J. E. Robertson Co. v. United States

437 F.2d 1360, 194 Ct. Cl. 289
CourtUnited States Court of Claims
DecidedFebruary 19, 1971
DocketNo. 379-69
StatusPublished
Cited by8 cases

This text of 437 F.2d 1360 (J. E. Robertson 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
J. E. Robertson Co. v. United States, 437 F.2d 1360, 194 Ct. Cl. 289 (cc 1971).

Opinion

CoweN, Chief Judge,

delivered the opinion of the court:

This contract suit is brought under a 1965 agreement between J. E. Robertson Co., herein plaintiff, and the United States, acting through the Department of the Air Force, for the repair and replacement of certain utility systems in Building 3001 at Tinker Air Force Base, Oklahoma, at a price of $100,272.81. Plaintiff is suing for the 'benefit of its excavation subcontractor1 and its attorney. Plaintiff seeks $6,995.88 in its first claim as an equitable adjustment for an alleged changed condition encountered when its subcontractor removed part of a concrete boiler room floor in order to install new drainage lines. Plaintiff contends that the concrete was substantially thicker than anticipated by either party and that the contract drawings indicated that the thickness of the concrete was approximately six inches. Plaintiff also claims $5,859.25 for attorney’s fees incurred in connection with the contract and the prosecution of plaintiff’s claim thereunder.

The case comes before the court on cross-motions for summary judgment for review, under Wunderlich Act2 standards, of a decision by the Armed Services Board of Contract Appeals3 which denied both claims. The pertinent facts and our conclusions with respect to the changed conditions claim will be discussed before our consideration of the claim for attorney’s fees.

Plaintiff’s original bid was made on the basis of the plans and specifications. Defendant notified plaintiff that it was low bidder and invited plaintiff to make a site investigation. [292]*292In July of 1965 plaintiff’s superintendent and another company official visited Tinker Air Force Base. While examining the concrete floor of the boiler room they observed a hole, approximately five feet long and two to three feet wide, which had been cut in the floor in 1962 in order to repair the original underfloor drainage line. Although the hole was partially covered, plaintiff’s superintendent measured the thickness of the concrete along its edges and found it to be approximately six inches deep. The Board found that the concrete at the hole was from six to six-and-a-half inches thick.

During the site examination, plaintiff’s representatives also informed defendant that certain requirements were impossible and requested new specifications and drawings. Defendant agreed, and although the specifications were not revised, an entirely new set of plans was issued. Plaintiff was asked to bid again 4 on the contract, which was approved by defendant and dated September 20,1965.5 Thereafter, plaintiff subcontracted the concrete removal to Mecho, Inc., which also sent representatives to investigate the site.

The contract contained the standard Changed Conditions article. The contract Schedule of Items ['Schedule C] contained 13 line items. Items 1 through 7 required the furnishing and installation of various sizes of piping, floor drains and fittings for the underfloor drainage system. Item 8, which set forth the concrete requirements, stated:

Provide approximately 1,670 LF of trench & back-filling, including concrete removal and replacement. Approximately 1,670 LF @ $13.20 TOT AT. 22,044.00
Per LF (EST)

The contract specifications did not indicate the tbicTmp.<aa of the concrete. Paragraph 3-06 provided, however, that all “•[b]uildings shall be restored to their original condition. * * #3?

Schedule B of the contract contained eight sheets of drawings. The only sheet pertinent here is no scale drawing [293]*293OCBA-F-6598-2, dated April 16, 1965, entitled “floor FLAN SHOWING DRAINAGE FIFING TO BE REPLACED.” One enlarged section of the no scale drawing was captioned “txfical installation of floor drain.” This section depicted a cross-section of the concrete floor. The drawing showed a floor drain which ran through the concrete. The drain was connected to a P-trap below the floor by a nipple. The nipple, as drawn, extended from a point just below the bowl of the drain (the base of which was approximately even with the bottom of the concrete cross section) into a pint on the P-trap. The only measurement on the drawing was a statement that the nipple was six inches long.

After examining this drawing, plaintiff concluded that the concrete floor was approximately six to seven inches thick. Plaintiff reached this conclusion by first comparing the length of the nipple with the cross-section of concrete indicated in the drawing. Plaintiff also compared the concrete cross-section in the drawing with the actual measurements of the Government-approved floor drain and P-trap, when connected by a six-inch nipple. Thus, plaintiff estimated that the floor was not more than six to seven inches thick. This estimate, upon which plaintiff based its bid, was confirmed by the thickness of the concrete in the hole plaintiff observed during the site investigation.

When excavation began, plaintiff’s subcontractor encountered concrete substantially thicker than six inches. In some areas, the floor was 18 to 20 inches deep; in others, it was as thick as 24 inches. Although the record does not indicate the average depth of the floor, the defendant agrees that plaintiff encountered a considerable amount of concrete that was much thicker than six or seven inches.

Plaintiff completed the contract work to the Government’s satisfaction and has exhausted its administrative remedy. The parties stipulated before the Board that if there was a changed condition by reason of the concrete thickness, the equitable adjustment to which plaintiff is entitled is $6,995.88.6

The Board found that the depth of the concrete, which plaintiff was required to remove, did not constitute a changed condition within the meaning of either of the two types of [294]*294changed conditions covered by the Changed Conditions article of the contract. With respect to the first type of change, the Board found that the contract drawings did not show the thickness of the concrete floor to be cut out and excavated. As to the second type of changed condition, the Board found that plaintiff as an experienced contractor, should have anticipated that the concrete floor would be substantially thicker than six inches in some places. In challenging both the findings and conclusions of the Board, plaintiff’s position is that there was a changed condition under both clauses of the Changed Conditions article.

Defendant’s position is that plaintiff is not entitled to recover under either clause. Defendant argues that the drawing in question did not contain a representation of the depth of the concrete and asserts that the Board’s finding to that effect should be upheld. Defendant also contends that plaintiff may not recover under the second clause, because the Board’s findings are supported by substantial evidence.

The first clause of the Changed Conditions article permits an equitable adjustment if the contractor encounters subsurface or latent conditions differing materially from those indicated in the contract. Foster Constr. C.A. v. United States, 193 Ct. Cl. 587, 594, 600-604, 435 F. 2d 873, 876, 880-882 (1970); United Contractors v. United States, 177 Ct. Cl. 151, 159-61, 165 n. 6, 368 F. 2d 585, 59A-5, 597 n. 6 (1966); S.T.G. Constr. Co. v. United States, 157 Ct. Cl.

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437 F.2d 1360, 194 Ct. Cl. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-e-robertson-co-v-united-states-cc-1971.