B-163670, APR. 4, 1968

B-163670, APR. 4, 1968

TO H. W. STANFIELD CONSTRUCTION CORP., S. L. HAEHN, INC., JOINTS VENTURES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1968, REQUESTING THAT WE REVIEW ARMED SERVICES BOARD OF CONTRACT APPEALS DECISION NO. 11875, DATED OCTOBER 31, 1967, WHICH DENIED YOUR APPEAL FROM THE CONTRACTING OFFICER'S DISALLOWANCE OF YOUR CLAIM FOR A PRICE INCREASE UNDER CONTRACT NO. NBY- 60180. THE EFFECT OF YOUR REQUEST IS TO SUBMIT YOUR CLAIM TO OUR OFFICE FOR CONSIDERATION UNDER OUR CLAIMS SETTLEMENT AUTHORITY, 31 U.S.C. 71.

THE CIRCUMSTANCES GIVING RISE TO YOUR CLAIM ARE SET OUT IN THE BOARD'S DECISION AS FOLLOWS:

"THE CAPTIONED CONTRACT ENTERED INTO ON 30 JUNE 1965 IN THE ORIGINAL FIXED AMOUNT OF $2,549,339 PROVIDED FOR THE CONSTRUCTION OF A MESS HALL AT THE NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA. THE CONTROVERSY WHICH AROSE SOMETIME IN FEBRUARY 1966 WAS LATER FORMALIZED BY A LETTER FROM THE APPELLANT TO THE RESIDENT OFFICER-IN-CHARGE OF CONSTRUCTION (ROICC) DATED 31 MARCH 1966 CALLING ATTENTION TO A DISCREPANCY BETWEEN THE PLANS AND SPECIFICATIONS IN THAT THE DETAILS FOR QUARRY TILE AND CONCRETE WERE NOT CLEAR. APPELLANT STATED THAT A NUMBER OF FLOOR AREAS WERE CONSIDERABLY LOWER THAN ADJOINING FLOOR ELEVATIONS AND REQUESTED A DIRECTIVE AS TO WHAT WAS REQUIRED IN THESE AREAS. THIS MATTER BECAME THE SUBJECT OF CORRESPONDENCE AND DISCUSSIONS AMONG APPELLANT, THE ROICC AND HIS STAFF. BY LETTER DATED 28 APRIL 1966 APPELLANT WAS INFORMED THAT SECTION 5.13 OF THE SPECIFICATIONS REQUIRED THAT CONCRETE FILL BE PLACED ON THE FLOOR SLABS TO A THICKNESS AS INDICATED ON THE FINISH SCHEDULE OR AS REQUIRED TO BRING THE FINISH FLOOR TO THE DESIGNATED FINISH ELEVATION AND THAT THE DRAWINGS SHOWED THE STRUCTURAL SLAB WITH AN ELEVATION AND WITH WIRE MESH REINFORCING TO BE FILLED WITH MORTAR. THE LETTER WENT ON TO DIRECT APPELLANT TO SUPPLY AND INSTALL THE NECESSARY CONCRETE FILL ON THE STRUCTURAL SLAB. IN A MEETING BETWEEN THE PARTIES ON 13 JUNE 1966 THE WORD MORTAR AS SET OUT IN RESPONDENT'S LETTER OF 28 APRIL 1966 WAS AMENDED TO READ CONCRETE FILL AND APPELLANT PROCEEDED WITH THE WORK IN ACCORDANCE WITH THE PRIOR DIRECTIVE. BY LETTER DATED 23 JUNE 1966 APPELLANT REQUESTED A FINAL DECISION UNDER THE DISPUTES ARTICLE OF THE CONTRACT ON THE BASIS THAT THE RESPONDENT'S DESIGNATION OF THE UNKNOWN MATERIAL AS CONCRETE FILL CAUSED IT TO INCUR ADDITIONAL COSTS BECAUSE NOT BEING SO IDENTIFIED ON THE DRAWINGS, APPELLANT HAD NOT INCLUDED THE COST OF THIS ITEM IN ITS BID PRICE AND THEREFORE APPELLANT CONTENDED THAT IT WAS ENTITLED TO AN EQUITABLE ADJUSTMENT. BY FINAL DECISION DATED 5 AUGUST 1966 APPELLANT'S CLAIM WAS DENIED BY THE CONTRACTING OFFICER AND THIS APPEAL IS FROM THAT DECISION.'

