Citations
- 455 F.2d 1037
Full opinion text
ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
PER CURIAM:
This case was referred to Trial Commissioner Joseph V. Colaianni with directions to prepare and file his opinion on the issues of plaintiff’s motion and defendant’s cross-motion for summary judgment under the order of reference and Rule 166(c). The commissioner has done so in an opinion and report filed on March 10, 1971, wherein such facts as are necessary to the opinion are set forth. A request for review of the commissioner’s opinion and recommendations was filed by plaintiff, defendant urged the court to adopt the commissioner’s opinion and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the opinion and recommended conclusions of the trial commissioner, it hereby adopts the same as hereinafter set forth as the basis for its judgment in this case. Therefore, as to Claims I and III plaintiff’s motion for summary judgment is denied, defendant’s cross-motion is granted and the petition is dismissed. As to Claim II, with respect to the painting of one stairway and certain N.I.C. areas, plaintiff’s motion for summary judgment is granted and defendant’s cross-motion is denied. Further proceedings as to this claim are stayed pursuant to Rule 167 for a period of 90 days to afford the parties an opportunity to obtain an agency resolution of the amount of equitable adjustment to which plaintiff is entitled.
OPINION OF COMMISSIONER
COLAIANNI, Commissioner:
Plaintiff’s claims arise out of a January 12, 1965, contract with the Corps of Engineers for the repair of earthquake caused damage to a hospital at Elmen-dorf Air Force Base in Alaska. The claims are made and presented for and on behalf of Warren Painting Company Inc. of Anchorage, Alaska, plaintiff’s subcontractor.
Background Facts
On March 27, 1964, portions of Alaska were heavily damaged by a severe earthquake. The multi-story, 400-bed Air Force Base Hospital, outside of Anchorage, Alaska, was among the buildings that suffered extensive damage. The damage was of such a nature and severity that it was necessary to completely deactivate the hospital.
To enable repairs to be made to the hospital, and other Alaskan facilities, emergency funds were made available by the United States Government pursuant to Title 42 U.S.C. § 1855e. Because of the necessity that the hospital be reactivated as quickly as possible, a three-phase repair and restoration program, under the auspices of the Alaska District of the Corps of Engineers, United States Army Engineers, was decided upon.
A contract to conduct Phase I repair and restoration work was negotiated between the United States Army Corps of Engineers and M-B Contracting Company. The Phase I work concentrated on the critical areas that needed immediate attention to enable the most basic of hospital services to be performed. The work on Phase I commenced shortly after the earthquake and continued through May 15, 1964.
The Phase II repair and restoration contract was also awarded to M-B Contracting Company, and work under this contract commenced immediately after termination of Phase I work and continued until late December 1964. The repair and restoration work under Phase II also concentrated on the more essential and critical areas of the hospital.
The emergency repairs conducted during Phases I and II were not only generally limited to the most critical of areas in the hospital, but were also substantially of an incomplete or temporary nature.
Furthermore, while the Phase I and II contracts were primarily concerned with structural type repairs, the testimony shows that painting to select areas also occurred. There is no dispute that during April and early May 1964, clinical laboratory areas, obstetric delivery areas, and surgical areas- were given a touch-up and one finish coat of paint. Similarly, there is no question that just prior to Christmas day 1964, during the Phase II contract, the main lobby of the hospital was painted in anticipation of holiday visitations.
The claims with which we are here concerned arose out of contract No. DA 95-507-ENG-2070, awarded to plaintiff for interior and exterior repair and rehabilitation work to be performed during Phase III. The $1,044,786 contract included an estimate of $129,500 for the painting called for by the contract. This painting estimate was based on the low job basis bid of Warren Painting Company, Inc. (hereinafter referred to as Warren) for Item 21 of the unit price schedule. In turn, Warren’s bid breaks down into estimates of $113,000 for painting of the interior, and $16,500 for painting of the exterior.
Plaintiff seeks equitable adjustments, by way of a standard “Disputes” clause in the contract, for increased costs allegedly occasioned by constructive changes.
