B-160335, MAY 19, 1967

B-160335: May 19, 1967

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FOR LIGHTING FIXTURES IT WAS REQUIRED TO INSTALL UNDER GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT FOR PROJECT NO. 80573. THE SUBJECT CLAIM WAS SUBMITTED TO GSA BY AND IN YOUR NAME ON BEHALF OF TROJAN. WAS PROSECUTED BY THAT FIRM BEFORE THE GSA BOARD OF CONTRACT APPEALS PURSUANT TO THE DISPUTES CLAUSE OF THE SUBJECT CONTRACT. THE CLAIM WAS DENIED IN THE BOARD'S DECISION GSBCA-1845. A MOTION FOR RECONSIDERATION OF THAT DECISION WAS ALSO DENIED BY THE BOARD. WE HAVE OBTAINED AND REVIEWED THE OFFICIAL RECORD BEFORE THE BOARD. THE FACTS UNDERLYING THE DISPUTE ARE NOT CHALLENGED. ALTHOUGH TROJAN DOES ASSERT THAT SOME OF THE TESTIMONY GIVEN DURING THE HEARING BY GOVERNMENT WITNESSES WAS IRRELEVANT OR INADMISSIBLE.

B-160335, MAY 19, 1967

TO NAB CONSTRUCTION CORPORATION:

IN YOUR LETTER OF JANUARY 13, 1967, YOU REQUESTED OUR REVIEW OF AN ADMINISTRATIVE DECISION DENYING A CLAIM AGAINST THE GOVERNMENT FOR $61,600.53, REPRESENTING ADDITIONAL COST INCURRED BY YOUR SUBCONTRACTOR, TROJAN ELECTRIC AND MACHINE CO., INC., FOR LIGHTING FIXTURES IT WAS REQUIRED TO INSTALL UNDER GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT FOR PROJECT NO. 80573, IN EXCESS OF THE QUANTITY IT CONSIDERED TO BE CALLED FOR BY THE CONTRACT.

THE SUBJECT CLAIM WAS SUBMITTED TO GSA BY AND IN YOUR NAME ON BEHALF OF TROJAN, AND WAS PROSECUTED BY THAT FIRM BEFORE THE GSA BOARD OF CONTRACT APPEALS PURSUANT TO THE DISPUTES CLAUSE OF THE SUBJECT CONTRACT. THE CLAIM WAS DENIED IN THE BOARD'S DECISION GSBCA-1845, DATED AUGUST 16, 1966, AND A MOTION FOR RECONSIDERATION OF THAT DECISION WAS ALSO DENIED BY THE BOARD, ON SEPTEMBER 16, 1966. WE HAVE OBTAINED AND REVIEWED THE OFFICIAL RECORD BEFORE THE BOARD, INCLUDING THE TRANSCRIPT OF TESTIMONY, THE EXHIBITS AND THE BRIEFS.

THE FACTS UNDERLYING THE DISPUTE ARE NOT CHALLENGED, ALTHOUGH TROJAN DOES ASSERT THAT SOME OF THE TESTIMONY GIVEN DURING THE HEARING BY GOVERNMENT WITNESSES WAS IRRELEVANT OR INADMISSIBLE. TROJAN CHARGES THAT THE DECISION IS ARBITRARY, CAPRICIOUS, AND NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, BUT ITS COMPLAINT APPEARS TO BE DIRECTED TO THE BOARD'S INTERPRETATION OF CERTAIN OF THE CONTRACT'S TERMS, SPECIFICATIONS AND DRAWINGS. THE ULTIMATE QUESTION INVOLVED IS WHETHER THE CONTRACT AS A WHOLE REQUIRED YOU TO SUPPLY AND INSTALL 832 "FIXTURES," EACH 48 INCHES IN LENGTH, AS TROJAN CONTENDS, OR 832 "FIXTURES" COMPRISED OF 2,472 INDIVIDUAL FIXTURES, EACH 48 INCHES IN LENGTH, AS SHOWN ON THE DRAWINGS. TROJAN ASSERTS AMONG OTHER THINGS, THAT THE DEFINITION OF THE TERM "FIXTURE" AS USED IN THE CONTRACT SHOULD BE DETERMINED BY REFERENCE TO CUSTOMARY USAGE, EVEN IF SUCH USAGE CONTRADICTS THE WAY THE TERM IS USED IN THE CONTRACT.

