A-68507, AUGUST 26, 1937, 17 COMP. GEN. 186

A-68507: Aug 26, 1937

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WAS. AN AGREEMENT THAT SUCH WORK WAS REQUIRED BY THE CONTRACT. THERE IS NO AUTHORITY TO BASE ALLOWANCE OF ADDITIONAL COMPENSATION ON THE CONTRACTOR'S CONTENTION THAT PERTINENT CONTRACT DRAWINGS WERE QUESTIONABLE AND SHOULD HAVE BEEN INTERPRETED DIFFERENTLY. 1937: REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. YOUR LETTER IS. INCLUDED IN WHICH REPORT WAS THE FOLLOWING PARAGRAPH REFERRING TO THE PORCH CEILINGS: "IT IS ALSO TO BE NOTED THAT WE HAVE IN OUR FILES A LETTER FROM HOGGSON BROTHERS DATED APRIL 24. THE ARCHITECTURAL SECTION RULED THAT PORCH CEILINGS WERE NOT REQUIRED. THERE IS NO MENTION OF PORCH CEILINGS IN CONTRACT SPECIFICATIONS. CEILINGS ON BOTH FRONT AND REAR PORCHES WERE INSTALLED ON 3 HOUSES TYPE 3-3R-E1.

A-68507, AUGUST 26, 1937, 17 COMP. GEN. 186

CONTRACTS - SPECIFICATIONS - EFFECT OF PERFORMANCE ON CONTRACTOR'S CLAIM OF AMBIGUITY CONTRACTOR'S PERFORMANCE OF CERTAIN WORK ON SOME OF THE BUILDINGS HE CONTRACTED TO CONSTRUCT AND HIS AGREEMENT TO A DEDUCTION FROM CONTRACT PRICE BECAUSE OF ELIMINATION OF IDENTICAL WORK ON THE OTHER BUILDINGS COVERED BY HIS CONTRACT, WAS, IN EFFECT, AN AGREEMENT THAT SUCH WORK WAS REQUIRED BY THE CONTRACT, AND HAVING PERFORMED THE CONTRACT ON THAT BASIS, THERE IS NO AUTHORITY TO BASE ALLOWANCE OF ADDITIONAL COMPENSATION ON THE CONTRACTOR'S CONTENTION THAT PERTINENT CONTRACT DRAWINGS WERE QUESTIONABLE AND SHOULD HAVE BEEN INTERPRETED DIFFERENTLY.

ACTING COMPTROLLER GENERAL ELLIOTT TO HOGGSON BROTHERS, AUGUST 26, 1937:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1937, IN EFFECT REQUESTING A REVIEW OF THAT PART OF SETTLEMENT NO. 0445162, MAY 10, 1937, WHICH DISALLOWED YOUR CLAIM FOR $232.45, CONSISTING OF AN ITEM OF $184 FOR THE ALLEGED EXTRA WORK OF INSTALLING PORCH CEILINGS IN THE CONSTRUCTION OF CERTAIN OF 25 HOUSES FOR A SUBSISTENCE HOMESTEAD PROJECT AT MERIDIAN, MISS., UNDER CONTRACT I-W-SH-335, DATED NOVEMBER 3, 1934, AND AN ITEM OF $48.45 DEDUCTED FROM YOUR CONTRACT PRICE FOR THE OMISSION OF PORCH CEILINGS FOR CERTAIN OF THE OTHER HOUSES. YOUR LETTER IS, IN PART, AS FOLLOWS:

IN DISALLOWING THE SUM OF $232.45 FOR ITEM OF PORCH CEILINGS, YOU APPARENTLY OVERLOOKED THE REPORT OF H. L. BURGESS UNDER DATE OF MAY 21, 1935, ADDRESSED TO H. W. MACGREGOR AND H. D. HYNDS OF THE SUBSISTENCE HOMESTEADS CORPORATION, INCLUDED IN WHICH REPORT WAS THE FOLLOWING PARAGRAPH REFERRING TO THE PORCH CEILINGS:

