A & K Plumbing & Mechanical, Inc. v. United States

30 Cont. Cas. Fed. 70,877, 1 Cl. Ct. 716, 1983 U.S. Claims LEXIS 1831
CourtUnited States Court of Claims
DecidedMarch 7, 1983
DocketNo. 128-82C
StatusPublished
Cited by24 cases

This text of 30 Cont. Cas. Fed. 70,877 (A & K Plumbing & Mechanical, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A & K Plumbing & Mechanical, Inc. v. United States, 30 Cont. Cas. Fed. 70,877, 1 Cl. Ct. 716, 1983 U.S. Claims LEXIS 1831 (cc 1983).

Opinion

OPINION

SETO, Judge:

This Government contract case is before the court on cross-motions for summary judgment regarding plaintiff’s claim for equitable adjustment on an appeal to the Armed Services Board of Contract Appeals (ASBCA). ASBCA denied plaintiff’s claim as being without merit.

For the reasons stated below, the court finds that plaintiff’s claim for an equitable adjustment is based upon a reasonable interpretation that paragraph 7.5 of its contract did not require plaintiff (A & K Plumbing & Mechanical, Inc., hereinafter, “A & K”) to varnish all existing kitchen cabinets. The case is to be remanded to ASBCA for a factual determination of the ambiguity in the contract and whether plaintiff had a duty to seek clarification of the ambiguity prior to submission of its bid.

[718]*718PACTS

Plaintiff, A & K Plumbing & Mechanical, Inc., was awarded a fixed-price contract No. N62474-77-C-2515 in the amount of $2,085,000 to perform repair and improvement work on a housing project at Ocotillo Heights, Marine Corps Base, Twentynine Palms, California, on September 30, 1977. Part of the work to be performed required modifying and relocating certain kitchen cabinets in the housing units. After working on the kitchen cabinets, the contractor was required to varnish the cabinets.

The contract contained provisions with specific directions as to work to be performed plus a number of drawings of the kitchens and bathrooms where remodeling was to be performed. Drawing sheet A-4 listed the Items of Work.1 Sheet A-5 showed there were seven different kitchen plans in the 250 housing units. It, also, showed the existing kitchens and how the remodeled kitchens were to appear. Sheets A-6, A-7, and A-8 contained several elevations for the seven kitchen types. The elevations were of the existing and new kitchens. Sheet A-8 showed existing cabinet sections and new cabinet sections. The numerical symbols2 denoting Items of Work were shown on the plans and elevations in various combinations. One symbol appeared in all of them, while one symbol appeared only on one of the plans and its corresponding elevation. Symbol 14, however, did not appear on any of the plans or elevations. Symbol 14 was the indicator for “Paint kitchen — all units.”

Sometime after the work was completed on the kitchen cabinets in some of the units, on or about February 21,1978, plaintiff was notified by defendant to revarnish all the remaining existing kitchen cabinets in the units where any work had been performed on any part of the entire kitchen,3 rather than just those kitchen cabinets whose parts had been remodeled. This was the first time the subject of varnishing all kitchen cabinets (even if the kitchen cabinet itself had not been remodeled) had been discussed. Only at this time did defendant assert that all surfaces of all kitchen cabinets had to be revarnished even if the remodeling work did not take place on the kitchen cabinets.

Mr. Cates, A & K’s project manager, informed the Government by letter that he disagreed with defendant’s interpretation. Despite plaintiff’s letter, defendant directed A & K to provide the labor, material, and equipment to do the revarnishing.

On March 1, 1978, A & K reiterated in two letters its disagreement with the defendant’s interpretation of the contract concerning varnishing all the cabinets. The following excerpt from one of plaintiff’s letters clearly sets forth A & K’s contentions:

This paragraph is very explicit in that ‘These surfaces (existing previously painted or varnished) * * * where work has been performed * * * shall receive two coats. Color and gloss * * * shall match existing work.’
A & K Plumbing & Mechanical interprets this paragraph as follows: Where existing painted or varnished surfaces are modified, or work performed on, then those surfaces and those surfaces only shall receive two coats of paint or varnish. Said paint or varnish ‘shall match existing work’ on surrounding surfaces. [Emphasis supplied.]
At no point in Section 9D, Paragraph 7.5 does it state in any way that all existing previously painted or varnsihed [sic] surfaces shall receive two coats. [Emphasis in original.]4

[719]*719Mr. Cates’ letter contained an estimate for refinishing all surfaces of the kitchen cabinets in the amount of $36,816. This supplemental refinishing was considered by A & K to be beyond the scope of work as construed from contract paragraph 7.5.

DISCUSSION

The court’s power to review this appeal from ASBCA is based upon the Wunderlich Act (41 U.S.C. § 322) which provides that:

No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.

May 11, 1954, ch. 199, § 2, 68 Stat. 81. This provision provides that ASBCA’s decision on plaintiff’s claim for equitable adjustment is not binding on the court. Recently, the Court of Appeals for the Federal Circuit stated, “analysis and legal conclusions drawn by the board are not entitled to any finality. 41 U.S.C. §§ 321, 322. Its decision was based upon one interpretation of the contract provisions by which * * * we are [not] bound.” See Teledyne Lewisburg v. United States, 699 F.2d 1336 (1983). Thus, the interpretation of the contract language in dispute is a matter of law for the court to decide. Jamsar v. United States, 194 Ct.Cl. 819, 442 F.2d 930 (1971); Dynamics Corp. of America v. United States, 182 Ct.Cl. 62, 389 F.2d 424 (1968).

As the court in Hol-Gar Mfg. Corp. so aptly stated:

It has been consistently held by this court that the interpretation of the language of the contract is a question of law, not a question of fact, and thus prior administrative determination on such a question is not final or binding on the court.

Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 974 (1965).

Based on the court’s authority to review decisions of appeal boards, the court can make determinations on questions of law. However, in making such determinations, it is precluded from accepting or considering any evidence beyond that obtained by the board. United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Carlo Bianchi, 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963).

In Bianchi,

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30 Cont. Cas. Fed. 70,877, 1 Cl. Ct. 716, 1983 U.S. Claims LEXIS 1831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-k-plumbing-mechanical-inc-v-united-states-cc-1983.