BELOW IS A SUMMARY OF PORTIONS OF THE CONTRACT DOCUMENTS MOST PERTINENT TO THE ISSUE AT HAND:

(1) PARAGRAPH 2 OF THE GENERAL PROVISIONS PROVIDES:

"* * * ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS, OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS, SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN. IN CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS, OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER, WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING.'

(2) SECTION 21 OF THE SPECIFICATIONS, TITLED "LIGHTING FIXTURES, ETC., " PROVIDED AT PARAGRAPH 21-21 (D):

"AS LISTED IN THE SCHEDULE OF FIXTURES, THE NUMERAL FOLLOWING THE LETTER OR NUMERALS DESIGNATING THE FIXTURE TYPE INDICATES THE NUMBER OF BASIC SINGLE UNITS OF THE BASIC FIXTURE TYPE WHICH SHALL BE ASSEMBLED TO FORM THE LISTED FIXTURE.'

(3)THE SCHEDULE OF FIXTURES WHICH APPEARED AS PARAGRAPH 21-22, IMMEDIATELY FOLLOWING THE ABOVE-QUOTED CLAUSE, CONTAINS THE FOLLOWING EXAMPLES OF ITEMS HAVING NUMERICAL SUFFIXES TO DENOTE THE NUMBER OF "BASIC SINGLE UNITS.' (VERY FEW OF THE LISTINGS OF THE "FIXT. TYPE NO.' DID NOT HAVE SUFFIXES.)

QUANTITY FIXT. TYPE QUANTITY AND LAMP GLASS WARE OR

REQUIRED NO. WATTAGE PER. FIXT. REFLECTOR TYPE

1 P-430-48-1 2/40 SEE SPECS.

4 362-RS-6 12/40 STD. DET. 10-8-20

13 P-800-48-1 4/65 SEE SPECS.

1 407-TSM 1/20 STD. DET. 10-8-37

6 405-RS-1 1/40 W/TOP REFLECTOR

A FIFTH COLUMN INDICATED THE LOCATION IN THE BUILDING OF EACH LINE ITEM. THE "QUANTITY REQUIRED" COLUMN IN THE SCHEDULE OF FIXTURES TOTALS 832. THE NUMBERS IN THE "QUANTITY REQUIRED" COLUMN MULTIPLIED BY THE SUFFIXES TO THE "FIXT. TYPE NO., " OR MULTIPLIED BY 1 WHERE THERE IS NO SUFFIX, EQUALS 2,474. IT MAY ALSO BE NOTED THAT THE NUMBER OF LAMPS INDICATED IN THE THIRD COLUMN CORRESPONDS TO THE NUMBER OF "BASIC SINGLE UNITS" INDICATED BY THE SUFFIX RATHER THAN TO THE NUMBER IN THE FIRST COLUMN IF THAT NUMBER BE READ AS REFERRING TO INDIVIDUAL 48-INCH FIXTURES AS CONTENDED BY TROJAN.

(4) THE DRAWINGS CONTAINED 2,472 RECTANGULAR SYMBOLS OF THE TYPE STATED IN THE LEGEND TO REPRESENT "FLUORESCENT FIXTURE, TYPE AS INDICATED.' MOST OF THESE SYMBOLS WERE JOINED TOGETHER IN ROWS. WRITTEN UNDER EACH SYMBOL OR ROW OF SYMBOLS WAS A DESIGNATION OF THE FIXTURE TYPE, FOLLOWED BY A NUMERICAL SUFFIX SHOWING THE NUMBER OF FLUORESCENT FIXTURES DRAWN ABOVE IT.

