Owens-Corning Fiberglas Corporation v. United States
| Decision Date | 12 December 1969 |
| Docket Number | No. 301-66.,301-66. |
| Citation | 419 F.2d 439 |
| Parties | OWENS-CORNING FIBERGLAS CORPORATION and Polytron Company, By and Through Walsh Construction Company v. The UNITED STATES. |
| Court | U.S. Claims Court |
Walter F. Pettit, San Francisco, Cal., attorney of record, for plaintiff. Harold C. Nachtrieb, Thomas W. Kemp, Allan J. Joseph and Miller, Groezinger, Pettit, Evers & Martin, San Francisco, Cal., of counsel.
Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
This case was referred to Trial Commissioner Louis Spector with directions to prepare and file an opinion on the issues of plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment under the order of reference and Rule 99(c) since September 1, 1969, Rule 166(c). The commissioner has done so in an opinion and report filed on April 21, 1969, wherein such facts as are necessary to the opinion are set forth. On November 4, 1969, defendant filed with the court defendant's notice that it does not intend to request review of the commissioner's report. On November 14, 1969, plaintiff filed a motion that the court adopt the opinion of the commissioner which was filed April 21, 1969. The case has been submitted to the court on the briefs of the parties without oral argument. Since the court agrees with the opinion and recommended conclusion of the trial commissioner, it hereby adopts the same as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiff's motion for summary judgment is granted, defendant's cross-motion is denied and judgment is entered for plaintiff in accordance with the opinion. Further proceedings are stayed pursuant to Rule 167 prior to September 1, 1969, Rule 100 for a period of ninety (90) days to afford the parties an opportunity to obtain an administrative resolution by the agency of the equitable adjustment to which plaintiff is entitled.
SPECTOR, Commissioner:
This case grows out of a unique contract between plaintiff Walsh Construction Company and the Atomic Energy Commission. The purpose of the contract is not fully revealed by the record because it called for the construction of an environment for tests, and the details concerning the tests were classified. As a result, plaintiff was not fully apprised of the purpose to which this construction was to be put, a fact which has an important bearing on the principal issue presented, namely, the proper interpretation to be placed upon defendant's specification.
Other issues are presented by the caption of this case, Owens-Corning and Polytron being first and second-tier subcontractors of the plaintiff prime contractor, Walsh. They were the sub-contractors directly concerned with performing the segment of work out of which the dispute arose, and they are described in the caption as acting "by and through Walsh Construction Company." Defendant asserts that they are "not proper plaintiffs," and also that Walsh's right to recover is barred by the so-called Severin doctrine.1
On October 15, 1959, the Atomic Energy Commission (hereinafter referred to as AEC), invited proposals for a fixed-price construction contract in furtherance of an operation designated as the Structural Response Program. The test site is at Mercury, Nevada. Walsh was awarded a contract dated November 4, 1959, in the amount of $1,131,828, described as construction of "a shaft, tunnels, and drifts and other related work."
The work consisted of construction of a perpendicular mine-like shaft approximately 800 feet deep, with tunnels and drifts running out from the main shaft. A drawing furnished as Appendix A to the hearing examiner's opinion on appeal, shows that these lateral tunnels and drifts were divided into about 20 sections or compartments which were to be lined with various structural materials (steel, corrugated metal, concrete). Polyurethane (a type of plastic foam) was to be installed between the material to be tested and the jagged rock surface of the excavated tunnel or drift. The polyurethane was apparently to act as a shock absorber, since another shaft was to be sunk at a specified distance from the one above described, and the AEC planned to detonate therein either a nuclear or conventional explosive. In this way the agency intended to test the effect of the blast on the various structural materials lining the compartments in the original shaft.
Work was to be completed within 150 days, that is, by April 3, 1960. With respect to that part of the work relating to placement of the polyurethane, Walsh entered into a subcontract on January 19, 1960, in the approximate amount of $125,000, with the Fiberglas and Engineering Supply Division (hereinafter referred to as Fenco) of the Owens-Corning Fiberglas Corporation for the placement of the polyurethane. The subcontract incorporated by reference various clauses of the prime contract including the "Disputes" and "Changes" clauses. Thereafter Fenco, in February 1960, entered into two purchase orders totaling $100,000 with the Polytron Corporation (a subsidiary of Pacific Vegetable Oil Company), for the purchase of the polyurethane material and a machine suitable for its mixing and application. Mr. Jennings, President of Polytron, is an expert in the field of polyurethane.