Plaintiff originally requested a contracting officer’s decision with respect to five claims of compensation for extra painting work performed on the Elmen-dorf Base Hospital. Four of plaintiff’s claims were denied by the contracting officer’s decision of February 14, 1966. However, plaintiff's fifth cause of action, which sought an equitable adjustment to the contract price for the cost of painting built-in metal cabinets, was not decided since the parties were attempting to settle it through negotiations. By way of Modification No. 49 to the contract, the parties on June 29,1966, agreed to a contract increase of $11,-800.26 for painting of the prefinished items covered by plaintiff’s fifth cause of action. On appeal, the Armed Services Board of Contract Appeals (hereinafter referred to as Board) denied three of plaintiff’s remaining four claims, but sustained plaintiff’s claim of $35,092.45 for extra labor and material costs incur-ed for stippling of interior walls and ceilings.
Plaintiff seeks review of the Board’s adverse determinations, urging that the Board committed reversible errors both in its findings of fact and conclusions of law. In this instance, the issues are presented by cross-motions for summary judgment and must be resolved in accordance with Wunderlich Act standards.
The separate and distinct claims for equitable adjustments which plaintiff wants this court to review are:
(I) The Board’s determination that the application of a fill-coat and finish coat on the entire building exterior was a contract requirement;
(II) The Board’s determination that additional work on the interior of the building was a contract requirement; and
(III) The Board’s factual determination that plaintiff was not subjected to excessive workmanship standards.
The basis for each of plaintiff’s claims is the “Changes” clause of the contract. The Board in denying each of the above listed claims, held that the work required of plaintiff, to both the interior and exterior, was clearly called for by the contract, and that the standards of the workmanship to which plaintiff’s subcontractor was held did not substantially exceed those warranted by the contract.
Each of plaintiff’s three claims are herein discussed separately.
CLAIM I
Contract Requirements Relating to Exterior Concrete and Masonry Surfaces
The exterior of the multi-floor Elmen-dorf Hospital was constructed of steel reinforced monolithic concrete columns and beams and concrete masonry units of monolithic concrete or concrete blocks. The concrete columns and beams sustained extensive damage ranging from gaping fissures to thousands of lineal feet of hairline cracks. Similarly the concrete masonry units were also extensively damaged. Numerous panels had to be replaced either partially or in their entirety, and substantially all were damaged by cracks.
From the outset the parties did not agree that the contract required the subcontractor to apply a cement-latex-filler coat and one final coat to the entire exterior of the hospital. Based on a mul-tipronged argument, plaintiff contends that a latex-filler coat, the surface preparation, and a final finish coat were to be applied only to those exterior surfaces of the hospital which were repaired.
On the other hand, defendant contends that the contract required the application of a latex-filler coat surface preparation to the entire hospital exterior. Defendant also contends, that the contract required the application of a finish coat of paint to the entire hospital exterior.
At the root of this cause of action is the familiar question of interpretation of contract specifications. This court has over the years consistently held the interpretation of contract specifications to be a question of law. Accordingly, the Board’s prior decision is not entitled to finality, but is open to judicial review by this court. The contract provisions considered by the parties and the Board as being most relevant to this cause of action are embodied in Section 10 of the Technical Provisions.
Paragraph 10-01 “SCOPE:” provides:
This section covers the painting for building construction that is itemized hereinafter under SURFACES TO1 BE PAINTED and that is not specified in other sections.
The portion of paragraph 10-066. “CLEANING AND PREPARATION OF SURFACESwhich is pertinent to the question now being considered provides:
Concrete and masonry surfaces to be painted shall be prepared by removing * * * old weathered paint, and by roughening to remove glaze. * * * Cement-latex filler coat shall be applied to all exterior concrete and masonry surfaces.
