B-135044, FEB. 12, 1958

B-135044: Feb 12, 1958

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24. REQUESTING A DECISION AS TO WHETHER OR NOT THERE IS ANY LEGAL OBJECTION TO THE GRANTING OF THE APPEAL OF MAGLEN MASONRY COMPANY FROM THE DECISION OF THE CONTRACTING OFFICER. ALL OF WHICH WERE MADE A PART OF THE CONTRACT. THE AMOUNT OF THE CONTRACT WAS AUGMENTED FOR ADDITIONAL CAULKING WORK BY $3. OR ONLY OVER THOSE AREAS WHERE HE WAS REQUIRED TO REPAIR BLISTERS AND DEFECTS TO THE ROOF. THE CONTRACTING OFFICER MADE A FINDING THAT UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR WAS REQUIRED TO PERFORM THIS WORK. THIS APPEAL WAS REFERRED TO THE BOARD OF REVIEW. WHICH YOU HAVE APPROVED: "1. THE APPEAL SHOULD BE GRANTED INSOFAR AS GSA IS CONCERNED. "2.

B-135044, FEB. 12, 1958

TO HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1958, REQUESTING A DECISION AS TO WHETHER OR NOT THERE IS ANY LEGAL OBJECTION TO THE GRANTING OF THE APPEAL OF MAGLEN MASONRY COMPANY FROM THE DECISION OF THE CONTRACTING OFFICER, PUBLIC BUILDINGS SERVICE, GSA, CHICAGO, ILLINOIS, DENYING ADDITIONAL COMPENSATION IN THE AMOUNT OF $5,477.86, FOR WORK PERFORMED AND MATERIAL FURNISHED ALLEGED TO BE OVER AND ABOVE THE AMOUNT PROVIDED FOR IN CONTRACT NO. GS-05B-4272, FOR MASONRY POINTING AT THE UNITED STATES POST OFFICE ANNEX, CINCINNATI, OHIO.

UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR AGREED TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS, AND PERFORM THE WORK OF MASONRY POINTING, ETC., AT THE UNITED STATES POST OFFICE ANNEX, CINCINNATI, OHIO, FOR $17,450 IN STRICT ACCORDANCE WITH THE GENERAL PROVISIONS (STANDARD FORM 23A), SPECIFICATIONS, SCHEDULES, DRAWINGS, AND CONDITIONS, ALL OF WHICH WERE MADE A PART OF THE CONTRACT. THE AMOUNT OF THE CONTRACT WAS AUGMENTED FOR ADDITIONAL CAULKING WORK BY $3,474, MAKING THE TOTAL AMOUNT OF THE CONTRACT $20,924. A DISPUTE AROSE BETWEEN THE CONTRACTING OFFICER AND THE CONTRACTOR AS TO WHETHER THE SPECIFICATIONS REQUIRED THE CONTRACTOR TO APPLY TWO PLY FELT OVER THE ENTIRE ROOF, OR ONLY OVER THOSE AREAS WHERE HE WAS REQUIRED TO REPAIR BLISTERS AND DEFECTS TO THE ROOF. AT THE DIRECTION OF THE CONTRACTING OFFICER THE CONTRACTOR HAS APPLIED TWO PLY FELT OVER THE ENTIRE ROOF AND HAS MADE CLAIM FOR $5,477.86 AS ADDITIONAL WORK PERFORMED. BY LETTER OF MAY 29, 1957, TO THE CONTRACTOR, THE CONTRACTING OFFICER MADE A FINDING THAT UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR WAS REQUIRED TO PERFORM THIS WORK. THE CONTRACTOR APPEALED FROM SUCH FINDING, PURSUANT TO THE "DISPUTES" PROVISION OF THE CONTRACT, AND THIS APPEAL WAS REFERRED TO THE BOARD OF REVIEW, GSA, FOR CONSIDERATION AND RECOMMENDATION AS TO THE ACTION TO BE TAKEN.

THE BOARD OF REVIEW MADE THE FOLLOWING RECOMMENDATIONS, WHICH YOU HAVE APPROVED:

"1. THE APPEAL SHOULD BE GRANTED INSOFAR AS GSA IS CONCERNED.

