Southern Construction Company v. United States
| Decision Date | 15 July 1966 |
| Docket Number | No. 385-64.,385-64. |
| Parties | SOUTHERN CONSTRUCTION COMPANY, Inc. v. The UNITED STATES. |
| Court | U.S. Claims Court |
COPYRIGHT MATERIAL OMITTED
Raymond R. Robrecht, Jr., Atlanta, Ga., attorney of record, for plaintiff. Robert J. Berghel and Fisher & Phillips, Atlanta, Ga., of counsel.
Russell W. Koskinen, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, and COLLINS, Judges.
This case was referred to Trial Commissioner Roald A. Hogenson with directions to make recommendation for conclusions of law on plaintiff's motion and defendant's cross-motion for summary judgment. The commissioner has done so in an opinion and report filed on January 28, 1966. Plaintiff has filed no exceptions to or brief on this opinion and report and the time for so filing pursuant to the rules of the court has expired. The case is submitted to the court without oral argument. Since the court is in agreement with the opinion and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Therefore, plaintiff's motion for summary judgment is denied, defendant's cross-motion is granted and plaintiff's petition is dismissed.
Commissioner Hogenson's opinion,* as modified by the court, is as follows:
This is a suit on a bid contract awarded by U.S. Army Engineer District, Savannah, Georgia, Corps of Engineers, to plaintiff, dated August 17, 1959, designated No. DA-09-133-Eng-3688, pursuant to which plaintiff, a Georgia corporation engaged in the construction business, undertook for the contract price of $813,723.09 to furnish all labor, equipment, and materials and to perform the work required to rehabilitate and improve an existing Wherry housing project, located at Fort Benning, Georgia, in strict accordance with the provisions, specifications, schedules, drawings and conditions of the contract. The contract performance involved 800 dwelling units in 370 buildings of 6 types, a shopping center, and 8 utility buildings. The contract provisions, specifications and conditions hereinafter discussed and quoted, were existing standard forms previously drawn by defendant and provided to plaintiff in accordance with the invitation for bids.
On behalf of its subcontractor, Bailey-Lewis-Williams of Georgia, Inc., a Georgia corporation engaged in the painting business, plaintiff seeks a judgment in the sum of $64,792.40 for increased costs allegedly incurred by such subcontractor because defendant required painting of certain previously unpainted interior surfaces of the buildings, which plaintiff contends was contrary to the contract specifications.
This case is before the court on cross-motions for summary judgment. With the approval of the trial commissioner, the parties have agreed to present only the issues relating to liability, reserving the determination of amount of recovery, if any, for further proceedings. In support of their respective motions, the parties rely on their respective pleadings and briefs filed herein and on a duly certified copy (filed herein) of the record of proceedings of the Armed Services Board of Contract Appeals (ASBCA No. 8300) on plaintiff's appeal from the adverse decision of defendant's contracting officer on plaintiff's claim. After hearing the testimony of two agents of the subcontractor, receiving in evidence proffered exhibits, and considering the briefs of the parties, the Board in an analytical decision denied plaintiff's appeal. 1963 BCA Decisions 18,422.
Included within the work to be performed under the contract were various repairs, replacements and improvements of mechanical and structural items, as well as electrical equipment and wiring systems, and extensive interior and exterior calking and painting. The only performance in dispute is that part of the interior painting which included the painting of unpainted plaster ceilings throughout the dwelling units; unpainted plaster ceilings and walls of clothes closets of the dwelling units; and unpainted plaster walls and ceilings of the storage rooms of F- and H-type dwelling units.
