B-165973, JUNE 18, 1970, 49 COMP. GEN. 853

B-165973, JUNE 18, 1970, 49 COMP. GEN. 853

CONTRACTS -- SPECIFICATIONS -- DRAWINGS -- AMENDMENT IDENTIFICATION A CLAIM FOR ADDITIONAL COMPENSATION UNDER A CONTRACT FOR THE REPAIR AND IMPROVEMENT OF A GSA DEPOT SUBMITTED ON THE BASIS SUBSTITUTE DRAWINGS CHANGING THE SCOPE OF THE WORK WERE AMBIGUOUS AND FAILED TO IDENTIFY DIMENSIONAL CHANGES, AND THAT A REFERENCE OMISSION WAS MISLEADING, WAS PROPERLY DENIED BY THE GSA BOARD OF CONTRACT APPEALS. THE RECORD EVIDENCES THE CONTRACTOR RELIED ON ONE OF TWO PERTINENT DRAWINGS THAT SHOULD HAVE BEEN INTERPRETED TOGETHER, AND THAT THE REPLACEMENT OF THE ORIGINAL DRAWINGS IN TOTO SATISFIED THE REQUIREMENT OF FEDERAL PROCUREMENT REGULATIONS 1-2.207(B)(3) THAT INVITATION CHANGES BE CLEARLY STATED. THEREFORE, THE CONTRACTOR'S FAILURE TO CORRECTLY COMPUTE ITS BID PRICE WAS NOT DUE TO THE GOVERNMENT'S FAILURE TO SPECIFICALLY IDENTIFY THE DIFFERENCES BETWEEN THE ORIGINAL AND SUBSTITUTE DRAWINGS, AND THE CONTRACTOR IS NOT ENTITLED TO ADDITIONAL COMPENSATION.

TO SOUTHWEST ENGINEERING COMPANY, INC., JUNE 18, 1970:

THIS IS IN REPLY TO YOUR REQUEST THAT WE CONSIDER YOUR CLAIM ARISING UNDER GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT NO. GS-06B-10019, WHICH WAS THE SUBJECT OF YOUR APPEAL BEFORE THE GSA BOARD OF CONTRACT APPEALS, DOCKET NO. 2347.

THE FACTS, AS SET FORTH IN THE BOARD'S DECISION DENYING YOUR APPEAL, HAVE NOT BEEN DISPUTED. THE SOLICITATION FOR THE SUBJECT CONTRACT WAS ISSUED ON AUGUST 22, 1966, AND REQUESTED BIDS FOR REPAIR AND IMPROVEMENT WORK AT THE GSA-DMS DEPOT, TOPEKA, KANSAS, AS SHOWN ON DRAWINGS NOS. 27-23 AND 27- 24 AND AS OTHERWISE SPECIFIED. AMENDMENT NO. 2 TO THE INVITATION WAS ISSUED ON SEPTEMBER 6 WHICH EXTENDED THE BID OPENING DATE TO SEPTEMBER 23 AND PROVIDED, IN PART, THAT ANOTHER AMENDMENT CHANGING THE SCOPE OF THE WORK WOULD ISSUE IN APPROXIMATELY 8 DAYS. AMENDMENT NO. 3 WAS ISSUED ON SEPTEMBER 13 AND DELETED THE INITIAL DRAWINGS PROVIDED WITH THE SOLICITATION UNDER PARAGRAPH 2-01 OF THE SPECIFICATIONS, AND REPLACED THEM WITH DRAWINGS NOS. 27-23A AND 27 24A. BIDS WERE OPENED AS SCHEDULED ON SEPTEMBER 23 AND YOU WERE AWARDED A CONTRACT ON OCTOBER 19, 1966, IN THE AMOUNT OF $24,703.

