B-160778, FEB 18, 1971

B-160778, FEB 18, 1971

CONTRACTS - IMPROPER PERFORMANCE - LIABILITY DENYING CLAIM OF SOUTHWEST ENGINEERING CO., INC., FOR COSTS INCURRED IN RAISING RUNWAY LIGHTS TO ONE INCH ABOVE THE RUNWAY SURFACE AFTER INSTALLING THEM BELOW THE SURFACE IN PERFORMANCE OF A CONTRACT ISSUED BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS FOR CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM AT MCCONNELL AIR FORCE BASE, WICHITA, KANSAS. CONTRACTOR'S CLAIM THAT THE DRAWINGS FURNISHED AT TIME OF BIDDING WERE DEFECTIVE AND INCOMPLETE BECAUSE THE ADAPTER WAS NOT SHOWN AS PART OF THE L-837 BASE CANNOT STAND BECAUSE THE ABSENCE OF ANY REFERENCE TO THE ADAPTER RING IN THE DRAWING DID NOT CAUSE SUCH UNCERTAINTY THAT ONE MIGHT REASONABLY BELIEVE THAT THE GOVERNMENT DESIRED THE CLEARANCE MEASUREMENT SHOWN TO BE COMPUTED FROM THE TOP OF THE RING RATHER THAN THE BASE. THE SHOP DRAWINGS SUBMITTED BY PROTESTANT AS WELL AS THE WESTINGHOUSE LITERATURE AND DRAWINGS CLEARLY SHOWED AN INSTALLATION IN SUCH MANNER THAT THE COVER PLATE OF THE LIGHT WAS TO BE ABOVE THE TOP OF THE SURROUNDING CONCRETE. PROTESTANT WAS, THEREFORE CHARGEABLE WITH THIS KNOWLEDGE.

TO SOUTHWEST ENGINEERING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1969, REQUESTING OUR OFFICE TO CONSIDER YOUR CLAIMS UNDER CONTRACT NO. DA23-028-ENG-7904 WITH THE DEPARTMENT OF THE ARMY, KANSAS CITY DISTRICT, CORPS OF ENGINEERS, WHICH WERE THE SUBJECT OF YOUR APPEAL NO. 13278 BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA).

THE FACTS, AS SET FORTH IN THE BOARD'S DECISION DENYING YOUR APPEAL, ARE NOT IN DISPUTE. THE CONTRACT WAS FOR THE CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM AT MCCONNELL AIR FORCE BASE, WICHITA, KANSAS. THE RUNWAY LIGHTS INVOLVED IN YOUR CLAIM ARE SEVEN FLUSH TYPE STROBEACON LIGHTS. THE DRAWINGS FURNISHED AT TIME OF BIDDING SHOWED THESE STROBEACONS TO BE PLACED IN AN "L-837 LAMP BASE" AND CONTAINED THE NOTATION "DEPRESS BASE 1- 3/8" IN CONCRETE." THAT PORTION OF THE DRAWING ILLUSTRATING A CROSS SECTION OF THE L-837 BASE ALSO SHOWED A 1 3/8" DEPRESSION FROM THE SURFACE OF THE CONCRETE RUNWAY TO THE TOP OF THE L-837 BASE. THE BASE IS SHOWN AS A CYLINDER WITH THE TOP CLEARLY INDICATED AS A LEVEL HORIZONTAL LIP. THERE IS NO INDICATION IN THIS DRAWING OF AN ADAPTER PLATE IN ADDITION TO, OR ATTACHED TO, THE BASE. THE RECORD SHOWS THAT YOU USED WESTINGHOUSE ELECTRIC CORPORATION AS YOUR SUPPLIER OF THESE ITEMS, AND THAT YOU SUBMITTED, AS REQUIRED BY CONTRACT, A MATERIALS LIST AND SHOP DRAWINGS DIRECTLY AS THEY CAME FROM WESTINGHOUSE FOR APPROVAL OF THE CONTRACTING OFFICER. THE WESTINGHOUSE LITERATURE ON THE STROBEACON ADVISED THAT THE COVER PLATE OF THE BEACON WAS SLOPED AT 15 DEGREES UPWARD FROM THE RUNWAY LEVEL TO A HEIGHT OF ONE INCH. THE SHOP DRAWINGS ALSO ILLUSTRATED THE LIGHT EXTENDING ABOVE THE RUNWAY SURFACE TO A MAXIMUM HEIGHT OF ONE INCH.