(5) THE FIRST TWO ARTICLES IN PARAGRAPH 21-23 (B) OF THE SPECIFICATIONS STATE THAT FIXTURE TYPES P-430 AND P-800 SHALL ACCEPT REFLECTORS 48 INCHES IN LENGTH (THUS SUGGESTING THAT THE SAME FIXTURE TYPES SHOWN IN THE SCHEDULE OF FIXTURES ARE ALSO, AS TROJAN CONTENDS, 48 INCHES LONG), BUT THE SECOND OF THOSE ARTICLES STATED THAT: "THE ABOVE FIXTURES SHALL BE SUITABLY DESIGNED FOR INDIVIDUAL INSTALLATION OR FOR INSTALLATION IN CONTINUOUS ROWS BY JOINING THE BASIC FIXTURE UNITS END TO END. THE NUMERAL FOLLOWING THE TYPE DESIGNATION INDICATES THE NUMBER OF BASIC UNITS PER COMPLETE FIXTURE--- I.E. P-800 4-6 INDICATES A CONTINUOUS ROW CONSISTING OF SIX 48 INCH 800 MA. BASIC FIXTURE MOUNTED END.'

(6) "STANDARD DETAIL" DRAWINGS 10-8-20K AND 10-8-37, TITLED "LIGHTING FIXTURES," WHICH WERE REFERENCED UNDER THE "SCHEDULE OF FIXTURES" AND ATTACHED TO THE CONTRACT, PROVIDED DESCRIPTIONS OF SOME OF THE ITEMS BEING PROCURED BY STATING THAT THE "BASIC UNIT" LENGTH IS 48 INCHES, BY INDICATING THAT UNITS IN ADDITION TO THE SINGLE ONE DRAWN ON 10-8-20K WOULD BE SPECIFIED AS NEEDED TO FORM THE FIXTURE LENGTH AS SPECIFIED, AND BY DECLARING THAT THE "FIXTURES COVERED BY THIS DRAWING ARE SPECIFIED AS COMPLETE FIXTURES CONSISTING OF MULTIPLES OF THE BASIC UNIT JOINED END TO END. FOR EXAMPLE, FIXTURE TYPE 362-1 (405RS-1) REQUIRES 1 UNIT OF BASIC TYPE 362 (405RS). FIXTURE TYPE 362-2 (405RS-2) REQUIRES 2 UNITS; FIXTURE TYPE 362-3 (405RS-3) REQUIRES 3 UNITS.'

(7) WHILE THE ABOVE CONTRACTUAL PROVISIONS REFERENCED FIXTURES CONSISTING OF A ROW OF BASIC FIXTURE UNITS JOINED END TO END, THREE ARTICLES IN PARAGRAPH 21-23 (A) REFERRED TO FIXTURES DESIGNED FOR INSTALLATION IN A ROW, THUS INDICATING THAT A "FIXTURE" IS ONE ELEMENT OF A ROW, AS TROJAN CONTENDS, RATHER THAN THE TOTAL ASSEMBLY OF BASIC FIXTURE UNITS. HOWEVER, EVEN THE FIRST OF THESE 3 ARTICLES SPOKE OF A FIXTURE DESIGNED FOR INSTALLATION IN A ROW "BY JOINING THE BASIC FIXTURE UNITS END TO END.'

THE PROCURING ACTIVITY CONSIDERS SUCH CONTRACT TERMINOLOGY AS "BASIC FIXTURE UNIT" AND "BASIC SINGLE UNITS" TO BE A CORRECT DESCRIPTION OF THE 2,472 ITEMS REFERENCED IN THE CONTRACT DOCUMENTS, AND THE TERM "FIXTURE" TO BE A CORRECT DESCRIPTION OF THE 832 ROWS OF ONE OR MORE "BASIC FIXTURE UNITS" REQUIRED BY SUCH CONTRACT. IT DOES NOT EXPLAIN HOW, UNDER THIS TERMINOLOGY, A "ROW OF FIXTURES" MAY BE REGARDED AS A ROW OF BASIC FIXTURE UNITS, OR HOW FIXTURE TYPE P-430, WHEN IT IS COMPOSED OF A ROW OF BASIC FIXTURE UNITS, CAN ACCEPT A REFLECTOR ONLY 48 INCHES LONG.

