Robert L. Guyler v. The United States

314 F.2d 506, 161 Ct. Cl. 159, 1963 U.S. Ct. Cl. LEXIS 65

• Court: United States Court of Claims
• Decided: March 6, 1963
• Docket: 19-60
• Status: Published

Opinions

JONES, Chief Judge.

Plaintiff sues for the value of extra-work which he alleges he was required! to do in completing a construction contract. This work he asserts he was not required to do by the terms of the contract.

In April 1956 plaintiff entered into a contract for the construction of facilities at Ozona, Texas, consisting of 12 buildings and utilities.

The standard form contract with certain additions contained certain provisions which are set out in detail in findings 1, 2, and 3. The main issue turns upon whether the contract required the painting of the interior walls of masonry. The plaintiff contends that by the terms of the contract he was to finish the buildings and to paint the exterior and the woodwork of the interior, but that the contract and specifications required only the interior masonry walls of the operations room to be painted. Paragraph 27-8 of the specifications specifies that interior areas to be painted should include all wood, metal, concrete masonry units, gypsum board, cement-asbestos board, and similar surfaces, except where otherwise specified. Paragraph 27-8 (g) of the specifications, around which most of the controversy revolves, is as follows:

“Masonry Surfaces. — Interior exposed masonry surfaces, indicated on the drawings to be painted, shall be painted in accordance with the attached Figure1.”

It should be noted that this section refers to “attached Figure 1.” Reverting to Figure 1, it is found that it did not specify what surfaces were to be painted. However, one of the drawings clearly and .specifically provided that the walls behind •and beside the platform in the operations room of the Operations Building •should be painted black. This drawing did not provide for the painting of any other interior masonry walls. No other sheet of drawings in the entire original set of drawings designated any other interior masonry walls to be painted.

When he made his preparations for bidding, plaintiff obtained bids from subcontractors for the painting work. The lowest bid figure for the painting was submitted by George E. Biediger & Son, a firm with more than 20 years’ experience in paint contracting. The plans, drawings, and specifications were furnished in advance to the subcontractor. After examining these, the subcontractor based its estimate and submitted a bid on its interpretation of the contract, drawings, and specifications as calling for painting the interior masonry of only one room, the operations room, a portion of which was designated to be painted black in the drawing referred to above.

In submitting his bid on the entire contract, plaintiff used the Biediger bid as the basis for that part of his bid covering painting. In June 1956, after the work had been started but before it had progressed to the point of painting the interior masonry walls, the resident engineer forwarded to plaintiff for pricing a number of changes in the specifications in the form of proposed supplemental specifications accompanied by revised drawings. Plaintiff’s project manager went over the proposed changes in detail to determine what additional costs would be involved in the supplemental specifications. One of the numerous changes outlined in the supplemental specifications was to be made in paragraph 27-8(g), as follows:

Delete “, indicated on the drawings to be painted,”.

Plaintiff accordingly submitted a quotation of price revisions resulting from the supplemental specifications totaling $11,146.99 additional. No price was quoted for any additional painting of interior masonry walls.

On August 20, 1956, modification No. 3 was issued by the contracting officer and executed by plaintiff’s authorized representative. This modification provided for an increase in the contract price of $11,146.99.

Plaintiff executed and accepted the modification No. 3 without any reservation, qualification, or protest. His representative did not attach any significance to the deletion of the particular phrase. The contracting officer apparently attached no significance to the fact that the plaintiff’s detailed breakdown for the work under modification No. 3 did not include any amount for interior masonry painting, nor did the contracting officer call the matter to the plaintiff’s attention. He stated the basis of his action later in his findings of fact, which included the following:

“1. The phrase ‘indicated on the drawings to be painted’ in sub-paragraph 27-8 (g) was deleted from the specifications only to clarify the painting requirements.

“2. This phrase was meaningless since the drawings are not intended to provide painting instructions. The painting requirements are contained in the specifications as is evident by paragraphs 27-8(a), 27-9 and 27-11, all of which indicate painting of interior masonry surfaces.”

This interpretation of the specification, however, was not communicated to plaintiff until after the disagreement about the requirements of the contract.

