Roberts v. United States, Great American Insurance Co.

• Decision Date: 18 March 1966
• Docket Number: No. 17-61.,17-61.
• Citation: 357 F.2d 938,174 Ct. Cl. 940
• Parties: Joseph H. ROBERTS v. The UNITED STATES, GREAT AMERICAN INSURANCE COMPANY, Third-Party Defendant.
• Court: U.S. Claims Court

174 Ct. Cl. 940, 357 F.2d 938 (1966)

Joseph H. ROBERTS v. The UNITED STATES, GREAT AMERICAN INSURANCE COMPANY, Third-Party Defendant.

No. 17-61.

United States Court of Claims.

March 18, 1966.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward Gallagher, Washington, D. C., for plaintiff.

Robert R. Donlan, Kensington, Md., with whom was Asst. Atty. Gen., John W. Douglas, for defendant.

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

COWEN, Chief Judge.¹

The plaintiff seeks recovery on a quantum meruit basis (measured by his total costs, less payments) for the reasonable value of a concrete roadway constructed by him for the Smithsonian Institution at the National Air Museum Storage Area, Silver Hill, Maryland. The plaintiff contends that the defendant breached his contract by furnishing misleading drawings and by overzealous supervision amounting to interference on the part of the defendant's construction representative on the job. The defendant counterclaims for delay in completion, costs expended in determining whether the road met specifications, savings realized by the plaintiff because of changes, and costs for replacing the road because of its failure to comply with specifications.

The contract was for the concrete paving of about 735 linear feet of gravel road, plus the construction of concrete culverts and ramps at the named facility. It was to have been started April 15, 1959 and completed August 13, 1959, but was not actually started until May 21 and finished January 12, 1960, some 153 days late.

The plaintiff's costs exceeded his $31,720 contract price by at least $13,531, and without doubt much more which he claimed but failed to prove. For the most part, plaintiff's losses were occasioned by errors in bidding, which produced an unrealistically low bid, and by neglect and mistakes in his performance of the contract.

The plaintiff's representative made a cursory inspection of the site prior to preparing a bid, examined the single contract drawing, and failed to notice (as a careful inspection would have revealed) that a quantity of fill would be required in order to grade the existing gravel road to required elevations. He blames the defendant's drawing for this oversight. In actuality the drawing was adequate for its purposes, although it did not give detailed elevations of the existing gravel roadway so that bidders could compute without ground measurements the quantities of fill required. The omitted elevation data were available from the contracting officer if asked for, but the plaintiff made no request. Having made no complaint during contract performance of this alleged omission in the drawing, the plaintiff's complaint arrives too late at this juncture, for he had the opportunity to avoid error in the bidding period but failed to take reasonable precautions.

The plaintiff also underestimated the quantity and composition of concrete required by $11,341.26, including a labor cost of $3,318.56. He based his bid on a four-bag mix (four bags per cubic yard of concrete), while a 5.2-bag mix was required in order to obtain the strength requirement specified in the contract. The contract did not specifically call for a 5.2-bag mix in those terms, but resort to a standard engineering manual would have readily disclosed to an experienced contractor that such a mix was necessary to obtain the desired strength.

The disparity between plaintiff's bid of $31,720 and the next lowest bid of $45,888 (other bids ranged up to $87,410) caused the contracting officer to discuss with plaintiff the possible inaccuracy of his bid, but on plaintiff's assurance that no error had occurred the contract was awarded to him on March 30, 1959. The plaintiff says that he had anticipated large economies through using an efficient concrete paver, but was prevented from so doing by the defendant's actions. Not only is the plaintiff's evidence inconclusive that he actually intended to acquire such a device for use, but also he never complained during contract performance of frustrated intentions to use a concrete paver and there is reason to believe that the nature of the job would not have permitted such a method of paving.

Throughout performance, plaintiff consistently made technical errors in interpreting the directions of the contract drawings. Frequently, in setting stakes and placing forms for the pouring of concrete sections, he deviated from the specified elevations and was required to make corrections by defendant's construction representative. On several occasions the grading elevations were changed at plaintiff's request to spare him the cost of fill to bring certain sections of the road up to grade. The changing of elevations in one part of the road produced a chain reaction requiring grade alterations in contiguous sections so that the greater part of the road was built at elevations departing from the contract drawing.