TROJAN CONTENDS THAT THE DRAWINGS, THE SPECIFICATIONS, AND CUSTOMARY USAGE OF THE TERM XTURE," PROVE THAT THE FIXTURES SPECIFIED IN THIS CONTRACT ARE 48-INCH FLUORESCENT UNITS. IT DOES NOT EXPLAIN ALL OF THE VARIOUS CONTRACT REFERENCES TO THE DISTINCTION BETWEEN BASIC FIXTURE UNITS AND FIXTURES, BUT DISMISSES THEM AS MEANINGLESS, AMBIGUOUS, OR INAPPLICABLE TO THE CONTRACT. TROJAN CLAIMS TO HAVE BASED ITS PRICE ON A REASONABLE UNDERSTANDING OF THE SCHEDULE OF FIXTURES, I.E., THAT THE QUANTITY REQUIRED WAS 832 FIXTURES, EACH 48 INCHES IN LENGTH, SOME OF WHICH WOULD BE ASSEMBLED (BY THE MANUFACTURER) FROM THE NUMBER OF "BASIC SINGLE UNITS," OR MANUFACTURER'S SUB-ASSEMBLIES, AS INDICATED BY THE SUFFIX TO THE "FIXT. TYPE NO.' TROJAN CONTENDS THAT IT WAS ENTITLED TO RELY SOLELY ON THE 832 FIGURE WITHOUT DETERMINING THE NUMBER OF FIXTURES SHOWN ON THE DRAWINGS, OR CONSIDERING THE REFERENCES IN THE CONTRACT PROVISIONS TO JOINING BASIC FIXTURE UNITS TO FORM A COMPLETE FIXTURE, BECAUSE THE CONTRACT DOES NOT DEFINE AND CUSTOM DOES NOT EMPLOY SUCH TERMS AS " BASIC FIXTURE UNITS," AND BECAUSE PARAGRAPH 2 OF THE GENERAL PROVISIONS INDICATES THAT THE SPECIFICATIONS WILL GOVERN IN THE EVENT OF THEIR DIFFERENCE WITH THE DRAWINGS.

THE BOARD'S DENIAL OF THE CLAIM APPEARS TO BE BASED ON THE CONCLUSIONS THAT THE SCHEDULE OF FIXTURES, THE DRAWINGS AND THE CONTRACT AS A WHOLE, (1) USED THE TERM "FIXTURE" NOT ONLY TO MEAN A SINGLE 48 INCH LIGHTING FIXTURE (THE SCHEDULE OF FIXTURES AND ITS DRAWINGS INDICATED THAT THE ,BASIC FIXTURE UNITS" WOULD SOMETIMES CONSTITUTE THE COMPLETE FIXTURE), BUT ALSO TO MEAN A CONTINUOUS ROW OF SINGLE 48 INCH LIGHTING FIXTURES, AND (2) FULLY INDICATED THAT 2,474 SINGLE FIXTURES WERE REQUIRED TO MAKE THE 832 COMPLETE FIXTURES. WE THINK THE BOARD IMPLICITLY CONCEDED THAT CONTRACT TERMS SUCH AS "BASIC FIXTURE UNITS" WERE USED IN PLACE OF WHAT SOME MAY CUSTOMARILY REGARD, OR AT LEAST WHAT THE BOARD SO REGARDED, AS SINGLE FIXTURES 48 INCHES IN LENGTH.

THE GRAVAMEN OF TROJAN'S COMPLAINT SEEMS TO RESIDE IN A BELIEF THAT THE BOARD IMPLICITLY RECOGNIZED DISCREPANCIES IN THE CONTRACT, BUT REACHED ITS DECISION BY DISREGARDING THOSE PROVISIONS SUPPORTING TROJAN'S POSITION IN FAVOR OF THOSE SUPPORTING THE GOVERNMENT-S. WE THINK THIS BELIEF FAILS TO TAKE INTO ACCOUNT THE LAW'S DECIDED PREFERENCE FOR READING THE CONTRACT AS A WHOLE, FOR DETERMINING WHICH PROVISIONS THEREIN ARE THE MOST PERTINENT, AND FOR RECONCILING THE APPARENT DISCREPANCIES IN THOSE PROVISIONS.

