the addendum changing this requirement to 90 percent density. The plaintiff submitted its bid on the construction contract, but all bids were rejected because they exceeded the money available.

Thereafter, during July and August 1960, a second IFB was issued. The plaintiff's representatives visited the site again and observed the land fill operations of Gahagan. The plaintiff desired to bid on the construction contract again, which contract provided in its specifications that:

* * * The top six inches of material on which footings and floor slabs are placed shall have a density of not less than 90 per cent of laboratory density.

Being mindful of the foregoing requirement of 90 percent density for the top six inches of the soil for the footings and floor slabs, the plaintiff sought and obtained a quotation of $277,000 from Redland Construction Company, Inc. (Redland), a subcontractor, to do the grading and footing compaction work at the site under the construction contract. Redland inspected the condition of the soil at the site and then raised its quotation to $410,000. The plaintiff then got a higher quotation from another subcontractor, after which it negotiated a contract with Redland to do the work for $403,000. The plaintiff and Redland then bid on the contract without knowing that the specifications of the land fill contract had been changed so that the requirement for compaction to 90 percent maximum density had been removed and the words "dense and uniform" had been substituted therefor. At the time they bid, the plaintiff and Redland thought that the 90 percent density requirement was still in the land fill contract.

It should be noted that the plaintiff did not ask for up-to-date land fill specifications during the July-August bidding period and did not make any investigation with reference to same. There is no evidence that the government knowingly or willfully withheld any of such information from the plaintiff. The plaintiff had plenty of time to investigate the compaction requirements of the land fill contract as it was awarded on April 18, 1960, and the construction contract was awarded to the plaintiff eight months later on December 19, 1960, as stated below.

After the bids were opened on the construction contract, but before the contract was awarded, plaintiff learned that the 90 percent compaction requirement of the land fill contract had been changed to "dense and uniform." The plaintiff protested to the government but did not ask to be allowed to withdraw its bid. The government refused to agree that the fill was other than what should have been anticipated. The plaintiff, being the low bidder, was awarded the contract and signed the agreement, reserving the right to present a claim for changed conditions. The contract was effective December 19, 1960, and was for $8,171,300.

The contract contained the standard changes and changed conditions and disputes clauses.

The plaintiff began work in January 1961, but did not start the compaction of the footings involved in this case until about March 15, 1961. Redland, the subcontractor, attempted to achieve the 90 percent density for the footings and floor slabs, as required by the contract, but encountered difficulty due to the type and condition of the soil. Various tamping machines were tried, but 90 percent density was found not to be possible. Finally, on April 24, 1961, the size of the footings was changed and the required compaction was reduced from 90 percent density to 80 percent laboratory density. After these changes were made in the contract, Redland was able to achieve 80 percent compaction. However, 30 days were wasted in trying to achieve the 90 percent density.

However, the plaintiff encountered difficulty in achieving even the 80 percent density compaction. This was due to a variety of factors, including the nature of the material, the difficulty in crushing the pieces of oolite encountered by the machines which had to be small enough to go into the trenches, and the caving-in of the walls of the trenches. Excessive concrete was required to fill in the caved-in walls of the trenches, as well as for the building of continuous pads similar to a runway instead of a separate pad for each house. The continuous pads were built so as to allow the use of heavier equipment for compaction and to obtain better compaction at the bottom of the footing elevations.

The plaintiff filed a claim under the changes and changed conditions clauses for an equitable adjustment, contending that physical conditions at the site of the construction contract differed materially from those anticipated. From an adverse ruling, it appealed the claim to the Armed Services Board of Contract Appeals (the Board). The case was docketed Florida Builders, Inc., ASBCA No. 8944.¹

After an extensive hearing, the Board handed down its decision on December 17, 1969. In its opinion the Board stated:

The primary question presented in this appeal is whether the fill at Sigsbee Park was in the condition stated in the contract. This includes the plans and specifications for the Gahagan land fill contract, as they were modified by Amendment No. 1 the "dense and uniform" change thereto.

The plaintiff contended before the Board that the fill was neither "dense" nor "uniform." Considerable expert testimony was introduced by both parties as to the meaning of the term "dense" as required by the specifications and as used in the trade and industry. The plaintiff's expert contended it meant 90 percent maximum density. The Board found, however, that defendant's expert testimony was more persuasive to the effect that the terms "dense" and "uniform" are not terms of art in either soil mechanics or the construction industry to the extent that they may be assigned specific numerical factors for gradation and density. This testimony further showed that in order to determine what the plaintiff should have encountered at the site, many factors would have to be considered, such as the nature of the oolitic limestone and its manner of placement by hydraulic pipeline dredge, the reworking of the material after its ejection from the pipeline, and the crushing of the material with bulldozers. Based on this evidence, some of which was admittedly conflicting, the Board held that the fill was as uniform as could be expected, and that the plaintiff could reasonably have expected the fill to be above 80 percent, but less than 90 percent, of laboratory density. The Board stated further that the plaintiff should have expected some compaction effort on his part to bring the material to 90 percent density under its contract even if the land fill contract had required 90 percent density compaction as plaintiff believed when it submitted its bid. The Board found that the material was generally below 80 percent, while plaintiff should have anticipated between 80 and 90 percent density. Consequently, when the requirement in plaintiff's contract was reduced from 90 to 80 percent density on April 24, 1961, plaintiff was required to increase the density only a small percent to reach the 80...