Farwell Co. v. United States, 282-52.
| Decision Date | 30 September 1953 |
| Docket Number | No. 282-52.,282-52. |
| Citation | 126 Ct. Cl. 317,115 F. Supp. 477 |
| Parties | FARWELL CO., Inc. v. UNITED STATES. |
| Court | U.S. Claims Court |
Paul M. Rhodes, Washington, D. C., for plaintiff. King & King, Washington, D. C., were on the briefs.
Donald D. Webster, Department of Justice, Civil Division, Washington, D. C., with whom was Asst. Atty. Gen. Warren E. Burger, for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.
This suit was brought by plaintiff, Farwell Company, Inc., to recover from the defendant the sum of $35,184.96 alleged to be due under a contract between the parties. The defendant withheld the $35,184.96 from the amount payable under the contract as a result of a change order which modified the contract so as to permit the plaintiff to install copper tubing in lieu of copper or brass "pipe," and which reduced the estimated contract price by $35,184.96 because of the change permitting the use of copper tubing.
Both the plaintiff and the defendant have moved for summary judgment on the ground that there is no genuine issue as to any material fact and that as a matter of law each is entitled to judgment. Plaintiff contends that it is entitled to summary judgment on the ground that paragraph 45-15 b of the contract specifications, before it was modified by the change order, permitted the use of copper tubing in the construction of the domestic water lines of the contract project, and that the change order was thus unnecessary and erroneous. The issue presented by its motion is whether or not the phrase "Pipe * * * shall be brass or copper" in paragraph 45-15 b was ambiguous and susceptible of a broad interpretation as to include copper "tubing."
The defendant urges, however, that it is entitled to summary judgment because the contracting officer's decision that plaintiff was obliged to install "pipe" rather than "tubing" in the domestic water lines involved an issue of fact which, when affirmed by the head of the department, became final and conclusive upon the parties. The defendant also argues that if the contracting officer's decision, when affirmed by the head of the department, is not final, issues of fact exist which preclude the granting of the plaintiff's motion for summary judgment.
The facts appearing from the pleadings and contract documents are as follows. Plaintiff entered into a contract, dated February 7, 1948, with the Corps of Engineers for the installation of mechanical work in the Veterans Administration Hospital, Shreveport, Louisiana. The design and preparation of the contract specifications were done by a firm of architects-engineers under a separate contract between it and the defendant. The firm's consulting engineer, in preparing the plumbing specifications (Section 45) used, without change, the Corps of Engineers' standard Guide Specifications, C. E.-300.02, dated April 7, 1947, which forms paragraph 45-15 b of the contract specifications here as follows:
Although the Corps of Engineers' Guide Specifications 300.02 were amended by the addition of the words "copper tubing will not be acceptable" prior to the issuance of the invitation for bids, neither the firm's consulting engineer nor the plaintiff were informed of this modification and the later addition does not appear in paragraph 45-15 b of the contract specifications.
In the performance of the contract work, plaintiff proceeded to install type B copper tubing for the domestic water lines.1 On or about December 3, 1948, plaintiff was notified by the architects-engineers to suspend further installation of the copper tubing until the question of the interpretation of paragraph 45-15 b of the specifications could be cleared up.
Subsequent to a conference between the plaintiff and the contracting officer, the plaintiff, on January 10, 1949, communicated to the contracting officer reasons why the contracting officer should decide that the copper tubing met the requirements of paragraph 45-15 b of the contract specifications. The contracting officer did not decide the question, but submitted the matter to the Chief of Engineers by a letter dated January 10, 1949, wherein he recommended that the use of the copper tubing be accepted under paragraph 45-15 b. In this letter, the contracting officer stated, among other things, that the specification for copper piping as written was somewhat vague and "possible of misinterpretation."
The Chief of Engineers responded by teletype that the use of copper tubing would be permitted to avoid a delay in construction. He also advised that a letter reply would instruct the district engineer to issue a change order to the contract specifications authorizing the use of copper tubing and making an equitable reduction in the contract price.
The letter of instruction was sent, and subsequently the contracting officer issued a change order which modified paragraph 45-15 b of the specifications so as to provide for the use of copper tubing in the contract work instead of copper pipe and which reduced the contract price by $35,184.96.
Plaintiff refused to accept the change order because it felt that copper tubing met the requirements of the specifications as originally written, and it appealed to the head of the department. The Corps of Engineers Claims and Appeals Board, representing the head of the department, interpreted paragraph 45-15 b of the specifications to require the use of copper pipe and not to permit the use of copper tubing, and it consequently affirmed the reduction of the contract price by $35,184.96.
We consider first the defendant's contention that the decision of the contracting officer, when affirmed by the head of the department, that the contract...
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