Some two months later plaintiff was advised by the defendant’s resident engineer that all interior masonry walls in the various buildings covered by the contract were required to be painted. This information was conveyed by plaintiff to his painting subcontractor, who refused to paint any interior masonry walls except the interior masonry walls of the Operations Building which were designated as a painting requirement in the contract drawing. His reason for refusing to do the painting was that the contract did not require the painting of any other interior masonry walls, and that his bid did not include the cost of painting any other interior masonry walls.

Plaintiff then notified the defendant of the position taken by the subcontractor and stated that if the additional work was required he should be compensated for it as extra work. He listed the painting items for the interior masonry walls in the 11 buildings on the project. The engineer replied that the painting-was required under the terms of the contract as revised and that plaintiff’s request for additional payment had been forwarded to the contracting officer for consideration. The plaintiff, under protest, had his subcontractor paint the additional interior masonry walls in dispute and paid the subcontractor for the performance of that work the sum of $3,496.14, which is found to be fair and reasonable compensation for the painting of the interior masonry walls other than the walls in the Operations Building.

A conference was held by the contracting officer and his representatives with representatives of the plaintiff in February 1957, to consider plaintiff’s claim for equitable adjustment under the “Changes” clause in the general provisions of the contract. At that meeting plaintiff’s representatives took the position that under the terms of the original contract, .paragraph 27-8(g) of the specifications and the accompanying drawings specifically limited the painting of interior masonry walls to those so shown on the drawings. The contracting officer disputed this, claiming that before it was modified, the contract required the painting of all interior masonry walls. However, he stated that, if he was in error, there had been a mutual mistake and that in such event plaintiff’s right to reimbursement for the cost of the additional painting would not be prejudiced by the fact that plaintiff had executed modification No. 3.

The claim for an equitable adjustment was denied December 4, 1956, by the contracting officer, the decision being in writing and containing his findings of fact. This decision was transmitted to-the plaintiff under date of February 28, 1957.

An appeal was taken to the Corps of Engineers Claims and Appeals Board which denied the claim November 29, 1957. Although the Board did not expressly disagree with the contracting officer’s assertion that the original contract required the painting of all interior masonry walls, the Board pointed out. that his position would have been more tenable were it not for the facts that the contract drawing in question gave some meaning to the wording of the specification and that other specifications, dealing with the painting of the exterior masonry walls were explicit on painting-requirements. However, the Board held that change order No. 3 removed any doubt as to the meaning of the contract and declined to grant relief on the ground that it had no authority to reform a contractual instrument.

Appeal then was taken to the Armed Services Board of Contract Appeals. A portion of its decision is set out in finding 20. In denying the appeal, the Board expressed regret “that poor draftmanship contributed to the mistake made by appellant’s subcontractor.” Nevertheless, the Board concluded that the contract as worded prior to the issuance of modification No. 3, if carefully read and properly interpreted, required the additional painting.

Thus, one appeals board held that modification No. 3 removed any doubt as to the requirement that interior masonry walls were to be painted. The second appellate board concluded that the original contract, while it was poorly drawn, should be construed to require the additional painting and that modificatoin No. 3 made no such change in the requirement as would form a basis of recovery. The contracting officer held that the change in language was meaningless, while the resident engineer said that the contract, as revised, required the additional painting.

One is reminded of the John G. Saxe story of the six blind men of Indostan who went to see the elephant just to find out what the animal was like. The first fell against his side and reported, “The elephant is very like a wall.” The second, feeling of his tusk, stated it was clear that an “elephant is very like a spear.” The third one, taking hold of the squirming trunk, spake, “I see the elephant is very like a snake.” The fourth, getting hold of the knee, said, “It is very like a tree.” The fifth, catching the ear, said it was “like a fan.” The sixth began to grope, and grasping the táil, “I see,” quoth he, “the elephant is very like a rope.” The Saxe poem ends this way:

“And so these men of Indostan Disputed loud and long, Each in his own opinion Exceeding stiff and strong, Though each was partly in the right, And all were in the wrong!”

