J. A. Jones Construction Company v. The United States

395 F.2d 783, 184 Ct. Cl. 1, 1968 U.S. Ct. Cl. LEXIS 215
United States Court of Claims·Decided May 10, 1968·No. 71-62·Published·Cited by 28 cases

Opinion

OPINION

NICHOLS, Judge *

The plaintiff seeks review of an adverse decision of the Armed Services Board of Contract Appeals (hereinafter called ASBCA or the Board), Appeal of J. A. Jones Construction Company, ASBCA No. 5798 (December 27, 1961), 61-2 BCA para. 3256, which modified in part a previous adverse decision of the Corps of Engineers Board of Contract Appeals, Appeal of J. A. Jones Construction Company, Eng. Dec. No. 1425 (June 4, 1959). The defendant, though agreeing with that part of the Board decision rejecting the bulk of the plaintiff’s claim, contended the partial recovery allowed plaintiff by the Board was not supported by substantial evidence. The Board was right and we affirm.

Part of a large contract awarded plaintiff in 1954 by the Corps of Engineers for constructing facilities at the Ernest Harmon Air Force Base in Newfoundland, Canada, involved, for purposes of this suit, the completion and/or construction for the Air Force of five multi-purpose hangars with shells (roofs, siding, and sliding doors) of galvanized iron sheeting of prescribed gages (see Paragraph 14-04 of the technical provisions, infra). J. A. Jones subcontracted this phase to Capitol Steel & Iron Company, the beneficial claimant, suffering the loss in suit, and all but the furnishing of the sheeting was sub-subcontracted in turn to the Western Steel Erection Company. “Plaintiff” shall refer to any or all of the trio, unless specified.

Paragraph 14-04 of the technical specifications for roofing and siding provided:

GALVANIZED SHEETS shall be the manufacturer’s standard commercial type, having corrugations approximately 2 y2 inches wide, and shall be tight-galvanized with not less than % ounce zinc coating per square foot on each side of sheet. Sheets shall be of plain open-hearth 20 gage for roofing and 24 gage for siding. All interior corrugated metal work shall be galvanized sheets. (Emphasis supplied) «■****•»

The principal issue of law relates to the requirement of % ounce coating “on each side” in light of paragraph 14-02 of the technical provisions of the specifications which listed a series of specifications generally applicable to roofing and siding metal, and included Federal Spee- *785 ifieation QQ-I-716, Iron and Steel, Sheet, Zinc Coated, Galvanized. This specification set forth, in tables contained therein, as a requirement for compliance with the provisions thereof, the nominal weight of zinc coating for 20 and 24 gage galvanized sheets. It provided:

Class A loa. Class B (oz. Class C (oz. per so. ft.) per sq. ft.) per sq. ft.)
20 gage.............. 2.75 2.50 1.75
24 gage......................... 2.50 1.50

It also set forth as the minimum weight of zinc coating for compliance with the' provisions of QQ-I-716 the following:

Minimum weight as disclosed tv Sheet weight Diagonal triple
Nominal weight test (oz. per spot test (oz.
(oz. per sq. ft.) sq. ft.) per sq. ft.)
2.75 .............................. 2.45 2.30
2.50 .............................. 2.20 2.00
2.00.............................. 1.80 1.60
1.75 .............................. 1.55 1.35
1.50 .............................. 1.30 1.15

The weights set forth in this specification are total weights, that is, the total weight of the zinc coating applied to each side of a square foot of a galvanized sheet.

Reading the tables together, one can see, for example, that where 20-gage, Class C sheeting is required by the contract, the nominal weight of zinc coating specified in the first table is 1.75 oz. per sq. ft. The corresponding nominal weight figure in the second table would show the contractor that for the coated sheets to be acceptable, the minimum oz. per sq. ft. weight of the coating would have to be 1.55 under the sheet weight test and 1.35 under the diagonal triple spot test. Testimony showed that the manufacturing industry uniformly employed the diagonal triple spot test in testing for compliance with the specification.

Since at least 1942, specification QQI-716, which with interim amendments is the Government counterpart of and closely resembles the industry standard specification A-90-39 of the American Society of Testing Materials, has been the basic specification governing all military contracts involving galvanized steel sheeting. Capitol Steel & Iron Company say they have constructed more galvanized steel hangar buildings for the Corps of Engineers than any other contractor in the United States and have always operated under specification QQ-I-716, having never before encountered the equivalent of paragraph 14-04, quoted supra. Specification QQ-I-716 also prescribed testing methods for determining the weight of zinc coating.

The Army Engineers drafted the language of paragraph 14-04 and promulgated it as a “guide specification” to be copied into contracts by field officials. Though details are vague, it is said to have been used in several other contracts. Except as disclosed in the language itself, the purpose of the paragraph does not appear in the record. It was not, as might have been supposed, connected with any peculiarities of the Newfoundland climate.

Witnesses for plaintiff, representatives of major steel companies, said their concerns would have refused to bid on a contract incorporating paragraph 14-04 for several reasons: the absence of a prescribed testing method, the alleged difficulty of measuring weight of coating if it is not a total for both sides, and the requirement for a “tight” coat, i. e., one that will not flake if the metal is bent, associated with a coating thick *786 ness making such tightness difficult. However, they also said that in 1954 a reasonable contractor would have construed 14-04, despite its literal language, as calling only for a total coating of 1.50 oz. on both sides. This statement did not influence the Board, as will appear, and a careful reading of the testimony indicates the witnesses may have meant no more than that bidders in 1954 were not too careful in reading contract specifications. They were not giving a trade or commercial meaning, for they also said the language of 14-04 was unheard of and unknown.

Plaintiff’s officials read the specifications and determined in their own minds that the Government really wanted a zinc coating aggregating iy2 ounces of zinc on both sides. They did this because of their experience in steel work, “the information of the industry”, and because a thickness for single sides had never before been specified. They related this 1% ounces to the figure, supra, for Class C 24-gage, although 20-gage was also to be supplied.

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J. A. Jones Construction Company v. The United States, 395 F.2d 783, 184 Ct. Cl. 1, 1968 U.S. Ct. Cl. LEXIS 215 (cc 1968).

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