THE CONTRACT PROVISIONS INCLUDED THE FOLLOWING:

"6-06 WORKMANSHIP. MATERIALS AND EQUIPMENT SHALL BE INSTALLED IN ACCORDANCE WITH THE APPROVED RECOMMENDATIONS OF THE MANUFACTURER TO CONFORM WITH THE CONTRACT DOCUMENTS. THE INSTALLATION SHALL BE ACCOMPLISHED BY WORKMEN SKILLED IN THIS TYPE OF WORK."

YOU ALSO SUBMITTED AND HAD APPROVED A DRAWING OF THE L-837 BASE AND, AS A SEPARATE ITEM ON THE SAME TRANSMITTAL, A DRAWING OF A 5725 ADAPTER PLATE. HOWEVER, WHEN THE L-837 BASES WERE DELIVERED TO YOU BY WESTINGHOUSE, THEY HAD THE ADAPTER PLATES AND RELATED GASKETS BOLTED TO THEM. THE ADAPTER PLATE WAS A PRACTICAL NECESSITY IN ORDER TO FIT THE STROBEACON, WHICH HAD A 12 INCH DIAMETER, TO THE L-837 BASE, WHICH HAD A LARGER THAN 12 INCH DIAMETER OPENING.

THE CRUX OF THE PRESENT DISPUTE LIES IN THE FACT THAT IN MEASURING THE 1- 3/8 INCH DEPRESSION FROM THE SURFACE OF THE RUNWAY TO THE TOP OF THE BASE, AS REQUIRED BY THE DRAWINGS WITH THE IFB, YOU MEASURED THE TOP OF THE BASE AS INCLUDING THE ADAPTER PLATE AND GASKET. THIS HAD THE EFFECT OF LOWERING THE UNIT AN ADDITIONAL 1-3/8" WITH THE RESULT THAT WHEN THE STROBEACONS WERE FINALLY INSTALLED THEY WERE LESS THAN ONE INCH ABOVE THE RUNWAY, AND SOME WERE IN FACT BELOW THE RUNWAY SURFACE. THE RESULT WAS A DECREASE IN LIGHTING EFFECTIVENESS BECAUSE THE DEPRESSED LIGHT OPENING WAS LESS VISIBLE AND BECAUSE DUST AND WATER WOULD ACCUMULATE ON THE SURFACE OF THE BEACON. WHEN GOVERNMENT INSPECTION REVEALED THIS CONDITION YOU WERE ORDERED TO TAKE CORRECTIVE ACTION "TO INSTALL THE LIGHTS IN ACCORDANCE WITH CONTRACT PLANS." YOU USED MASONITE ADAPTERS TO ELEVATE THE BEACONS, WHICH MATERIAL WAS SUBSEQUENTLY DECLARED UNSUITABLE AND WAS REPLACED WITH METAL FOR PERMANENT USE.

YOUR CLAIM IS FOR $233.71 AS THE COST OF INSTALLING THE TEMPORARY MATERIAL, PLUS $565.14 FOR THE PERMANENT MATERIAL, FOR A TOTAL OF $798.65.