THE DECISION CONTINUES WITH THE FOLLOWING STATEMENT OF THE PERTINENT PROVISIONS OF THE CONTRACT AND THE GOVERNMENT'S CONTENTIONS WITH RESPECT THERETO.

"PARAGRAPH 5.13.1 OF THE SPECIFICATIONS PROVIDES:

-CONCRETE FILL ON FIRST FLOOR SLABS SHALL BE OF A THICKNESS AS INDICATED ON THE FINISH SCHEDULE OR AS REQUIRED TO BRING THE FINISH FLOOR TO THE DESIGNATED FINISH ELEVATION. CONCRETE MIX SHALL BE THE SAME AS SPECIFIED FOR THE STRUCTURAL SLAB ON GRADE. FINISH SHALL BE AS INDICATED ON THE FINISH SCHEDULE AND SPECIFIED HEREIN.-

"DRAWING NO. 11, THE ROOM FINISH SCHEDULE, MAKES REFERENCE TO THE ROOMS IN THE STRUCTURE BY FUNCTIONAL DESIGNATION AND ROOM NUMBER AND CALLS OUT THE AMOUNT OF CONCRETE FILL REQUIRED FOR EACH ROOM. THE ROOMS WHERE APPELLANT WAS DIRECTED TO FURNISH CONCRETE FILL SHOWED EITHER NO THICKNESS REQUIREMENT OR AN INADEQUATE AMOUNT. THE ROOM FINISH SCHEDULE ALSO CONTAINED DETAIL A/A-11 WHICH SHOWED BY ARROWS THE POSITIONING OF CONCRETE FILL ON THE FLOOR SLABS. THE AREA BETWEEN THE FINISHED FLOOR AND THE INSULATION IS NOT LABELED BUT DOES CONTAIN FINE DOTS WHICH ARE INDICATIVE OF A SAND AGGREGATE AS DISTINGUISHED FROM WHAT IS DESIGNATED AS CONCRETE FILL SHOWING HEAVIER DOTS AND SOME SMALL CIRCLES WHICH IS UNDERSTOOD IN THE TRADE AS A CONCRETE AGGREGATE MATERIAL.

"THE WALL SECTION DETAILS SHOW SUBSTANTIALLY IDENTICAL SYMBOLOGY AND WALL SECTION A/A-12 BY AN ARROW AND EXPLANATORY NOTE UNEQUIVOCALLY DELINEATED THE TOP OF THE CONCRETE FLOOR SLAB OR CONCRETE FILL AS EXCLUDING THE AREA HERE UNDER CONSIDERATION. A NUMBER OF APPELLANT'S WITNESSES, WHO WERE EXPERIENCED ESTIMATORS, INTERPRETED THE DRAWINGS AS SHOWING A PORTLAND CEMENT GROUT SETTING BED IN THE DISPUTED AREA BECAUSE THE SYMBOLS SHOWED A FINE AGGREGATE AS CONTRASTED WITH THE STRUCTURAL AGGREGATE UTILIZED TO SHOW CONCRETE FILL.'

RESPONDENT'S ARCHITECT-ENGINEER, WHO WAS PRESENTED AS A WITNESS, ADMITTED THE DIFFERENCES IN SYMBOLOGY AND ACCOUNTED THEREFOR BY EXPLAINING THAT VARIOUS INDIVIDUALS IN HIS ESTABLISHMENT HAD WORKED ON THE DESIGN OF THIS PROJECT. HOWEVER, HE TOOK THE POSITION THAT BOTH SYMBOLS WERE INDICATIVE OF CONCRETE FILL AND FURTHER THAT PARAGRAPH 5.13.1 OF THE SPECIFICATIONS CLEARLY CALLED OUT SUCH REQUIREMENT IN THE DISPUTED AREAS (TR. 97-99).

