John McShain, Inc. v. United States

462 F.2d 489, 199 Ct. Cl. 364, 1972 U.S. Ct. Cl. LEXIS 119
CourtUnited States Court of Claims
DecidedJuly 14, 1972
DocketNo. 31-71
StatusPublished
Cited by6 cases

This text of 462 F.2d 489 (John McShain, 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
John McShain, Inc. v. United States, 462 F.2d 489, 199 Ct. Cl. 364, 1972 U.S. Ct. Cl. LEXIS 119 (cc 1972).

Opinion

Per Curiam:

This case was referred to Trial Commissioner Roald A. Hogenson with directions to prepare and file his opinion on the issues of plaintiff’s motion for summary judgment under the order of reference and Rule 166(c). The commissioner has done so in an opinion and report filed on November 22, 1971, wherein such facts as are necessary to the opinion are set forth. Defendant filed a request for review by the court of the commissioner’s opinion and report and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the opinion and recommended conclusion of the trial commissioner it hereby adopts the same, as hereinafter set forth, as the basis for its judgment in this case. Therefore, plaintiff’s motion for summary judgment is granted and judgment is entered for plaintiff with further proceedings before this court suspended pursuant to Rule 167 for a period of 90 days to permit the parties to return to the Board of Contract Appeals of the General Services Administration for initial determination of the amount of the equitable adjustment of the contract price to which plaintiff is entitled in accordance with this opinion.

[367]*367OPINION* OF COMMISSIONER

Hogenson, Commissioner:

On plaintiff’s motion for summary judgment, defendant’s response, plaintiff’s reply, and the supporting briefs of the parties, this Wunderlich Act case places in issue on review of the administrative record the finality of a decision of the Board of Contract Appeals of the General Services Administration, GSBCA No. 2025, 66-2 BCA ¶5994.

The Board denied an appeal from a decision of defendant’s contracting officer, and thus rejected plaintiff’s claim on behalf of a second-tier subcontractor (Concrete Structures of Maryland, Inc., called Concrete Structures) of entitlement to an equitable adjustment of contract price pursuant to the standard Changes article of plaintiff’s contract with defendant. In dispute is the meaning of certain provisions of the structural concrete specifications of the prime contract drafted entirely by defendant. The issues concern principles of contract interpretation relating to trade practice and language ambiguity.

It is my opinion that plaintiff’s motion for summary judgment should be granted, that judgment should be entered that plaintiff is entitled to recover, and that because the Board reserved presentation of evidence as to damages until after decision of the issues of liability, proceedings in this court should be suspended for a period of 90 days to permit the parties to return to the Board for initial determination of the amount of the equitable adjustment.

The prime contract (No. GS-03B-14597) provided for construction by plaintiff, John McShain, Inc., of what is now known as the Department of Housing and Urban Development Building, Washington, D.C. Formigli Corporation (Formigli) was plaintiff’s subcontractor for, and Concrete Structures was Formigli’s supplier of all the precast, pre-stressed concrete double-tee floor and roof panels (called tee members) which comprised the basic floor and roof construction from the third through the tenth (and top) floors of the building. There were some 1,800 of such structural units.

Each of the tee members was integrally comprised of a horizontal slab, 30 feet long and 5 feet wide, and two longi[368]*368tudinal beams underneath such slab, such beams being colloquially called legs. In cross section of its width, each tee member appeared as a double tee. Each was integrally cast in a form at a factory, prestressed, and then transported to and lifted into place in the building under construction.

After the installation of the floor tee members, side by side and end to end on each of the floors, plaintiff was required by its contract to place on them ducts, 1:5 inches high and 14 inches wide, for the electrical system of the building, and to pour in place on each floor over the tee members and the installed ducts 4 inches of concrete fill, sometimes called topping by the parties.

In submitting its bid for supplying of the tee members, Concrete Structures interpreted the structural concrete specifications as permitting inclusion of the strength of the fill in the design of the tee members for the structural strength of 5,000 pounds per square inch, specified as hereinafter detañed. Its design calculations of such members were prepared accordingly by its licensed professional engineei’, taking into consideration that the fill was to cover the specified electrical ducts, and such design was submitted to defendant’s contracting officer prior to commencement of fabrication, as required by the specifications.

Concrete Structures also prepared shop drawings of the tee members, which were submitted with its original design calculations, and such drawings indicated that the tee members would be fabricated with roughened upper surfaces, thus indicating that Concrete Structures believed that there should be bonding between the tee members and the concrete fill to be placed thereon. No contract language specified or prohibited such roughening.

On the advice of the architect-engineer firm which prepared for defendant the structural design specifications of subject contract, including inter cilia the drawings and specifications hereinafter mentioned, defendant’s contracting officer rejected the design calculations, and directed plaintiff to design and fabricate the tee members for structural strength of 5,000 pounds per square inch, without inclusion of the strength of the fill in the design calculations. The [369]*369architect-engineer firm noted the indication on the shop drawings of the roughened upper surfaces of the tee members, but stated no objection thereto, and defendant’s contracting officer did not disapprove the design in that respect.

Concrete Structures then revised and resubmitted its design calculations in conformity with the directions of defendant’s contracting officer. The revised design was approved, and fabrication of the tee members was thereafter accomplished in accordance therewith.

However, in connection with submission of the revised design, Concrete Structures requested an increase in compensation due to the fact that the design revision required one additional %6 inch strand in each leg of the tee members, allegedly increasing costs in the total sum of $28,430. Before fabrication of the tee members commenced, defendant’s contracting officer denied the requests of plaintiff and Formigli for reconsideration of the rejection of the original design prepared by Concrete Structures, holding as a final decision that the topping (or fill) could not be considered to contribute to the structural capacity of the precast, prestressed tee members.

It is apparent from the administrative record, and no issue was raised in this respect, that the Board and the parties considered that the bid of Concrete Structures carried through and was reflected in the bids of Formigli and plaintiff.

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Bluebook (online)
462 F.2d 489, 199 Ct. Cl. 364, 1972 U.S. Ct. Cl. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-mcshain-inc-v-united-states-cc-1972.