B-127447, JUN. 14, 1956

B-127447: Jun 14, 1956

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TO OTTINGER CONSTRUCTION COMPANY: REFERENCE IS MADE TO A LETTER OF MARCH 19. THE CLAIM IS THE RESULT OF A CONTROVERSY WHICH AROSE DURING PERFORMANCE OF THE WORK WHEN THE CONTRACTING OFFICER DIRECTED THE DELETION OF CERTAIN RIPRAP INSTALLATIONS SHOWN ON THE DRAWINGS. IT WAS. IS. YOUR CONTENTION THAT THE USE OF RIPRAP IN THE SURFACE DRAINAGE SYSTEM WAS NOT A CONTRACT REQUIREMENT AND THEREFORE NO ADJUSTMENT SHOULD HAVE BEEN MADE IN THE AGREED PRICE FOR SUCH DELETIONS. THAT YOU ARE ENTITLED TO AN ADDITIONAL AMOUNT FOR THE RIPRAP WHICH YOU WERE REQUIRED TO FURNISH. IT HAS BEEN AGREED THAT THE AMOUNT OF THE ADJUSTMENT AND THE AMOUNT OF THE CLAIM FOR EXTRA WORK ARE FAIR AND REASONABLE. YOUR CLAIM WAS DENIED BY THE CONTRACTING OFFICER AND UPON REVIEW BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS SUCH ACTION WAS SUSTAINED BY DECISION DATED AUGUST 5.

B-127447, JUN. 14, 1956

TO OTTINGER CONSTRUCTION COMPANY:

REFERENCE IS MADE TO A LETTER OF MARCH 19, 1956, WRITTEN IN YOUR BEHALF BY GAINES V. PALMES, ATTORNEY, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 2, 1956, WHICH DISALLOWED YOUR CLAIM FOR $20,845, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. NOY-70831.

THE CLAIM IS THE RESULT OF A CONTROVERSY WHICH AROSE DURING PERFORMANCE OF THE WORK WHEN THE CONTRACTING OFFICER DIRECTED THE DELETION OF CERTAIN RIPRAP INSTALLATIONS SHOWN ON THE DRAWINGS, WITH A CORRESPONDING REDUCTION IN THE CONTRACT PRICE. IT WAS, AND IS, YOUR CONTENTION THAT THE USE OF RIPRAP IN THE SURFACE DRAINAGE SYSTEM WAS NOT A CONTRACT REQUIREMENT AND THEREFORE NO ADJUSTMENT SHOULD HAVE BEEN MADE IN THE AGREED PRICE FOR SUCH DELETIONS, AND THAT YOU ARE ENTITLED TO AN ADDITIONAL AMOUNT FOR THE RIPRAP WHICH YOU WERE REQUIRED TO FURNISH. IT HAS BEEN AGREED THAT THE AMOUNT OF THE ADJUSTMENT AND THE AMOUNT OF THE CLAIM FOR EXTRA WORK ARE FAIR AND REASONABLE.

THE RECORD DISCLOSES THAT UPON COMPLETION OF THE PROJECT YOU FILED CLAIM FOR $6,340, BEING THE AMOUNT WITHHELD BY THE ADMINISTRATIVE OFFICE TO COVER THE WORK DELETED, AND $14,505, REPRESENTING THE COST OF FURNISHING AND INSTALLING THE RIPRAP ON THE 54 REMAINING DITCH CHECKS. YOUR CLAIM WAS DENIED BY THE CONTRACTING OFFICER AND UPON REVIEW BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS SUCH ACTION WAS SUSTAINED BY DECISION DATED AUGUST 5, 1955 (ASBCA NO. 2092).

YOUR ATTORNEY NOW REQUESTS US TO REVIEW YOUR CLAIM ON ITS MERITS ON THE GROUND THAT THE DISPUTE INVOLVES A QUESTION OF LAW RATHER THAN OF FACT, AND THEREFORE THE DECISION BY THE BOARD IS NOT FINAL AND CONCLUSIVE WITHIN THE MEANING OF ARTICLE 16 OF THE CONTRACT. IT IS CONTENDED THAT THERE IS A DIRECT CONFLICT BETWEEN THE DRAWINGS AND SPECIFICATIONS, BOTH MADE A PART OF THE CONTRACT, REQUIRING AN INTERPRETATION OF THE PERTINENT CONTRACT PROVISIONS, AND THAT THE BOARD'S DECISION FAILS TO TAKE INTO CONSIDERATION THE LAW APPLICABLE THERETO.

