Max Drill, Inc. v. United States

• Decision Date: 12 June 1970
• Docket Number: No. 102-68.,102-68.
• Citation: Max Drill, Inc. v. United States, 427 F.2d 1233, 192 Ct.Cl. 608 (Fed. Cl. 1970)
• Parties: MAX DRILL, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

192 Ct. Cl. 608, 427 F.2d 1233 (1970)

MAX DRILL, INC. v. The UNITED STATES.

No. 102-68.

United States Court of Claims.

June 12, 1970.

Jerome Reiss, New York City, for plaintiff; Max E. Greenberg, New York City, attorney of record. Max E. Greenberg, Trayman, Harris, Cantor, Reiss & Blasky, New York City, of counsel.

Katherine H. Johnson, Alexandria, Va., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

PER CURIAM:

This case was referred to Trial Commissioner Franklin M. Stone with directions to prepare and file his opinion on the issues of plaintiff's motion and defendant's cross-motion for summary judgment under the order of reference and Rule 166(c). The commissioner has done so in an opinion and report filed on December 30, 1969, wherein such facts as are necessary to the opinion are set forth. Defendant filed a request for review by the court of the commissioner's report and recommended conclusion and urged that the petition be dismissed. Plaintiff urged that the court adopt the commissioner's report in its entirety. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the opinion and recommended conclusion of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff's motion for summary judgment is granted, defendant's cross-motion is denied and judgment is entered for plaintiff with further proceedings in this court stayed pursuant to Rule 167 for 90 days to afford the parties an opportunity to obtain an administrative resolution of the amount of the equitable adjustment to which plaintiff is entitled.

OPINION OF COMMISSIONER

STONE, Commissioner:

This is a contract case which is before the court on plaintiff's motion and defendant's cross-motion for summary judgment. It calls for a review, in accordance with the standards prescribed by the Wunderlich Act,¹ of a decision rendered by the Armed Services Board of Contract Appeals (ASBCA),² denying plaintiff's claim for additional compensation covering certain work performed under Contract No. AF (600)-3141, dated May 19, 1965, between plaintiff and defendant, acting through the United States Air Force, for the repair, renovation and painting of five³ dormitory buildings at Loring Air Force Base (AFB), Limestone, Maine.

The Invitation For Bids, together with Instructions to Bidders, was issued on April 9, 1965, and amended on April 28, 1965. Plaintiff's bid of $167,590 for the entire job was accepted and the contract awarded to it on May 19, 1965. The next two low bids were $169,445 and $179,577, and five of the seven bids submitted were under $200,000. The Government's estimate of the work to be performed under the contract was $199,100. The contract was actually signed for plaintiff on May 25, 1965, and approved and signed on behalf of the Government by Dorothy J. Allen, the contracting officer, on May 28, 1965. Change orders were issued, which increased the total contract price to an amount "Not to Exceed $199,589.75,"⁴ and July 30, 1966, was the date finally fixed for completion of all the work required by the contract, including the exterior painting.

The contract contained, among other provisions, the standard "disputes" and "changes" clauses customarily included in Government construction contracts.

The painting specifications, which are the keystone of the instant litigation, contained, inter alia, the following provisions:

SW-2 PRINCIPLE sic FEATURES: The principal features of the work are as follows:

a. Work in all dormitory buildings:

* * * * * * * * * *

18. Paint all exterior painted surfaces on all 5 dormitory buildings. Work to include all doors and windows, frames and trim, soffits, including flashing, ladders, fire escapes and railings.

* * * * * * * * * *

TP 10-06 AREA AND SURFACE PREPARATION:

a. Cleaning and preparation of surface: The Contractor will not begin surface painting until the surface has been conditioned and inspected by the Contracting Officer\'s representative. Unless specified otherwise, hardware, hardware accessories, plates, lighting fixtures, and similar items not previously painted, will be removed before surface preparation and painting operations, or will be otherwise protected. Following completion of each building, removed items will be reinstalled. Removal and reinstallation of building items will be done by workmen skilled in the trades involved. Surfaces to be painted will be clean before applying paint. * * * Cleaning and painting will be so programmed that dust and other contaminants will not fall on wet, newly painted surfaces. * * * The workmen must protect all painting. Protective coverings must be removed immediately after space is painted and at the end of each day, if the space is not completed. Storm windows and window screens will be removed, protected and reinstalled after painting is completed and paint is dry. Areas not to be painted will be protected by masking tape or other approved method. * * *

