UNITED PACIFIC INSURANCE COMPANY v. United States, 163-73.
| Decision Date | 04 October 1974 |
| Docket Number | No. 163-73.,163-73. |
| Citation | 204 Ct. Cl. 686,497 F.2d 1402 |
| Parties | UNITED PACIFIC INSURANCE COMPANY v. The UNITED STATES. |
| Court | U.S. Claims Court |
Herman L. Fussell, Atlanta, Ga., attorney of record, for plaintiff; McNeill Stokes and Stokes, Boyd & Shapiro, Atlanta, Ga., of counsel.
Bernard M. Brodsky, Buffalo, N. Y., with whom was Acting Asst. Atty. Gen., Irving Jaffe, for defendant, Leslie H. Wiesenfelder, Washington, D. C., of counsel.
Before COWEN, Chief Judge, DURFEE, Senior Judge, and KASHIWA, Judge.
This is an action brought under the general jurisdiction of the court, 28 U.S.C. § 1491 (1970), for review of an administrative decision under the Wunderlich Act, 41 U.S.C. §§ 321, 322 (1970). The plaintiff contests the decision of the Armed Services Board of Contract Appeals (hereinafter referred to as "ASBCA").
The parties filed cross motions for summary judgment. The material facts are not in dispute. Plaintiff's motion for summary judgment is allowed for reasons hereinafter stated.
On or about June 30, 1970, the Defense Supply Agency, an agency of defendant, and Knoxville Acoustical Co., Inc. entered into contract No. DSA 400-70-c-6216 for the recovering of roofs at the Defense General Supply Center, Richmond, Virginia, being Project PR 1-69 (Second Increment), warehouses 4, 10, and 12, and Project PR 1-69 (Third Increment), warehouses 30, 31, 32, and 33. The fixed contract price was $155,439.
Plaintiff, as surety, executed a payment and performance bond on said contract. Knoxville Acoustical Co. did not perform any work on said project and was defaulted under said contract by the Government. Plaintiff was then requested to perform said contract.
Plaintiff and the Government entered into a takeover agreement whereby both parties agreed that plaintiff would become the contractor on said construction contract. On or about June 1, 1971, plaintiff contracted with L. F. Still and Co. for the performance of all work under said contract and takeover agreement.
A dispute arose over the method of installing bituminous flashings on the firewalls of said project. The firewalls, about 8 inches wide, rose more than a foot above the warehouse roofs. Plaintiff contended that under the terms of the contract, the plaintiff could install the flashings on the firewalls in either of two ways. Either plaintiff could "cap and seal" the flashings or "return and seal" the flashings. Under the former method, the flashing would be installed up the vertical side of the firewalls and would be capped and sealed to the underedge of the terra cotta coping which was located on the horizontal surface of the top of the firewall. The latter alternative, commonly referred to as returning and sealing, requires the removal of all terra cotta coping on the tops of the firewalls. Then new flashings would be installed up the vertical side of the firewalls, over the top of the firewall, and down the other vertical side of the firewall. New terra cotta coping would then be sealed on top of the flashing on te horizontal portion (tops) of the firewalls.
The Government contended that the contract did not allow for alternative methods of installing the flashings. Instead, the Government demanded that the more expensive return-and-seal method be used. Plaintiff urged that under the contract either the cap-and-seal method or the return-and-seal method was allowed. Under protest, the plaintiff complied with the Government's demand. The return-and-seal method was considerably more expensive than the cap-and-seal method.
This dispute centers around the legal interpretation of the contract documents and particularly the following provisions of the contract:
For the extra work caused by the Government's demanding the returning and sealing of the flashings, plaintiff sought an equitable adjustment of the contract price. After an adverse finding by the contracting officer, plaintiff appealed to the ASBCA. The Board ruled adversely to the plaintiff and held that the contract required the flashings to be returned and sealed (ASBCA No. 17748). Plaintiff then filed suit in this court to recover $44,003.92.
The Board's decision turned entirely upon the application of law to the undisputed provisions of the contract. At page 8 of the decision, the Board stated that the issue was the interpretation of the specifications and drawings. Defendant concedes that under Wunderlich Act standards the issue of whether the subject construction contract requires installation of bituminous flashings on the tops of firewalls required an interpretation of the contract terms and, therefore, is a question of law which this court is free to answer independently of the Board's decision. The cases are legion which establish that an administrative board's interpretation of the language of the contract documents is a question of law and not binding on nor entitled to finality by the court. Martin Lane Co. v. United States, 432 F.2d 1013, 1015, 193 Ct.Cl. 203, 206-207 (1970); HRH Constr. Corp. v. United States, 428 F.2d 1267, 1271, 192 Ct.Cl. 912, 918 (1970).
Plaintiff contends that the contract allowed either of two alternative methods of installation and under the terms of the contract, plaintiff had the option of either capping and sealing the flashings or returning and sealing the flashings. On the other hand, the Government claims the contract required the return-and-seal method of installation.
The contract provisions expressly provide that the plaintiff may use either of the aforementioned methods. Section TP2-8 provides:
a. General: All bituminous flashings shall be replaced. Flashings shall be provided in the angles formed at walls and other vertical surfaces and where required to make the work watertight. * * * Step flashings shall be used where vertical surfaces abut sloped roof surfaces. Flashings shall be returned and sealed or capped and sealed to waterproof edges and ends. Emphasis supplied.
The crucial sentence is, "Flashings shall be returned and sealed or capped and sealed to waterproof edges and ends." The word "or" unequivocally indicates that alternative methods of installation were authorized. The second sentence states, "Flashings shall be provided in the angles formed at walls and other vertical surfaces and where required to make the work watertight." Thus, where the roof met a firewall, flashing was to be installed and the flashing was to extend vertically up the side of the firewall. But there is no requirement that the flashing extend along the horizontal top of the firewalls. Instead, rather than requiring the flashings to extend over the firewalls, the provision required the flashing to be applied where needed to make the work watertight.
Plaintiff's interpretation of the contract is entirely consistent with all the provisions of the contract. It is an elementary rule of contract interpretation that all parts of a contract must be read together and harmonized if at all possible. Gelco Builders & Burjay Constr. Corp. v. United States, 369 F.2d 992, 177 Ct.Cl. 1025 (1966); Southern Constr. Co. v. United States, 364 F.2d 439, 176 Ct.Cl. 1339 (1966); Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 169 Ct.Cl. 384 (1965). A corollary to this general rule of law is the principle that all provisions of a contract are to be given effect and no provision is to be rendered meaningless. Jamsar, Inc. v. United States, 442 F.2d 930, 194 Ct.Cl. 819 (1971).
The Government points to section TP2-2 which provides:
* * * New bituminous flashings shall be installed in accordance with these specifications at all locations where existing flashings are bituminous type.
The Government argues that plaintiff's position does not give effect to TP2-2. We are of the view that TP2-2 and TP2-8 are consistent with each other and are consistent with the plaintiff's interpretation of the contract. TP2-2 requires the installation of flashings in all locations where required in the specifications. TP2-8 is the specification defining "all locations" where the...
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