WE AGREE WITH THE BOARD'S LEGAL CONCLUSION. IN DOING SO, WE RECOGNIZE, AS WE THINK THE BOARD CLEARLY DID, THE BASIS OF TROJAN'S INTERPRETATION. WE FIND THAT THE CONTRACT PROVISIONS ARE NOT UNIFORMLY PRECISE IN THEIR USE OF THE TERMS "LISTED FIXTURE," AND "FIXTURE-TYPE," AND ARE NOT AS CLEAR AS THEY COULD HAVE BEEN WITH RESPECT TO THE MEANINGS OF AND DISTINCTION BETWEEN "FIXTURE" AND "BASIC FIXTURE UNIT.' FURTHERMORE, WE THINK THOSE ARTICLES IN PARAGRAPH 21-23 (A) WHICH REFER TO ROWS OF FIXTURES, IF READ BY THEMSELVES, COULD BE MISLEADING. HOWEVER, IN VIEW OF THE CONTRACT'S REPEATED AND OFTEN CLEAR USE OF SUCH TERMS AS "BASIC FIXTURE UNIT" AND "BASIC SINGLE UNIT," AND ITS REFERENCES TO JOINING THOSE UNITS END TO END TO FORM A COMPLETE FIXTURE, WE CANNOT ACCEPT TROJAN'S EXPLANATION THAT IT REASONABLY REGARDED SUCH "UNITS" AS NOTHING MORE THAN UNIDENTIFIED SUB-ASSEMBLIES A MANUFACTURER MIGHT USE IN ASSEMBLING ONE 48 INCH FIXTURE. THE DRAWINGS AND THE CONTRACT PROVISIONS MUST BE PLACED SIDE BY SIDE AND VIEWED WITH AN EYE WHICH SEARCHES FOR CONGRUITY. TROJAN'S TESTIMONY INDICATES IT LAID THE DRAWINGS TO ONE SIDE, WITHOUT HAVING STUDIED THEM CLOSELY, AND THEN DISREGARDED TERMS IN THE SPECIFICATIONS WHICH WERE REPEATED AGAIN AND AGAIN. WE THINK THE CONTRACT, TAKEN AS A WHOLE, WAS SUFFICIENTLY CLEAR TO CONVEY TO ANY REASONABLE PROSPECTIVE CONTRACTOR THE GOVERNMENT'S INTENTION OF REQUIRING HIM TO FURNISH 2,472 BASIC SINGLE UNITS, I.E., 48 INCH "FIXTURES" (WE USE THE TERM ADVISEDLY), INSTALLED SEPARATELY OR IN ROWS TO COMPRISE 832 "FIXTURES" OF CONTRACTUALLY PRESCRIBED LENGTHS. ONLY BY IGNORING THE DRAWINGS AND PERTINENT PROVISIONS OF THE CONTRACT COULD ONE CONCLUDE OTHERWISE.

WE DO NOT AGREE THAT THE EVIDENCE CONCLUSIVELY PROVED, OR EVEN THAT THE BOARD FOUND, THAT THE TERM "FIXTURE" IS CUSTOMARILY USED TO MEAN A FLUORESCENT UNIT 48 INCHES IN LENGTH. HOWEVER, EVEN ASSUMING THAT TO BE THE CASE, WE KNOW OF NO SUPPORT, AND NONE HAS BEEN CITED, FOR TROJAN'S ARGUMENT THAT THE CONTRACTUAL MEANING OF A TERM IS TO BE FOUND ONLY BY REFERENCE TO USAGE. NOR IS IT LEGALLY REQUIRED THAT A WORD IN A CONTRACTUAL DOCUMENT MUST ALWAYS BE GIVEN THE SAME MEANING, WHERE IT IS OBVIOUS FROM THE DOCUMENT ITSELF THAT DIFFERENT MEANINGS ARE INTENDED.