"2. IN VIEW OF THE FACT THAT THIS RECOMMENDATION IS BASED UPON LEGAL CONSTRUCTION UPON WHICH THE DECISION OF THE ADMINISTRATOR WOULD NOT CONSTITUTE THE FINAL AUTHORITY, THE MATTER SHOULD BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR HIS DECISION AS TO WHETHER OR NOT THE APPEAL MAY BE GRANTED LEGALLY.

"3. IF THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES IS THAT THE APPEAL MAY BE GRANTED FROM THE LEGAL STANDPOINT, THE PUBLIC BUILDINGS SERVICE SHOULD REQUEST THE APPELLANT TO SUBMIT A STATEMENT OF THE COST OF THE ADDITIONAL WORK IN THE MANNER PROVIDED IN THE CONTRACT TERMS.'

IT IS STATED IN THE REPORT OF THE BOARD OF REVIEW THAT THE APPEAL WAS CONCERNED ONLY WITH "ROOF REPAIRS" AS SET FORTH IN SECTION 5 OF THE SPECIFICATIONS. SECTIONS 5-1 AND 5-2 DESCRIBE THE WORK INCLUDED AS ROOF REPAIRS, AS FOLLOWS:

"5-1 WORK INCLUDED: THE WORK INCLUDES FURNISHING ALL LABOR, MATERIALS AND EQUIPMENT REQUISITE FOR REPAIRING THE COMPOSITION ROOFING, FELT FLASHINGS, COUNTER-FLASHINGS, EXPANSION JOINTS, ETC., OF THE MAIN ROOF INCLUDING ROOFS OVER ELEVATOR PENT HOUSES AND FAN MACHINE ROOMS, ALL AS HEREINAFTER SPECIFIED AND AS DIRECTED.

"5-2 REPAIRS TO COMPOSITION ROOF AREAS OF TRUCKING RAMP, CONVEYOR ENCLOSURE AND CANOPY OVER MAILING PLATFORM ARE NOT REQUIRED UNDER THIS CONTRACT.'

SECTIONS 5-6 TO 5-21 OF THE SPECIFICATION SET FORTH IN DETAIL THE WORK TO BE PERFORMED AS DESCRIBED IN PARAGRAPH 5-1. WITH RESPECT TO THE QUESTION INVOLVED IN THE APPEAL, SECTIONS 5-6, 5-7, 5-8, 5-9, 5 10, AND 5-20 PROVIDE AS FOLLOWS:

"5-6 WORKMANSHIP: ALL EXISTING GRAVEL OR SLAG ON ENTIRE ROOF AREAS SPECIFIED TO BE REPAIRED SHALL BE CAREFULLY REMOVED AND STORED FOR RE USE.

"5-7 THE METAL COUNTERFLASHINGS SHALL BE CAREFULLY RAISED AND EXISTING PLASTIC FLASHINGS ENTIRELY REMOVED.

"5-8 AFTER GRAVEL AND PLASTIC FLASHINGS HAVE BEEN REMOVED, THE ROOF AREAS SHALL BE THOROUGHLY EXAMINED FOR BLISTERS OR DEFECTS. BLISTERS SHALL BE FIRST REPAIRED BY CUTTING THEM OPEN, CLEANED FREE OF ALL DIRT, REMOVING ALL AIR AND WATER OR BOTH AND, WHEN DRY, BEDDING EACH LAYER OF CUT AND LOOSENED FELT IN HOT BITUMEN.

"5-9 ALL BLISTERS AND ANY BREAKS, HOLES OR SIMILAR DEFECTS IN THE ROOFING SHALL THEN BE COVERED WITH ONE LAYER OF FELT EXTENDING FOR DISTANCE OF AT LEAST 6 INCHES ON ALL SIDES OF BLISTER OR ROOF DEFECT. THE FELT PATCH SHALL BE MOPPED IN PLACE PRIOR TO LAYING THE TWO LAYERS OF NEW FELT HEREIN SPECIFIED.

"5-10 THE TWO LAYERS OF FELT SHALL BE BONDED TO THE EXISTING ROOFING AND TO EACH OTHER WITH HOT ASPHALT OR PITCH. THE SHEETS SHALL BE LAPPED 17 INCHES FOR A 32 INCH WIDTH FELT AND 19 INCHES FOR A 36 INCH FELT. THE ENDS OF SHEETS SHALL BE LAPPED 6 INCHES. THE SHEETS SHALL BE LAID AT RIGHT ANGLES TO THE SLOPES, STARTING AT THE LOW POINTS OF ROOF AND SHALL OVERLAP IN THE DIRECTION OF THE FLOW. TRIM THE FELT TO A NEAT FIT AROUND VENT PIPES, ROOF DRAINS AND OTHER LIKE PROJECTIONS THROUGH ROOFING.

