Dale Ingram, Inc. v. United States

475 F.2d 1177, 201 Ct. Cl. 56, 1973 U.S. Ct. Cl. LEXIS 28
CourtUnited States Court of Claims
DecidedMarch 16, 1973
DocketNo. 412-65
StatusPublished
Cited by59 cases

This text of 475 F.2d 1177 (Dale Ingram, 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
Dale Ingram, Inc. v. United States, 475 F.2d 1177, 201 Ct. Cl. 56, 1973 U.S. Ct. Cl. LEXIS 28 (cc 1973).

Opinion

SkeltoN, Judge,

delivered the opinion of the court;

[60]*60Tn this case the plaintiff, Dale Ingram, Inc. (formerly Florida Builders, Inc.), contends that two decisions of the Armed Services Board of Contract Appeals (the Board), one on liability and one on quantum, are erroneous as a matter of law and are not supported by substantial evidence. The plaintiff also seeks reformation of the contract on the ground of mistake.

The contract in question was one for Capehart housing construction upon land in Florida that had been under water and had to be filled in before the housing could be constructed. The land fill was to be accomplished by a different contractor under a different contract (land fill contract) which originally required compacting the land to a maximum density of 95 percent. However, this compaction requirement was reduced to 90 percent before the land fill contract was awarded on April 18, 1960, to Gahagan Dredging Corporation (Gahagan). The compaction requirement was changed again on the date the land fill contract was awarded to eliminate the numerical requirement of 90 percent of maximum density to:

“All embankments and fill shall be dense and uniform.”

In the meantime, plaintiff prepared and submitted a bid on the contract in issue before us (the construction contract) which required the construction of 500 houses on the area to be filled in. The Invitation For Bids (IFB) stated that the houses were to be constructed on land to be filled in 'by another contractor and all bidders were admonished to visit the site and become familiar with the type and quantity of earthwork required in the construction contract. They were further informed that the specifications and drawings of the land fill contract were available for inspection at two different offices, the names and addresses of which were stated. The plaintiff visited the site and worked with a contractor who intended to bid on the land fill contract. By reason of these facts, the plaintiff had knowledge of the basic specifications of the land fill contract, including the original requirement that the fill would be compacted to 95 percent density and the addendum changing this requirement to 90 percent density. The plaintiff submitted its bid on the construction [61]*61contract, but all bids were rejected because they exceeded the money available.

Thereafter, during July and August 1960, a second IFB was issued. The plaintiff’s representatives visited the site again and observed the land fill operations of Gahagan. The plaintiff desired to bid on the construction contract again, which contract provided in its specifications that:

* * * [T]he top six inches of material on which footings and floor slabs are placed shall have a density of not less than 90 per cent of laboratory density.

Being mindful of the foregoing requirement of 90 percent density for the top six inches of the soil for the footings and floor slabs, the plaintiff sought and obtained a quotation of $277,000 from Bedland Construction Company, Inc. (Bed-land) , a subcontractor, to do the grading and footing compaction work at the site under the construction contract. Bedland inspected the condition of the soil at the site and then raised its quotation to $410,000. The plaintiff then got a higher quotation from another subcontractor, after which it negotiated a contract with Bedland to do the work for $403,000. The plaintiff and Bedland then bid on the contract without knowing that the specifications of the land fill contract had been changed so that the requirement for compaction to 90 percent maximum density had been removed and the words “dense and uniform” had been substituted therefor. At the time they bid, the plaintiff and Bedland thought that the 90 percent density requirement was still in the land fill contract.

It should be noted that the plaintiff did not ask for up-to-date land fill specifications during the July-August bidding period and did not make any investigation with reference to same. There is no evidence that the government knowingly or willfully withheld any of such information from the plaintiff. The plaintiff had plenty of time to investigate the compaction requirements of the land fill contract as it was awarded on April 18, 1960, and the construction contract was awarded to the plaintiff eight months later on December 19,1960, as stated below.

After the bids were opened on the construction contract, but before the contract was awarded, plaintiff learned that the [62]*6290 percent compaction requirement of the land fill contract had been changed to “dense and uniform.” The plaintiff protested to the government but did not ask to be allowed to withdraw its bid. The government refused to agree that the fill was other than what should have been anticipated. The plaintiff, being the low bidder, was awarded the contract and signed the agreement, reserving the right to present a claim for changed conditions. The contract was effective December 19,1960, and was for $8,171,BOO.

The contract contained the standard changes and changed conditions and disputes clauses.

The plaintiff began work in January 1961, but did not start the compaction of the footings involved in this case until about March 15, 1961. Eedland, the subcontractor, attempted to achieve the 90 percent density for the footings and floor slabs, as required by the contract, but encountered difficulty due to the type and condition of the soil. Various tamping machines were tried, but 90 percent density was found not to be possible. Finally, on April 24, 1961, the size of the footings was changed and the required compaction was reduced from 90 percent density to 80 percent laboratory density. After these changes were made in the contract, Eedland was able to ‘achieve 80 percent compaction. However, 30 days were wasted in trying to achieve the 90 percent density.

However, the plaintiff encountered difficulty in achieving even the SO percent density compaction. This was due to a variety of factors, including the nature of the material, the difficulty in crushing the pieces of oolite encountered by the machines which had to be small enough to go into the trenches, and the caving-in of the walls of the trenches. Excessive concrete was required to fill in the eaved-in walls of the trenches, as well as for the building of continuous pads similar to a runway instead, of a separate pad for each house. The continuous pads were built so as to allow the use of heavier equipment for compaction and to obtain better compaction at the bottom of the footing elevations.

The plaintiff filed a claim under the changes and changed conditions clauses for an equitable adjustment, contending [63]*63that physical conditions ¡at the site of the construction contract differed materially from those anticipated. From an adverse ruling, it appealed the claim to the Armed ¡Services Board of 'Contract Appeals (the Board). The case was docketed Florida Builders, Die., ASB CA No. 8944.1

After an extensive hearing, the Board handed down its decision on December IT, 1969. In its opinion the Board stated:

The primary question presented in this appeal is whether the fill at Sigsbee Park was in the condition stated' in the contract. This includes the plans and specifications for the ¡Gahagan [land fill] contract, as they were modified by Amendment No. 1 [the “dense and uniform” change] thereto.

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Bluebook (online)
475 F.2d 1177, 201 Ct. Cl. 56, 1973 U.S. Ct. Cl. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-ingram-inc-v-united-states-cc-1973.