"IT IS ALSO TO BE NOTED THAT WE HAVE IN OUR FILES A LETTER FROM HOGGSON BROTHERS DATED APRIL 24, ACCEPTING OUR PROPOSAL OF APRIL 20TH FOR A CREDIT OF $48.45 FOR THE OMISSION OF PORCH CEILINGS. THE ARCHITECTURAL SECTION RULED THAT PORCH CEILINGS WERE NOT REQUIRED. THERE IS NO MENTION OF PORCH CEILINGS IN CONTRACT SPECIFICATIONS, 3 FEET SCALE DETAIL OF FRONT PORCHES, SHEET 2 OF CONTRACT DRAWINGS AND 3 INCH SCALE DETAIL OF REAR PORCHES SHEET 12 OF CONTRACT DRAWINGS INDICATE PORCH CEILINGS NOT REQUIRED. HOWEVER, 3/4 INCH SCALE DETAIL OF TYPICAL FRAMING SECTION SHEET 12 DOES INDICATE A CEILING UNDER FRONT PORCHES. THE CONTRACTOR ACTUALLY INSTALLED CEILINGS ON FRONT PORCHES OF 3 HOUSES TYPES 1-1R, 4 HOUSES TYPE 2-2R-E1 AND 4 HOUSES TYPE 2-2R-E2. CEILINGS ON BOTH FRONT AND REAR PORCHES WERE INSTALLED ON 3 HOUSES TYPE 3-3R-E1, 5 HOUSE TYPE 3-3R-E2, AND 4 HOUSES TYPE 3-3R E6. THEREFORE THE CONTRACTOR SHOULD NOT BE PENALIZED FOR ACCEPTING A CREDIT OF $48.50 FOR WORK WHICH HE ACTUALLY INSTALLED, BUT AS THE PREDOMINANCE OF EVIDENCE INDICATES THAT PORCH CEILINGS WERE NOT A CONTRACT REQUIREMENT, THE CONTRACTOR SHOULD BE PERMITTED TO FILE HIS CLAIM FOR AN EXTRA OF $184.00 FOR INSTALLING PORCH CEILINGS.'

IN VIEW OF THE ABOVE FAVORABLE REPORT REGARDING THE TWO ITEMS OF $48.50 AND $184.00, WE RESPECTFULLY SUBMIT THAT THEY SHOULD NOT THEREAFTER HAVE BEEN DISALLOWED.

IT IS NOTED THAT IN THE ABOVE-INDICATED QUOTATION BY YOU FROM THE REPORT OF MAY 21, 1935, YOU HAVE UNDERSCORED IN THREE PLACES THE WORD "NOT.' THIS DOES NOT APPEAR IN THE COPIES OF THE REPORT WITH THE RECORD IN THIS OFFICE, AND MAY BE VIEWED AS DESIGNED TO GIVE UNINTENDED AND UNDUE EMPHASIS TO SUCH WORDS. FROM AN EXAMINATION OF THE DRAWINGS IN QUESTION IT WOULD APPEAR THAT THE STATEMENT IN THE REPORT THAT CERTAIN DRAWINGS "INDICATE PORCH CEILINGS NOT REQUIRED" WAS INTENDED ONLY IN THE SENSE THAT SUCH DRAWINGS DO NOT AFFIRMATIVELY SHOW PORCH CEILINGS TO BE REQUIRED, AND NOT THAT THEY AFFIRMATIVELY SHOW THAT CEILINGS WERE NOT REQUIRED--- AN ENTIRE DIFFERENT MATTER, PARTICULARLY IN VIEW OF THE OTHER DRAWING INDICATING THAT PORCH CEILINGS WERE REQUIRED. IT IS NOTED, ALSO, THAT THE QUOTED REPORT OF MAY 21, 1935, INDICATES THAT YOU ACTUALLY INSTALLED PORCH CEILINGS FOR 23 HOUSES. THIS APPEARS TO BE IN ERROR, AS A TELEGRAM DATED MAY 20, 1935, FROM THE PROJECT MANAGER SHOWS THAT PORCH CEILINGS WERE INSTALLED FOR 16 HOUSES ONLY. THE SAID REPORT APPEARS TO CONFUSE THE CREDIT OF $48.45 FOR WORK ELIMINATED AS BEING A PART OF YOUR CLAIM FOR WORK ACTUALLY INSTALLED.

