Moorman v. United States, 46439.

• Citation: 113 Ct. Cl. 159,82 F. Supp. 1010
• Decision Date: 07 March 1949
• Docket Number: No. 46439.,46439.
• Parties: MOORMAN et al. v. UNITED STATES.
• Court: Court of Federal Claims

82 F. Supp. 1010

113 Ct. Cl. 159

MOORMAN et al. v. UNITED STATES.

No. 46439.

United States Court of Claims.

March 7, 1949.

V. J. Bodovitz, of Oklahoma City, Okl., for plaintiff.

William A. Stern, II, of Washington, D. C., and H. G. Morison, Asst. Atty. Gen., for defendant.

Before JONES, Chief Justice, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

LITTLETON, Judge.

The plaintiff partnership, J. W. Moorman & Son, seeks to recover the sum of $117,916.51 as an additional payment alleged to be due for extra work involving the grading and excavation of 298,973 cubic yards of earth and rock, from an area within a project known as the Midwest Air Depot which plaintiff says was outside the scope of its contract of April 3, 1942, with defendant for certain grading work for the Oklahoma City Aircraft Assembly Plant.

This work was performed as a result of a written order duly issued by the contracting officer June 18, 1942, which plaintiff duly protested in accordance with paragraph 2-16, General Provisions, of the contract specifications. Plaintiff claimed that the work covered by the written order was not called for by its contract; that it was more expensive to perform by reason of its nature and the circumstances and conditions under which it had to be done; and that a price of 84 cents a cubic yard should be paid therefor instead of the original contract unit price of 24 cents.

As shown in finding 14, the contracting officer denied the claim principally on the ground that defendant had made certain red pencil changes on a drawing, known as Plot Plan G-3, which he asserted had been furnished to plaintiff with the invitation for bids (but which plaintiff strenuously denied), showing that the work in question was to be included in the contract for the grading of the Aircraft Assembly Plant site. In addition, the contracting officer resolved all doubts in favor of the Government and reached the conclusion that independently of the red markings in plan G-3, the specifications and original drawings were sufficient to show that the grading and excavation work performed outside the Aircraft Assembly Plant site and within the Midwest Air Depot area was to be included within contract for grading the assembly plant site.

After a hearing on plaintiff's appeal, the Board of Contract Appeals, acting for the Secretary of War, affirmed the decision of the contracting officer as to the claim now before the court, and denied plaintiff's claim. In its opinion on this claim (finding 17) the Board did not discuss the changed drawing alleged to have been sent to plaintiff with the invitation for bids and denied the claim on its interpretation of the specifications and original drawings. In a separate opinion on another item of plaintiff's claim for grading an industrial road from a point in the Midwest Air Depot site to entrance "D" of the Aircraft Assembly Plant site, the Board reversed the decision of the contracting officer and concluded that this work had not originally been contemplated by either party. For this extra work, which involved 13,676 cubic yards, plaintiff was allowed 60 cents a cubic yard by the contracting officer.

We are of the opinion that the decisions of the contracting officer and the head of the department cannot be sustained under the facts and the specifications and drawings.

The defendant conceded at the hearing of the case in this court that plaintiff never received the drawing marked in red to indicate that the taxiway and connecting areas, which were a part of the airfield, known as Tinker Field, at the Midwest Air Depot, were to be included in the contract for grading the Aircraft Assembly Plant site. It contends, however, that plaintiff may not recover any additional amount for this work on the ground that the contract clearly required plaintiff to grade the taxiway west of Range 29, because the word "taxi-ways" was used in the specifications in paragraph 1-03(b), Nature of Work, and in paragraph 3-02, Scope, and the only taxiway designated on the drawings was the one plaintiff was required to grade west of Range 29. Defendant further contends that, in any event, the decisions of the contracting officer and the War Department Board of Appeals to the effect that the work in question was not outside the contract requirements, were final.

We cannot agree with defendant's contention that the contract documents clearly required plaintiff to grade the taxiway west of Range 29. Paragraph 1-02 of the specifications (finding 2) describes exactly the limits of the assembly plant site and Location Plan G-1 and Plot Plan G-3, conform exactly to that description as to the assembly plant site. The specifications are designated as "Specifications For Grading of Plant Site, Oklahoma City Aircraft Assembly Plant," and nowhere therein is the Midwest Air Depot airfield mentioned. The fact that Location Plan G-1 showed all of the Midwest Air Depot and airfield site and the Plot Plan G-3, which was a detail drawing with reference to the assembly plant, was extended west of the assembly plant site so as to show a part of the Midwest Air Depot and airfield, was not sufficient, in view of the provisions of the specifications and other information shown on Plan G-3, to put plaintiff on notice that it would be required or called upon to perform work outside the assembly plant site. Plaintiff so interpreted the specifications and drawings and we have found that its interpretation was reasonable and proper. The changes which defendant found necessary to make in red on drawing G-3 (not furnished to plaintiff) in order to show that certain grading west of Range 29 was to be included in the plant site grading work, support plaintiff's interpretation of the original drawings. The original drawings G-1 and G-3, furnished to plaintiff, were approved by the defendant's district engineer and contracting officer on March 20 and 26, 1942, respectively, and obviously they were intended to conform to the specifications. The invitation for bids was sent out on March 26, 1942.

Paragraph 1-02 specifically defines the boundaries of the plant site and the next paragraph 1-03(b), Nature of Work, provides that the work to be done under the specifications includes the furnishing of all labor, equipment, etc., necessary for the "grading of the plant site," — not some other plant site or some other project far or near — "including building sites, roads aprons, taxiways, permanent parking areas, disposal plant site, and all other building site areas shown on the plans." Plan G-3 designates by name everything mentioned in paragraph 1-02 and 1-03(b), except "taxi-ways." However, we think the absence on this drawing of any specific designation of "taxi-ways" mentioned in 1-03 (b) is unimportant, first, because a large plant for assembling airplanes would normally need taxiways within the site to be graded; and, second, because, taxiways in the sense in which that term must have been used in paragraph 1-03(b), Special Provisions, and in paragraph 3-02, Technical Provisions, are clearly shown on drawing G-3 as we have set forth in finding 2. On this plant site the drawing G-3 shows, among other buildings, a large aircraft Assembly Building; some distance southeast thereof is the Compass Checking Station, and some distance west of the compass station and southwest of the Assembly Building are located a large aircraft Hangar and Paint Shop. Plan G-3 clearly shows grading work to be performed for concrete and asphaltic concrete surfacing of these areas, extending along the east and west of the Assembly Building to the other points and buildings mentioned, and between the Compass Checking Station and the Hangar. A certain strip adjoining the Hangar is designated as "Concrete Apron." The other areas mentioned are not designated on the Plan G-3 otherwise than as "Concrete" or "Asphaltic Concrete," but it seems clear enough from a proper reading of this drawing that it intended to show these areas as "taxi-ways" for moving planes assembled in the Assembly Building to the Compass Checking Station, to the Hangar and Paint Shop, and to the parking areas.

In the circumstances of this case we cannot interpret the word "taxi-ways," as used in paragraph 1-03 of the specifications relating...