Blough v. United States

35 Cont. Cas. Fed. 75,675, 17 Cl. Ct. 186, 1989 U.S. Claims LEXIS 106, 1989 WL 61476
CourtUnited States Court of Claims
DecidedJune 9, 1989
DocketNo. 467-86-C
StatusPublished
Cited by4 cases

This text of 35 Cont. Cas. Fed. 75,675 (Blough 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
Blough v. United States, 35 Cont. Cas. Fed. 75,675, 17 Cl. Ct. 186, 1989 U.S. Claims LEXIS 106, 1989 WL 61476 (cc 1989).

Opinion

OPINION and ORDER

TURNER, Judge.

This opinion addresses cross-motions for summary judgment.1 The core issue presented in each motion is whether the parties’ 1984 contract for on-site modification of postal collection boxes in the Sacramento, California area was a lump sum or a unit price contract. Plaintiff (Steel Coat) argues that the parties entered a fixed price, lump sum contract for $21,700 of which defendant still owes $8,695.50. Defendant counters that the parties entered a unit price contract which entitled plaintiff to $15.50 for each postal box plaintiff modified, and that, because plaintiff was required to modify only 839 boxes, defendant’s payment of $13,004.50 to plaintiff has fulfilled defendant’s obligations. It is concluded that the contract was a lump . sum contract and that plaintiff is entitled to judgment for the unpaid portion of the contract price. Accordingly, plaintiff’s motion for summary judgment is granted, and defendant’s cross-motion is denied.

I

In December 1984, the U.S. Postal Service solicited bids for on-site modification of postal collection boxes in the Sacramento, California Management Sectional Center (MSC) delivery area.2 The solicitation [187]*187documents consisted of a six-page Postal Service Form 7322 (entitled Construction Contract) and several attachments thereto. The first page of Form 7322 contained three sections entitled SOLICITATION, OFFER and AWARD.

The SOLICITATION section referred bidders to several attachments concerning, inter alia, scope of work. One of the incorporated scope-of-work documents was a work sheet designated Exhibit A which advised bidders of the work to be accomplished on-site with respect to approximately 1,400 collection boxes. The work sheet advised that detailed maps, showing exact locations of boxes to be modified, would be furnished to the successful contractor upon award and included the following formula for computing a bid total: “Job Cost per Box: $_x 1400 ea. = $_Total.”

An incorporated addendum to the SOLICITATION section declared:

Offerors are invited to personally visit the site or take such other steps as may be reasonably necessary to ascertain the requirements for performing the work described in the Scope of Work section of this solicitation and which can affect the cost of the work. Failure to do so will not relieve offerors from the responsibility for estimating properly the difficulty or cost of successfully performing the work.

Paragraph 2 of the Solicitation Instructions and Conditions contained a similar caveat (Form 7322, p. 2).

The OFFER section required bidders to complete the following: “TOTAL BID: (In Words) _ $- including all applicable ... taxes.” It was to this line that the work sheet directed bidders to enter the “price.” Finally, the AWARD section, to be completed by the Postal Service, provided: “The above offer is accepted in the amount of $__”

Pages two through six of Form 7322 contained Solicitation Instructions and Conditions. Paragraph 12(c) of the Solicitation Conditions, pertaining to award of contracts, provided: “The Postal Service may accept any item or combination of items of an offer unless precluded by the solicitation or the offeror includes restrictive limitation.”

On December 17, 1984, Steel Coat responded to the solicitation. Its response included the first page of Form 7322 containing the OFFER section and the Exhibit A work sheet on which it had completed the price calculation formula by stating $15.50 as its job-cost-per-box and $21,700 as its total price. Instead of entering a total “price” figure on the first page of Form 7322 as the work sheet suggested, plaintiff wrote “SEE EXHIBIT A” in Form 7322’s “TOTAL BID” blank.

On January 8, 1985, the Postal Service’s contracting officer completed the AWARD section of Form 7322 to read: “The above offer is accepted in the amount of $21,700.” Similarly, the contracting officer’s “award/notice to proceed” letter to plaintiff dated January 7, 1985 stated: “[T]he attached subject contract is awarded to you in acceptance of your offer ... FOR THE SUM OF $21,700.”

Defendant then supplied Steel Coat with the “detailed maps” described in the work sheet. Because of erroneous information contained in the maps, plaintiff incurred unforeseen expenses. Further, the actual number of Sacramento-area postal boxes requiring modification proved to be just 839 — fewer than 60% of the Postal Service’s 1400-box work sheet approximation.

Steel Coat completed all work under the contract by June 30, 1985. By letter dated June 29, 1985, plaintiff requested a “modified cost per unit” of $23.25, citing unforeseen costs attributable to defendant’s inadequate maps. In a subsequent letter sent prior to receipt of any response to its June 29 correspondence, Steel Coat “superseded” its June 29 billing, characterized the contract as “fixed price or lump sum” and demanded payment of $21,700.

Defendant refused to pay the “lump sum” amount, recommending instead the following two-step procedure: (1) Steel [188]*188Coat would first accept payment of $13,-004.50 (for modification of 839 boxes at $15.50 per box) and then (2) Steel Coat would submit an invoice pursuant to the changes clause of the contract for the additional costs it incurred because of inadequate maps. In making this proposal, defendant conceded that Steel Coat had incurred unforeseen expenses attributable to defendant’s maps (Exhibit F, App. to Def. Opp.).

Steel Coat rejected defendant’s proposed solution and protested to the contracting officer. On December 13, 1985, the contracting officer determined that the contract was not for a lump sum, that Steel Coat had not submitted an invoice for additional costs as recommended, and that Steel Coat was entitled only to $13,004.50. In July 1986, plaintiff instituted this action.

II

Steel Coat’s “lump sum” contention is based on (1) the language of the “AWARD” section of Postal Service Form 7322, (2) the language of defendant’s “award/notice to proceed” letter and (3) the differences between language of this contract and language of another contemporaneous contract between the parties for similar work which was plainly a unit price contract.

In its opposition and cross-motion for summary judgment, defendant argues that a ruling for Steel Coat would ignore the work sheet’s unit price term. Defendant also asserts that Steel Coat’s June 29, 1985 letter constituted predispute conduct demonstrative of the parties’ understanding that this was a unit price contract.

III

Contract interpretation is “a harmonizing process in which the various parts of a disputed contract are to be construed as a whole to give meaning to all of its provisions.” Julius Goldman’s Egg City v. United States, 697 F.2d 1051, 1057 (Fed. Cir.), cert. denied, 464 U.S. 814, 104 S.Ct. 68, 78 L.Ed.2d 83 (1983); see International Business Investments, Inc. v. United States, 17 Cl.Ct. 122, 126-27, (Cl.Ct., 1989) and cases therein cited. Accordingly, this court

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Cite This Page — Counsel Stack

Bluebook (online)
35 Cont. Cas. Fed. 75,675, 17 Cl. Ct. 186, 1989 U.S. Claims LEXIS 106, 1989 WL 61476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blough-v-united-states-cc-1989.