THE RECORD DISCLOSES THAT BEFORE ANY CONCRETE WAS POURED FOR SETTING THE BASE, AND BEFORE YOU RECEIVED THE BASE ASSEMBLIES FROM WESTINGHOUSE WITH THE ADAPTER PLATES ATTACHED, AN OFFICIAL OF YOUR FIRM TOLD THE GOVERNMENT ENGINEER IN CHARGE OF CONSTRUCTION THAT IF THE STROBEACONS WERE RECESSED IN ACCORDANCE WITH THE CONTRACT PLANS THE FIVE SEMI-FLUSH INCANDESCENT LIGHTS IN A CLUSTER WITH EACH STROBEACON WOULD COLLECT MUD AND DIRT. THERE WAS NO DISCUSSION OF ANY INCONSISTENCIES IN THE VARIOUS DRAWINGS AND NO QUESTION RAISED AS TO THE MANNER OF MEASURING THE 1-3/8 INCH DEPRESSION, THAT IS, WHETHER THE ADAPTER PLATE SHOULD BE INCLUDED OR EXCLUDED AS PART OF THE BASE. THE GOVERNMENT OFFICIAL ADVISED YOUR REPRESENTATIVE THAT "THE LIGHTS SHOULD BE INSTALLED IN ACCORDANCE WITH THE CONTRACT PLANS," HOWEVER HE WAS NOT PRESENT AT THE TIME THE LIGHTS WERE INSTALLED AND NEVER TOOK ANY MEASUREMENTS, ELECTING TO TREAT "THIS MATTER AS BEING THE RESPONSIBILITY OF THE CONTRACTOR."

IT IS YOUR POSITION THAT THE ADAPTER SHOULD BE CONSIDERED AS PART OF THE L-837 BASE AND, ALTHOUGH NOT SHOWN ON THE DRAWING INCLUDED WITH THE IFB, THE DRAWINGS SHOULD BE INTERPRETED AS THOUGH IT WERE THERE SHOWN. TO THIS EXTENT IT IS YOUR CONTENTION THAT THE DRAWING IS DEFECTIVE AND INCOMPLETE.

IT IS THE GOVERNMENT'S POSITION, AS STATED BY THE DECISION OF THE ASBCA, THAT THE DRAWING WAS CLEAR INSOFAR AS IT WAS PRESENTED AND CONSIDERED IN CONJUNCTION WITH THE SHOP DRAWINGS AND RELATED MATERIALS SUBMITTED BY YOU AND APPROVED BY THE GOVERNMENT. IT CONCEDES THAT THE DRAWING WOULD HAVE BEEN IMPROVED IF IT HAD ILLUSTRATED THE ADAPTER PLATE ON TOP OF THE BASE, AND HAD DEPICTED THE STROBEACON AS IT WAS TO BE INSTALLED. HOWEVER, THE BOARD FOUND THAT THE ABSENCE OF THIS AMOUNT OF DETAIL ON THE DRAWING DOES NOT MAKE THE DRAWING AMBIGUOUS OR FAULTY IN THE SENSE THAT YOU CONTEND, CITING, ADDITIONALLY, THE CONTRACT SPECIAL PROVISIONS (SP-3) AS CONTAINING THE FOLLOWING:

"B. OMISSIONS FROM THE DRAWINGS OR SPECIFICATIONS OR THE MISDESCRIPTION OF DETAILS OF WORK WHICH ARE MANIFESTLY NECESSARY TO CARRY OUT THE INTENT OF THE DRAWINGS AND SPECIFICATIONS, OR WHICH ARE CUSTOMARILY PERFORMED, SHALL NOT RELIEVE THE CONTRACTOR FROM PERFORMING SUCH OMITTED OR MISDESCRIBED DETAILS OF THE WORK BUT THEY SHALL BE PERFORMED AS IF FULLY AND CORRECTLY SET FORTH AND DESCRIBED IN THE DRAWINGS AND SPECIFICATIONS.

