JL Simmons Company v. United States

Decision Date16 July 1969
Docket NumberNo. 186-59.,186-59.
Citation412 F.2d 1360
CourtU.S. Claims Court

Paul E. McNulty, Washington, D. C., for plaintiff; John W. Gaskins, Washington, D. C., attorney of record. King & King, Washington, D. C., of counsel.

Irving Jaffe, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant; Robert R. Donlan, Washington, D. C., of counsel.



This case was referred to Trial Commissioner Louis Spector with directions to make recommendations for conclusions of law on plaintiff's motion for partial summary judment and defendant's cross motion for partial summary judgment under the order of reference and Rule 99(c). The commissioner has done so in an opinion and report filed on January 21, 1969, wherein such facts as are necessary to the opinion are set forth. Plaintiff requested the court to adopt the commissioner's report with one exception and defendant requested the court to review the report in its entirety. Briefs were filed by the parties and the case was submitted to the court on oral argument of counsel. Since the court agrees with the commissioner's opinion and recommended conclusion of law with certain changes and modifications, it hereby adopts the same, as hereinafter set forth, as the basis for its judgment in this case.

Therefore, it is concluded that with respect to claims covered by the Veterans' Administration Contract Appeal Board's decision of May 31, 1967, plaintiff's motion for partial summary judgment is granted, defendant's cross motion is denied, and plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $480,956.43. Plaintiff is also entitled to recover on Claim No. 3, Part A., the amount of recovery to be determined pursuant to Rules 47(c) and 64(e). Plaintiff is not entitled to recover on its claim for interest and as to that claim, the petition is dismissed. Plaintiff's petition is also dismissed with respect to the claim for bond premiums, except to the extent that this claim may be relevant in further proceedings under Rules 47(c) and 64(e).

Commissioner Spector's opinion, as modified by the court, is as follows:

To establish the present posture of this venerable case, and to know how best to proceed with it from here, one must perforce describe where it has been. Its travels rival those of Odysseus, and the Wunderlich Act1 has represented to it obstacles as formidable as Scylla and Charybdis.

In United States v. Carlo Bianchi & Co.,2 the Supreme Court described the chronology of that case as constituting "delay at its worst," and it sought by its ruling therein to ameliorate such delays in the future. Regretfully, Bianchi will have to step aside for a new champion.

On October 5, 1949, the plaintiff undertook to construct a hospital and related buildings and facilities for the Veterans' Administration at Chicago, Illinois. The contract price was $6,985,905, and the completion date September 18, 1951. Work was actually completed April 30, 1953. The events from which this litigation arose relate primarily to the pile foundation for the main hospital building.

The specifications, which were prepared by the defendant, are a classic example of "design" specifications, and not "performance" specifications.3 In other words, in these specifications, the defendant set forth in precise detail the materials to be employed and the manner in which the work was to be performed, and plaintiff was not privileged to deviate therefrom, but was required to follow them as one would a road map. In contrast, typical "performance" type specifications set forth an objective or standard to be achieved, and the successful bidder is expected to exercise his ingenuity in achieving that objective or standard of performance, selecting the means and assuming a corresponding responsibility for that selection.

This opinion need not be burdened with the more than ample detail spread over an unusually extensive administrative and judicial record underlying the case. Suffice it to say that Section 2 of the contract specifications dealing with the pile foundation contained the most definite and precise requirements with respect to the piles to be installed. They were to be cast-in-place concrete type piles cased with a steel shell, and were to be one of three types. Plaintiff selected a pedestal-type pile, described in the specifications as follows:

2-6(b) By driving a casing and removable core to the required penetration and bearing, removing core, placing at least 4½ cubic feet of concrete in the casing, replacing the core, and driving the apparatus into the concrete to form a base, removing the core and inserting a shell which shall rest upon and be sealed by the concrete at the lower end, removing casing and filling shell with concrete.

