B-145597, JUN. 5, 1961

B-145597, JUN. 5, 1961

TO THE ARCHITECT OF THE CAPITOL:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1961, WITH ENCLOSURES, SUBMITTING FOR OUR DECISION THE REQUEST OF HUMPHREYS AND HARDING, INCORPORATED, PRIME CONTRACTOR UNDER CONTRACT NO. ACPP-577, THAT A FORMAL DETERMINATION BE MADE AS TO THE SCOPE OF THE REQUIREMENTS OF SECTION II AND VIII OF THE SPECIFICATIONS MADE A PART OF THE SAID AGREEMENT. YOU STATE THAT SINCE THE REQUEST DOES NOT INVOLVE A DISPUTED QUESTION OF FACT, AS COMTEMPLATED BY ARTICLE 1.06 OF THE GENERAL PROVISIONS, YOU, AS CONTRACTING OFFICER, ARE WITHOUT AUTHORITY TO MAKE SUCH DETERMINATION.

THE SUBJECT CONTRACT, EXECUTED JULY 7, 1959, COVERS THE DEMOLITION AND REMOVAL OF OBSOLETE BOILERS, GENERATORS AND RELATED APPARATUS, AS DESIGNATED THEREIN, AND THE INSTALLATION OF CERTAIN PIPING AND WIRING SYSTEMS, ALL OF WHICH CONSTITUTES A PART OF THE PROGRAM TO EXPAND THE FACILITIES OF THE CAPITOL POWER PLANT. DURING THE PERFORMANCE OF THE WORK A CONTROVERSY AROSE BETWEEN YOUR REPRESENTATIVE, THE ENGINEER IN CHARGE OF THE PROJECT, AND A SECOND TIER SUBCONTRACTOR, THE A B C DEMOLITION CORPORATION, AS TO THE EXTENT OF THE OBSOLETE MATERIAL AND EQUIPMENT TO BE DISMANTLED. WE AGREE THAT THE CONTROVERSY DOES NOT CONCERN A QUESTION OF FACT WITHIN THE MEANING OF THE DISPUTES ARTICLE (1.06) OF THE CONTRACT PREVIOUSLY REFERRED TO, BUT RATHER INVOLVES A QUESTION OF INTERPRETATION OF A WRITTEN DOCUMENT, JUDICIALLY IDENTIFIED AS A QUESTION OF LAW. MCWILLIAMS DREDGING COMPANY V. UNITED STATES, 118 CT.CL. 1; CRAMP SHIPBUILDING COMPANY V. UNITED STATES, 122 CT.CL. 72; 34 COMP. GEN. 565. ALSO SEE 41 U.S.C. 322, WHICH PROHIBITS THE INCLUSION IN A GOVERNMENT CONTRACT OF A PROVISION MAKING FINAL ON A QUESTION OF LAW THE DECISION OF ANY ADMINISTRATIVE OFFICIAL, REPRESENTATIVE OR BOARD. ACCORDINGLY, WE CONCUR WITH YOUR CONCLUSION THAT THE CONTROVERSY IS NOT A MATTER FOR ADMINISTRATIVE DETERMINATION.

THE POSITION TAKEN BY THE SECOND TIER CONTRACTOR, A B C DEMOLITION CORPORATION, THE PRIMARY PARTY IN INTEREST, IS THAT IS WAS DENIED THE RIGHT TO REMOVE CERTAIN MATERIAL AND EQUIPMENT WHICH THE FIRM CONSIDERED TO BE WITHIN THE SCOPE OF ITS AGREEMENT WITH W. G. CORNELL COMPANY OF WASHINGTON, D.C., INCORPORATED, A MECHANICAL SUBCONTRACTOR ON THE PROJECT. IN ITS ATTORNEY'S LETTER OF MARCH 25, 1960, TO THE LATTER FIRM, AND IN A LETTER OF APRIL 11, 1960, TO YOU FROM THE PRIME CONTRACTOR, WRITTEN FOR AND ON BEHALF OF A B C DEMOLITION CORPORATION, THE MATERIAL AND EQUIPMENT IN QUESTION IS ITEMIZED AS PART OF THE SWITCHBOARDS AND TRANSFORMERS IN THE TRANSFORMER ROOM ABANDONED AND NOT EMPLOYED IN THE OPERATION OF THE COAL HOIST; A QUANTITY OF ABANDONED BUSS BARS; AND, A QUANTITY OF ABANDONED COPPER CONDUCTORS. IN THE REFERRED-TO LETTER OF MARCH 25, 1960, THE ESTIMATED SALVAGE VALUE THEREOF WAS STATED TO BE $40,000, AND IN A WRITTEN STATEMENT TO US DATED MAY 3, 1961, THE PRESIDENT OF THE DEMOLITION COMPANY INCREASED THAT ESTIMATE TO $48,000. IT IS ALLEGED, IN SUBSTANCE, THE VALUE OF SUCH EQUIPMENT WAS TAKEN INTO CONSIDERATION IN THE COMPUTATION OF ITS PROPOSAL SUBMITTED TO THE CORNELL COMPANY FOR THE DEMOLITION WORK, AND THEREFORE IT HAS BEEN DAMAGED TO THAT EXTENT.

