Framlau Corp. v. United States, 274-74.

• Decision Date: 14 December 1977
• Docket Number: No. 274-74.,274-74.
• Citation: 568 F.2d 687
• Parties: FRAMLAU CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

568 F.2d 687

FRAMLAU CORPORATION v. The UNITED STATES.

No. 274-74.

United States Court of Claims.

December 14, 1977.

D. Joe Smith, Jr., Washington, D.C., for plaintiff; Gilbert A. Cuneo, Washington, D.C., Atty. of record; C. Stanley Dees, Sellers, Conner & Cuneo, Washington, D.C., of counsel.

Richard J. Webber, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before LARAMORE, Senior Judge, and KUNZIG and BENNETT, Judges.

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

BENNETT, Judge:

This case, arising under the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1970), is before the court on plaintiff's appeal from a decision entered by Trial Judge Francis C. Browne, allowing defendant's cross-motion for summary judgment. Plaintiff does not request review of seven counts of its petition disposed of by the trial judge. What remains for our attention are counts III, VIII, X, and XI of plaintiff's petition and plaintiff's motion for summary judgment as it relates to those counts.¹ We reach the same result as the trial judge but by a somewhat different and shorter route.

Numerous issues were decided adversely to plaintiff by the contracting officer, by the Armed Services Board of Contract Appeals (ASBCA, or the board), and by the trial judge. Of the four remaining issues still contested by plaintiff, the first is of prime importance since it affects the outcome of each of the others. This dispute, which the parties have come to call the floor-and-girder issue, was resolved by the trial judge in favor of defendant. We agree with his able analysis, much of which has been included in the following discussion.

On June 29, 1967, plaintiff contracted with the Navy to build a Naval Reserve Training Center near Wilkes-Barre, Pennsylvania. Construction was to begin on the date of the contract and to be completed by June 26, 1968, with liquidated damages of $200 per day thereafter.² Plaintiff's delay in posting required payment and performance bonds prevented the commencement of work until July 18, 1967. Soon thereafter, a 40-day strike retarded plaintiff's progress further. For these and other reasons, little more than half the work was completed by the onset of the severe 1967-68 winter, and construction was not completed until sometime in 1969. One factor bearing on the pace of performance was the Government's decision concerning the method of constructing the upper floors of the building, giving rise to the dispute aforementioned as central to this case.

The contract authorized a choice by the contractor between three methods of constructing the second and third floors. The alternatives permitted were precast, cast-in-place, and combination flooring. The first two methods of construction were described in drawings which were part of the contract; the third was not. The contract's key references to combination floor construction were in section 3C.3.1 of the specifications, which provided, inter alia:

General. A combination floor system may be provided at the option of the Contractor in lieu of the precast and cast-in-place floor construction. The combination floor system shall consist of a joist and filler system providing monolithic floor construction integral with supporting beams and columns. * * * All work and materials shall be in accordance with the applicable requirements of specification 13Y except as modified herein.

The language most hotly debated in this case is to be found in the phrase "providing monolithic floor construction integral with supporting beams and columns," although in the view we take of the dispute, the language incorporating specification 13Y is also critical. We begin by examining the meaning of the terms "monolithic" and "integral."

The parties accept as authoritative the definitions of the Concrete Reinforcing Steel Institute (CRSI),³ which defines the terms relevant to this dispute as follows:

INTEGRAL—Elements which act together as a unit, such as concrete joists and top slab. Concrete members may be made integral by bond, dowels, or being cast in one piece

MONOLITHIC—Strictly interpreted, is concrete cast in one operation. Monolithic concrete elements may be designed to act integrally, or as separate elements if articulated by weakened plane contraction joints. See Integrally-cast.⁴

Although plaintiff initially planned to use precast panel floors, after award it changed plans and elected to use the combination floor system for construction of the upper floors, selecting the "Omnia" system which was commercially available from Nyce-Crete Company. In September 1967 plaintiff submitted drawings illustrating the latter as its proposed construction method. The drawings showed that plaintiff would not be casting the floors and beams (also known as girders)⁵ monolithically but instead would use a construction joint⁶ to make them integral. Under this method plaintiff would be monolithically casting the floor, permitting it to harden, and then casting the concrete for the girders. The advantage would be that plaintiff would not need hanging forms because the forms for the girders could be set upon and supported by the floor. The drawings were approved by defendant in mid-September.

