B-150720, FEB. 11, 1963

B-150720, FEB. 11, 1963

TO MR. LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING ADMINISTRATION:

IN LETTER FB:HS DATED JANUARY 25, 1963, YOU REQUEST A DECISION WHETHER IT WOULD BE PROPER TO CERTIFY FOR PAYMENT A VOUCHER AND SCHEDULE OF PAYMENTS FOR $1,080 CLAIMED BY LOFT PAINTING COMPANY FOR CAULKING WORK IT MAINTAINS IT PERFORMED IN EXCESS OF THE REQUIREMENTS OF CONTRACT 043-24.

UNDER THE SUBJECT CONTRACT THE COMPANY AGREED TO PAINT AND REPAIR THE EXTERIOR OF 68 DWELLINGS LOCATED IN THE FHA FOREST HEIGHTS PROJECT FOR A PRICE OF $20,294. WITH RESPECT TO THE CAULKING WORK TO BE PERFORMED, THE SPECIFICATIONS PROVIDED:

"* * * PRIOR TO PAINTING CONTRACTOR SHALL REMOVE ALL LOOSE AND BRITTLE CAULKING. WHERE CAULKING HAS BEEN REMOVED AND WHERE MISSING THE AREA SHALL BE CLEANED AND PREPARED TO RECEIVE NEW CAULKING. THE CONTRACTOR IS CAUTIONED TO CHECK AROUND ALL EXTERIOR OPENINGS AND OTHER AREAS PREVIOUSLY CAULKED TO ASSURE WEATHER TIGHT CAULKING OF ALL SUCH AREAS. * * *

"AFTER APPLICATION OF PRIME COAT OF PAINT AND BEFORE APPLICATION OF FINISH COAT OF PAINT, REPLACE CAULKING WHICH HAS BEEN REMOVED AND THAT WHICH WAS MISSING.'

DURING THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR AND FHA REPRESENTATIVES INSPECTING THE WORK BECAME ENGAGED IN A DISPUTE AS TO WHAT WAS REQUIRED TO BE CAULKED UNDER THE SPECIFICATIONS. APPARENTLY, AREAS ON THE BUILDINGS WHERE WOOD ADJOINS BRICK HAD BEEN CAULKED BEFORE, BUT AREAS BETWEEN THE WOOD EXTERIOR DOOR AND WINDOW FRAMES AND THE EXTERIOR WOOD SHAKE SHINGLES HAD NEVER BEEN CAULKED BEFORE. AS TO THE AREAS WHICH PREVIOUSLY HAD BEEN CAULKED THERE WAS NO QUESTION BETWEEN THE PARTIES THAT WHERE THE CAULKING WAS LOOSE, BRITTLE OR MISSING NEW CAULKING WAS TO BE INSTALLED, BUT AS TO THE OPENINGS AROUND THE DOORS AND WINDOWS THAT HAD NEVER BEEN CAULKED BEFORE THERE WAS A DIFFERENCE OF OPINION.

THE FHA REPRESENTATIVES CONTENDED THAT THE SPECIFICATIONS REQUIRED THE CONTRACTOR TO CAULK AROUND THE DOORS AND WINDOWS. THEY RELIED UPON THE STATEMENT IN THE SPECIFICATIONS THAT WHERE CAULKING WAS MISSING THE AREA WAS TO BE CLEANED AND PREPARED TO RECEIVE NEW CAULKING.

THE CONTRACTOR, ON THE OTHER HAND, INTERPRETED THE SPECIFICATIONS AS REQUIRING CAULKING ONLY IN THOSE AREAS WHERE THERE HAD PREVIOUSLY BEEN CAULKING AND IT STATED THAT IN THE EVENT IT WAS REQUIRED TO DO CAULKING AROUND THE OTHER AREAS IT WOULD REQUIRE $1,080 IN ADDITION TO THE ORIGINAL CONTRACT PRICE. IN SUPPORT OF ITS POSITION, THE CONTRACTOR SAID THAT THE WORD "MISSING" GENERALLY INDICATED THAT SOMETHING PREVIOUSLY HAD EXISTED. FURTHER, IT RELIED UPON THE ADMONITION IN THE SPECIFICATIONS THAT IT WAS TO CHECK AREAS "PREVIOUSLY CAULKED" TO ASSURE WEATHER TIGHTNESS AND THE STATEMENT IN THE SPECIFICATIONS THAT IT WAS TO "REPLACE" CAULKING WHICH WAS MISSING.

