Wickham Contracting Co., Inc. v. United States

• Decision Date: 15 December 1976
• Docket Number: No. 327-75.,327-75.
• Citation: 546 F.2d 395
• Parties: WICKHAM CONTRACTING CO., INC. v. The UNITED STATES.
• Court: U.S. Claims Court

546 F.2d 395

WICKHAM CONTRACTING CO., INC. v. The UNITED STATES.

No. 327-75.

United States Court of Claims.

December 15, 1976.

Eugene Drexler, atty. of record, New York City, for plaintiff.

Donnie Hoover, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant.

Before SKELTON, NICHOLS and KASHIWA, Judges.

PER CURIAM:

This case comes before the court on defendant's motion, filed September 14, 1976, pursuant to Rule 54(b)(3)(iii), requesting that the court adopt, as the basis for its judgment in the case, the recommended decision of Trial Judge Thomas J. Lydon, filed July 22, 1976, pursuant to Rule 166(c) on plaintiff's motion and defendant's cross-motion for summary judgment, since plaintiff has failed to file a request for review by the court thereof and the time for so filing pursuant to the Rules of the court has expired. Upon consideration thereof, without oral argument, since the court agrees with the recommended decision, as hereinafter set forth, it hereby grants defendant's motion and adopts the decision as the basis for its judgment in this case. Therefore, plaintiff's motion for summary judgment is denied, defendant's cross-motion for summary judgment is granted and plaintiff's petition is dismissed.

OPINION OF TRIAL JUDGE

THOMAS J. LYDON, Trial Judge:

This government contract case involves a review, under standards of the Wunderlich Act (68 Stat. 81, 41 U.S.C. §§ 321-22 (1970)), of a decision by the Armed Services Board of Contract Appeals (Board), denying plaintiff's claims for (1) additional costs by way of a contract price adjustment, and (2) a 2-month time extension. Both claims were premised on a scale error contained on a contract drawing. (Wickham Contracting Co., ASBCA No. 19069, 75-1 BCA ¶ 11,248.)¹ On review, it is concluded that the Board decision denying plaintiff's claims is correct in fact and in law.²

On July 23, 1973, plaintiff was awarded a construction contract by the Corps of Engineers, U.S. Army Engineer District, New York, for Replacement of Primary Underground Cable at the Military Ocean Terminal, Bayonne, New Jersey. The contract price was $44,000. In essence, the contract required the furnishing and installation of four manholes, underground electrical cable, a concrete duct bank within which to run the cable, and certain accessories for the overall system. The contract documents contained only a single drawing and it provided the setting for the dispute which resulted in the Board decision here under review.

The contract drawing contained two different scales. To the left of the title block, in the lower right-hand corner of the drawing, was a calibrated graphic or bar scale 3 inches long with marked footage designations. Immediately to the left of this graphic or bar scale were the figures; 1" = 200'.³ In the middle section of the drawing under the heading "Plan" appeared the following figures: Scale 1' = 200'. It is undisputed that the 1' = 200' scale was a drafter's error and should have read 1" = 200'. The Board found that plaintiff based his bid on the Plan scale of 1' = 200'. The issue is whether plaintiff is entitled to recover additional costs of performance because of its reliance on the erroneous scale set out on the contract drawing which caused it to underbid.

Initially, it must be observed that plaintiff's petition and moving brief lack the substantive particularity, supported by appropriate record references, necessary to overcome the finality that otherwise attaches to findings made by a Board whose decision is subject to Wunderlich Act review. It is not the court's function to remedy this deficiency by an independent and/or de novo review of the record. Jet Constr. Co. v. United States, 531 F.2d 538, 540-41, 209 Ct.Cl. 200, 203-04 (1976). Hicks Corp. v. United States, 487 F.2d 520, 521, 203 Ct.Cl. 65, 68 (1973). A review of the record, however, discloses the existence of substantial evidence supportive of the Board findings. Under these circumstances, the court is bound by such findings even though the record would support contrary and/or modified findings in some respects. Allied Contractors, Inc. v. United States, 176 Ct.Cl. 1095, 1098-99 (1966).

The Board found that the possibility of an error relative to the scale 1' = 200' on the drawing was manifest. Parenthetically, plaintiff challenges this Board finding on the sole ground that it is irrelevant. Such a challenge, under the circumstances, is without merit. The Board noted that use of a 1' scale was unusual. Moreover, the presence on the drawing of another scale figure 1" = 200" created a patent discrepancy.⁴ The Board concluded that plaintiff should have recognized the possibility of a drawing error when bidding.⁵ It is established that plaintiff was under an obligation to study all aspects of the contract drawing before submitting its bid, see Richardson Camera Co. v. United States, 467 F.2d 491, 496, 199 Ct.Cl. 657, 665 (1972), and its failure to note the discrepancy in the scale data on the drawing rightly impinges on the reasonableness of its bid submission. See Martin Lane Co. v. United States, 432 F.2d 1013, 1020, 193 Ct.Cl. 203, 217 (1970).

