TECON CORPORATION v. United States

• Decision Date: 20 June 1969
• Docket Number: No. 99-67.,99-67.
• Parties: TECON CORPORATION and Green Construction Company, a Joint Venture, trading as Tecon-Green v. The UNITED STATES.
• Court: U.S. Claims Court

411 F.2d 1262 (1969)

TECON CORPORATION and Green Construction Company, a Joint Venture, trading as Tecon-Green v. The UNITED STATES.

No. 99-67.

United States Court of Claims.

June 20, 1969.

David V. Anthony, Washington, D.C., for plaintiff; Gilbert A. Cuneo, Washington, D.C., attorney of record. Sellers, Conner & Cuneo, Washington, D.C., of counsel.

Edward M. Jerum, 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 AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

COLLINS, Judge.

Plaintiff, a joint venture, seeks review under the Wunderlich Act of a decision of the Corps of Engineers Board of Contract Appeals. Tecon-Green (A Joint Venture), 67-1 BCA ¶ 6147 (ENG BCA 1967). The board denied plaintiff's appeals on three claims for extra work arising under the Changes or Changed Conditions clause of a contract with the Corps of Engineers (DA-41-443-CIV-ENG-61-100). A fourth claim, on which recovery was allowed by the board, is the subject of a counterclaim by defendant here.

The contract obliged plaintiff to complete the embankment and spillway and to construct a service road for Canyon Dam and Reservoir, Guadaloupe River, Texas. The dam is an elongated earthenwork structure, a cross-section of which resembles the side view of a truncated cone.

Because plaintiff's claims involve different aspects of the performance, the facts pertinent to each claim are set forth in the discussion below. The parties rely on the administrative record and the pleadings in moving for summary judgment. On the undisputed material facts before us, we find that the board erred in denying plaintiff relief on one of its claims (the so-called "roller weight" claim), but that its decision is in all other respects correct as a matter of law and supported by substantial evidence. The case is returned to the board for determinations on the issue of quantum in accordance with this decision.

TRIAXIAL TESTING CLAIM

Plaintiff was instructed to supply labor and equipment to assist the Government in taking soil samples to determine the strength of the material when placed and compacted. Approximately 700 samples were taken. Plaintiff argues that it was not required by the contract to provide the personnel and equipment used in making the tests, and supplying these items was extra work for which it should be compensated under the Changes clause.

To obtain the test material, an hydraulic jack would be braced against a piece of equipment, usually the blade of a tractor. A cylinder would be forced into the soil by means of the jack, then removed by digging up the earth around it, leaving undisturbed the soil sample lodged within.

As found by the board, the type and number of tests made were reasonable and normally incident to the type of construction involved. It also was found that the labor and equipment used were no more than necessary.

The parties agree that the issue is a matter of contract interpretation. The pertinent portion of the relevant provision is as follows:

9. INSPECTION

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(b) The Contractor shall furnish promptly without additional charge, all reasonable facilities, labor, and materials necessary for the safe and convenient inspection and test that may be required by the Contracting Officer. All inspection and tests by the Government shall be performed in such manner as not unnecessarily to delay the work. Special, full size, and performance tests shall be as described in the specifications. The Contractor shall be charged with any additional cost of inspection when material and workmanship are not ready at the time inspection is requested by the Contractor.

Plaintiff reads the Inspection clause as requiring the contractor to make the site safely and conveniently available to the Government for testing purposes, but not as requiring the contractor's participation in the actual sampling. It is our opinion that this construction of the provision is unreasonable.

The fact that plaintiff chooses to emphasize here the adjectives "safe" and "convenient" cannot minimize the substance of the contract's mandate that the contractor provide all items reasonably necessary for the testing. Nor, contrary to plaintiff's argument, is the second sentence of the specification in any way inconsistent with this requirement. The statement that tests "by the Government" should not unnecessarily interfere with the progress of the work cannot, when read together with the first sentence, mean that the sampling was to be performed with Government personnel and material. Rather, as the undisputed facts here show, the Government required the tests, and supervised the sampling using contractor-provided labor and equipment. Such testing was nonetheless "by the Government," since performed at defendant's insistence and as defendant directed.