THE COURT OF CLAIMS RECENTLY CONSIDERED A CASE WHERE THE MOST PERTINENT SPECIFICATION OF A CONTRACT, IF READ ALONE, COULD BE SAID TO CONTEMPLATE A FLOOR WHOLLY OF CONCRETE, RATHER THAN ONE PARTIALLY OF STEEL-PLATE WHICH THE CONTRACTOR WAS REQUIRED TO CONSTRUCT, WHILE THE MOST PERTINENT DRAWINGS, IF READ ALONE, DIRECTED THE STEEL-PLATE COVERING. THE CONTRACT CONTAINED THE LANGUAGE OF ARTICLE 2 OF THE GENERAL PROVISIONS, QUOTED SUPRA. IN GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, AND THEREBY UPHOLDING THE CONTRACTING OFFICER'S AND THE ADMINISTRATIVE APPEAL BOARD'S DENIAL OF A CLAIM FOR EQUITABLE ADJUSTMENT, THE COURT STATED:

"* * * PLAINTIFF SEEMS TO INSIST THAT, IF THE SPECIFICATIONS CAN BE READ AS CONFLICTING WITH THE DRAWINGS, THAT READING MUST BE ADOPTED EVEN THOUGH A MORE HARMONIOUS INTERPRETATION IS ALSO REASONABLY AVAILABLE. THE RULE, HOWEVER, WHICH THE COURTS HAVE ALWAYS PREFERRED IS, WHERE POSSIBLE, TO INTERPRET THE PROVISIONS OF A CONTRACT AS COORDINATE NOT CONTRADICTORY. SEE THOMPSON RAMO WOOLDRIDGE, INC. V. UNITED STATES, 175 CT.CL. 527, 536, 361 F.2D 222 228 (1966). CONTRACTORS, TOO, HAVE LONG BEEN ON NOTICE THAT IN READING CONTRACT DOCUMENTS THEY SHOULD SEEK TO FIND CONCORD, RATHER THAN DISCORD, IF THEY PROPERLY CAN. "THIS BRINGS US TO ANOTHER REASON WHY PLAINTIFF'S POSITION IS WEAK. THERE IS NO EVIDENCE AS TO THE VIEW ACTUALLY TAKEN BY THE COMPANY'S ESTIMATORS BEFORE IT SUBMITTED ITS BID (PLAINTIFF DID NOT CALL THEM TO THE STAND IN THE ADMINISTRATIVE PROCEEDING). BUT ASSUMING ARGUENDO THAT THEY READ TP 17-23 THE WAY PLAINTIFF NOW DOES, IF THEY EXAMINED THE PLANS AND SPECIFICATIONS CAREFULLY THEY COULD NOT HAVE HELPED NOTICE THE DRAWINGS WHICH SPECIFICALLY EMBODIED THE CONTRARY REQUIREMENT. IF THEY WERE NOT AWARE OF THIS FACT THEY SHOULD HAVE BEEN. THE CONTRACT PROVIDED THAT "IN ANY CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS, OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING. ANY ADJUSTMENT BY THE CONTRACTOR WITHOUT THIS DETERMINATION SHALL BE AT HIS OWN RISK AND EXPENSE" (FOOTNOTE 1, SUPRA). A WARNING OF THIS KIND CALLS UPON THE BIDDER TO BRING TO THE GOVERNMENT'S ATTENTION ANY SERIOUS OR PATENT DISCREPANCY OF SIGNIFICANCE, OF WHICH HE IS OR SHOULD BE COGNIZANT. SEE, E.G., BEACON CONSTR. CO. V. UNITED STATES, 161 CT.CL. 1, 7, 314 F.2D 501, 504 (1963); JEFFERSON CONSTR. CO. V. UNITED STATES, 176 CT.CL. PP., PP., 364 F.2D 420, 423 (JULY 1966), CERT. DENIED, 386 U.S. 914 (1967); SOUTHERN CONSTR. CO. V. UNITED STATES, 176 CT.CL. PP., PP., 364 F.2D 439, 454 (JULY 1966). THE DISCREPANCY HERE--- IF TP 17 23 WAS THEN THOUGHT TO MEAN WHAT PLAINTIFF NOW CONTENDS--- SURELY MET THAT STANDARD OF IMPORTANCE. YET THERE IS NO SUGGESTION THAT PLAINTIFF BROUGHT IT TO THE CONTRACTING OFFICER OR SOUGHT THE REQUIRED GUIDANCE BEFORE BIDDING. IF, ON THE OTHER HAND, PLAINTIFF DID NOT STUDY THE PLANS AND SPECIFICATIONS BEFORE BIDDING, IT CANNOT COMPLAIN THAT THE BOARD AND THIS COURT STRIVE, IN ACCORDANCE WITH THE ESTABLISHED CANON, TO READ THE RELEVANT CONTRACT PROVISIONS TOGETHER RATHER THAN AT ODDS.' UNICON MANAGEMENT CORP. V. UNITED STATES, CT.CL. NO. 199-65, APRIL 14, 1967.