"C. THE CONTRACTOR SHALL CHECK ALL DRAWINGS FURNISHED HIM IMMEDIATELY UPON THEIR RECEIPT AND SHALL PROMPTLY NOTIFY THE CONTRACTING OFFICER OF ANY DISCREPANCIES. FIGURES MARKED ON DRAWINGS SHALL IN GENERAL BE FOLLOWED IN PREFERENCE TO SCALE MEASUREMENTS. LARGE SCALE DRAWINGS SHALL IN GENERAL GOVERN SMALL SCALE DRAWINGS. THE CONTRACTOR SHALL COMPARE ALL DRAWINGS AND VERIFY THE FIGURES BEFORE LAYING OUT THE WORK AND WILL BE RESPONSIBLE FOR ANY ERRORS WHICH MIGHT HAVE BEEN AVOIDED THEREBY. (ASPR 7 -602.45)" THE ASBCA DECISION CONCLUDED THAT YOU WERE CONTRACTUALLY BOUND TO MEASURE AND INSTALL FROM THE TOP OF THE BASE, WITHOUT ADAPTER PLATE, 1- 3/8 INCHES FROM THE SURFACE OF THE CONCRETE RUNWAY EXACTLY AS SHOWN ON THE DRAWING, AND HAD YOU DONE SO THE SUCCEEDING INSTALLATION WOULD HAVE BEEN PROPER. IT FOUND FURTHER THAT IF YOU INTERPRETED THE DRAWINGS TO PROVIDE A RESULT INCONSISTENT WITH THE APPROVED INSTALLATION INSTRUCTIONS IT WAS INCUMBENT UPON YOU TO BE MORE INFORMATIVE THAN YOU WERE IN CONVEYING THIS INTERPRETATION TO THE GOVERNMENT BEFORE YOU COULD RELY UPON A GENERAL INSTRUCTION TO PROCEED "IN ACCORDANCE WITH THE CONTRACT PLANS AND SPECIFICATIONS" AS AN ACQUIESCENCE IN YOUR INTERPRETATION.

IN YOUR LETTER OF JULY 31, 1969, TO THIS OFFICE YOU STATE THAT THE DRAWING DETAIL AS FURNISHED BY THE GOVERNMENT " *** WAS INCOMPLETE IN THAT THE DRAWING SPECIFICALLY CALLED FOR THE TOP OF THE CAN TO BE 1-3/8 INCHES BELOW THE SURFACE OF THE CONCRETE SURROUNDING IT *** THE GOVERNMENT DRAWING WAS DEFICIENT IN FAILING TO SHOW THAT AN ADAPTER RING MUST BE ADDED TO THE TOP OF THE 16 INCH DIAMETER CAN IN ORDER TO ACCOMMODATE THE INSTALLING OF A TRANSFORMER AND LIGHT ASSEMBLY WHICH WAS APPROXIMATELY 9" IN DIAMETER *** SOUTHWEST'S SUPERINTENDENT KNEW BY COMMON REASONING THAT IF THE BASE WAS INSTALLED AS THE PLANS SHOWED IT TO BE, USING THE CANS AS THEY WERE SHIPPED TO THE JOB, THE RESULT WOULD BE ACCUMULATION OF DUST AND WATER OVER THE 1/2 INCH-WIDE HORIZONTAL SLIT IN THE LIGHT *** ." YOU CITE SEVERAL UNITED STATES COURT OF CLAIMS AND ASBCA DECISIONS AS SUPPORTING YOUR CONTENTION THAT THE GOVERNMENT IS RESPONSIBLE FOR THE EXTRA COSTS INCURRED BY YOU IN RAISING THE LEVEL OF THE LIGHTS AS REQUIRED. SOME OF THESE CASES ARE: SPENCER EXPLOSIVES, INC., ASBCA 4800 (1960); J. W. HURST & SON AWNINGS, INC., ASBCA 4167 (1959); AVONDALE SHIPYARDS, INC., ASBCA 8375 (1963); SOUTHWEST WELDING & MANUFACTURING COMPANY V UNITED STATES, 188 CT. CL. 925 (1969); RED CIRCLE CORPORATION V UNITED STATES, 185 CT. CL. 1 (1968); WRB CORP. ET. AL., A JOINT VENTURE D/B/A ROBERTSON CONSTRUCTION COMPANY V UNITED STATES, 183 CT. CL. 409 (1968) AND UNITED STATES V SPEARIN, 248 U.S. 132 (1918).