YOUR CLAIM IS FOR $1,301 AS COMPENSATION FOR REMOVING AND REPLACING APPROXIMATELY 30 FEET OF CONCRETE DOCK (COMPLETE WITH FOUNDATION PIERS, ETC., AS SHOWN ON DRAWINGS NO. 27-24A), ADJACENT TO DOOR NO. 29 OF WAREHOUSE S-102, WHICH WORK WAS PERFORMED AT THE DIRECTION OF THE GOVERNMENT BUT DOES NOT APPEAR TO HAVE BEEN CONSIDERED IN THE COMPUTATION OF YOUR BID. GSA RECOGNIZES THE VALIDITY OF YOUR CLAIM WITH RESPECT TO THE COST OF INSTALLING THE FOUR FOUNDATION PIERS INVOLVED BUT DENIES ANY ADDITIONAL LIABILITY FOR THE COST OF REMOVING AND REPLACING THE CONCRETE SLAB. PAYMENT IS REQUESTED ON THE BASIS THAT THE DRAWINGS FURNISHED WITH AMENDMENT NO. 3 WERE AMBIGUOUS WITH RESPECT TO THE DISPUTED CONCRETE REPLACEMENT WORK, AND THAT UNDER THE CIRCUMSTANCES YOU WERE NOT NEGLIGENT, BUT WERE JUSTIFIED, IN FAILING TO INCLUDE THIS WORK IN YOUR COMPUTATIONS. MOREOVER, IT IS YOUR POSITION THAT THE GOVERNMENT SHOULD HAVE, BUT DID NOT, IDENTIFY ON THE FACE OF THE SUBSTITUTED DRAWINGS, OR OTHERWISE, WHEREIN THOSE DRAWINGS DIFFERED FROM THE ORIGINAL DRAWINGS.

THE INITIAL DRAWING NO. 27-23, CALLED FOR THE REMOVAL AND REPLACEMENT OF A PORTION OF THE EXISTING CONCRETE SLAB ADJACENT TO WAREHOUSE S-102 FOR A TOTAL OF 320 FEET. THE INITIAL DRAWING NO. 27-24 INCLUDED A SECTION ENTITLED "PARTIAL FOUNDATION & PIER PLAN" WHICH SHOWED SUPPORT PIERS (PREVIOUSLY NONEXISTING) AT 8 FOOT INTERVALS BENEATH THE 320 FEET OF CONCRETE SLAB REQUIRED TO BE REPLACED AT WAREHOUSE S-102.

THE SUPERSEDING DRAWING NO. 27-23A SHOWED AN INCREASED LENGTH OF CONCRETE SLAB TO BE REMOVED AND REPLACED AT WAREHOUSE S-102, EXTENDING IT TO A POINT TEN FEET BEYOND DOOR NO. 29, AND INDICATING A TOTAL DISTANCE OF 350 FEET (PLUS OR MINUS). THE FIGURE "350' 0" OR - " IS SET FORTH CLEARLY ON THE SECTION OF THAT DRAWING SHOWING THE DOCK AREA WHEREIN THE CONCRETE WAS REQUIRED TO BE REPLACED, AND THE ADDITION IS INCLUDED IN THE HATCH MARKS ON THE DRAWING DEPICTING THE CONCRETE REPLACEMENT AREAS. THE HATCH-MARK LEGEND ON THE DRAWING CARRIES THE IDENTIFICATION "CONCRETE TO BE REPLACED," AND THERE ALSO APPEARS ON DRAWING 23A JUST ABOVE THE HATCH-MARK AREA THE NOTE "EXTEND NEW CONE DOCK 10' 0" BEYOND DOOR NO. 29," WHEREAS DRAWING 23 CONTAINED NO SUCH NOTE BUT SHOWED REPLACEMENT OF CONCRETE DOCK FOR 320 FEET 0 INCH TO A POINT BEYOND DOOR NO. 28 BUT NOT EXTENDING TO DOOR NO. 29. SUPERSEDING DRAWING NO. 27-24A MADE NO CHANGE IN THE ABOVE- MENTIONED PIER AND FOUNDATION WORK, OR THE LINE AT THE END THEREOF, SHOWN ON DRAWING NO. 27-24. THE BOARD FOUND NO DISPUTE AS TO THE CLARITY OF THE REQUIREMENT IN DRAWING NO. 27-23A FOR 350 FEET OF SLAB REPLACEMENT, AND YOU STATE THAT YOU OVERLOOKED THE INCREASED REQUIREMENT INASMUCH AS YOU PREPARED YOUR BID MAINLY BY USING THE MORE DETAILED DRAWING NO. 27-24A WHICH SHOWED FOUNDATION WORK FOR ONLY 320 FEET OF SLAB REQUIREMENT.