SINCE THE ALLEGED DISCREPANCIES WERE NOT BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO BID OPENING, IT APPEARS DOUBTFUL THAT YOU WOULD HAVE HAD LEGAL GROUNDS FOR RECOVERY EVEN IF THE INSTANT CONTRACT COULD HAVE BEEN REASONABLY CONSTRUED (AND WE THINK IT COULD NOT HAVE BEEN) TO CONTEMPLATE THE FURNISHING OF ONLY 832 FIXTURES 48 INCHES IN LENGTH.

TROJAN HAS ADVANCED SEVERAL OTHER ARGUMENTS AS GROUNDS FOR REJECTING THE BOARD'S DECISION. IT SAYS THE STANDARD DETAILS SHOULD BE IGNORED BECAUSE THEY WERE NOT REFERENCED IN THE ,SPECIFICATIONS," ALTHOUGH IT APPEARS THAT WITH ONE EXCEPTION THEY WERE INDIVIDUALLY REFERENCED IN THE SCHEDULE OF FIXTURES WHERE APPLICABLE AND ALSO IN THE GENERAL REQUIREMENTS, BOTH OF WHICH PROVISIONS WERE PARTS OF THE IFB PACKAGE, TITLED "SPECIFICATIONS.' TROJAN CLAIMS THAT ITS PRESIDENT, THE ONLY PERSON APPEARING ON BEHALF OF THE COMPANY, SHOULD NOT HAVE BEEN CROSS-EXAMINED BECAUSE HE CONSIDERED HIMSELF "COUNSEL" RATHER THAN "WITNESS.' (TROJAN'S PRESIDENT GAVE TESTIMONY TO EXPLAIN HIS UNDERSTANDING OF CONTRACT PROVISIONS, AND HE DID NOT OBJECT DURING THE HEARING TO THE CROSS-EXAMINATION.) TROJAN ASSERTS THAT UNDER THE BOARD'S RULES IT COULD HEAR TESTIMONY FOR THE GOVERNMENT ONLY FROM THE CONTRACTING OFFICER AND CERTAIN OTHER OFFICIALS WHO WERE ABSENT FROM THE HEARINGS, ALLEGEDLY WITHOUT EXCUSE. (TROJAN TOOK NO EXCEPTION TO THE TESTIMONY DURING THE HEARING, AND HAS CITED NO RULES RESTRICTING THE APPEARANCE OF WITNESSES, AND THE RECORD DOES NOT DISCLOSE THAT TROJAN ATTEMPTED TO OBTAIN THE PRESENCE OF ANY GOVERNMENT OFFICIALS AS WITNESSES.) TROJAN COMPLAINS THAT THE BOARD RELIED ONLY ON THE EVIDENCE PRESENTED TO IT, AND ASSERTS IT SHOULD HAVE INITIATED ACTION TO OBTAIN A MORE COMPLETE RECORD. TROJAN SAYS THE GOVERNMENT HAS BEEN UNJUSTLY ENRICHED BECAUSE THE PRICE IT QUOTED TO YOU, THE PRIME CONTRACTOR, WAS AN UNREASONABLY LOW FIGURE FOR 2,472 UNITS.

IN OUR OPINION, NONE OF THESE ADDITIONAL ARGUMENTS HAVE SUFFICIENT MERIT TO WARRANT FURTHER COMMENT.

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO DISAGREE WITH THE LEGAL CONCLUSION REACHED BY THE BOARD. NOR DO WE FIND ANY DISPUTE AS TO THE FEW FACTUAL DETERMINATIONS MADE BY THE BOARD. ACCORDINGLY, YOUR CLAIM IS HEREBY DENIED.