IT APPEARS THAT AFTER YOU HAD INSTALLED PORCH CEILINGS FOR SOME 16 OF THE HOUSES AS PART OF THE CONTRACT WORK IT WAS ADMINISTRATIVELY DECIDED TO ELIMINATE PORCH CEILINGS FOR 8 OF THE REMAINING HOUSES, AND YOU WERE REQUESTED UNDER DATE OF MARCH 7, 1935, TO "SUBMIT A SUITABLE CREDIT ALLOWANCE" FOR SUCH ELIMINATION "AS CONTRACT PLANS FOR THESE HOUSES INDICATED PORCH CEILINGS FOR THESE HOUSES IN ACCORDANCE WITH DETAIL SHEET D-1.'

UNDER DATE OF MARCH 12, 1935, YOU REPLIED---

WE ARE AT A LOSS TO PROPERLY INTERPRET YOUR COMMENTS REGARDING THE DETAIL SHEETS AND CONTRACT DRAWINGS SHOWING THAT PORCH CEILINGS ARE INDICATED FOR THE 2-2R-E4, AND 2-2R-E2 HOUSES, AND REQUEST THAT YOU AMPLIFY YOUR UNDERSTANDING OF THESE DRAWINGS A LITTLE FURTHER.

ON MARCH 20, 1935, YOU WERE FURTHER ADVISED---

IN REFERENCE TO THE ELIMINATION OF CEILING FOR FRONT PORCHES FOR FOUR HOUSES TYPE 2-2R-E2, AND FOUR HOUSES TYPE 2-2R-E4, WOULD ADVISE THAT CONTRACT DRAWINGS, SHEET 1-A AND 1-C, INDICATE PORCH CONSTRUCTION IN ACCORDANCE WITH DETAIL SHEET D-1, AND THIS SHEET "FRAMING DETAILS" PLAINLY SHOWS CEILING REQUIRED FOR THE PORCHES OF THESE HOUSES.

IT FURTHER APPEARS THAT, ACCEPTING THIS INTERPRETATION, YOU SUBMITTED THE FOLLOWING PROPOSITION UNDER DATE OF MARCH 26, 1935:

IN REPLY TO YOUR LETTER OF MARCH 20TH, REFERENCE NO. 43925, WITH PARTICULAR REFERENCE TO A CREDIT FOR THE ELIMINATION OF THE CEILING FROM FRONT PORCHES OF CERTAIN TYPES OF HOUSES, PLEASE BE ADVISED THAT WE WILL ALLOW A CREDIT FOR THE EIGHT HOUSES MENTIONED IN YOUR LETTER, IN THE AMOUNT OF $48.45, CALCULATED AS FOLLOWS:

THIS OFFER WAS ACCEPTED BY LETTER TO YOU OF APRIL 20, 1935, IN PART, AS FOLLOWS:

IN ACCORDANCE WITH INSTRUCTIONS ISSUED TO YOU ON FEBRUARY 19TH, YOU WERE PERMITTED TO ELIMINATE CEILINGS FROM PORCHES WHERE INDICATED ON CONTRACT DRAWING * * *

IN YOUR LETTER OF MARCH 26TH YOU PROPOSED TO ALLOW THE GOVERNMENT A CREDIT OF $48.45 FOR ELIMINATION OF PORCH CEILING REFERRED TO ABOVE. HAVE MADE AN ACCURATE CHECK OF THIS CREDIT AND FIND THAT IT IS REASONABLE FOR THE WORK ELIMINATED AND ARE THEREFORE ARRANGING TO ACCEPT SAME AND DEDUCT THE AMOUNT OF $48.45 FROM YOUR CONTRACT.

