Bromley Contracting Co. v. United States

652 F.2d 70, 28 Cont. Cas. Fed. 81,192, 227 Ct. Cl. 569, 1981 U.S. Ct. Cl. LEXIS 138
CourtUnited States Court of Claims
DecidedMarch 13, 1981
DocketNo. 441-79C
StatusPublished
Cited by5 cases

This text of 652 F.2d 70 (Bromley Contracting Co. 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
Bromley Contracting Co. v. United States, 652 F.2d 70, 28 Cont. Cas. Fed. 81,192, 227 Ct. Cl. 569, 1981 U.S. Ct. Cl. LEXIS 138 (cc 1981).

Opinion

Plaintiff appeals from a decision of the General Services Board of Contract Appeals (Board) denying its claim for $15,000 compensation due to allegedly defective Government drawings. Plaintiff asserts the Board’s decision is arbitrary and unsupported by substantial evidence. Alternatively, plaintiff seeks a reformation of the contract. After consideration of the parties’ arguments presented in their briefs and at oral argument, we deny plaintiffs claims and thereby hold for the defendant on both grounds.

[570]*570On June 27, 1973, plaintiff was awarded a contract for the construction of a concrete sidewalk, waterproofing a patio, and installing a system of power doors at the Federal Building in Charlottesville, Virginia. Plaintiffs bid was one of four received and was opened on June 13, 1973. Its bid was for $27,234.1 The original Government estimate of the cost of the construction was $17,200. After receipt of the bids, however, the Government determined the original estimate was inaccurate due to an error in the quantity takeoff. The estimate was thereupon raised to $30,950.

Included in the materials supplied by the Government were drawings of an architectural site plan. These drawings had a scale indicating 1/8” = V; however, the drawings had been photographically reduced to half-size and thus the scale indicated was inaccurate. The true scale was Vía ” = 1’. The drawings did not indicate they were half-size, but they did bear the following notice: " note: all measurements must be verified at building by the contractor before work indicated hereon is started.” On Drawing 27-105, dimensions were shown for a row of six connecting activator and safety mats leading to and through the power doors. The dimension for each mat was shown to be 36 inches long. Therefore, the total dimensions for the six mats would be 18 feet. But, using a ruler and applying the %” — 1’ scale would yield a total of only 9 feet. Drawing 27-106 contained same printed dimensions which likewise were twice what a ruler and the printed scale would indicate.

No mention of this discrepancy was made to the contracting officer prior to completion of the contract. Thereupon, following completion of the contract, plaintiff notified the contracting officer that it had underbid the project because it was unaware the contract drawings were half-size. Plaintiff sought an additional $15,000 due to the allegedly defective specifications. The contracting officer issued by letter a final determination denying this request on January 16,1974, stating, inter alia,

Your bid of $27,234 was considered reasonable when compared with the Government’s estimate of cost; other[571]*571wise we would have inquired if you fully understood the contract requirements.

Plaintiff appealed to the Board, which denied the claim on February 26, 1975. The Board held that the discrepancy complained of was sufficiently obvious that an experienced contractor like plaintiff should reasonably be expected to encounter no confusion thereby. Also, it found the consequences of any confusion which may have actually occurred must be borne by plaintiff due to its failure to make a prebid inquiry of the patent ambiguity.

Receiving no assistance from the Board, plaintiff then requested from the Comptroller General of the United States reformation of the contract due to mistake in bid. Before the Comptroller General, plaintiff emphasized its belief that the Government erred in not seeking verification of plaintiffs bid. This claim for reformation was denied by decision of April 20, 1978, which stated in part: "In our view, the bid of $27,234 was in line with the $30,950 estimate and the next low bid of $37,833 so that verification was not required. * * * Further, there is nothing in the bid showing the error made and no evidence of actual notice to the contracting officer prior to award of an error in the bid. Therefore, we do not believe that the contracting officer acted unreasonably in not requesting verification of the bid. Accordingly, the request for reformation is denied.” [Citation omitted.]

Before us, plaintiff asks that we either reverse the Board decision or, outside the scope of Wunderlich Act review, 41 U.S.C. §§ 321, 322 (1976), reform the contract, with the strongest emphasis on the latter.

In reviewing the Board’s decision we, of course, are limited to a determination of whether the decision was "fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. After our review of the Board decision, we can find no basis to upset it.

Plaintiff objects to the Board’s finding that it was under a duty to make a prebid inquiry of the measurements. Plaintiff asserts such a view is a misinterpretation of the [572]*572warning located on the drawings and of clause 6.1 of the contract.2 We disagree with this objection because we find the Board’s decision regarding prebid inquiry was based on its own examination and evaluaton of the drawings themselves and the inherent duty owed by the plaintiff because of the obviousness of the error, not upon the warning or contract clause. Thus, plaintiffs argument that the relevant warning and contract clause only requires verification after the award is irrelevant. In light of the Board’s reasoned review, we believe its evaluation of the drawings, and the consequent determination that the discrepancy was obvious and thus placed on plaintiff the burden of prebid inquiry, was not arbitrary and was supported by substantial evidence. See Wickham Contracting Co. v. United States, 212 Ct. Cl. 318, 546 F. 2d 395 (1976).3

The bulk of plaintiffs argument is devoted to the notion of reformation of the contract. The defendant asserts that either the statute of limitations precludes such relief or that plaintiffs sole avenue for review is under the Wunder-lich Act because its claim was redressable before the administrative body. See, e.g., Northbridge Electronics, Inc. v. United States, 195 Ct. Cl. 453, 457-458, 444 F. 2d 1124, 1127 (1971); L. W. Foster Sportswear Co. v. United States, 186 Ct. Cl. 499, 502, 405 F. 2d 1285, 1287 (1969).

We do not rule on defendant’s objections because even assuming for the sake of argument that plaintiff can seek this relief, we find the record does not support a finding that would merit equitable relief in the form of reformation of the contract. See generally Bromion, Inc. v. United States, 188 Ct. Cl. 31, 35, 411 F. 2d 1020, 1022 (1969); Ruggiero v. United States, 190 Ct. Cl. 327, 335, 420 F. 2d 709, 713 (1970).

Plaintiff is entitled to recover on the theory of reformation only if the Government’s representatives knew or should have known of the mistake at the time the bid was [573]*573accepted. Space Corp. v. United States, 200 Ct. Cl. 1, 8-9, 470 F. 2d 536, 540 (1972); Wender Presses, Inc. v. United States, 170 Ct. Cl. 483, 485, 343 F. 2d 961, 962 (1965). Plaintiff did not notify defendant of the mistake until after completion of the contract, and there is no other evidence convincing us that the defendant possessed such actual knowledge of plaintiffs mistake.

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652 F.2d 70, 28 Cont. Cas. Fed. 81,192, 227 Ct. Cl. 569, 1981 U.S. Ct. Cl. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bromley-contracting-co-v-united-states-cc-1981.