* * * * * * * * * *

TP 10-08 SURFACES TO BE PAINTED:

a. General: Except as specified under SURFACES NOT TO BE PAINTED, the surfaces listed in the painting scheduled below shall receive the surface preparation, paints, and number of coats prescribed. * * *

* * * * * * * * * *

b. Painting schedule:

(1) INTERIOR
                                  Surface
                Preparation
                and
                Surface pretreatment 1st coat 2nd coat 3rd coat
                    *      *      *      *      *      *      *      *      *      *
                Wood and
                Metal Interior
                trim              * * *             TT-P-636b     TT-E-543      TT-E-508
                    *     *      *      *      *      *      *      *      *      *
                

(2) EXTERIOR
                                  SurfacePreparationandSurfacepretreatment1st coat2nd coat3rd coat
                    *     *      *      *      *      *      *      *      *      *
                Wood
                trim and
                surfaces           * * *             TT-P-25a      TT-P-102a   TT-P-102a
                    *     *      *      *      *      *      *      *      *      *
                

Plaintiff did not paint certain wood sashes beneath the aluminum storm windows on the dormitory buildings designated in the contract until after being ordered to do so by a new contracting officer who replaced the original one. Plaintiff, contending that the contract specifications did not require the painting of the wood sashes in question, performed the work as directed under protest and thereafter claimed additional compensation which the contracting officer denied. On appeal, the ASBCA (hereinafter sometimes referred to as "the Board") sustained the action of the contracting officer and this suit followed.

Basically, the instant case turns on a question of interpretation of the contract. This court may interpret the contract without regard to any prior administrative decision. "Under the express language of * * * the Wunderlich Act, 41 U.S.C. §§ 321-22, the Board is entitled to finality only as to questions of fact. * * * It has been consistently held by this court that the interpretation of the language of a contract is a question of law, not a question of fact, and thus prior administrative determination on such a question is not final or binding on the court." Dynamics Corp. of America v. United States, 389 F.2d 424, 429, 182 Ct.Cl. 62, 71-72 (1968); Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 974, 169 Ct.Cl. 384, 386 (1965); Copco Steel & Eng'r Co. v. United States, 341 F.2d 590, 595, 169 Ct.Cl. 601, 610 (1965).

After reviewing the pleadings, administrative record, and briefs respectively submitted by the parties, it is concluded that the Board's decision was erroneous, and that plaintiff is entitled to recover in the present action.

Preliminary to outlining and discussing other pertinent facts, it will contribute to a better understanding of this case to note that the Board found, 68-1 BCA at pp. 31,536, and the evidence substantially confirms, as follows:

There are two types of storm windows involved in this controversy, each covering conventional type, previously painted, wood-sash windows. One provided in its frame three tracks to accommodate two storm and one screen removable inserts. The other consisted of a single glass panel held within a metal frame by a number of small cams and easily removable by turning screws * * *. The frames themselves, of the storm windows, were screwed to the wooden window frames * * * and were not readily removable * * *. The removal of the storm sashes made the windows accessible.

In connection with the above, it should be further explained that the record shows that the original wood sash in question was directly below the storm windows; however, wood trim surrounded the aluminum storm windows on the exterior of the buildings. It also is noted that undisputed testimony presented to the Board by Mr. Edward Funkhouser, plaintiff's Chief Estimator and Project Engineer, supports plaintiff's contention that while some of the frames were removable by breaking the caulking seal and unscrewing, others were permanently affixed.

According to Mr. Funkhouser, the five dormitory buildings contained 2106 pairs of windows, 484 single windows, a number of 32-foot high windows covering interior stairwells, plus basement windows. The large vertical windows are not the subject of controversy. The basement windows were not covered with storm windows, although some were protected with wire security devices. After these devices had been removed by Government personnel, the wooden sashes of the basement windows were painted by plaintiff.

It should be noted that specific reference to wood sashes of any sort was not made in the contract. There was no written requirement that interior wood sashes be painted, and this kind of work was performed only after a modification "swapping" a contract requirement for the painting of ceilings was issued by the...