Citations
- 196 F. Supp. 111
Full opinion text
RONALD N. DAVIES, District Judge.
This action, submitted to the Court after a pre-trial conference and under a stipulation of facts, was commenced by the Use Plaintiff, Resources Development, Inc., formerly Ric-Wil, Incorporated, (and hereinafter Ric-Wil), pursuant to 40 U.S.C.A. §§ 270a and 270b, commonly referred to as the Miller Act, against Bison Construction Co., a corporation, (hereinafter Bison), and The Fidelity and Casualty Company of New York, a corporation, (hereinafter Fidelity), to recover an unpaid balance due for materials supplied in a construction project at the Grand Forks, North Dakota, Air Force Base.
On May 29, 1958, Bison entered into a contract with the Government for construction of utilities at the Air Base. A payment bond was executed the same day with Bison as principal and Fidelity as surety.
Bison then subcontracted with the Sornsin Co. (hereinafter Sornsin) for installation of the HTW Underground Conduits and Supply and Return Mains, including expansion loops, all part of the utilities specified in the prime contract. The over-all distance the conduits were to travel and return was estimated at 4,030 feet. The plans and specifications listed the estimated quantity of materials needed for the conduit as 4,050 lineal feet, the additional 20 feet being allowed for end seals and leak plates. In addition 10 expansion loops were called for with other materials needed to complete the installation.
Before submitting a bid on the prime contract, Bison solicited bids from the subcontractors for the installation of the HTW conduits. Sornsin eventually was awarded the subcontract, having submitted a bid based on prices quoted by Ric-Wil for the materials necessary. Ric-Wil’s proposal price was in the form of a total sum and was not broken down as to individual items except that a figure was quoted as the price of the 10 expansion loops which sum was included in the gross amount. Since the Government required that bids in the prime contract be broken down as to unit price, Sornsin, without consulting Ric-Wil, subtracted the quoted price of the expansion loops from the gross figure to arrive at what was believed to be the cost of the conduit. Then to determine the price per lineal foot, Sornsin divided the total footage.
After the prime and subcontracts had been awarded, the Government changed the specifications as to type of materials required for the conduits. Sornsin and Ric-Wil then renegotiated cost of materials, arriving at a total cost figure with no breakdown as to individual items. A purchase order was then submitted by Sornsin and accepted by Ric-Wil as follows:
“4050' 18" Ric-Wil insulated pipe incasing one 10" SBS pipe with 3" fiberglass insulation as per your proposal of July 10, 1958, including loops and mise, materials. All in accordance to the Corps of Engineers Modification #3 and plans and specifications.
“Total net price F.O.B. factory $103,969.99”
It is not disputed that Ric-Wil furnished, and Sornsin installed, all the materials necessary for the completion of the subcontract and that the project was accepted by the Government. The controversy here developed when the Government measured the installed system and paid Bison only for what it considered was the actual footage of conduit installed. The discrepancy between the estimated lineal feet of conduit and the final Government measurement came about by the Government’s deducting the “W” dimensions of the loops from the over-all footage. A Contracting Officer’s Opinion and Appeal was taken by Bison. The U. S. Army Corps of Engineers affirmed in a decision from which the following is quoted for a better understanding of what is involved here:
“a. 19-17. Measurement and Payment. All measurements and payments will be based on completed work performed in strict accordance with the drawings and specifications * -» *
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