RESPONDENT, BY BRIEF, CONTENDED THAT THE DRAWINGS AND SPECIFICATIONS WERE CLEAR AND THEREFORE APPELLANT KNEW OR SHOULD HAVE KNOWN THAT THE DISPUTED AREAS HAD TO BE FILLED WITH SOME FORM OF CONCRETE. RESPONDENT CONCEDED, FOR THE SAKE OF ARGUMENT, THE CORRECTNESS OF APPELLANT'S CONTENTIONS AND ASSUMED FOR THIS PURPOSE THAT A CONTRACT CHANGE WOULD BE RECOGNIZED BY THE BOARD; IN THIS EVENT, RESPONDENT CLAIMED ENTITLEMENT TO A DEDUCTIVE CHANGE ORDER BECAUSE APPELLANT WAS NOT REQUIRED TO FURNISH EITHER AN EXTRA OR MORE EXPENSIVE MATERIAL. RESPONDENT RECOGNIZED THAT THE BOARD AT THIS TIME IS NOT CONCERNED WITH QUANTUM BUT ADVANCED THE PROPOSITION THAT THE APPEAL MUST ULTIMATELY BE DENIED OR SETTLED ON THE BASIS OF THE DIFFERENCE IN VALUE BETWEEN THE MATERIAL TO BE EMPLACED IN THE DISPUTED AREA AS REQUIRED BY THE CONTRACT AND THE CONCRETE FILL AS FURNISHED BY APPELLANT PURSUANT TO DIRECTIVE FROM THE ROICC. IN CONCLUSION, RESPONDENT REITERATED THAT SHOULD THIS APPEAL BE RESOLVED IN FAVOR OF THE APPELLANT, THEN A DEDUCTIVE CONTRACT MODIFICATION WOULD NECESSARILY BE INDICATED.

WE BELIEVE THE DECISIVE PORTIONS OF THE BOARD'S FINDINGS PRECLUDING THE CLAIMED PRICE INCREASE TO BE "THERE MAY BE SOME DOUBT AS TO EXACTLY WHICH MATERIAL IS CALLED OUT, BUT THERE IS NO OMISSION OF ANY ASPECT OF WORK AND APPELLANT WAS RESPONSIBLE UNDER THE CONTRACT TO BRING THE FINISHED FLOORS TO FINAL ELEVATIONS AS DESIGNATED THEREIN" AND "APPELLANT HAS FAILED TO SHOW THAT THE CONCRETE FILL IT WAS REQUIRED TO INSTALL WAS IN ANY WAY IN EXCESS OF THE MINIMUM REASONABLE REQUIREMENTS FOR THE WORK.'

YOUR MOTION FOR RECONSIDERATION WAS DENIED ON JANUARY 15, 1968, AND YOU ASK THAT WE REVIEW THE DECISION OF OCTOBER 31 ON THE GROUNDS:

"1. THAT THE DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

"2. THAT THE BOARD ADMITS THAT IT IS TECHNICALLY UNQUALIFIED TO MAKE ANY FINDING AS TO ANY SPECIFIC MATERIAL REQUIREMENT.'