IT APPEARS, THEREFORE, THAT UNDER THE ORIGINAL DRAWINGS THE PIERS AND FOUNDATION WORK WERE SPECIFIED ALONG THE FULL LENGTH OF THE PORTION OF CONCRETE SLAB SCHEDULED FOR REPLACEMENT. HOWEVER, WHILE DRAWING 23A SHOWED AN EXTENSION OF THE REQUIREMENT FOR SLAB REPLACEMENT TO APPROXIMATELY 350 FEET, DRAWING 24A DID NOT SHOW ANY INCREASE IN THE REQUIREMENTS FOR PIERS. SUBSEQUENTLY, YOU WERE ORDERED TO PLACE ADDITIONAL PIERS UNDER THE ADDITIONAL 30 FEET OF REPLACED CONCRETE SLAB IN DISPUTE. THE GOVERNMENT RECOGNIZES THE ADDITIONAL PIERS AS EXTRA WORK NOT COVERED BY THE CONTRACT, AND IS PREPARED TO NEGOTIATE AN EQUITABLE ADJUSTMENT FOR THE COST THEREOF. YOUR CLAIM, HOWEVER, IS FOR THE ENTIRE COST OF THE ADDITIONAL 30 FEET OF CONCRETE DOCK AND PIERS AND FOUNDATION, AND YOUR APPEAL TO THE BOARD WAS FROM THE CONTRACTING OFFICER'S REJECTION OF YOUR CLAIM FOR THE 30 FEET OF DOCK. THE BOARD HELD THAT DRAWING NO. 27 -23A CLEARLY REQUIRED THE REMOVAL AND REPLACEMENT OF 350 FEET OF CONCRETE DOCK, AND THAT THERE WAS NO AMBIGUITY IN THE CONTRACT DOCUMENTS AS IT WAS EQUALLY CLEAR THAT DRAWING NO. 27-24A REQUIRED PIERS FOR ONLY 320 FEET OF THE DOCK. ACCORDINGLY, SINCE THE BOARD DID NOT FIND ANY BASIS FOR RELIEF, IT DENIED THE APPEAL OF YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR THE 30 FEET OF CONCRETE DOCK.

YOU ARGUED IN YOUR BRIEFS BEFORE THE BOARD THAT YOUR FAILURE TO OBSERVE THE ADDITIONAL LENGTH OF CONCRETE SLAB TO BE REPLACED ACCORDING TO DRAWING NO. 27-23A STEMMED FROM AND IS JUSTIFIED BY THE FACT THAT DRAWING NO. 27- 24A, THE DETAILED DRAWING FROM WHICH THE DOCK CONSTRUCTION WAS COMPUTED AND PERFORMED, SHOWED ONLY 320 FEET OF BOTH DOCK AND FOUNDATION PIERS. WAS SUBMITTED THAT SINCE THE GOVERNMENT INTENDED TO REPLACE AN ADDITIONAL 30 FEET OF CONCRETE DOCK, IT SHOULD ALSO HAVE INCLUDED FOUR ADDITIONAL SUPPORTING PIERS ON DRAWING NO. 27 24A, AND IT ERRED IN NOT CORRECTING THAT DRAWING. YOU EXPLAINED THAT YOU FAILED TO NOTICE THE SUBSTITUTION OF A "5" ON DRAWING NO. 27-23A FOR THE "2" SHOWN ON DRAWING NO. 27-23, INCREASING THE DIMENSIONS FOR THE LENGTH OF CONCRETE SLAB TO BE REPLACED FROM 320 FEET TO 350 FEET, AND THAT YOUR ATTENTION WAS NOT DIRECTED TO THAT CHANGE EITHER BY AMENDMENT NO. 3 OR BY A NOTE ON DRAWING 27-23A. YOU ALSO CONTENDED THAT EVEN THOUGH DRAWING NO. 27-23A PROVIDED THAT THE CONCRETE SLAB WAS TO BE REPLACED TEN FEET BEYOND WAREHOUSE DOOR NO. 29, CALCULATIONS COULD NOT BE BASED ON THAT STATEMENT SINCE DIMENSIONS WERE NOT GIVEN AS TO THE DOOR'S LOCATION.

