George Hyman Const. Co. v. US, 61-76.

• Decision Date: 19 October 1977
• Docket Number: No. 61-76.,61-76.
• Citation: 564 F.2d 939
• Parties: GEORGE HYMAN CONSTRUCTION COMPANY v. The UNITED STATES.
• Court: U.S. Claims Court

564 F.2d 939

GEORGE HYMAN CONSTRUCTION COMPANY v. The UNITED STATES.

No. 61-76.

United States Court of Claims.

October 19, 1977.

Matthew S. Perlman, Washington, D. C., atty. of record for plaintiff. William W. Goodrich, Jr. and Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., of counsel.

Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. Barbara A. Babcock, Washington, D. C., for defendant.

Before DAVIS, Judge, SKELTON, Senior Judge, and NICHOLS, Judge.

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

SKELTON, Senior Judge, delivered the opinion of the court:

The plaintiff, George Hyman Construction Company (contractor or plaintiff), entered into contract No. GS-00B-01214 on June 30, 1972, as contractor with the General Services Administration of the United States Government (the Government or defendant), for the construction of Phase I of the United States Tax Court Building in Washington, D. C., for the sum of $13,228,000. During construction a dispute arose between the contractor and the Government with reference to the construction of eight utility lines, namely the storm and sanitary sewer, water service, steam and condensate return lines, which are shown on drawing No. 9-0S-1, designated "Site Utility Plan." These lines ran underground to existing lines of the same kind, two of which ran to the wall of the Labor Department Building, all of which are shown on the above drawing. The contractor took the position that it was only required to "stub-out" the utility lines a distance of five feet from the building as shown on drawing 9-P-1, designated "Basement Floor Plan-Plumbing," and was not required to construct and install the utility lines to the existing lines of the same kind outside the building, two of which entered the nearby Labor Department Building. The Government contended that the contractor was required by the contract to construct the utility lines to the existing lines and to the Labor Department Building, as aforesaid. The contracting officer ordered the contractor to so construct the lines, which it did, but it claimed this was a constructive change order not covered by the contract and that it was entitled to an equitable adjustment. It filed a claim to that effect with the contracting officer, who denied the claim. The contractor appealed to the GSA Board of Contract Appeals (Board), which heard the appeal and denied the contractor's claim in GSBCA-3722 on January 23, 1974, 74-1 BCA ¶ 10,451, with one member of the Board dissenting. The contractor has appealed from the Board's decision to this court under the Wunderlich Act, 41 U.S.C. §§ 321, 322, claiming that the decision of the Board is arbitrary, capricious, unsupported by substantial evidence, and is erroneous as a matter of law. The Government says that the decision of the Board is correct and should be affirmed. The case is before the court on cross-motions for summary judgment. We have concluded that the law and the facts do not support the contractor's claim, and we hold for the Government.

The facts show that in the beginning the Government intended to construct the Tax Court Building under one contract, but before issuing the invitation for bids, the plan was changed so as to have the building constructed by two contracts designated "Phase I" and "Phase II." When the plaintiff noticed these designations on the drawings, it made inquiry on June 9, 1972, of the GSA as to their meaning. The GSA responded by amending the special conditions of the contract on June 13, 1972, by adding to section 0110 a new paragraph 1.2 immediately after paragraph 1.1 as follows:

1.2 A separate contract designated as Phase II will be awarded to complete the United States Tax Court Building project. The Contractor for Phase I construction shall provide access to the site for the Phase II Contractor without additional cost to the Government or charge to the Phase II Contractor. He shall cooperate with the Phase II Contractor and with the contractor for subway construction to coordinate and execute the work properly.

On June 20, 1972, amendment No. 4 to the invitation for bids was added to new paragraph 1.2 as follows:

Any reference to Phase I means contract requirements of GS-00B-01214.

Being satisfied with the reply of the GSA, the contractor submitted its bid and was awarded the contract (No. GS-00B-01214) on June 30, 1972, after which it began construction.