The opening of bids on the prime contract apparently occurred as scheduled by the defendant's invitation for bids at 2:00 p. m. on August 13, 1959. Prior to that time, the subcontractor Bailey-Lewis-Williams had learned of the project through a trade bulletin. From the publisher thereof, the subcontractor's estimating engineer, Mr. Thomas R. Allen, Jr., then obtained the use of a copy of the project plans and specifications, and from them made a "take-off" of the painting required, which as to interior painting of plaster surfaces, was a computation of the square footage of flat areas to be painted. On this basis he then estimated the hours of labor and gallons of paint required, to which he proceeded to apply prevailing costs, with allowances for overhead, profit, and other incidental costs. He assumed that all the plaster surfaces had been previously painted, and included all such surfaces in his estimates. Accordingly, he provided for only one coat of paint, as he recognized that the specifications required only one coat on previously painted surfaces, whereas he understood that if construed to require painting of unpainted plaster surfaces, if any, the specifications to that extent provided for two coats. These estimates were completed on August 11, 1959, 2 days before the bid opening date.
The outstanding invitation for bids, on which plaintiff's contract is based, called for unit prices on interior painting at a specific price per building for each of six types of dwelling buildings. Under its responsive unit price schedule, contained in its bid accepted by defendant, plaintiff ultimately received a fixed amount per building for all interior painting specified for such building, regardless of what surfaces were required to be painted or how many coats were to be applied.
To conform to the manner of bidding under the required unit price schedule, the subcontractor translated its estimates on interior painting into unit prices on the form prescribed by the invitation, and distributed its unit-price proposal to the competing general contractors, without disclosing its computation of square footage to be painted, gallonage of paint to be applied, or labor to be used.
On August 12, 1959, the day before the bid opening, Mr. Allen visited the project site and inspected the buildings, and discovered that certain plaster surfaces in the dwelling buildings, as above-described, were unpainted. These surfaces had been left unpainted when the project was built some 8 years previously. In the evening before the bid opening date, he revised his estimates downward to reflect the exclusion of the square footage of surfaces he had discovered to be unpainted, as he interpreted the specifications as not requiring the painting of previously unpainted plaster surfaces. That same night, he submitted to plaintiff a price quotation based on his revised estimate, showing a lump sum less than his previous quotation, but without any revision of unit prices.
After the bid opening on August 13, 1959, defendant awarded plaintiff the prime contract which was executed by plaintiff and defendant on August 17, 1959. Shortly thereafter, plaintiff and its subcontractor entered into a subcontract in the total sum of $234,600 for the performance of all of the painting required by the prime contract. On September 15, 1959, Mr. Allen for the subcontractor supplied to plaintiff a breakdown of the subcontract price of $234,600. In addition to unit prices provided for all other painting, he stated a unit price per building for the interior painting of each of the six types of dwelling buildings, and the computed total sum for each of the six types.
Mr. Allen's work sheets on his estimates prepared August 11, 1959, and his breakdown of the subcontract price, dated September 15, 1959, both of which were in evidence before the Board, revealed for interior painting a unit price per dwelling building of each type and a total price for each type, as follows:
Interior Painting of Dwelling Buildings
___________________________________________________________________________________
| | August 11, 1959 |September 15, 1959
| Number |_______________________|____________________
Type of building | of each | Per |Total for | Per |Total for
| type | building* | type | building | type
____________________________|_________|___________|___________|__________|_________
A ..........................| 42 | $544 | $22,854 | $488 | $20,496
B ..........................| 190 | 339 | 64,533 | 302 | 57,380
C ..........................| 25 | 679 | 16,983 | 612 | 15,300
D ..........................| 13 | 743 | 9,669 | 670 | 8,710
F ..........................| 40 | 154 | 6,177 | 140 | 5,600
H ..........................| 60 | 186 | 11,200 | 163 | 9,780
| | |___________| |________
Totals ...................|.........|...........| 131,416 |......... | 117,266
____________________________|_________|___________|___________|__________|_________
These same documents show that Mr. Allen on the same two occasions computed the unit prices for the exterior painting of the dwelling buildings, as follows:
Exterior Painting of Dwelling Buildings
________________________________________________________________________________
| | August 11, 1959 | September 15, 1959
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