B-149633, AUG. 20, 1962

B-149633: Aug 20, 1962

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WAS AWARDED ON NOVEMBER 27. INCLUDING STRUCTURAL STEEL AND UNDERSIDE OF EXPOSED METAL DECK" THE SPECIFIC ISSUE IN DISPUTE BETWEEN THE PARTIES IS WHETHER THE ABOVE SPECIFICATION REQUIRED THE PAINTING OF THE UNDERSIDE OF A CERTAIN METAL ROOF DECK. WAS TO BE ENTIRELY COVERED WITH A CEILING OF CEMENT ASBESTOS BOARD. THE PAINTING WAS DONE AS REQUESTED. ONLY UNDER PROTEST THAT THE WORK WAS NOT REQUIRED BY THE CONTRACT. THE CONTRACTOR CONTENDS THAT SINCE THE DECK WILL BE COMPLETELY COVERED WITH ASBESTOS BOARD WHEN THE JOB IS FINISHED. NO PART OF THE DECK IS "EXPOSED. HE WAS NOT REQUIRED TO PAINT IT. THE CONTRACTING OFFICER SAYS THAT SINCE THE DECK WAS EXPOSED AT THE TIME OF AWARD. THE CONTRACTOR WAS REQUIRED BY THE CONTRACT TO PAINT IT.

B-149633, AUG. 20, 1962

TO THE SECRETARY OF THE ARMY:

A LETTER FROM THE OFFICE OF THE ASSISTANT SECRETARY, DATED AUGUST 6, 1962, REQUESTS OUR DECISION ON A CLAIM SUBMITTED BY J. VINTON SCHAFER AND SONS, INC., FOR EXTRA COMPENSATION IN THE AMOUNT OF $313.80, UNDER CONTRACT NO. DA 18-108-CML-7016, CP2-8852-C.

THE ABOVE CONTRACT, FOR ALTERATIONS TO A CERTAIN BUILDING AT ARMY CHEMICAL CENTER, MARYLAND, WAS AWARDED ON NOVEMBER 27, 1961. AFTER THE CONTRACTOR COMMENCED PERFORMANCE, A CONTROVERSY AROSE BETWEEN THE PARTIES CONCERNING THE INTERPRETATION TO BE GIVEN TO CONTRACT SPECIFICATION TP-9- 07, PAINTING SCHEDULE, WHICH IN PERTINENT PART PROVIDES:

CHART

SURFACE PREPARATION "SURFACE AND RETREATMENT 1ST COAT 2D COAT 3D COAT --- ------ --------------------------- ------- ------- INTERIOR FERROUS AS PREVIOUSLY EXTERIOR EXTERIOR NONE SURFACES, UNLESS

SPECIFIED OIL PAINT OIL PAINT OTHERWISE NOTED, INCLUDING STRUCTURAL STEEL AND UNDERSIDE OF EXPOSED METAL DECK"

THE SPECIFIC ISSUE IN DISPUTE BETWEEN THE PARTIES IS WHETHER THE ABOVE SPECIFICATION REQUIRED THE PAINTING OF THE UNDERSIDE OF A CERTAIN METAL ROOF DECK, WHICH DECK, UNDER OTHER TERMS OF THIS CONTRACT, WAS TO BE ENTIRELY COVERED WITH A CEILING OF CEMENT ASBESTOS BOARD. THE PAINTING WAS DONE AS REQUESTED, BUT ONLY UNDER PROTEST THAT THE WORK WAS NOT REQUIRED BY THE CONTRACT. THE CONTRACTOR CONTENDS THAT SINCE THE DECK WILL BE COMPLETELY COVERED WITH ASBESTOS BOARD WHEN THE JOB IS FINISHED, NO PART OF THE DECK IS "EXPOSED," AND THEREFORE, HE WAS NOT REQUIRED TO PAINT IT. THE CONTRACTING OFFICER SAYS THAT SINCE THE DECK WAS EXPOSED AT THE TIME OF AWARD, THE CONTRACTOR WAS REQUIRED BY THE CONTRACT TO PAINT IT.

IN OUR DECISION B-144645, DATED JANUARY 3, 1961, WE OBSERVED THAT:

"THE CARDINAL RULE OF CONSTRUCTION IS TO ASCERTAIN AND GIVE EFFECT TO THE INTENTION EXPRESSED IN THE INSTRUMENT BEING CONSTRUED. SEE GARDEN GATE BRIDGE AND HIGHWAY DIST. OF CALIFORNIA V. UNITED STATES, 125 F.2D 872, 876. IN THE CASE OF NICE BALL BEARING COMPANY V. LESCURE, 227 F.2D 118, THE COURT HELD THAT THE INTENTIONS OF THE PARTIES TO A WRITTEN CONTRACT CAN BE GATHERED ONLY FROM THE LANGUAGE OF THE WHOLE INSTRUMENT, AND THAT IN DETERMINING THE INTENTIONS OF THE PARTIES TO A WRITTEN CONTRACT, EFFECT MUST BE GIVEN TO EACH WORD, CLAUSE, OR TERM THEREIN, AND THAT NONE OF THEM SHOULD BE REJECTED FOR LACK OF MEANING OR AS SURPLUSAGE. TO THE SAME EFFECT WERE THE FINDINGS OF THE COURT IN THE CASES OF UNITED STATES V. HATHAWAY, 242 F.2D 897, 900, AND ROOSEVELT MATERIALS COMPANY V. NOLAN BROTHERS, INC., 264 F.2D 807.'

TO ACCEPT THE CONTRACTOR'S INTERPRETATION OF THE TERM "EXPOSED," WE MUST CONCLUDE THAT THE SPECIFIC REQUIREMENT TO PAINT THE "UNDERSIDE OF EXPOSED METAL DECK" IS MEANINGLESS, SINCE IT IS INAPPLICABLE TO ANY OF THE OTHER WORK UNDER THE CONTRACT. THEREFORE, IN ORDER TO GIVE EFFECT TO THE LANGUAGE OF THE CONTRACT, WE MUST CONSTRUE THE TERM "EXPOSED" TO MEAN EXPOSED AT THE TIME OF AWARD. ACCORDINGLY, THE CONTRACTOR WAS OBLIGATED BY THE CONTRACT TERMS TO APPLY COATS OF SURFACE PAINT TO THE SUBJECT DECK AND, THEREFORE, MAY NOT BE PAID ADDITIONAL COMPENSATION FOR HAVING DONE SO.