In pertinent part, paragraph 10-08 “SURFACES TO BE PAINTED:” provides as follows:
a. General: Except as specified under SURFACES NOT TO BE PAINTED, all existing and new surfaces shall be painted. Existing surfaces shall be cleaned of all dirt, grease, etc, and shall be painted one coat of the final coat of paint required in the Painting Schedule for the particular surface. Existing and new unpainted surfaces to be painted, shall receive the surface preparation and treatment and the number and types of coatings specified. * * *
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6. Painting Schedule:
* * * * * *
Finally, paragraph 10-09 “SURFACES NOT TO BE PAINTED:” lists the surfaces of the hospital exterior which were excepted from the contract painting requirements, and provides in pertinent part:
a. Exterior Surfaces:
(1) Concrete walking surfaces
(2) Aluminum
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Basic to plaintiff’s position concerning the painting work required by the contract, is its emphasis that we are concerned with a contract which is fundamentally dedicated to the repair of the Elmendorf Hospital. In support of its position, plaintiff points out that the contract was funded from federal emergency appropriations authorized by Title 42 U.S.C. § 1855e. With the above as its foundation, plaintiff unconvincingly argues that the areas to be painted must bear some relationship to the need for repairs. This is necessary, plaintiff contends, since there was no expectation or intent that anything should be done to undamaged and previously repaired surfaces, for by definition one cannot repair that which is not damaged.
These contentions by plaintiff have the unconvincing ring of typical “hindsight” or “after thought” type arguments, conceived long after the contract with which we were concerned was executed, and appear to have no foundation in fact.
Equally unmeritorious was plaintiff’s argument that the drawings were the only portion of the contract that indicated “where to paint,” and the specifications, on the other hand, disclose “how to paint.”
We agree with the conclusion reached by the Board which summarily dismissed this argument with the following statement (67-2 BCA ¶ 6568, p. 30, 475):
It is true that generally speaking this is a contract for repairs and one of the work items is painting and in that sense painting is an item of repair. The drawings, however, on which so much reliance is placed, do not purport to show where THAT work is to be done although they show in great detail where other work is to be done. * * *
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Further underscoring the weakness of plaintiff’s argument are the following contract examples where the work requirements are shown in the drawings:
(1) SECTION 14 BITUMINOUS PRIME COAT; paragraph 14-02A “EXISTING PAVEMENT:” Existing pavement shall be removed as shown in the contract drawings. * * * [Emphasis added.]
(2) SECTION 1 CONCRETE; paragraph 1-04 “REMOVAL WORK:” Existing concrete shall be removed where indicated on the drawings. * * * [Emphasis added.]
(3) SECTION 6 LUMBER AND INSULATION ; paragraph 6-076. Installation: Lumber shall be installed wherever existing lumber is required to be removed. Installation shall conform to the details indicated on the drawings. [Emphasis added.]
Contrasting these examples with the language of TP 10-01, we have no doubt that the specifications and not the drawings were intended to tell the contractor “where to paint” as well as “how to paint.”
In a considerably more substantial argument, plaintiff points out that the Board conceded that “This record does furnish support for the appellant’s contention that a filler coat is intended to fill voids in new masonry and is inappropriate for painted surfaces * Accordingly, plaintiff argues that unless its interpretation of the contract is followed, it will be forced to perform a useless and needless task. Albeit for reasons importantly different from those of the Board, we conclude, as did the Board, that the contract specifications required the application of a latex-filler coat and a finish coat to the entire exterior of the hospital. The basis for our conclusion follows.
The Government, with whom the Board agreed, pointed out that TP 10-08a. required the application of the filler coat to all exterior concrete and masonry surfaces. The Board, in support of this interpretation, relied upon the last sentence of Technical Provision 10-066., which provides:
* * * Cement-latex filler coat shall be applied to all exterior concrete and masonry surfaces.
After a reading of TP 10-08a-., we agree with the Board’s observation that it lacks artistry in its expression. However, even more important, a reading of TP 10-08&. and the last sentence of TP 10-066., highlights the existence of a serious inconsistency on the face of the contract. The second sentence of TP 10-08