Under circumstances where a patent and glaring discrepancy exists in a contract drawing, and such a discrepancy would be recognized by a reasonable bidder, there is a burden imposed on such a bidder to seek clarification of said discrepancy from an appropriate government official before submitting a bid, if the bidder, subsequent to an award to it, hopes to rely on its unilateral resolution of the discrepancy issue as a basis for a subsequent contract price adjustment claim. Merando, Inc. v. United States, 475 F.2d 601, 201 Ct.Cl. 23 (1973); Space Corp. v. United States, 470 F.2d 536, 539, 200 Ct.Cl. 1, 5-6 (1972); Beacon Constr. Co. v. United States, 314 F.2d 501, 504, 161 Ct.Cl. 1, 7 (1963). This proposition is for application in situations where a bidder knew, as well as in situations where a bidder should have known, of the discrepancy. The latter situation is present in this case. Allied Contractors, Inc. v. United States, 381 F.2d 995, 1000, 180 Ct.Cl. 1057, 1064-65 (1967). Indeed it has been said that whether a bidder knew or did not know of the discrepancy prior to submitting its bid is not a governing factor. "It is the existence and type of the discrepancy, not necessarily the contractor's actual knowledge of it, that imposes a burden of inquiry on the contractor * * *." HRH Constr. Corp. v. United States, 428 F.2d 1267, 1272, 192 Ct.Cl. 912, 920-21 (1970).⁶

The Board recognized the applicability of the above legal proposition to the instant situation, although it did not cite any of the above cases, but was dissuaded from basing its decision thereon because of its finding that the government had knowledge of the drawing error prior to contract award.⁷See Helene Curtis Indus., Inc. v. United States, 312 F.2d 774, 777-78, 160 Ct.Cl. 437, 443-44 (1963). The Board also alluded to the well established principle that the government impliedly warrants the suitability of its drawings for their intended use. See Thompson Ramo Wooldridge, Inc. v. United States, 361 F.2d 222, 230, 232, 175 Ct.Cl. 527, 538, 542 (1966). At this stage, the Board in essence, viewed both parties as being at fault. See Aerojet-General Corp. v. United States, 199 Ct.Cl. 422, 436-39, 467 F.2d 1293, 1302-03 (1972). The Board synthesized the matter as follows:

Other things being equal, we might well regard the Government's duty to disclose its actual knowledge to the bidders, including appellant, as a higher duty superseding a bidder's duty to recognize and seek clarification of an obvious drawing error of which it did not have actual knowledge. However, in the present case later events presented appellant with a last clear chance to avoid damage from the drawing error.

Like the Board, I find no need to resolve this troublesome question of which duty prevails when on a collision course since another basis exists, as was found by the Board, on which one could properly rest a decision.

On bid opening on June 26, 1973, it was disclosed that five bids had been submitted to perform the contract work. The low bid was $44,000, submitted by plaintiff, and the high bid was $85,500. The next lowest bid was $51,942. The government's estimate for performing the work was $63,000. Under standard procedures, the percentage differential between plaintiff's low bid and the government's estimate required the government to seek verification from plaintiff of its bid.

On June 27, 1973, the bid opening officer of defendant telegrammed plaintiff for verification of its bid. Failing to receive a prompt response to this verification inquiry, a subsequent telephone conversation between plaintiff's president and the bid opening officer took place. The Board found it undisputed that in this telephone conversation plaintiff's president called the bid opening officer's attention to the presence of two different scales on the drawing. The Board found as a fact that plaintiff actually became aware of the drawing scale error when its president examined the drawing to verify his bid.⁸

The bid opening officer asked plaintiff's president to either confirm his bid or ask for withdrawal of his bid based on a bid mistake. Plaintiff subsequently confirmed his bid without qualification. In his testimony, as noted by the Board, plaintiff's president believed he had bid on a correct interpretation, i. e., there was no error in his bid in that it was based on the scale 1' = 200'. He testified it was the government's error, not his error. He gave no consideration to the fact that this scale was erroneous, a fact he was aware of when called upon to verify his bid, and since his bid was based thereon it would constitute a mistake in bid. He further testified he did not want to withdraw his bid because it might affect his ability to get future bonding as well as his...