ON APRIL 24, 1935, YOU ACKNOWLEDGED RECEIPT OF THIS LAST LETTER AND STATED:

* * * WE NOTE YOU ACCEPT OUR CREDIT FOR THE ELIMINATION OF PORCH CEILINGS IN THE AMOUNT OF $48.45 AND HAVE SO NOTED OUR ACCOUNTING RECORDS.

THE SITUATION THUS APPEARS TO BE THAT YOU INSTALLED PORCH CEILINGS FOR SOME 16 HOUSES AS A PART OF THE CONTRACT WORK AND ALLOWED THE GOVERNMENT A CREDIT OF $48.45 FOR THE OMISSION OF PORCH CEILINGS FOR 8 OTHER HOUSES, BUT THAT AFTER THE CONTRACT WAS COMPLETED YOU CONTENDED THAT THE INSTALLATION OF PORCH CEILINGS WAS EXTRA WORK FOR WHICH YOU WERE ENTITLED TO ADDITIONAL COMPENSATION AND THAT THE CREDIT ALLOWED BY YOU FOR THE OMISSION OF CERTAIN OF THE CEILINGS SHOULD BE CANCELED.

ARTICLE 5 OF THE CONTRACT EXPRESSLY PROVIDES THAT---

EXCEPT AS OTHERWISE HEREIN PROVIDED, NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

THIS PROVISION IS DESIGNED TO OBVIATE CONTROVERSIES SUCH AS THE PRESENT ONE. IN PLUMLEY V. UNITED STATES, 226 U.S. 545, THE SUPREME COURT SAID RESPECTING SIMILAR CONTRACT PROVISIONS:

* * * THERE WAS A TOTAL FAILURE TO COMPLY WITH THESE PROVISIONS, AND THOUGH IT MAY BE A HARD CASE, SINCE THE COURT FOUND THAT THE WORK WAS IN FACT EXTRA AND OF CONSIDERABLE VALUE, YET PLUMLEY CANNOT RECOVER FOR THAT WHICH, THOUGH EXTRA, WAS NOT ORDERED BY THE OFFICER AND IN THE MANNER REQUIRED BY THE CONTRACT. * * *

IN THE PRESENT CASE IT IS NOT EVEN ESTABLISHED THAT THE WORK WAS IN FACT EXTRA. IT WAS A QUESTION OF INTERPRETATION OF CONTRACT DRAWINGS. WHILE THE WORK WAS IN PROGRESS THE DRAWINGS WERE INTERPRETED AS REQUIRING PORCH CEILINGS AS A PART OF THE CONTRACT WORK. YOU ACQUIESCED IN THAT INTERPRETATION NOT ONLY BY INSTALLING SUCH CEILINGS FOR A NUMBER OF THE HOUSES BUT BY EXPRESSLY AGREEING TO ALLOW, AND ACTUALLY ALLOWING, THE GOVERNMENT A CREDIT FOR THE OMISSION OF THE CEILINGS FOR OTHER HOUSES. YOU WERE NOT IN AGREEMENT WITH SUCH INTERPRETATION, THE MATTER SHOULD HAVE BEEN DETERMINED UNDER THE PROVISIONS OF ARTICLE 15 OF THE CONTRACT FOR THE SETTLEMENT OF DISPUTES, BUT HAVING AGREED, IN EFFECT, THAT THE WORK WAS REQUIRED BY THE CONTRACT, AND HAVING PERFORMED THE WORK ON THAT BASIS, THE MATTER WAS SETTLED, AND THERE IS NO AUTHORITY TO ALLOW YOU ADDITIONAL COMPENSATION FOR SUCH WORK ON THE BASIS OF YOUR LATER CONTENTION THAT THE DRAWINGS WERE QUESTIONABLE AND MIGHT HAVE BEEN, OR SHOULD HAVE BEEN, OTHERWISE INTERPRETED. SEE BROOKS-SCANLON CO. V. ILLINOIS CENTRAL RAILROAD CO., 257 FED. 235.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF MAY 10, 1937, DISALLOWING YOUR CLAIM FOR SUCH ADDITIONAL COMPENSATION, MUST BE, AND IS, SUSTAINED.