Further, we agree with the board's implicit view that, under plaintiff's reading of the Inspection clause, the contractor, to make the site "safe and convenient" under this contract, would have had to do no more, in effect, than keep its personnel and equipment out of the way. Plaintiff's construction is patently inconsistent with the positive statement that the contractor was to "furnish" the necessary labor and materials. Its reading also makes a nullity of the language "without additional charge": no contractor in plaintiff's position could reasonably expect to be compensated for mere noninterference, and the phrase would accordingly have no purpose.

A construction of a contract provision which gives meaning to all its languages is to be favored. Morrison-Knudsen Co. v. United States, 397 F.2d 826, 184 Ct.Cl. 661 (1968). Even though the instant specification is a standard-form clause, we cannot consider its terms in a vacuum, but must read it in light of the nature, scope, and other provisions of the contract in which it is included. See Wertheimer Constr. Co. v. United States, 406 F.2d 1071, 186 Ct.Cl. 836 (1969); Morrison-Knudsen Co. v. United States, supra.

But, argues plaintiff, if defendant's reading of the clause is accepted, the contractor could have been expected to provide the laboratory facilities, personnel, and sophisticated equipment to actually test the samples. Whether such a requirement could be found in the specification in other circumstances need not be decided here. It is sufficient to note that the contractor is protected from the unforeseen expense of inordinate Government demands by the qualification that the contractor provide "reasonable" facilities, labor, and materials. See Wilkins Co., 65-2 BCA ¶ 5242 (FAACAP 1965).

Plaintiff correctly states the rule of law that a contractual ambiguity is resolved against the drafter of the provision involved. E.g., Ray D. Bolander Co. v. United States, 186 Ct.Cl. 398 (1968); Sun Shipbuilding & Dry Dock Co. v. United States, 393 F.2d 807, 183 Ct.Cl. 358 (1968). But it is also true that before the rule applies, the ambiguity must be a substantial and reasonable one. E.g., A.R.F. Products, Inc. v. United States, 388 F.2d 692, 181 Ct.Cl. 1176 (1967); Keco Indus., Inc. v. United States, 364 F.2d 838, 176 Ct.Cl. 983 (1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 105 (1967). We do not find such an ambiguity here.

The board did not err in denying plaintiff's triaxial testing claim.

RIPRAP CLAIM

Under the contract plaintiff was required to place a layer of stone upon the upstream slope of the dam and elsewhere to minimize wave action and otherwise prevent erosion of the earthern embankment. This riprap was to be placed in accordance with the following specification:

5-5. Riprap.

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(b) Placement. — Stone for "riprap" shall be placed on the bedding layers in such manner as to produce a reasonably well-graded mass of rock with the minimum practicable percentage of voids, and shall be constructed within the specified tolerance to the lines and grades shown on the drawings or staked in the field. A tolerance of plus 4 inches or minus zero inches from the slope lines and grades shown on the drawings will be allowed in the finished surface of the riprap. Riprap shall be placed to its full course thickness at one operation and in such a manner as to avoid displacing the bedding material. The larger stones shall be well distributed and the entire mass of stones in their final position shall be roughly graded to conform to the gradation specified in paragraph (a) above. The finished riprap shall be free from objectionable pockets of small stones and clusters of larger stones. Placing riprap in layers will not be permitted. Placing riprap by dumping into chutes or by similar methods likely to cause segregation of the various sizes will not be permitted. The desired distribution of the various sizes of stones throughout the mass shall be obtained by selective loading of the material at the quarry or other source; by controlled dumping of successive loads during final placing, or by other methods of placement which will produce the specified results. Rearranging of individual stones by mechanical equipment or by hand will be required to the extent necessary to obtain a reasonably well graded distribution of stone sizes as specified above. * * *

The essence of plaintiff's claim is that the Government required so smooth a finished surface for the riprap that hand labor in excess of what was required by the specifications was necessary. The additional breaking and hand placement of stones, it is argued, was extra work compensable under the Changes clause.

More specifically, plaintiff predicates its argument upon a claim letter sent to the contracting officer on December 6, 1963. Approximately 50 percent of the riprap surface had been finished at that time. In its letter the contractor notified the Government that it was proceeding under defendant's directions to finish...