IN ADDITION TO NOT OBSERVING THE SUBSTITUTION OF A "5" FOR THE "2" IT APPEARS THAT YOU ALSO FAILED TO OBSERVE THE ADDITION OF THE SYMBOL " OR - ". CONTRARY TO YOUR CONTENTION THAT CALCULATIONS COULD NOT BE BASED ON THE PROVISIONS FOR CONCRETE REPLACEMENT TO TEN FEET BEYOND DOOR NO. 29, INASMUCH AS NO DISTANCE WAS SHOWN FOR THE DOOR, THESE REVISIONS CHANGED THE REQUIREMENTS FOR THE DOCK SLAB REPLACEMENT FROM AN EXACT MEASUREMENT TO THE EXISTING DISTANCE BETWEEN THE BUILDING LINE AT THE RAMP AND A POINT TEN FEET BEYOND DOOR NO. 29. THE 350 FEET (PLUS OR MINUS) SHOWN ON DRAWING NO. 27-23A, WAS AN APPROXIMATION OF THAT DISTANCE. IT IS ALSO TO BE OBSERVED THAT ALL OF THE DRAWINGS INCLUDED THE ADMONITION "NOTE ALL MEASUREMENTS MUST BE VERIFIED AT THE BUILDING BY THE CONTRACTOR."

IN OUR OPINION YOUR CONTENTION, THAT YOU WERE NOT NEGLIGENT, BUT JUSTIFIED, IN RELYING ON DRAWING NO. 27-24A IN YOUR COMPUTATIONS OF THE CONCRETE REPLACEMENT WORK FOR THE DOCK, IS NOT VALID. AS STATED BY THE BOARD, DRAWING NO. 27-24A DOES NOT DESIGNATE THE LENGTH OF THE CONCRETE DOCK TO BE REMOVED AND REPLACED. THE "GENERAL NOTES" ON THAT DRAWING SPECIFICALLY ADVISES BIDDERS, UNDER THE CAPTION "DOCK REPAIRS," TO SEE DRAWING NO. 27-23 FOR LOCATION OF DOCK REPAIRS, AND TO REMOVE EXISTING DOCK AND RAMP AS SHOWN ON DRAWING NO. 27-23. ALTHOUGH THE "A" WAS NOT INCLUDED IN THESE AND OTHER REFERENCES TO DRAWING NO. 27-23A ON DRAWING NO. 27-24A, THE RECORD DOES NOT INDICATE THAT YOU BELIEVED DRAWING NO. 27- 23 (WHICH SHOWS 320 FEET OF DOCK SLAB REPLACEMENT) TO BE STILL IN EFFECT OR THAT YOU WERE MISLED IN ANY MANNER BY SUCH OMISSIONS. THE "A" WAS ALSO OMITTED IN THE REFERENCES ON DRAWING NO. 27-23A TO DRAWING NO. 27-24A. ADDITION, SINCE ALL DRAWINGS WERE PART AND PARCEL OF THIS CONTRACT THE PROPER STANDARD OF INTERPRETATION IS THE MEANING THAT WOULD REASONABLY BE ATTACHED TO THE DOCUMENTS AS A WHOLE, AND WHERE TWO DRAWINGS ARE PERTINENT, NEITHER MAY BE RELIED UPON TO THE EXCLUSION OF THE OTHER. HOL- GAR MANUFACTURING CORP. V UNITED STATES, 169 CT. CL. 384 (1965); JOHN MCSHAIN, INC. & JOHN MCSHAIN V UNITED STATES, 97 CT. CL. 493 (1942).