Furthermore, bidders were advised that defendant's design for this site was based on a working load of 40 tons per pile for the main hospital building, and 30 tons per pile for other buildings and structures. The specifications further provided that one pile of each type was to be tested prior to the commencement of pile driving operations. A 40-ton pile was to be loaded with 80 tons, and a 30-ton pile with 60 tons, following which certain limitations upon settlement were imposed before the tests could be considered satisfactory.

As originally prepared by the defendant, the specifications required preexcavation, or coring, to penetrate materials overlying a sand and gravel stratum at which level the piles were designed to encounter the necessary resistance to produce bearing capacity. Precoring is required by a designer to avoid excessive movement of piles during installation resulting from displacement of earth, it being a well-established truth that two objects cannot occupy the same space at the same time. Excessive displacement occurs when there is too high a concentration of piles in too small an area. However, by an amendment to the invitation for bids prior to bid opening, the defendant specifically eliminated this specification provision for preexcavation or coring, thereby indicating that the designer did not contemplate displacement problems at this particular site. This was further indicated by the fact that the pedestal-type concrete pile employed is not one that can be reseated and redriven, should movement later occur.

The contract further set forth with complete specificity the pile driving equipment to be employed, and the procedures for their use, and these were approved in advance. Required bearing for 40-ton piles would be indicated when the penetration under the last 32 blows of a hammer, delivering 15,000 foot pounds of energy, did not exceed 6 inches, and the penetration under the last seven blows did not exceed 1 inch.

The specifications required that a completed pile was not to be out of plumb more than 1/8 inch per foot, and the movement of pile groups, or clusters, was not to exceed 1 inch for groups of six or less, 1½ inches for groups of seven to 10, and 2 inches for groups of 11 or more piles. After all pile shells in a particular group were in place, and had been inspected and approved by defendant, plaintiff was to fill them with concrete, as above described.

In summary, these were specifications of the type which have traditionally been held to carry with them the implied warranty by the party preparing them that if followed, a satisfactory result will pertain.4

Plaintiff's subcontractor for the pile foundation was MacArthur Concrete Pile Corporation of New York City, a long-established specialist in this type of work. MacArthur moved onto the site on December 2, 1949. On December 12 and 13, 1949, MacArthur drove a 6-pile cluster of 40-ton piles to provide a pile for the test above described. Five of the piles in the cluster were pedestal piles and the sixth was a straight-cased pile driven with the approval of the defendant, and selected by it for testing. On December 28 and 29, 1949, it failed the test to which it was subjected. Defendant next selected a pedestal pile for testing on January 4 and 5, 1950, and it, too, failed to satisfy the settlement limitations prescribed by the specifications.

Defendant, seeking a satisfactory substitute for the type of pile originally specified, then ordered the installation of six additional test piles of varying types, and required five of these to be load-tested. With the exception of an all-pipe pile, none of the test piles met the settlement restrictions. The second-best pile tested was a so-called composite type. Because the six additional test piles ordered were in excess of the two required by the contract, plaintiff gave notice during the course of this work that it expected to be paid therefor. On February 23, 1951, the contracting officer denied plaintiff's claim, and plaintiff noted a timely appeal to the Veterans' Administration Construction Contract Appeals Board. This will hereinafter be referred to as Claim No. 1

On February 27, 1950, the parties met in Washington, D.C. to discuss the test pile program. The tests had indicated that the Government-designed 40-ton pedestal piles, even when driven far beyond the order of magnitude contemplated by the original specifications, would not support the design loads. Thereafter, defendant concluded that it would substitute composite-type piles for the pedestal piles.

A composite pile is a cast-in-place concrete and pipe pile consisting of two separate sections. The upper section is cased with a light gauge steel shell form, as was the originally specified pedestal-type. However, the lower section consists of a heavy steel pipe of smaller diameter, pointed at the end. After it is driven, both shell and pipe sections of the composite pile are filled with concrete. Defendant had concluded that the pedestal pile...

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