Specification section 5-03 sets forth the requirements for the polyurethane, as follows:
Testing of the foam is governed by provision SC-25 entitled "Furnishing of Samples of Materials," as follows:
Polyurethane foam is formed by the reaction of certain basic chemicals, and the use of a catalyst to speed the reaction. A blowing agent such as freon or carbon dioxide is used to froth up the volume. In the "one-shot" process referred to in specification 5-03 above, all the chemicals are mixed at one time. The chemical liquids in separate drums are forced through hoses into a mixing chamber where the reaction occurs. Within 2 or 3 hours, the resultant plastic hardens to about 80 percent of its maximum strength, and the maximum is achieved in about five days. This "one-shot" process is in contrast to the prepolymer process in which certain of the ingredients are premixed.
The "one-shot" process referred to in the specifications was abandoned from the outset because the phrase "in place," also used by the draftsman of specification 5-03, was inconsistent therewith. These words meant that the chemical ingredients were to be pressured into the voids between the rock walls of the tunnels and the tunnel linings to be tested, while the reaction was taking place. The advantage of forming in place was that the materials were still fluid and expanding, and would thus tend to fill the irregularities in the rock and provide a tighter seal.
Walsh dug the main shaft and the required tunnels, drifts and testing sections. In March and April 1960, Polytron built the necessary machine and it was lowered into the shaft in the first part of May. Long runs of hoses were installed from it to the various sections to be backpacked with polyurethane, and thereafter under the direct supervision of the company president, Mr. Jennings, four of the 20 sections were backpacked.
Prior to the periods here involved, polyurethane meeting the minimum requirements of these specifications with respect to density, yield strength and modulus of elasticity had been manufactured under controlled conditions in laboratories and factories. Also, the "in place" method had been tried in some applications but never on the scale and under the field conditions presented by this project involving as it did tunnels 800 feet underground, irregular cavities, relatively long runs of hose, and temperature problems.
The first four sections were tested and rejected by Holmes & Narver, architect-engineers (AE) retained for the project by the AEC. The AE rejected the polyurethane on the grounds that defendant interpreted specification 5-03 as providing exact numerical requirements without any permissible tolerance whatever. In other words, it was defendant's interpretation that the polyurethane could not...
To continue reading
Request your trial
-
Interstate Contracting v. City of Dallas
...federal pass-through procedure has become the standard method by which such claims are resolved. Owens-Corning Fiberglas Corp. v. United States, 190 Ct.Cl. 211, 419 F.2d 439, 454-55 (1969); Mitsui, 528 F.Supp. at 779; Ardsley Constr. Co. v. Port of N.Y. Autk., 61 A.D.2d 953, 403 N.Y.S.2d 43......
-
Mitsui & Co. v. Puerto Rico Water Resources Auth.
...so accepted that it has been described as the method by which such claims are "routinely entertained". Owens Corning Fiberglas Corp. v. United States, 419 F.2d 439, 454-455 (Ct.Cl. 1969); Ardsley Construction Co. v. Port of New York Authority, 61 A.D.2d 953, 403 N.Y. S.2d 43, 45 J. W. Terte......
-
Stop & Shop Companies, Inc. v. Gilbane Bldg. Co.
...646, 649--650 (W.D.Wis.1970). As to disputes under contracts with the Federal government, see Owens-Corning Fiberglas Corp. v. United States, 419 F.2d 439, 453--455, 190 Ct.Cl. 211 (1969); Liles Constr. Co. Inc. v. United States, 455 F.2d 527, 533--534, 197 Ct.Cl. 164 ...
-
Affholder, Inc. v. Preston Carroll Co., Inc.
...subcontractor. See, e.g., United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); Owens-Corning Fiberglass Corp. v. United States, 419 F.2d 439, 190 Ct.Cl. 211 (1969); J.L. Simmons Co. v. United States, 304 F.2d 886, 158 Ct.Cl. 393 (1962); Mitsui & Co. v. Puerto Rico Water......
-
Subcontractors and Suppliers
...and subcontractor to enter into an agreement commonly 86. 647 N.Y.S.2d 654 (N.Y. Cl. 1996). 87. See Whelan & Gnoss, supra note 77. 88. 419 F.2d 439, 457, 190 Ct. Cl. 211 (1969). 276 C O N S T R U C T I O N L A W known as a liquidating agreement. 89 This term comes from the fact that, althou......
-
Subcontractors and Suppliers
...and subcontractor to enter into an agreement commonly 86. 647 N.Y.S.2d 654 (N.Y. Cl. 1996). 87. See Whelan & Gnoss, supra note 77. 88. 419 F.2d 439, 457, 190 Ct. Cl. 211 (1969). 276 C O N S T R U C T I O N L A W known as a liquidating agreement. 89 This term comes from the fact that, althou......