Mr. Alden L. Howard, defendant's construction representative, served in the dual role of resident engineer and chief inspector for defendant (see finding 31). On his initiative and because he felt it necessary to insure plaintiff's compliance with the plans and specifications, defendant's representative gave specific and detailed orders to plaintiff's personnel and exercised complete control and domination over all parts of the contract performance. Such action led to considerable friction with plaintiff, because it required plaintiff to re-do much of the work and, consequently, increased the cost and delayed the completion of the project. Mr. Howard was greatly concerned that the completed road have adequate drainage. On many occasions after he had furnished plaintiff with specified elevations and plaintiff's workmen had spent most of a day in erecting forms for pouring the concrete, Mr. Howard ordered the workmen to lower, raise, or otherwise change concrete forms as designated by him. Thus, it became necessary for plaintiff to relocate the whole set of forms from the subgrade to the top finish. In some instances, Mr. Howard used a level or other instrument to ascertain whether the forms were at the proper contract elevation but, in other cases, he relied on his judgment and vision in directing the positioning of the forms.

In the final claim he submitted to the contracting officer, plaintiff requested compensation in the sum of $6,622.84 for extra labor and other costs alleged to have been incurred as a result of improper directives issued by defendant's representative. In his second amended petition, plaintiff alleges that the costs of doing the work and the time required for completion of the project were increased because of defendant's unwarranted interference with plaintiff's performance.

We have determined that defendant's domination and control of the work was a breach of the contract.² However, we have found that most of the losses claimed by plaintiff resulted from his errors in bidding and his inefficient performance. Plaintiff is not entitled to recover for defendant's unwarranted interference with plaintiff's performance, because of plaintiff's failure to produce satisfactory proof that will enable us to determine, with reasonable accuracy, the extent of the claimed losses and delays that were due to defendant's breach of the contract. Wunderlich Contracting Company v. United States, 351 F.2d 956, 173 Ct.Cl. ___ (1965) and cases cited therein.

Others errors occurred. The plaintiff misplaced a culvert, misinterpreted the locations of culverts and ditches although the contract drawing was not, as claimed, obscure as to this, excavated an access road and made it impassable in violation of the contract and was required to replace the excavation at considerable cost to him, placed excessive fill in certain locations at unneeded cost, and frequently neglected proper supervision of his workmen, all of which contributed to the cost of the job and delay in its performance.

A month prior to completion of the contract the plaintiff filed a claim for changes in the amount of $23,573.77 with the Chief of the Supply Division of the Smithsonian Institution, who may be regarded as the contracting officer in the case, although the contract was actually signed by the Secretary, the head of the Smithsonian Institution. The claim was allowed in the amount of $1,136.99, and the plaintiff invoked his rights under the standard disputes clause of the contract by appealing and demanding a hearing before a "Board of Competent People". The Secretary of the agency acknowledged the appeal by advising plaintiff that he had appointed a special board of review to "hear your case and make appropriate recommendations to me for equitable settlement", naming three persons to compose the board, including two of his subordinate officials.

The board of review thus appointed conducted a hearing attended by both sides to the controversy and entertained testimony and documentary evidence. The absence of a transcript of testimony suggests that none was made. On April 19, 1960, the board rendered its report. The agency refused to furnish the plaintiff a copy of the report until proceedings were initiated in this court because it was considered to be "an administrative communication addressed to the Secretary pursuant to the board's appointment to hear the case and make recommendations to the Secretary for equitable settlement", and thus not appropriate to be made available to the claimant.

The board's report considered the plaintiff's claim in considerable detail and recommended that, subject to informal discussions with the General Accounting Office to verify legal support for the conclusions, the plaintiff be reimbursed his net direct costs less a small charge for his underestimation of concrete requirements, all of which was subject to further auditing to establish such net direct costs. From the contents of the report it is clear that the board considered...