As stated above, during construction the contracting officer ordered the contractor to install the eight utility lines above-described and connect them with existing lines of the same kind which were located outside the foundation walls of the Tax Court Building. The contractor took the position that it was only required to "stubout" the utility lines five feet from the building as shown by drawing No. 9-P-1. It contended further that architectural drawing 2-1 and other architectural drawings contained notations such as "Limit Phase I Construction @ Face of Building" and other notations of like import, and the contractor argued that these drawings indicated that it was only required to do the work of Phase I within the confines of the four walls of the building and any work outside of the building was to be performed by the contractor who was to work on Phase II of the building. Consequently, the contractor contended that it had no duty or obligation to construct and install the utility lines in question so that they would connect with existing lines outside of the building, and that such work was to be done by the Phase II contractor. The contracting officer disagreed and required the contractor to connect the utility lines with those existing outside the building. The contractor appealed from the decision of the contracting officer and exhausted its administrative remedy when it received an adverse decision from the Board, and the case is now before us for review under the provisions of the Wunderlich Act.

The contractor makes an ingenious argument, but the controlling facts do not support its position. The contract specifications and drawings make it abundantly clear that the contract required the contractor to install the utility lines so that they would connect with existing lines outside of the Tax Court Building.

Specifications section 0110, "Special Conditions," clause 1, "General," paragraph 1.1 provides in full:

1.1 Requirements of the contract include furnishing all labor and materials and performing all work for construction of United States Tax Court Building, Second Street Northwest between D & D Streets sic, Washington, D.C., including all changes and repairs incident thereto, as specified and as shown on Drawings No. 0-1, 1-1 through 1-4, 2-1, 2-2, 3-1 through 3-7, 4-1 through 4-5, 5-1 through 5-25, 7-1 through 7-15, 9-0S-1, 9-ME-1, 9-ACH-1 through 9-ACH-15, 9-P-1 through 9-P-10, 9-E-1 through 9-E-22 (all numbers inclusive) and the listed Standard Details and noted modification thereto.

This section of the specifications is crucial to a decision of this case. It will be noted that the contractor is required to furnish all labor and materials and to perform all work as specified and shown on drawings "9-0S-1" and "9-P-1" and the other enumerated drawings. The contractor relies on drawing 9-P-1, which is the basement floor plan that shows the utility lines extending five feet from the sides of the building. The Government relies mainly on drawing 9-0S-1, which is the site utility plan that shows in great detail the required construction of the utility lines so that they connect with existing utility lines of the same kind, two of which enter the nearby Labor Department Building. A reduced copy of the relevant and pertinent parts of drawing 9-0S-1 is attached to the end of this opinion as an appendix.

It will be observed, and we conclude, that drawings 9-P-1 and 9-0S-1 do not conflict and neither drawing contradicts or is inconsistent with the other. In fact, they could be said to be complementary. The contractor was required to furnish the labor and material and perform the work specified on both drawings. Drawing 9-P-1 required it to extend the utility lines five feet from the building, and drawing 9-0S-1 required it to extend and connect the utility lines to existing lines of like character outside of the Tax Court Building.

The argument of the contractor that the work of installing the utility lines so that they would connect with existing lines was the obligation of the Phase II contractor is refuted by section 0110 of the specifications quoted above that requires plaintiff to comply with drawing 9-0S-1, which drawing has printed thereon in bold letters the following:

CONTR. NO. GS-00B-01214

This is the contract involved here. Therefore, the installation of the utility lines called for in that drawing was a part of the present contract and required performance by the plaintiff and not by some future contractor of Phase II.

The contractor's argument that it was only required to do the work within the four walls of the building because of the notation on some of the drawings that stated "limit Phase I construction at the face of the building," and other similar notations, is refuted by the fact that drawing 9-0S-1 does not contain any such notation, and, in fact, does not even mention Phase I or Phase II. Furthermore, section 1501, clause 11, paragraph 11.1 provides specifically that any "limit of contract" lines or similar general limits that may appear on the site or other drawings shall not be deemed to apply to the mechanical work on utility lines between building and points of connection. The provisions of this part of section 1501 are as follows:

1. APPLICABILITY

1.1 This section applies to all mechanical and electrical work, including materials and equipment, and is subject to the requirements of the "General Provisions," "General Conditions," and "Special Conditions" sections of

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