WITH RESPECT TO YOUR CONTENTION THAT THE CONTRACTING AGENCY SHOULD HAVE SEPARATELY AND SPECIFICALLY IDENTIFIED, EITHER ON THE FACE OF DRAWING NOS. 27-23A AND 27-24A OR OTHERWISE, EACH OF THE REVISIONS WHICH HAD BEEN INCORPORATED INTO THOSE DRAWINGS, WE ARE AWARE OF NO STATUTE OR REGULATION WHICH IMPOSES SUCH AN OBLIGATION. WHILE YOU PRESENTED EVIDENCE BEFORE THE BOARD WHICH APPEARS TO HAVE BEEN DIRECTED TO ESTABLISHING A CUSTOM AND USAGE TO THAT EFFECT IN ISSUING GOVERNMENT DRAWINGS, THE CONTRACTING OFFICER DENIES THAT SUCH A PRACTICE EXISTS IN GSA, AND WE NOTE THAT NONE OF THE DRAWINGS YOU SUBMITTED TO ILLUSTRATE THIS POINT WAS ISSUED BY GSA. ADDITIONALLY, WE NOTE THAT EACH OF THE DRAWINGS YOU SUBMITTED TO ILLUSTRATE THIS POINT WAS IMPRINTED WITH INFORMATIONAL BLOCK FORMS WHICH INCLUDED SPACES FOR THE INSERTION OF DESCRIPTIONS OF THE REVISIONS INCORPORATED INTO THE DRAWING, WHEREAS NO SIMILAR IMPRINTS WERE INCLUDED ON DRAWING NOS. 27-23A AND 27-24A. FINALLY, IT WOULD APPEAR THAT YOUR ARGUMENT IS DIRECTED TO THE EXISTENCE OF A PRACTICE WHEN A DRAWING IS ISSUED WHICH REVISES AN EXISTING DRAWING, WHEREAS WE ARE CONSTRAINED TO AGREE WITH THE POSITION OF THE CONTRACTING OFFICER THAT UNDER THE TERMS OF THE SUBJECT AMENDMENT DRAWING NOS. 27-23A AND 27-24A MUST BE VIEWED AS DRAWINGS WHICH REPLACED, AND WERE TO BE SUBSTITUTED IN TOTO FOR, NOS. 27- 23 AND 27-24. WHILE YOU HAVE INVITED OUR ATTENTION TO THE PROVISIONS OF FPR 1 2.207(B)(3), WHICH REQUIRE AMENDMENTS TO CLEARLY STATE THE CHANGES MADE IN THE INVITATION, WE CONSTRUE THAT REQUIREMENT AS MET IN THE INSTANT CASE BY THE ADVICE THAT DRAWING NOS. 27-23A AND 27-24A REPLACED 27-23 AND 27-24. WE THEREFORE FIND NO JUSTIFICATION, IN THE GOVERNMENT'S FAILURE TO SPECIFICALLY IDENTIFY ALL DIFFERENCES BETWEEN DRAWING NOS. 27-23 AND 27- 23A, FOR YOUR FAILURE TO THOROUGHLY EXAMINE DRAWING NO. 27 23A AND COMPUTE YOUR BID PRICE ON THE SLAB WORK AS SHOWN THEREON.

FOR THE REASONS STATED WE FIND NO AMBIGUITY IN THE CONTRACT REQUIREMENT FOR REMOVAL AND REPLACEMENT OF 350 FEET OF CONCRETE SLAB, AND WE THEREFORE DO NOT CONSIDER THE DECISIONS RELATIVE TO AMBIGUOUS DRAWINGS WHICH YOU HAVE CITED, INCLUDING THOSE DISCUSSED IN YOUR LETTERS OF JUNE 5 AND 8, 1970, AS CONTROLLING. WE MUST THEREFORE CONCLUDE THAT AS A MATTER OF LAW THE DENIAL OF YOUR CLAIM FOR THE COST OF CONSTRUCTION OF 30 FEET OF SUCH SLAB WAS CORRECT.

THE DOCUMENTS ENCLOSED WITH YOUR CORRESPONDENCE ARE RETURNED AS REQUESTED.