ALL OF THE CASES CITED ARE DISTINGUISHABLE FROM THE INSTANT SITUATION IN THAT IN EACH THE FACTS WERE GREATLY DIFFERENT AND IN EACH THERE WERE LATENT OMISSIONS IN THE SPECIFICATIONS WHICH WERE FOUND DEFECTIVE AND UNWORKABLE TO A DEGREE WHICH PREVENTED PERFORMANCE OF THE WORK WITHOUT CHANGES. FOR THE FOLLOWING REASONS WE THINK YOUR CLAIM LACKS THESE INGREDIENTS.

THE FIRST MATTER FOR CONSIDERATION IS THE ALLEGED DEFICIENCY IN THE CONTRACT DRAWINGS. SPECIFICALLY, YOU STATE THAT:

"THIS WHOLE SITUATION AROSE ENTIRELY FROM FAILURE OF THE GOVERNMENT DRAWING TO BE COMPLETE AND SUBSEQUENTLY THE CONTRACTOR WAS CHARGED WITH FAILING TO BE 'CLAIRVOYANT' IN SEEING THROUGH THE WHOLE SITUATION BEFORE IT WAS TOO LATE.

"THE FACTS ARE, THE GOVERNMENT DRAWINGS WERE SO UNCLEAR THAT NEITHER THE CONTRACTOR NOR THE GOVERNMENT PERSONNEL COULD DETECT THE DEFICIENCY UNTIL THE WORK HAD ALREADY BEEN INSTALLED." THE QUESTION PRESENTED BY THESE ASSERTIONS IS WHETHER THE FAILURE OF THE DRAWINGS TO SHOW THE ADAPTER RING WAS SO MISLEADING OR SO AMBIGUOUS AS TO CAUSE AN UNACCEPTABLE INSTALLATION OF THE STROBEACONS.

THE FACT THAT TWO PARTIES INTERPRET SPECIFICATIONS DIFFERENTLY DOES NOT MAKE THE SPECIFICATION AMBIGUOUS. SIMILARLY, A FACTOR IN A WRITTEN INSTRUCTION MAY BE SOMEWHAT CONFUSING AND PUZZLING TO ONE OR ALL PARTIES WITHOUT CONSTITUTING AN AMBIGUITY, PROVIDED THAT AN APPLICATION OF REASON WOULD SERVE TO REMOVE THE DOUBT. IN OTHER WORDS AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS ARE POSSIBLE. DITTMORE-FREIMUTH CORP. V UNITED STATES, 182 CT. CL. 507, 390 F. 2D 664 (1968). VAGUENESS, INDEFINITENESS AND UNCERTAINTY ARE MATTERS OF DEGREE, WITH NO ABSOLUTE STANDARD FOR COMPARISON. CORBIN ON CONTRACTS, SEC. 95, PAGE 396. THE INQUIRY, THEN, IS WHETHER THE ABSENCE OF ANY REFERENCE TO THE ADAPTER RING IN THE DRAWING CAUSED SUCH UNCERTAINTY THAT ONE MIGHT REASONABLY BELIEVE THAT THE GOVERNMENT DESIRED THE CLEARANCE MEASUREMENT SHOWN TO BE COMPUTED FROM THE TOP OF THE RING RATHER THAN THE BASE. IT IS AXIOMATIC THAT A CONTRACT IS TO BE INTERPRETED FROM ALL OF ITS FOUR CORNERS, THAT IS, WITH DUE REGARD TO ALL ITS PARTS. THE WORK WAS DESIGNATED AS FLUSH MOUNTED LIGHTING, THE WESTINGHOUSE LITERATURE AND DRAWINGS INSTRUCTED AND ILLUSTRATED THE LIGHT TO BE INSTALLED ABOVE THE RUNWAY SURFACE TO A HEIGHT OF ONE INCH, AND YOU SUBMITTED AND HAD APPROVED ONE DRAWING OF THE L-837 BASE AND, AS A SEPARATE ITEM ON THE SAME TRANSMITTAL REQUEST, ANOTHER DRAWING OF A 5225 ADAPTER PLATE. BOTH YOU AND THE GOVERNMENT ARE, THEREFORE, CHARGEABLE WITH THE KNOWLEDGE THAT AN ADAPTER WOULD BE USED SINCE YOU OFFERED IT IN YOUR SHOP DRAWINGS AND SUCH DRAWINGS WERE OFFICIALLY APPROVED BY THE GOVERNMENT IN ACCORDANCE WITH THE TERMS OF THE CONTRACT (PARAGRAPHS 6-04, 6-05, AND 6-06 OF THE SPECIFICATIONS).

