Avedon Corp. v. United States

35 Cont. Cas. Fed. 75,592, 15 Cl. Ct. 771, 1988 U.S. Claims LEXIS 168, 1988 WL 122026
United States Court of Claims·Decided November 17, 1988·No. No. 155-87C·Published·Cited by 23 cases

Opinion

[773] ORDER

MOODY R. TIDWELL, III, Judge:

This action came before the court on defendant’s motion for summary judgment. Plaintiff, on behalf of its subcontractor, C & B Steel, Inc., sought an equitable adjustment for time and money under its contract to construct personnel housing for the Navy. Defendant opposed.

FACTS

On or about October 25, 1984, the United States, acting through the Naval Facilities Engineering Command, issued an Invitation For Bids for the construction of unaccompanied enlisted personnel housing at the Naval Training Center in San Diego, California. The proposed project involved the construction of four three-story barracks buildings, three core buildings, and a mechanical equipment building. The contract was awarded to plaintiff on December 31, 1984. The following specification, section 05120, was included in the contract:

3.1.3 Shop Painting: Except as otherwise specified, shop paint all structural steelwork, except zinc coated surfaces and steelwork to be embedded in concrete or mortar. Surfaces to be welded shall not be coated within xk inch from the specified toe of the weld prior to welding, except that the paint will be allowed on surfaces on which metal decking or shear studs are to be welded. Ensure that surfaces are thoroughly dry and clean when the paint is applied. Do not paint in freezing or dry weather except under cover. Do not apply paint when the temperature is below 40 degrees F, or expected to drop to 32 degrees or below within 5 hours of completing the application, before the paint is completely dried. Do not apply paint to steel which is at a temperature that will cause blistering or porosity or will otherwise be detrimental to the life of the paint. Apply paint in a workmanlike manner and coat all joints and crevices thoroughly. Prior to assembly, paint all surfaces which will be concealed or inaccessible after assembly.

Plaintiff awarded a subcontract to C & B Steel, Inc. in January, 1985 for the structural steel portion of the project. C & B then contracted with Mr. Alonso Bolio to prepare the structural steel shop drawings. It soon became apparent to Mr. Bolio that an inconsistency existed between the structural steel specifications and the drawings of the contract. To resolve the conflict, Mr. Bolio prepared a formal Request for Information for C & B, dated May 2, 1985, that was forwarded through plaintiff to defendant. The Request for Information, which normally would be used to clarify matters during the bidding process before award, asked:

Detail D/A12 shows “fireproofing V2 thk. on stl. frames % thk. on metal decks.” which [sic] members are fireproofed? are [sic] all the trusses and roof beams also fireproofed? please [sic] Clarify [sic]. The reason we ask is that usually steel that requires fireproofing is not prime painted.1

The detail mentioned in Mr. Bolio’s request referred to a note in detail D, architectural drawing A12 (D/A12), indicating that some of the structural steel in that detail was to be fireproofed. To obscure matters, the extent of fireproofing was indicated by faint wavy lines drawn around the steel frames and metal roof decking. Similar lines appeared around the metal decking, but not the structural steel members, in details A, B, and C on drawing A12, though without corresponding notes as in detail D. Detail D/A12 also did not contain a “typical” note. To further muddy the waters, detail D/A12 was cross referenced so that it should have been found on drawing A3, but did not appear on that drawing. Conversely, detail D/A7/A12 (roof overhang) on drawing A7, which depicted a partial roof plan and roof details, was located where detail D/A12 should have been, but was not referenced on drawing A12. Finally, detail A on drawing S12, depicting a [774] cross sectional view of the same structural steel members as found in detail D/A12, contained no wavy lines or details indicating a fireproofing requirement. Aside from the notes on drawing A12, there was no other mention of or reference to the fireproofing of structural steel reflected in the contract specifications, drawings or provisions.

Defendant responded to the Request for Information of May 23, 1985 by informing plaintiff that detail D/A12 was an error, that “no fireproofing of roof structural steel [was] req’d” and that the steel was to be shop painted. Plaintiff objected to defendant’s order and claimed an equitable adjustment for additional time and money. According to plaintiff, neither its bid nor C & B’s bid to plaintiff included costs for shop painting or fireproofing the structural steel. In response to plaintiffs claim, the Resident Officer issued a final decision under the terms of the “Disputes” clause of the general provisions of the contract, in part, to wit:

The contract specifications clearly define the requirement to shop paint all structural steel with the exception of the surfaces noted or otherwise specified. There is no exception to this requirement in the contract documents or reference in the painting requirements to any other standard being applicable. The assumption of C & B that a note relating to fireproofing removed this painting from the contract was unreasonable. One note on one portion of a detail without supporting specifications for fireproofing and notice of deletion of painting does not support this assumption. If C & B was confused or saw a conflict in the documents it was required to make an inquiry to the Government seeking clarification. The RFI [Request For Information] 4 months after the award was not timely, and an analysis of the statements in the RFI shows that there was doubt about which items received fireproofing and even went as far as to base the question on the specified painting of steel in the contract. This does not support your contention that prior to bid C & B had not considered painting steel since it all was fireproofed.
Further, your acceptance of the [sic] C & B’s premise and lack of inclusion of fireproofing left the steel uncoated. If an error was made by C & B, the burden of providing steel, painted as specified, rests with you.

Issue was thus joined.

DISCUSSION

The Tucker Act, 28 U.S.C. § 1491(a)(1) (1982), gives this court jurisdiction over any express or implied-in-fact contract to which the United States is a party. As plaintiff’s claim has been “finally decided” by the contracting officer, plaintiff’s action is properly before this court.

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Avedon Corp. v. United States, 35 Cont. Cas. Fed. 75,592, 15 Cl. Ct. 771, 1988 U.S. Claims LEXIS 168, 1988 WL 122026 (cc 1988).

35 Cont. Cas. Fed. 75,592 (Avedon Corp. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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