A GENERAL STATEMENT OF THE WORK TO BE ACCOMPLISHED UNDER THE CONTRACT IS SET FORTH IN ARTICLE 2-02 OF THE SPECIFICATIONS, AND STIPULATES IN PERTINENT PART THAT--- "/F) THE WORK SHALL INCLUDE BUT SHALL NOT BE LIMITED TO: (3) DEMOLITION AND REMOVAL OF EQUIPMENT, FOUNDATIONS, PIPING, ELECTRICAL WORK AND MISCELLANEOUS STRUCTURES IN THE OLD TURBINE ROOM AND THE NORTH HALF OF THE BOILER ROOM.' SECTION VIII, ARTICLE 8-03, DEALING WITH THE DEMOLITION WORK,DESCRIBES IN MORE PARTICULAR LANGUAGE THAT PHASE OF THE WORK, AS FOLLOWS:

"IT IS THE INTENT OF THESE SPECIFICATIONS THAT THE REMOVAL OF EQUIPMENT SHALL INCLUDE REMOVAL OF ABANDONED COPPER CONDUCTORS, CUTTING OFF OF ABANDONED CONDUITS AT THE FLOOR OR WALL LINE * * *. THE CONTRACT DRAWINGS ARE FOR THE GUIDANCE OF THE CONTRACTOR ONLY AND DO NOT NECESSARILY INDICATE ALL ABANDONED EQUIPMENT, PIPING AND APPURTENANCES. ABANDONED EQUIPMENT, PIPING AND APPURTENANCES IN THE BOILER AND TURBINE ROOMS SHALL BE REMOVED, WHETHER OR NOT ON THE CONTRACT DRAWINGS, UNLESS OTHERWISE DIRECTED.

"/B) ALL WORK TO BE DONE UNDER THIS SECTION OF THE SPECIFICATIONS IS PREPARATORY TO THE INSTALLATION OF NEW STEAM GENERATING AND AUXILIARY EQUIPMENT TO BE INSTALLED BY OTHERS IN THE NORTH HALF OF THE BOILER HOUSE AND NEW REFRIGERATION EQUIPMENT TO BE INSTALLED BY OTHERS IN THE TURBINE ROOM.'

ALL OF THE OBSOLETE AND ABANDONED MATERIAL AND EQUIPMENT FORMERLY OCCUPYING THE BOILER AND TURBINE ROOMS HAVE BEEN REMOVED, TOGETHER WITH THAT IN THE REFRIGERATION AND BATTERY ROOMS, WHICH ARE NOT MATERIAL IN THIS CONTROVERSY. THE EQUIPMENT FOR WHICH CLAIM IS MADE IS LOCATED IN THE TRANSFORMER AND SWITCHGEAR ROOM WHICH IS ADJACENT TO THE TURBINE ROOM ON THE NORTH, BUT SEPARATED THEREFROM BY A MASONRY WALL FROM FLOOR TO CEILING. ALSO, IT IS STATED THAT CLAIM HAS BEEN MADE FOR CERTAIN OBSOLETE POWER CABLES EXTENDING FROM THE TRANSFORMER AND SWITCHGEAR ROOM TO VARIOUS BUILDINGS IN THE CAPITOL AREA. IT IS SIGNIFICANT THAT NOWHERE IN THE APPLICABLE SPECIFICATIONS IS THE SWITCHGEAR AND TRANSFORMER ROOM EQUIPMENT MENTIONED, AND ON THE DRAWINGS (ECPP 6-12-13-14-15 AND 16) THAT ROOM IS EITHER OMITTED OR LEFT BLANK.

