Franchi Const. Co., Inc. v. United States

• Decision Date: 14 November 1979
• Docket Number: No. 14-77.,14-77.
• Citation: 609 F.2d 984
• Parties: FRANCHI CONSTRUCTION COMPANY, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

609 F.2d 984

FRANCHI CONSTRUCTION COMPANY, INC. v. The UNITED STATES.

No. 14-77.

United States Court of Claims.

November 14, 1979.

Adrian L. Bastianelli, III, Washington, D. C., attorney of record, for plaintiff. Bastianelli & Thomas, Washington, D. C., of counsel.

Donnie Hoover, Washington, D. C., with whom was Acting Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and NICHOLS and SMITH, Judges.

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

PER CURIAM:

This case comes before the court on defendant's request, filed December 22, 1978, for review by the court of the recommended decision of Trial Judge George Willi, filed September 29, 1978, pursuant to Rule 166(c) on the parties cross-motions for summary judgment, having been submitted to and considered by the court on the briefs and oral argument of counsel.

Plaintiff criticizes the trial judge's calling the discrepancy between the specifications and the drawings "patent." It says if we agree with defendant that the precedence clause should be confined to instances of latent discrepancies, we should consider whether the discrepancy here was not rather a latent one. In the present case the conflict was not in fact noticed before plaintiff bid, and probably never would have been noticed except by one who was seeking light on the specific problem the discrepant provisions dealt with, and in the course of his investigation, placed them side by side. The trial judge did not define what he meant by a patent discrepancy. It is obvious that no careful writer of contracts would deliberately create a discrepancy, patent or latent, and then leave it to be resolved by the precedence clause. A discrepancy even with the precedence clause therefore indicates a probable mistake, which may be more or less serious. We would assume arguendo that a bidder, who noticed or should have noticed a serious mistake in the invitation or other of the contract documents, must divulge what he has or should have noticed to the government, and will not in equity be allowed to profit by not doing so, as it would be an instance of overreaching. That is not this case, whether the discrepancy be patent or latent. Defendant does not accuse plaintiff of overreaching nor could it do so. The standard clause prescribes a precedence only in case of discrepancies between specifications and drawings, while one in figures, drawings, or specifications, each by themselves, must be promptly reported to the contracting officer. This no doubt reflects defendant's experience that the latter class of discrepancies is much more likely to be discovered early. We cannot in the circumstances say in face of the precedence clause, our characterization of a discrepancy as patent automatically triggers an obligation to report. The clause itself seems designed to excuse such reporting, instances where equity would intervene aside. Accordingly, we do not deem it necessary to address in a critical manner the characterization of the discrepancy as patent.

Since the court agrees with the trial judge's recommended decision and conclusion, as hereinafter set forth, it hereby affirms and adopts the decision and conclusion, together with the paragraph inserted above by the court, as the basis for its judgment in this case.

OPINION OF TRIAL JUDGE

WILLI, Trial Judge:

By this suit plaintiff, a construction contractor, seeks reversal of a decision¹ of the Armed Services Board of Contract Appeals (the Board) affirming the contracting officer's denial of its claim for an equitable adjustment to compensate it for an alleged change in the terms of its fixed-price construction contract to build a three-story, 116-bed hospital for the Army at Fort Devens, Massachusetts.

The parties' cross-motions for summary judgment present the Board's decision for review subject to the finality features imparted to it by the Wunderlich Act, 41 U.S.C. §§ 321-22 (1970).

The controversy concerns only the sequence in which vinyl-asbestos floor tile was to be installed on the ground floor of the building in relation to the Gypsum Wallboard (GWB) partitions to be constructed there; the question being whether the tile was to abut such partitions after they were erected on the concrete subfloor or was to be laid first, with the partitions placed on top of it. Incongruity as between the specifications and drawings is at the heart of the parties' disagreement over priority of installation.

The dispute did not surface until approximately a year into performance when plaintiff had the building under roof and in a weather-tight condition. At that point it began erecting GWB partitions on the concrete surface of the first floor. When it had installed about 5 or 10 percent of them in that manner, the contracting officer rejected the work contending that the contract required that such partitions be placed on top of the vinyl tile with which the floor area was to be finished. Though disagreeing with that interpretation of the contract, plaintiff removed the partitions complained of and complied with the directive. It thereafter filed a claim under the Changes article. It is the Board's affirmance of the contracting officer's denial of that claim that precipitated this suit.

In all significant respects, the facts of this case, as found by the Board, are beyond legitimate dispute. The result that follows from them depends upon whether the duty of inquiry that devolves on a construction contract bidder confronted with patently conflicting specifications and drawings persists even though the contract on which he is bidding contains a so-called order of precedence clause.² If it does, as held by the Board, plaintiff cannot recover. If the clause displaces that duty, by eliminating the conflict, plaintiff prevails. For reasons that will appear, it is held that on the facts of this case the clause predominates.

As required by the Armed Services Procurement Regulations,³ Article 2 of the General Provisions of the subject contract reads as follows:

SPECIFICATIONS AND DRAWINGS (JUNE 1964)

The Contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing. Any adjustment by the Contractor without such a determination shall be at his own risk and expense. The Contracting Officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided. Emphasis added.

There are specifications dealing specially with GWB and with vinyl floor tile.

As the Board found,⁴ section 6C of the specifications, "Gypsum Wallboard (Dry Wall)," is inconclusive on the question at issue. Without elucidation, it directs simply that the base members (runners) of the partitions be "securely attached to floors." The vinyl tile specification is not similarly equivocal, however. Paragraph 6 of section 9E of the specifications, "Flooring; Vinyl-Asbestos Tile," is captioned "Installation of Tile." Subparagraph 6.1 directs that: "Installation of tile shall be deferred until all other work that might cause damage to the flooring has been completed." Subparagraph 6.4 specifies: "Tile shall be laid in accordance with the pattern layout starting from axes that will produce tile against opposite walls of equal width and not less than half the tile width." The Board read these provisions as being consistent only with a sequence of construction that provides for the walls or partitions to be installed before the tile is laid.⁵

Pointing squarely in the opposite direction is a note (note 3) on one of the contract drawings,⁶ No. 32-02-01, sheet 41, titled "Door Elevations & Interior Finish Details." It directs that: "All partitions with GWB on both sides are to set on top of finish floor." Referring to the meaning and interrelationship of the drawing note and the tile specifications previously quoted, defendant says: "Both requirements are explicit and they are inconsistent." Defendant's Opposition to Plaintiff's Motion For Summary Judgment and Defendant's Cross-Motion For Summary Judgment, at 19.

The notation is not, in terms, related to any of the detail drawings showing cross-sections of the base portion of five different types of interior walls and partitions that are shown above it and none of the partitions that are illustrated is of GWB construction on both sides. All of the cross-sections depicted, however, are oriented at their respective bases to a horizontal plane comprised of two closely aligned parallel lines, the upper one of which is labeled "Finish Floor." One of them shows the base of a partition finished with GWB on one side and plaster on the other positioned atop the upper horizontal line identified as "Finish Floor."

Relying on a paragraph⁷ of section 3a of the specifications dealing with concrete, plaintiff's principal contention before the Board was that the "Finish Floor" appearing in the drawing note referred to the concrete surface to which tile was to be applied, rather than to the exposed surface of the installed tile. It therefore contended that as used in the note "Finish" meant texture (i. e., monolithic finish), not state of completion of the work. The Board properly rejected this contention as opposed to both the obvious purport of the detail drawings and to the specific acknowledgement of plaintiff's project engineer in a written submission made by him in the...