YOUR ACCOMPANYING BRIEF INCLUDES YOUR CONTENTIONS THAT THE SUBJECT MATERIAL IS NOT LABELED; THAT THE SYMBOLS USED ARE AMBIGUOUS, WHICH CAUSED YOU TO MISS THE MATERIAL IN YOUR JOB ESTIMATE; AND THAT THE BOARD'S REFUSAL TO MAKE A FINDING AS TO THE SPECIFIC MATERIAL REQUIRED PRECLUDED IT FROM USING SCHEDULES AND DRAWING DETAILS FOR STRUCTURAL CONCRETE FILL TO ARGUE FOR THE INSTALLATION OF SOME UNKNOWN MATERIAL. SUCH CONTENTIONS DO NOT CONTROVERT THE BASIC CONCLUSION IN THE BOARD'S DECISION THAT THE CONTRACT REQUIRED YOU TO BRING THE FINISHED FLOORS TO THE DESIGNATED ELEVATIONS, NOR DO THEY OVERCOME YOUR FAILURE TO SHOW THAT THE CONCRETE FILL YOU WERE REQUIRED TO INSTALL WAS IN ANY WAY IN EXCESS OF THE MINIMUM REASONABLE REQUIREMENTS FOR THE WORK. WHILE YOUR WITNESSES AND EXHIBITS INDICATED THAT THE FINE DOTS USED IN THE DRAWINGS COULD HAVE REQUIRED STRUCTURAL CONCRETE, PORTLAND CEMENT GROUT, OR A MORTAR TYPE OF MATERIAL, WE ARE UNABLE TO FIND ANY ADEQUATE SUPPORT IN THE DRAWINGS, OR THE TESTIMONY WITH RESPECT THERETO, FOR A CONCLUSION THAT A MATERIAL OF SOME KIND WAS NOT REQUIRED TO BE PLACED IN THE SUBJECT AREAS UNDER THE FINISHED FLOORS. ALTHOUGH THE AMBIGUITY OF THE SYMBOLS USED MIGHT HAVE CREATED A DOUBT AS TO WHAT KIND OF FILL TO INCLUDE IN YOUR ESTIMATES, (WHICH SHOULD HAVE BEEN RESOLVED BY A REQUEST FOR CLARIFICATION PRIOR TO BIDDING), WE DO NOT BELIEVE THAT SUCH AMBIGUITY MAY REASONABLY BE HELD TO BE RESPONSIBLE FOR YOUR FAILURE TO COMPUTE ANY PRICE FOR A FILL MATERIAL IN SUCH AREAS. AS STATED BY THE BOARD,"IT IS APPARENT THAT AN OMISSION TO FILL THE DISPUTED AREA WITH EITHER CONCRETE FILL OR SOME OTHER MATERIAL, AS CALLED OUT BY THE DRAWINGS, WOULD BE CLEARLY INDICATIVE OF INCOMPLETED PERFORMANCE IF ONLY BECAUSE WE WOULD FIND EMPLACED REINFORCEMENT WIRE SURROUNDED BY NOTHING.' SINCE THE RECORD INDICATES THAT THE STRUCTURAL CONCRETE FILL YOU WERE REQUIRED TO USE IS NO MORE EXPENSIVE THAN PORTLAND CEMENT GROUT OR A SUITABLE MORTAR TYPE OF MATERIAL, WHICH LIKEWISE COULD HAVE BEEN REPRESENTED BY THE FINE DOTS, WE BELIEVE THAT THE RECORD SUPPORTS THE BOARD'S HOLDING THAT YOU FAILED TO SHOW THAT THE CONCRETE FILL WHICH YOU FURNISHED WAS IN ANY WAY IN EXCESS OF THE MINIMUM REASONABLE REQUIREMENTS FOR THE WORK SO AS TO ENTITLE YOU TO A CONTRACT PRICE INCREASE FOR AN EXTRA.