"5-20 SURFACING: THE FINAL COATING OF ASPHALT OR PITCH SHALL BE POURED AND AT THE RATE OF NOT LESS THAN 70 POUNDS PER 100 SQUARE FEET AND THE GRAVEL OR SLAG SHALL BE IMBEDDED IN IT WHILE THE COATING IS HOT. THE GRAVEL OR SLAG SHALL BE DRY WHEN APPLIED AND, IN COLD WEATHER, SHALL BE HEATED AND PUT ON HOT.'

WITH RESPECT TO THE MEANING OF THE WORDS INCLUDED IN SECTION 5 OF THE SPECIFICATION, THE CONTRACTOR HAS CONTENDED THAT THE SPECIFICATION REQUIRED ONLY THE REPAIRING OF THE ROOF AND NOT THE LAYING OF A NEW ROOF; THAT SECTION 5-10 REQUIRES THAT TWO LAYERS OF FELT SHALL BE BONDED TO THE "EXISTING ROOFING," AND THAT THE "EXISTING ROOFING" IS THAT REFERRED TO IN SECTION 5-9, WHICH PRESCRIBES THE MANNER IN WHICH DEFECTS SHALL BE PATCHED. THE CONTRACTOR ALSO CONTENDED THAT THE USE OF THE WORDS "ENTIRE ROOF" IN SECTION 5-6 EXPRESSED CLEARLY THE INTENTION WITH RESPECT TO REMOVING THE GRAVEL, BUT THE OMISSION OF THE WORDS "ENTIRE ROOF" IN SECTION 5-10 INDICATES CLEARLY THAT TWO LAYERS OF FELT ON THE ENTIRE ROOF ARE NOT REQUIRED.

THE POSITION OF THE PUBLIC BUILDINGS SERVICE WAS THAT THE SPECIFICATIONS ARE CLEAR AND THAT SECTION 5 OF THE SPECIFICATIONS REQUIRES THE CONTRACTOR TO REMOVE THE GRAVEL FROM THE ENTIRE ROOF, PATCH AS REQUIRED, INSTALL TWO LAYERS OF FELT MOPPED IN PLACE ON THE ENTIRE ROOF AREA, AND APPLY GRAVEL OVER THE ENTIRE ROOF AREA.

THE BOARD OF REVIEW CONCLUDED THAT THE LANGUAGE USED IN SECTIONS 5-9 AND 5-10 WITH RESPECT TO THE APPLICATION OF THE TWO LAYERS OF FELT IS SUSCEPTIBLE TO EITHER INTERPRETATION, AND IS AMBIGUOUS; THAT UNDER THE WELL ESTABLISHED LEGAL PRINCIPLE THAT AN AMBIGUOUS CONTRACT SHOULD BE CONSTRUED AGAINST ITS AUTHOR--- THE PUBLIC BUILDINGS SERVICE IN THIS INSTANCE--- THE INTERPRETATION PLACED UPON THE CONTRACT BY THE CONTRACTOR MUST PREVAIL; AND THAT THE CONTRACT THEREFORE REQUIRED ONLY THE APPLICATION OF TWO LAYERS OF FELT TO THE PATCHED AREAS OF THE ROOF.

WE AGREE WITH THE FINDING OF THE BOARD THAT THE LANGUAGE USED IN SECTION 5-9 AND SECTION 5-10, WITH RESPECT TO THE APPLICATION OF THE TWO LAYERS OF FELT IS AT BEST AMBIGUOUS, AND THAT THE CONTRACTOR WAS NOT REQUIRED BY THE CONTRACT TO APPLY A NEW ROOF. SEE 37 COMP. GEN. 249 AND THE CASES THERE CITED.

WE THEREFORE HAVE NO OBJECTION TO THE ALLOWANCE OF THE CONTRACTOR'S APPEAL, AND TO PAYMENT OF THE AMOUNT DUE THE CONTRACTOR FOR ADDITIONAL SERVICES, TO BE DETERMINED IN ACCORDANCE WITH THE CONTRACT.