YOUR SHOP DRAWING SUBMITTED REVEALED THAT THE WESTINGHOUSE BOOKLET ILLUSTRATING THE LIGHTS IN QUESTION CLEARLY SHOWED AN INSTALLATION IN SUCH A MANNER THAT THE COVER PLATE OF THE LIGHT WAS TO BE ABOVE THE TOP OF THE SURROUNDING CONCRETE. HAD YOU CHECKED INTO THIS PART OF YOUR OWN LITERATURE AS SUBMITTED TO THE GOVERNMENT, IT WOULD HAVE BEEN OBVIOUS THAT THE BASES AS ACTUALLY INSTALLED (BASE PLUS ADAPTER PLATE AND GASKET 1-3/8 INCHES BELOW THE SURROUNDING CONCRETE) WOULD NOT PRODUCE THIS RESULT SINCE PARAGRAPH 6-06 OF THE SPECIFICATIONS REQUIRED INSTALLATION IN ACCORDANCE WITH "THE APPROVED RECOMMENDATIONS OF THE MANUFACTURER."

WE THEREFORE FIND NO AMBIGUITY IN THE CONTRACT PLANS, AS CLARIFIED BY YOUR SHOP DRAWING SUBMITTALS. HAD THE BASES THEMSELVES BEEN INSTALLED IN ACCORDANCE WITH THE PLANS - 1-3/8 INCHES BELOW THE TOP OF SURROUNDING CONCRETE - NO DIFFICULTY WOULD HAVE BEEN EXPERIENCED. THE FACT THAT WESTINGHOUSE FURNISHED THE ADAPTER RINGS ALONG WITH THE LIGHT ASSEMBLIES AND THAT YOU RECEIVED THE BASES WITH THE ADAPTER RINGS ALREADY BOLTED ON DOES NOT ALTER THE FACTUAL SITUATION. THE SHOP DRAWINGS SHOWED 11 PARTS AS SEPARATE ITEMS. WHILE YOU CONCEDE THAT YOU WERE AWARE OF AND HAD BROUGHT TO THE PROJECT ENGINEER'S ATTENTION THE FACT THAT THE LIGHTS WOULD BE TOO LOW IF INSTALLED IN ACCORDANCE WITH THE CONTRACT PLANS, THE RECORD SHOWS THAT YOUR ENGINEER'S CONCERN WAS NOT DIRECTED TO THE FACT THAT THE STROBEACON LIGHTS WOULD BE TOO LOW TO BE SEEN, THE REAL DIFFICULTY WHICH ACTUALLY OCCURRED, BUT WAS INSTEAD DIRECTED TO HIS CONVICTION THAT DIRT AND WATER MIGHT COVER THE FIVE SEMI-FLUSH INCANDESCENT LIGHTS IN A CLUSTER WITH EACH STROBEACON. YOU DID NOT MAKE A POINT OF THE PRESENCE OF THE ADAPTER RINGS OR EVEN ALLEGE THAT THEIR PRESENCE CREATED A DIFFICULTY. HAD YOU STATED TO THE GOVERNMENT REPRESENTATIVE THAT YOU PROPOSED TO INSTALL THE STROBEACON BASES PLUS ADAPTER RINGS 1-3/8 INCHES BELOW THE RUNWAY SURFACE, YOUR CLAIM MIGHT BE CONSIDERED ON A DIFFERENT BASIS. HOWEVER, AS INDICATED BY THE RECORD OF THE CLAIM CONFERENCE OF DECEMBER 22, 1967 (TO WHICH YOU REFER AS ESTABLISHING THE GOVERNMENT'S FOREKNOWLEDGE OF THE ALLEGED DISCREPANCY IN PLANS) YOUR ENGINEER DID NOT KNOW IN WHAT FORM THE BASES AND ADAPTER RINGS HAD BEEN RECEIVED BY YOU, AND THE PROJECT ENGINEER ONLY ADVISED HIM TO INSTALL THE LIGHTS IN ACCORDANCE WITH THE CONTRACT PLANS. THE PROJECT ENGINEER DID NOT PERSONALLY MEASURE YOUR INSTALLATIONS OR EVEN OBSERVE CONTEMPORANEOUSLY THE ACTUAL WORK.