IT IS ADMITTED THAT THE DRAWINGS SHOW IN DETAIL THE PARTICULAR LOCATIONS WHERE RIPRAP WAS TO BE INSTALLED IN THE DRAINAGEWAYS. HOWEVER, SINCE THE SPECIFICATIONS DESCRIBE ONLY THE METHOD TO BE USED IN THE SEEDING OR SODDING OF THE DRAINAGE CHANNELS, WITHOUT REFERENCE TO A DETAILED METHOD OF INSTALLING THE RIPRAP, IT IS URGED THAT THE TWO ARE IN DIRECT CONFLICT. UNDER THOSE CIRCUMSTANCES IT IS CONTENDED THAT THERE IS FOR APPLICATION THE CONTRACT PROVISION CONTAINED IN ARTICLE 5 (A) WHICH STIPULATES THAT IN CASE OF A DIFFERENCE BETWEEN THE DRAWINGS AND SPECIFICATIONS THE SPECIFICATIONS SHALL GOVERN, AND THEREFORE NO RIPRAP IS REQUIRED.

THE BOARD'S REJECTION OF THAT CONTENTION IS PREDICATED UPON ITS CONCLUSION THAT THE SPECIFICATIONS COVERING SEEDING AND SODDING RELATE TO THOSE AREAS OF THE DRAINAGEWAYS WHERE THAT METHOD WAS TO BE USED TO PREVENT OR ARREST SOIL EROSION, ASIDE AND APART FROM THE 154 LOCATIONS SHOWN ON THE DRAWINGS WHERE RIPRAP WAS TO BE CONSTRUCTED. IT IS OUR CONSIDERED OPINION THAT SUCH CONCLUSION IS NOT ONLY JUSTIFIED BUT REQUIRED. VIEWING THE CONTRACT DRAWINGS AND SPECIFICATIONS TOGETHER, SEVERAL DIFFERENT PRODUCTS WERE TO BE USED IN THE DRAINAGEWAYS TO PREVENT EROSION, DEPENDING UPON THE AREAS, AND THE REQUIREMENT OF ONE PRODUCT WAS NOT IN A PORTION OF A PARTICULAR AREA TO THE EXCLUSION OF THE OTHER PRODUCTS IN THE REMAINING PORTION OF THAT AREA. FOR THAT REASON WE CONCUR WITH THE BOARD'S FINDING THAT NO TRUE CONFLICT EXISTS AND THAT THE MATTER IS CONTROLLED BY THE PROVISION IN ARTICLE 5/A) WHICH STIPULATES THAT ANYTHING SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS, SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. SINCE IT WAS PLAINLY SHOWN ON THE DRAWINGS THAT RIPRAP WAS REQUIRED TO BE CONSTRUCTED IN CERTAIN SECTIONS OF THE DRAINAGEWAYS, WE CANNOT AGREE THAT THE OMISSION OF THAT COST IN THE COMPUTATION OF YOUR LUMP-SUM BID PRICE WAS JUSTIFIED, MERELY BECAUSE SUCH WORK WAS NOT MENTIONED OR DESCRIBED IN DETAIL IN THE SPECIFICATIONS. TO CONCLUDE THAT NO RIPRAP CONSTRUCTION WAS REQUIRED, BASED UPON YOUR INTERPRETATION OF THE CONTRACT PROVISIONS AND SPECIFICATIONS, DESPITE THE PLAIN REQUIREMENTS THEREFOR SHOWN ON THE DRAWINGS, WAS AN ASSUMPTION OF RISK WHICH READILY COULD HAVE BEEN AVOIDED BY APPROPRIATE INQUIRY DIRECTED TO THE CONTRACTING OFFICER PRIOR TO THE SUBMISSION OF YOUR BID. A MORE REASONABLE INFERENCE, IF SUCH WAS NECESSARY, WOULD HAVE BEEN THAT SINCE THE DRAWINGS DISCLOSED THE USE OF RIPRAP IN CERTAIN LOCATIONS, THAT MATERIAL WAS REQUIRED TO BE INSTALLED WHERE DESIGNATED; THAT THE BALANCE OF THE DRAINAGEWAYS WERE TO BE SEEDED OR SODDED; AND, THAT THE SPECIFICATIONS CONCERNING THE LATTER WORK WERE DRAFTED TO COVER THE USE OF SEED OR SOD IN AREAS OTHER THAN THOSE SHOWING THE USE OF RIPRAP AND NOT APPLICABLE TO THE ENTIRE DRAINAGE SYSTEM. YOUR FAILURE TO INCLUDE THOSE COSTS IN YOUR BID PRICE IS REGRETTED, HOWEVER, UNDER THE FACTS AND CIRCUMSTANCES OBTAINING SUCH OMISSION CREATES NO LEGAL BASIS FOR THE PAYMENT OF ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE, AS AMENDED.

ACCORDINGLY, WE HOLD THAT NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF ANY PART OF THE AMOUNT ..END :