This confusion in the interpretation of the contract and specifications is to be contrasted with the uniform construction of the contract documents by the subcontractor and prime contractor, as well as by the defendant’s resident engineer, who felt that until the contract was revised it was to be interpreted as contended for by the painting subcontractor and by plaintiff. These three men at the site of the work were faced with the practical problem of reading through hundreds of pages of specifications, gleaning the specific from the general, and then deciding what work was to be done. The drawing No. SWD 60-02-01, sheet 1 of 12, sequence 115, did not provide for the painting of any other interior masonry walls. No other sheet of the drawings in the entire original set of drawings designated any other interior masonry walls to be painted.

Although the contract makes the decision of the Armed Services Board of Contract Appeals final as to questions of fact, the issue presented here involves a question of law because it requires an interpretation of the language of the contract. It must be remembered that the contract and specifications were prepared by representatives of the defendant and that any doubts and ambiguities must be resolved against it.¹ We agree that the specifications take precedence over the drawings, but the phrase “except where otherwise specified” in paragraph 27-8(a) of the specifications dealing with interior painting and the phrase “indicated on the drawings to be painted” in paragraph 27-8 (g) of the same specifications and specific provisions to which more general language must yield. In order for these quoted words to have any meaning, it was necessary for the contractor to resort to the drawings to which he was specifically directed by the very language of the specifications.

After considering the several provisions of the specifications and drawings in the light of the briefs that the parties have submitted, we conclude that the interpretation by the plaintiff and his subcontractor as to the painting requirements on interior masonry walls is a reasonable one and that any interpretation to the contrary would require a resolution of doubtful and ambiguous language in favor of the party who prepared the documents.

The question then reverts to the effect of the deletions made by modification No. 3 which, among other changes, eliminated from paragraph 27-8 (g) of the specifications the phrase “indicated on the drawings to be painted.” This negative provision was described by the contracting officer as meaningless, since he considered that it did not change the painting requirements in any way. It was equally without significance to the plaintiff, particularly since it was not accompanied by any reference as to its purpose.

The elimination of a few words from a section of the specification that was characterized by the Armed Services Board of Contract Appeals as poor draftsmanship would appear to be an attempt to modify language that the contracting officer thought needed clarification.

When the plaintiff submitted his price quotations for the changes covered by modification No. 3, he sent a detailed breakdown for each item of work but he included nothing for interior masonry painting. This omission must have been clear to the contracting officer, who examined the breakdown submitted before he approved the plaintiff’s bid for the additional work. In spite of this, plaintiff’s attention was not called to the matter by the contracting officer — again for the reason that this official felt that the deletion quoted above did not change the contract in any way. Perhaps it was for this reason that at the conference held to consider plaintiff’s request for reimbursement, the contracting officer stated that if his interpretation of the original contract and the deletion was in error, there was a mutual mistake and that plaintiff’s claim would not be prejudiced by his acceptance of modification No. 3.

The painting of the interior masonry walls, other than the operations room, was extra work not provided in the original contract. The contracting officer did not consider that the deletion changed the terms of the contract. If the language deleted had the effect of changing the obligation, then it was a change order calling for extra work for which an adjustment should be made in the contract price under the “Changes” provision, paragraph 3, of the contract. In either event it was extra work for which plaintiff should be paid.

It will be noted that while section 3 of the contract contains the usual provision that any claim for an adjustment under a change order must be asserted in writing within 30 days from the receipt by the contractor of the notification of change, the latter clause has attached to it the following modifying proviso:

“Provided, however, That the Contracting Officer, if he determines that, the facts justify such action, may receive and consider, and adjust any such claim asserted at any time prior to the date of final settlement of the contract.”

This proviso is attached as a qualifying part of the 30-day notification requirement.

The contracting officer was hundreds of miles away. As soon as plaintiff learned that the contracting officer intended to require the plaintiff to paint the interior masonry walls, he immediately filed a claim for pay for the extra work. These facts clearly called for the contracting officer to make an adjustment under the plain terms of the proviso. The ends of justice required that he do so. If the facts of this case do not justify the use of the quoted proviso, it is difficult to conceive a set of circumstances that would.

In the light of the entire record, wé find that plaintiff is entitled to recover on his claim for the additional painting, the reasonable cost of which is not in issue. Judgment will be entered for plaintiff in the sum of $3,496.14.

1 . Garrison v. United States, 7 Wall. 688, 690, 19 L.Ed. 277.