ANY CLAIM FOR INCREASED COMPENSATION FOR AN "EXTRA" UNDER A CONTRACT MUST BE SUPPORTED BY PROOF THAT THE CONTRACTOR WAS REQUIRED TO INCUR COSTS IN EXCESS OF WHAT WOULD HAVE BEEN REQUIRED UNDER A PROPER INTERPRETATION OF THE CONTRACT, AND THE COMPENSATION ALLOWABLE WOULD BE LIMITED BY THE AMOUNT OF THE EXCESS. SINCE IT APPEARS FROM THE BOARD DECISION IN THIS CASE, AND DOES NOT APPEAR TO BE DENIED BY YOU, THAT THE CONCRETE FILL WHICH WAS INSTALLED WAS NO MORE COSTLY THAN EITHER OF THE ONLY OTHER MATERIALS WHICH YOU CLAIM MIGHT HAVE BEEN INDICATED BY THE DRAWINGS, NO EXCESS COST WOULD BE ALLOWABLE EVEN IF THE BOARD HAD MADE A DEFINITE FINDING AS TO WHAT MATERIAL WAS CALLED FOR, AS YOU INSIST IT SHOULD HAVE DONE. ONLY IF IT WERE CONCLUDED THAT THE CONTRACT PLANS, SPECIFICATIONS AND DRAWINGS DID NOT REQUIRE ANY FILL BETWEEN THE BASE SLAB AND THE FINISHED FLOORS COULD THERE BE A BASIS FOR ALLOWANCE OF THE ENTIRE COST OF THE CONCRETE FILL WHICH YOU ARE CLAIMING. THE FACT THAT YOU FAILED TO INCLUDE IN YOUR BID PRICE ANY AMOUNT TO COVER FILL MATERIAL DOES NOT CHANGE YOUR RIGHTS IN THIS RESPECT UNLESS THE GOVERNMENT WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF THE OMISSION PRIOR TO ACCEPTANCE OF YOUR BID. IF THE SPECIFICATIONS INDICATED BEYOND ANY QUESTION OF DOUBT THAT THE FILL WAS TO BE OF CONCRETE AND YOU HAD BEEN REQUIRED BY FORMAL CHANGE ORDER TO USE SOME OTHER MATERIAL, YOU WOULD NOT HAVE BEEN ENTITLED TO ANY ADJUSTMENT IN EXCESS OF THE DIFFERENCE BETWEEN THE REASONABLE COST OF THE SUBSTITUTED MATERIAL AND THE REASONABLE COST OF CONCRETE, REGARDLESS OF WHETHER OR NOT YOUR CONTRACT PRICE COVERED THE CONCRETE.

ASIDE FROM THE ABOVE MATTERS, WHICH ARE ADEQUATE TO REQUIRE DISALLOWANCE OF YOUR CLAIM, WE FIND THERE WAS EVIDENCE BEFORE THE BOARD WHICH ACTUALLY APPEARS TO SHOW CONCRETE AS THE FILL MATERIAL DESIGNATED FOR SOME OF THE DISPUTED AREAS. WHILE NOT ALL OF SUCH AREAS WERE OVER FLOOR INSULATION, MUCH OF THE TESTIMONY PERTAINED TO THE TYPE OF MATERIAL TO BE PLACED IN THE AREAS ON TOP OF FLOOR INSULATION, AS DEPICTED BY FINE DOTS IN DRAWING DETAILS A/A-11 (A-E DRAWING NO. A-11), A/A-12 (A-E DRAWING NO. A-12), ETC; AND TO THE LACK OF A SPECIFIC DESIGNATION IN THE PROJECT DRAWINGS FOR SUCH MATERIAL. ALTHOUGH THE DRAWINGS COMPRISING YOUR EXHIBIT 6 DID NOT INCLUDE A-E DRAWING NO. A-22, A FULL SET OF DRAWINGS WAS ACCEPTED IN EVIDENCE AS THE GOVERNMENT'S EXHIBIT A. WE FIND IT SURPRISING THAT NO SPECIFIC MENTION WAS MADE IN THE HEARINGS OF A-E DRAWING NO. A-22, CONTAINING DETAILS FOR THRESHOLDS AT ALL DOORS IN THE BUILDING, WHICH CLEARLY CALLS FOR THE INSTALLATION OF CONCRETE FILL ABOVE THE FLOOR INSULATION, AND USES FINE DOTS, JUST AS APPEAR IN DRAWINGS A/A-11 AND A/A-12, TO DEPICT THE CONCRETE FILL.

IN VIEW OF THE FOREGOING WE FIND NO BASIS ON WHICH TO AUTHORIZE A PRICE INCREASE FOR THE CONCRETE FILL USED IN THE PERFORMANCE OF THE SUBJECT CONTRACT AND YOUR CLAIM IS DENIED.