IT IS THE CONTENTION OF THE PLAINTIFF'S PRESIDENT AND ATTORNEY THAT, NOTWITHSTANDING THE FOREGOING FACTS, SUCH EQUIPMENT HAS BEEN ABANDONED AND THEREFORE SHOULD HAVE BEEN INCLUDED WITH THE OBSOLETE MATERIALS IN THE BOILER AND TURBINE ROOMS. IN SUPPORT THEREOF THEY CITE THE ISOLATED PHRASE "IT IS THE INTENT OF THE SPECIFICATIONS THAT THE REMOVAL OF EQUIPMENT SHALL INCLUDE REMOVAL OF ABANDONED COPPER CONDUCTORS, ETC.' THAT ARGUMENT COMPLETELY OVERLOOKS THE CONTEXT OF THE BALANCE OF THAT ARTICLE WHICH SPECIFICALLY CONFINES SUCH EQUIPMENT TO THE BOILER AND TURBINE ROOMS. FURTHERMORE, THE ENTIRE SWITCHGEAR ASSEMBLY IS STILL ENERGIZED, AND IS USED TO OPERATE THE MAIN COAL SKIP HOIST.

IN THE ORIGINAL SIGNED STATEMENT BY THE PRESIDENT OF THE CLAIMANT COMPANY IT IS STATED THAT UPON INSPECTION OF THE PLANT BEFORE PREPARATION OF ITS PROPOSAL TO THE CORNELL COMPANY HE WAS SHOWN THE EQUIPMENT IN THE SWITCHGEAR AND TRANSFORMER ROOMS, AND WAS INFORMED BY AN EMPLOYEE OF THE POWER PLANT, A MR. ALLEN, THAT CERTAIN OF THAT EQUIPMENT HAD BEEN ABANDONED, WHICH COMPRISES THE BASIS FOR THE CLAIM. EVEN IF MR. ALLEN DID MAKE SUCH A STATEMENT, WHICH IS NOT CONCEDED, MR. HADDAD, THE PRESIDENT, KNEW, OR SHOULD HAVE KNOWN, THAT MR. ALLEN WAS ONLY AN EMPLOYEE OF THE POWER PLANT; THAT HE WAS NOT A REPRESENTATIVE OF THE CONTRACTING OFFICER; AND, THAT HE WAS IN NO POSITION TO INTERPRET THE TERMS OF THE SPECIFICATIONS. IT IS OBVIOUS THAT IF ANY SUCH INFORMATION HAD BEEN IMPARTED TO MR. HADDAD IT WOULD, UNDER THE CIRCUMSTANCES, HAVE NO LEGAL FORCE OR EFFECT SINCE MR. ALLEN WAS UNAUTHORIZED TO BIND THE GOVERNMENT. A PUBLIC OFFICIAL OR EMPLOYEE CAN ONLY BIND THE GOVERNMENT WHEN ACTING PURSUANT TO ADEQUATE AUTHORITY PROPERLY CONFERRED. WHITESIDE ET AL. V. UNITED STATES, 93 U.S. 247. INDIVIDUALS AS WELL AS COURTS MUST TAKE NOTICE OF THE EXTENT OF AUTHORITY CONFERRED BY LAW UPON A PERSON ACTING IN AN OFFICIAL CAPACITY, AND THE RULE APPLIES IN SUCH A CASE THAT IGNORANCE OF THE LAW FURNISHES NO EXCUSE FOR ANY MISTAKE OR WRONGFUL ACT. SEE ALSO, JACOB REED'S SONS V. UNITED STATES, 273 U.S. 200. IN VIEW THEREOF, AND SINCE THE SPECIFICATIONS APPEAR TO BE SO CLEAR AND UNAMBIGUOUS NO INTERPRETATION OF THEIR LANGUAGE IS NECESSARY, WE ARE OF THE OPINION THAT THE POSITION OF THE CLAIMANT IS UNTENABLE.

FOR THE REASONS SET FORTH ABOVE THE CLAIM OF A B C DEMOLITION CORPORATION FOR THE RIGHT TO REMOVE THE SUBJECT MATERIAL AND EQUIPMENT, OR FOR THE ALLOWANCE OF ITS VALUE ESTIMATED TO BE $48,000, MUST BE, AND IS DENIED. THE SET OF PLANS FORWARDED WITH YOUR LETTER OF APRIL 11, 1961, WILL BE RETURNED UNDER SEPARATE COVER.

A COPY OF OUR DECISION IS BEING FURNISHED TO PRENTICE E. EDRINGTON, THE CLAIMANT'S ATTORNEY.