William F. Klingensmith, Inc. v. United States

• Decision Date: 20 November 1974
• Docket Number: No. 80-73.,80-73.
• Parties: WILLIAM F. KLINGENSMITH, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

505 F.2d 1257

WILLIAM F. KLINGENSMITH, INC. v. The UNITED STATES.

No. 80-73.

United States Court of Claims.

November 20, 1974.

Michael A. Steuer, Washington, D. C., for plaintiff, Branko Stupar, Washington, D. C., attorney of record.

Michael J. Rubin, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.

Before LARAMORE, Senior Judge, SKELTON and BENNETT, Judges.

PER CURIAM:

This case comes before the court on plaintiff's request, filed May 16, 1974, for review by the court of the recommended decision filed on March 18, 1974, by Senior Trial Judge Saul Richard Gamer (then Chief of the trial division and since retired), pursuant to Rule 166(c), on plaintiff's motion and defendant's cross-motion for summary judgment, and on defendant's motion, filed June 17, 1974, to adopt the said recommended decision. The case has been submitted to the court on the briefs of the parties and oral argument of counsel. Upon consideration thereof, since the court agrees with the said recommended decision, as hereinafter set forth,^* it hereby affirms and adopts the same as the basis for its judgment in this case. It is therefore concluded that plaintiff is not entitled to recover and plaintiff's motion for summary judgment is denied and defendant's like cross-motion is granted. Defendant's motion to adopt is granted and plaintiff's petition is dismissed.

Opinion of Trial Judge

GAMER, Senior Trial Judge:

The dispute in this case grows out of the performance by plaintiff of a contract it entered into on March 6, 1969, with defendant, acting through the Public Buildings Service, General Services Administration, for the construction of Phase I of the United States Secret Service Training Center in Beltsville, Maryland. Included in the contract was site work, demolition, clearing, excavation, grading and the erection of masonry units. The site work requirements were spelled out in Division 2 of the Specifications. Included therein was a section — Section 0261 — headed "Bituminous Pavement," under which plaintiff was to construct roadways and other paved areas. In connection with such construction, the section set forth the requirements for each of two base courses or layers which were to be constructed beneath the surface course. The dispute between the parties involves the material required to be used for one of these base courses. The material plaintiff was directed to use was more expensive than that which plaintiff proposed and contends it was entitled to use. Plaintiff claims the difference between such costs.

As the time approached for the performance of the paving work, plaintiff, in July 1969, sought approval from a Public Buildings Service employee of the material it felt it was authorized to use for such base course. The material was termed "bank run gravel," which, in the project area, is known as gravel in the form in which it comes out of a bank of natural gravel deposits. However, the employee concluded that, under the pertinent contract provisions, the layer in question was required to be a macadam one. Thereupon plaintiff, by a letter of July 29, 1969 to the contracting officer, formally sought approval of the use of bank run gravel, relying on (a) the aforementioned Section 0261, (b) two details on a certain contract drawing (showing "Pavement Detail Sections" and "Typical Roadway & Shoulder Details"), which did not, with respect to the layer in question, indicate or even mention macadam, but did instead depict gravel, with one of the details specifically designating the course as a gravel one and (c) "* * * the applicable sections of the Maryland State Roads Commission Specification, 1962 edition." Section 0261 incorporated into the contract, "with modifications as specified herein," these Maryland specifications (entitled "State of Maryland, State Roads Commission, Specifications for Materials, Highways, Bridges and Incidental Structures").

By letter of August 13, 1969, the contracting officer advised plaintiff that under Section 0261 "the macadam base is clearly specified" and that the "bank run material is not acceptable for use as a macadam base." He relied on the provision of par. 4.3 of the Section which stated that "macadam base layer shall be in accordance with Article 32.06" of the Maryland Roads Specifications (1962 edition). This article, headed "MACADAM BASE COURSE," set forth the requirements for such a layer. He acknowledged a conflict between the drawing upon which plaintiff relied and Section 0261, but pointed out that Article 2, entitled "Specifications and Drawings," of the contract's General Provisions, expressly provided that "in case of difference between drawings and specifications, the specifications shall govern."

