Kordick & Son, Inc. v. United States

34 Cont. Cas. Fed. 75,328, 12 Cl. Ct. 662, 1987 U.S. Claims LEXIS 130
CourtUnited States Court of Claims
DecidedJune 29, 1987
DocketNo. 31-85C
StatusPublished
Cited by2 cases

This text of 34 Cont. Cas. Fed. 75,328 (Kordick & Son, 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
Kordick & Son, Inc. v. United States, 34 Cont. Cas. Fed. 75,328, 12 Cl. Ct. 662, 1987 U.S. Claims LEXIS 130 (cc 1987).

Opinion

OPINION

MARGOLIS, Judge.

Plaintiff Kordick and Son, Inc. and Steve P. Rados, Inc., a joint venture (Kordick), challenges the final decision of the contracting officer of the United States Department of the Interior, Bureau of Reclamation, finding it responsible for payment of repairs to two flexible insulated couplings which leaked when the pipeline constructed by Kordick was filled with water within the contract warranty period. Plaintiff was held responsible for $97,476.44, which includes the cost of excavation and repair of the couplings, supplies, and a 15% “administrative and general expense” sum ($12,714.32). The government counterclaimed for the amount of the contracting officer’s decision, plus interest. A three-day trial was held in Pasadena, California. After review of the entire record, the court finds for the plaintiff in part, and the defendant in part.

FACTS

Defendant United States, through the Department of the Interior, Bureau of Reclamation, entered into a contract with Kor-dick and Son, Inc. and Steve P. Rados, Inc., California corporations comprising a joint venture. The contract, number 7-07-DC-07284, dated September 27, 1977, covered construction and completion of the Main Aqueduct “B” Line, Southern Nevada Water Project, Second Stage, Station 56 + 30.-13 to Station 186 + 52.82. This contract required the furnishing and laying of pipes with diameters ranging from approximately 86 to 114 inches and constructing structures for about 2.3 miles of pipeline to transport water for municipal and industrial use. The work was performed about six miles north of Boulder City, Nevada. The estimated contract price was $3,216,283. Notice to proceed was received by the plaintiff on September 29, 1977.

At issue in this case are two flexible insulated couplings which were located at the upstream and downstream sides of existing “Surge Tank 2,” which leaked when the aqueduct was first filled with water in October, 1981. Existing Surge Tank 2 was [664]*664located at the top of a steep hill; the inlet and outlet lines were at approximately 30 percent slopes. The purpose of a surge tank is to allow the escape of air and turbulence induced in a large diameter pipeline in order to prevent damage to the pipeline itself.

Contract Specifications § 3.1.2., Pipe Options, permitted the plaintiff to choose the type of pipe it would furnish from four alternatives; plaintiff selected embedded cylinder prestressed concrete pipe (line pipe). Section 3.1.5.a. required that the contractor “furnish and install a cathodic protection and monitoring system for ... embedded cylinder prestressed concrete pipe alternatives.” This section further provided that “[e]lectrical isolation in the form of either flexible or rigid insulating fittings ... shall be provided as required to obtain electrical discontinuity at: (a) Joints where line-pipe alternatives containing a steel cylinder are joined to steel pipe.” Section 3.1.5.b.(4)(a) (emphasis added). Plaintiffs choice of line pipe contained a steel cylinder and was approximately 114 inches in diameter.

Plaintiffs drawings and specifications for its proposed corrosion monitoring system failed to show the locations of insulating fittings required by § 3.1.5.b.(4)(a), i.e., where line pipe alternatives containing a steel cylinder were joined to steel pipe. Defendant informed the plaintiff of this deficiency by letter in late March, 1978. This letter also specified the Station locations where the insulated fittings were required; the locations at the upstream and downstream sides of Surge Tank 2 were identified as Station 150 + 32.20 and Station 150 + 93.02. This first station number apparently was incorrect on plaintiffs shop drawing; the correct station number was 150 + 32.71. Each full station number reflects a horizontal distance of 100 feet; therefore, the difference between Stations 150 + 32.20 and 150 + 32.71 is roughly .51 foot—about six inches. The “stub-outs” from Surge Tank 2 were approximately 86 inches in diameter; for this reason it was necessary to have sections of steel pipe (called “steel specials” by the plaintiff) connecting the much larger line pipe to the existing surge tank. This fact called the insulating coupling requirements of § 3.1.-5.b.(4)(a) into play. On this type of project, pipe is laid starting at the bottom of the hill working toward the top; if pipe was laid first at the top of the hill it would slide down the hill and make proper alignment and fastening virtually impossible.

Plaintiff submitted revised drawings in April, 1978 which showed insulated couplings; the defendant responded to plaintiff in mid-May, 1978 that the drawings continued to fail to identify the type of insulated fittings proposed for use as required by § 3.1.5.b.(4)(a). Plaintiff remained of the opinion, based on pre-bid inquiries and the fact that the contract drawings did not show or depict insulated couplings, that insulated couplings were not required. Plaintiff, therefore, requested additional compensation for the couplings. This request was denied at the end of May, 1978, and was the subject of a separate challenge and contracting officer’s decision not at issue here. Contract General Provisions (Standard Form 23-A) Section 2., Specifications and Drawings, states in part that “[ajnything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern.” Insulated couplings were therefore required at Stations 150 + 32.71 and 150 + 93.02, between the line pipe and steel specials.

Plaintiff’s witnesses testified in great detail why it was not possible to place flexible insulated couplings at the specified locations. Flexible couplings require that both ends of the pipes to be joined are the same diameter; the outside diameter of the plaintiff’s chosen type of line pipe was approximately 114 inches and that of the steel specials was 98 inches. Apart from conclu-sory opinion testimony, the evidence was inconclusive as to whether it would have been possible to place rigid insulating couplings at the specified locations. However, the choice of type of coupling was left to [665]*665the contractor by Specifications § 3.1.5.-b.(4). There is also no indication the plaintiff brought to the attention of the defendant that using insulating couplings would require redesign of the joints at the specified locations.

Plaintiff elected to provide flexible insulated couplings. If flexible couplings were chosen, the specifications required use of Dresser Style 39 Insulating Couplings or approved equal. Section 3.1.5.b.(5). In mid-June, 1978, plaintiff requested that Baker Series 216 flexible insulated coupling be approved as the equal of the Dresser coupling. The plaintiff submitted a Baker company drawing to the Project Construction Engineer requesting this approval. The Baker drawing indicated that couplings of approximately 86-inch diameter had been ordered by the plaintiff. In early July, 1978 the defendant approved the Baker coupling as the equal of the specified Dresser coupling.

The only points near Surge Tank 2 where two pipe sections of 86-inch outside diameter existed were Stations 150 + 51.40 and 150 + 72.14, both approximately 40 feet away from the locations specified for the insulated couplings.

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Cite This Page — Counsel Stack

Bluebook (online)
34 Cont. Cas. Fed. 75,328, 12 Cl. Ct. 662, 1987 U.S. Claims LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kordick-son-inc-v-united-states-cc-1987.