THE MATTER WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER. STATED THAT HE BELIEVED THE SPECIFICATIONS REQUIRED ALL EXTERIOR OPENINGS TO BE CAULKED AND HE DIRECTED THE CONTRACTOR TO PERFORM THE WORK, BUT HE RECOGNIZED THAT THERE COULD WELL BE AN HONEST DIFFERENCE OF OPINION AS TO THE INTERPRETATION OF THE SPECIFICATIONS AND SO HE PROVIDED THAT AFTER THE COMPLETION OF ALL THE WORK THE CONTRACTOR COULD SUBMIT A CLAIM FOR THE DISPUTED WORK FOR CONSIDERATION BY OUR OFFICE.

UPON COMPLETION OF THE WORK, THE CONTRACTOR SUBMITTED A CLAIM TO FHA FOR THE CONTRACT PRICE AND A CLAIM FOR $1,080 FOR THE CAULKING WORK. THE CONTRACT PRICE HAS BEEN PAID BY FHA AND YOU QUESTION WHETHER THE LESSER AMOUNT MAY BE CERTIFIED FOR PAYMENT AS WELL. IT IS REPORTED THAT $1,080 HAS BEEN EVALUATED AND DETERMINED TO BE A FAIR VALUE FOR THE WORK WHICH IT IS CLAIMED.

IN VIEW OF THE STATEMENT IN THE LAST SENTENCE IN THE QUOTATION FROM THE SPECIFICATIONS THAT THE CONTRACTOR WILL "REPLACE CAULKING * * * WHICH WAS MISSING," IT IS BELIEVED THAT IT WAS REASONABLE FOR THE CONTRACTOR TO SUPPOSE THAT THE "MISSING" CAULKING REFERRED TO IN THE SECOND SENTENCE IN THE QUOTATION WAS CAULKING THAT HAD PREVIOUSLY BEEN IN PLACE, BUT WHILE THE THIRD SENTENCE IN THE QUOTATION FROM THE SPECIFICATIONS ADMONISHES THE CONTRACTOR TO CHECK "AREAS PREVIOUSLY CAULKED TO ASSURE WEATHER TIGHT CAULKING," IT IS OBSERVED THAT THE SENTENCE ALSO CAUTIONS THE CONTRACTOR TO ,CHECK AROUND ALL EXTERIOR OPENINGS," TO ASSURE WEATHER TIGHT CAULKING OF THEM AS WELL. WHILE THE SPECIFICATIONS MAY HAVE BEEN SILENT AS TO HOW THE LATTER CAULKING WORK WAS TO BE ACCOMPLISHED, IT SEEMS OBVIOUS THAT IT WAS CONTEMPLATED THAT SUCH WORK WOULD BE DONE, AND IN THE ABSENCE OF SPECIFIC DIRECTION IN THE SPECIFICATIONS AS TO HOW IT WAS TO BE DONE, ACCOMPLISHMENT OF IT BY THE USUAL METHODS EMPLOYED IN SUCH CIRCUMSTANCES WOULD HAVE BEEN ADEQUATE.

IT IS THEREFORE CONCLUDED THAT CAULKING AROUND ALL EXTERIOR OPENINGS WAS REQUIRED BY THE CONTRACT AND MUST BE DEEMED TO HAVE BEEN INCLUDED IN THE CONTRACT PRICE. IN THESE CIRCUMSTANCES, IT WOULD NOT BE PROPER TO CERTIFY FOR PAYMENT THE CLAIM MADE BY LOFT PAINTING COMPANY.