By letter of August 19, 1969, plaintiff requested the contracting officer to reconsider, and specifically asked for a final decision under the Disputes clause of the contract's General Provisions. By letter dated October 1, 1969, the contracting officer rendered his final decision, in which he reaffirmed his previous determination.¹

Upon plaintiff's appeal to the General Services Board of Contract Appeals, in which plaintiff claimed $40,000 as costs incurred over those which would have been incurred had he been permitted to use bank run gravel, the Board, after holding a hearing, denied plaintiff's appeal by its decision of August 30, 1971. 71-2 BCA ¶ 9051. Plaintiff's motion for reconsideration was denied November 12, 1971 by a second Board opinion (GSBCA No. 3147). By its petition herein, filed under the Wunderlich Act (68 Stat. 81 (1954), 41 U.S.C. §§ 321, 322 (1970)), plaintiff attacks the Board's decisions and findings as being "erroneous as a matter of law" and as "arbitrary and not supported by substantial evidence."

Plaintiff places principal reliance upon the contention that there was an ambiguity as to what materials were required for the disputed layer which, in accordance with familiar principles, should be resolved against the drafter, i. e., the Government. While this question of interpretation raises a legal issue which the court itself is free to resolve, it is nevertheless plain that, in concluding that the contract "can in no way be interpreted as permitting the use of bank run gravel," the Board was correct.

There is no dispute that the paved areas were to have two base courses — one of which is the disputed layer in question — beneath the surface course of bituminous concrete. The above-mentioned "Bituminous Pavement" Section 0261 of the contract specifications so provided, par. 4, headed "Base Course," setting forth, in 3 subparagraphs, the requirements for the two base courses, and par. 5, headed "Surface Course," setting forth the provisions for the bituminous concrete surface layer.² The three subparagraphs of Base Course paragraph 4, which directly relate to the problem at hand, are as follows:

4.1 Base course shall consist of 6 inches compacted thickness of stabilized soil base and 8 inches for Type HD, and 6 inches for Type LD compacted thickness of macadam base course.

4.2 Stabilized soil base layer shall consist of scarified sub-grade to a depth of 6-7 inches for a resultant 6 inches of compacted stabilized soil base course. Stabilized soil base course shall be in accordance with requirements of Article 32.02, including cross-referenced requirements, of State of Maryland referenced specifications.

4.3 Macadam base course layer shall consist of compacted 8 inches for Type HD and 6 inches for Type LD thickness placed over stabilized soil base layer. Macadam base layer shall be in accordance with Article 32.06, including cross-referenced requirements, of State of Maryland referenced specifications.

The course which plaintiff claims the right to construct as a bank run gravel one is the course described in subparagraphs 4.1 and 4.3 as the "macadam base course." As hereinabove set forth, plaintiff's claim that it has the right to disregard these explicit requirements of the specifications that the course be a macadam one is based principally upon the fact that the above-mentioned details on the contract drawing (No. 2-5, "Site Details") depicted the layer as a gravel one, with one of the details specifically referring to it as a "Compacted Gravel Sub-Base Course."³ As shown, however, both the contracting officer and the Board concluded that, in view of the above-mentioned contract provision that the specifications governed over the plans, this conflict between the plans and the specifications was an insufficient basis for reading out of the specifications the provisions requiring that the course was to be a macadam one. The Board was clearly correct in holding that "the specification requiring a `macadam' base layer was unambiguous," as was that part of Article 2 of the contract's General Provisions, hereinabove quoted, which "spelled out plainly that specifications govern over plans * * *." Cf. Merando v. United States, 475 F.2d 598, 600, 201 Ct.Cl. 19, 23 (1973). Under these circumstances, there was no such ambiguity as would call into play the rule that an ambiguity be resolved against the drafter, since such rule is subject to the condition that the alternative interpretation tendered by the other party be a reasonable one. Astro-Space Labs., Inc. v. United States, 470 F.2d 1003, 1010, 200 Ct.Cl. 282, 295 (1972). It is here plain that plaintiff's bank run gravel interpretation does not fall into such a category.

Plaintiff further argues that, although Article 2 of the General Provisions of its contract does, as set forth above, provide that, where the drawings and specifications differ, "the specifications shall govern," nevertheless the incorporated Maryland Roads Specifications mandated the exact opposite, Section 10.05-4 thereof stating that "in the case of any discrepancy between the Plans and the Specifications, the Plans are to govern." This conflict, says plaintiff, is an additional reason why the...