IT IS THE CONTRACTING AGENCY'S VIEW, AND ONE IN WHICH WE MUST CONCUR, THAT IT IS THE CONTRACTOR'S BASIC DUTY TO PERFORM THE WORK CORRECTLY; NOT THE GOVERNMENT'S DUTY TO PREVENT IMPROPER PERFORMANCE. IT WAS INCUMBENT UPON YOU TO KNOW THE DETAILS OF THE PLANS, PARTICULARLY YOUR OWN SHOP DRAWINGS, TO MAKE THE NECESSARY MEASUREMENTS AT THE PROJECT SITE AND TO MAKE CERTAIN THAT THE PLANS AND SHOP DRAWINGS WERE ADHERED TO. SEE CLAUSE 23 OF THE CONTRACT GENERAL PROVISIONS.

CLAUSE SP-3 OF THE SPECIAL PROVISIONS, QUOTED ABOVE, HAS BEEN INTERPRETED SO AS TO HOLD CONTRACTORS RESPONSIBLE FOR THAT WHICH THEY KNOW, OR REASONABLY SHOULD HAVE KNOWN, TO BE ERRONEOUS OR INCOMPLETE SPECIFICATIONS. B-164459, AUGUST 21, 1968, 48 COMP. GEN. 90. COMPARE ASBCA NO. 10276, 65-1 BCA 4761 (1965). SEE, ALSO, ASBCA CASES CITED IN BOARDS ARGUMENT, PAGE 6 OF THE COPY OF HEARINGS UNDER ASBCA NO. 13278. VIEW OF THE FOREGOING, YOUR CLAIM FOR THE COST OF CHANGES IN THE PERMANENT INSTALLATION MUST BE DENIED.

WITH RESPECT TO YOUR CLAIM FOR THE COST OF TEMPORARY INSTALLATION, THE GOVERNMENT ARGUES THAT YOU DID THE SHIMMING INVOLVED THEREIN WITH MATERIALS OF YOUR OWN CHOICE INITIALLY, AND AT YOUR OWN RISK AS A TEMPORARY EXPEDIENT. IT IS CLEAR FROM THE RECORD THAT THE GOVERNMENT NEVER DIRECTED THE USE OF TEMPORARY SHIMMING, OR APPROVED THE USE OF THE BENELEX 70 MATERIAL YOU CHOSE TO USE. SINCE IT WAS DETERMINED THAT BENELEX 70 DID NOT HAVE SUFFICIENT WEATHER RESISTANCE FOR THE PERMANENT INSTALLATION, AND THE RECORD DOES NOT ESTABLISH THAT THE GOVERNMENT WAS RESPONSIBLE FOR YOUR USE OF SUCH MATERIAL, WE ARE UNABLE TO CONCLUDE THAT THE GOVERNMENT IS RESPONSIBLE FOR THE EXTRA EXPENSES YOU INCURRED IN REPLACING THE BENELEX 70 SHIMS WITH METAL SHIMS. ACCORDINGLY, YOUR CLAIM FOR SUCH EXPENSES IS DENIED.

THE ENCLOSURES SUBMITTED WITH YOUR CLAIMS ARE RETURNED.