In October, however, defendant revoked its earlier approval of the drawings,⁷ claiming the use of construction joints was impermissible under the contract and insisting that monolithic construction of the floors and girders was required. The Government insisted that the floor and girders be formed in a single pour, or two pours completed before either could cure,⁸ believing that only monolithic construction could provide the strength necessary to ensure the soundness of the building.

Under protest, Framlau complied and constructed the floors and girders monolithically. It then sought an equitable adjustment for the increased cost of complying with the Government's instructions. The contracting officer, the board, and the trial judge all concluded that the Government's insistence on a monolithic construction method was allowed under the contract. We agree.

We have noted that section 3C.3.1 incorporated by reference specification 13Y of the Bureau of Yards and Docks specifications. We should add that section 3C.2, also applicable only to combination floor construction, also mentioned the Bureau of Yards and Docks specifications, specifically incorporating by reference specification 13Yg thereof. The parties have stipulated that the referenced specification provides that "construction joints can only be placed or used where approved or where shown." The other important specification is in the general notes on sheet 33 of the contract documents (entitled Column Schedule & Details Structural), which provides in section 3A: "Unless otherwise indicated all construction shall be monolithic."

Plaintiff's construction of the phrase "monolithic floor construction integral with supporting beams and columns" emphasizes the word "integral." Plaintiff uses the definition cited earlier to support its contention that the contract permitted plaintiff to employ any method, including the use of construction joints, which would achieve integration. Framlau contends that defendant knew how to specify that the flooring and girders be monolithic but instead chose to require only that they be integral, leaving the requirement of monolithic construction to apply to the floor construction alone. Plaintiff argues that defendant was obligated to approve any construction method achieving integration (a result which the CRSI Handbook indicates could be reached with construction joints) and that defendant could not properly insist on wholly monolithic construction. Framlau invokes our rule in WPC Enterprises, Inc. v. United States, 323 F.2d 874, 876, 163 Ct.Cl. 1, 6 (1963), which would permit plaintiff to adopt any reasonable construction of an ambiguous contract provision.⁹ If, as plaintiff argues, the Omnia plan was permissible under the contract, Framlau would be entitled to an equitable adjustment for the change instituted by defendant's insistence upon wholly monolithic construction.

Defendant responds that, while plaintiff may be entitled to call upon reasonable interpretations of contractual ambiguities, no such ambiguity exists here. That "integral with" has several possible meanings is conceded, but defendant finds two contract provisions to eliminate any ambiguity. When the contract is read as a whole, as defendant insists it must be, it admits of only one construction: that integration was to be achieved through monolithic construction. The two provisions central to this argument are, first, sheet 33, which prohibits the use of construction joints except where approved or where shown, and, second, specification 13Y, which directs that all construction be monolithic unless otherwise provided.

Plaintiff's attempts to escape the effect of these two provisions are well argued and vigorously pressed but also unavailing. We next discuss, in turn, plaintiff's answer to sheet 33's general notes and then its argument concerning specification 13Yg, incorporated by reference.

To defendant's invocation of the general notes on sheet 33, plaintiff responds that they only apply to those subjects covered by that sheet's title: Column Schedule and Details Structural. To plaintiff, this title means the general notes only apply to columns and not to the combination floor. But these notes unmistakably indicate applicability to subjects other than columns. For example, paragraph 3B of the notes refers to precast units and combination systems, although all columns were to be cast in place. Other subjects covered in the notes, such as structural steel, open web joists, and slabs on grades exposed to weather, also are irrelevant to column construction. The testimony by defendant's witness that the general notes on sheet 33 applied to the contract...