Lilley-Ames Company, Inc. v. United States

293 F.2d 630, 154 Ct. Cl. 544, 1961 U.S. Ct. Cl. LEXIS 121
CourtUnited States Court of Claims
DecidedJuly 19, 1961
Docket214-58
StatusPublished
Cited by14 cases

This text of 293 F.2d 630 (Lilley-Ames Company, 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
Lilley-Ames Company, Inc. v. United States, 293 F.2d 630, 154 Ct. Cl. 544, 1961 U.S. Ct. Cl. LEXIS 121 (cc 1961).

Opinions

JONES, Chief Judge.

This is a contract action. The plaintiff contracted to produce and deliver barrack bags for the defendant. The plaintiff alleges that the defendant furnished it with defective material whereby the plaintiff sustained costs in excess of its bid price. The plaintiff brings this suit to recover that alleged excess.

The facts of this case are as follows. On April 6, 1953, the Armed Services Textile and Apparel Procurement Agency, Departments of the Army, Navy, and Air Force, issued an invitation for bids for the manufacture and delivery of olive drab denim barrack bags to certain designated sites between August and November 1953. The barrack bags were to be manufactured from Government-furnished olive drab denim.

Pursuant to the provisions of the invitation to bid, plaintiff secured a sample barrack bag from the Quartermaster Corps. Plaintiff studied the sample bag with regard to the nature of the sample bag’s material and construction. Plaintiff made a pattern conforming to the sample and to the plaintiff’s understand[631]*631ing of the specifications. As the plaintiff read the specifications, they provided for Government-furnished cloth containing a maximum of 1% percent sizing.1 Sizing is an additive chemical which is put into the material before it is woven to prepare the warp yarns for the weaving process. The trial commissioner has found that sizing, which is commonly referred to as starch, gives cohesiveness to the fibers and tends to stiffen a fabric. Desizing, on the other hand, is a process for starch removal. Ordinarly such removal is done preparatory to bleaching •or dyeing the material.2

After studying the sample cloth, the plaintiff found the sample material similar to that which it believed the Government was going to furnish. At about the time plaintiff received this invitation to bid, the plaintiff had been making utility caps for the Marine Corps out of a. herringbone twill furnished by defendant. Plaintiff used some excess yardage of the leftover herringbone twill and made several bags from it. On the basis of the production of these bags, plaintiff prepared its unit labor costs. On May 26, 1953, plaintiff was awarded the contract for the production and delivery of 216,-600 barrack bags at a total price of $77,-127.30.3

When the Government-furnished olive drab denim was received by plaintiff, the plaintiff was surprised to discover that the material was stiffer and heavier than both the cloth in the Government sample and the cloth in the herringbone twill out of which plaintiff made the bags upon which it based its unit labor costs. The denim furnished to the plaintiff contained approximately 10 percent nonfibrous materials of which about 7 percent was sizing.4 As we have seen, however, the plaintiff was operating on the assumption that the Government-furnished material would contain a maximum of 1% percent sizing.

The trial commissioner in his findings has pointed out that a shop, such as the plaintiff’s, set up to process only the softer, more flexible material would have great difficulty in using denim containing a high degree of sizing. The evidence in this case clearly bears out the truth of this observation. Plaintiff’s sewing machines were unable to process the stiff material. As a consequence, the machines broke down. Plaintiff’s operators could not get the material through the machine folder. The needles on the needle machines were alternately misshapen, burned, and broken. These difficulties and many others all flowed from the fact that the Government-furnished material contained more sizing than was anticipated.5

Plaintiff sent successive letters to the contracting officer protesting the nature of the Government-furnished material. The contracting officer denied the plaintiff’s claim. He reasoned that Federal Specification CCC-D-186 6 permitted the denim to contain a maximum of 13 percent sizing, finishing, and other nonfibrous materials. The contracting officer concluded that since the Government-furnished material contained only 7 percent sizing, the material was not defective.

On appeal, the Armed Services Board of Contract Appeals on August 14, 1956, decided that plaintiff was entitled to an equitable adjustment since the Board concluded that the Government-furnished material was not fully in accord with the specifications. The Board interpreted specification JAN-D-5047 to apply. That specification required that the Government-furnished denim should not ex[632]*632ceed 1 yz percent sizing content. The Board concluded that the basic specification, MIL-B-2378a[A],8 required that the Government-furnished denim be desized so as to produce a fabric with satisfactory sewing qualities. The Board remanded the case to the contracting officer for a determination as to the amount plaintiff should recover. On January 14, 1957, the contracting officer decided that plaintiff was entitled to an equitable adjustment of $4,700.44. Upon appeal, on December 30, 1957, the Army Contract Appeals Panel decided that the amount of the equitable adjustment should be' $12,996.60. This amount has been paid to plaintiff.

The principal issue in this case is a simple one. Did the Government-furnished material contain more sizing than that provided for by the specifications? Defendant vigorously relies on Federal Specification CCC-D-186 which says that the cloth shall not contain more than 13 percent for class C of finishing nonfibrous materials. Plaintiff for its part relies on Military Specification, JAN-D-504,9 referenced in the basic specification, which provides that dyed fabric shall not contain more than iy2 percent sizing. We reject defendant’s theory that CCC-D-18610 entitled it to furnish the plaintiff with material containing 7 percent sizing. The words “sizing” and “nonfibrous material” are not interchangeable terms. Nonfibrous material includes sizing but is not identical with it. CCC-D-186 permits 13 percent nonfibrous material; it does not refer to sizing. According to the plaintiff’s understanding, the specification that spelled out the amount of sizing permissible in the Government-furnished material was JAN-D-504 which stated that the sizing would not be in excess of 11/2 percent. Plaintiff found the material in the sample bag consistent with this interpretation. The herringbone twill which it used to make the bags on which it based its unit labor costs for this contract likewise conformed to this interpretation of the specification. It is elemental contract law that where the contract specifications are ambiguous, the ambiguity should be construed against their author. Wunderlich Contracting Co. v. United States, 143 Ct.Cl. 876, 878. We think that as a matter of law the Government-furnished material was not fully in accord with the specifications. We note that this was the Board’s conclusion as well.11

Plaintiff says that the Board’s decision is arbitrary and capricious and not supported by substantial evidence because the sum allowed is not sufficient. Defendant also attacks the Board’s decision and alleges that the Board has been arbitrary and capricious because as a matter of law the specifications permitted the defendant to furnish denim containing 7 percent sizing. As we have said above, we cannot accept the defendant’s theory that its material conformed to specifications as a matter of law.

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293 F.2d 630, 154 Ct. Cl. 544, 1961 U.S. Ct. Cl. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lilley-ames-company-inc-v-united-states-cc-1961.