S.O.G. of Arkansas v. United States

546 F.2d 367, 23 Cont. Cas. Fed. 80,878, 212 Ct. Cl. 125, 1976 U.S. Ct. Cl. LEXIS 214
CourtUnited States Court of Claims
DecidedDecember 15, 1976
DocketNo. 4-75
StatusPublished
Cited by44 cases

This text of 546 F.2d 367 (S.O.G. of Arkansas 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
S.O.G. of Arkansas v. United States, 546 F.2d 367, 23 Cont. Cas. Fed. 80,878, 212 Ct. Cl. 125, 1976 U.S. Ct. Cl. LEXIS 214 (cc 1976).

Opinions

Davis, Judge,

delivered the opinion of the court:

This contract case, before us under the Wunderlich Act, 41 U.S.C. §§ 321-22, arose from plaintiff S.O.G. of Arkansas’ agreement to construct Lock and Dam No. 4 on the Arkansas Liver. The project, one unit of a system of seventeen locks and dams, was designed to help provide a navigable channel from the Mississippi Liver to Catoosa, Oklahoma. S.O.G., a joint venture formed to obtain and perform the contract, responded to a Corps of Engineers’ invitation for bid (IFB) issued in October 1974. The Government’s bid documents included a schematic diagram of cofferdams to be constructed of steel sheet piling cells in the river areas and embankment dikes on .the existing river banks. This plan unmistakably indicated that the cofferdams were to be built within the existing river banks, and that the purpose was to permit, first, one-half of the lock and dam construction to be built “in the dry,” and then the other half. On the face of the diagram was a notation stating that the diagram was “schematic and for the purpose of estimating only.” Accompanying the diagram were detailed specifications that outlined various requirements that the contractor had to meet during the two stages of river diversion and construction. The notation on the diagram also stated that “[djesign of the diversion scheme will [127]*127be in accordance with, the applicable provisions of tbe specifications.”

S.O.G. ‘and its engineering consulting firm reviewed the plans and specifications and devised what they considered to be the best plan for diverting the river during construction. S.O.G.’s scheme diverted the river beyond its banks onto its flood plain, so that the entire river bed would be dry at onetime and the lock and dam could be built in one continuous effort; unlike the plan indicated on the Government’s diagram, S.O.G’s arrangement did not confine the diversion within the natural channel of the river, nor did it provide that part of the river would at all times be flowing in its normal channel.1 S.O.G. says that it based its bid on its own plan, believing that the diagram provided in the bid documents was in no way mandatory and that plaintiff’s plan was feasible, economical and in compliance with a reasonable interpretation of the plans and specifications.

After the Government awarded the contract to S.O.G., plaintiff submitted its diversion plan for the Corps’ approval. The Government thoroughly considered S.O.G.’s plan over a period of three weeks. Although subordinates of the contracting officer thought that the plan could be implemented if a number of modifications were made, the contracting officer eventually rejected it on the ground that it did not comply with the contract specifications. S.O.G. was thereafter required to implement the river diversion plan depicted on the contract diagram, causing plaintiff (it asserts) to incur $2,000,000 in additional expenses.

S.O.G. contends that the Government’s diagram was in no way binding since it was designated as “schematic and for the purpose of estimating only.” As for the specifications, they were thought to be merely general criteria establishing end-performance standards; accordingly, plaintiff [128]*128says it was free to design completely the river diversion scheme as long as its plan followed sound engineering and construction practices 'and accomplished the Government’s essential end-objectives. To support its position, S.O.G. relies on several paragraphs of the specifications concerning the contractor’s design responsibilities and holding the contractor liable for the success of the diversion plan. The Government, however, urges that the diagram and specifications clearly called for the use of cofferdams and a two-stage diversion and construction scheme within the river banks. While the contractor was to have certain design responsibilities (and accompanying liability for a design failure), the Government asserts that the contract documents did not give S.O.G. the right to disregard the Government’s basic river diversion plan and substitute a very different one which was admittedly not confined within the river’s banks. The Government therefore asserts that it properly rejected S.O.G.’s diversion plan and insisted on its own.2

_ In order to resolve this dispute, we need not agree with either party’s interpretation of the contract. The case presents another example of a contractor who, faced with a patent ambiguity in Government bid documents, did not meet his responsibility to have the ambiguity resolved before bidding. See, e.g., Space Corp. v. United States, 200 Ct. Cl. 1, 5-6, 470 F. 2d 536, 538-39 (1972); Jamsar, Inc. v. United States, 194 Ct. Cl. 819, 827, 442 F. 2d 930, 934 (1971); Woodcrest Constr. Co. v. United States, 187 Ct. Cl. 249, 260, 408 F. 2d 406, 412-13, cert. denied, 398 U.S. 958 (1970); J. A. Jones Constr. Co. v. United States, 184 Ct. Cl. 1, 12-13, 395 F. 2d 783, 789-90 (1968); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 496, 346 F. 2d 962, 972-73 (1965); Beacon Constr. Co. of Mass. v. United States, 161 Ct. Cl. 1, 6-7, 314 F. 2d 501, 503-04 (1963). We therefore confirm the decision of the Corps of Engineers Board of [129]*129Contract Appeals without having to decide, as the Board did, whether the Government’s interpretation of the contract was the only, or clearly the more, reasonable one.

From the contractor’s point of view, there was obviously a patent ambiguity in the IFB documents. Plaintiff itself says in its reply brief (p. 2) that an “important and salient point” is that “the contract documents in this case are subject to at least two reasonable interpretations; the one made by S.O.G. in proposing its Diversion Plan (which is the basis of its claim for equitable adjustment) and the one argued for by the Government in its Brief (which the Government contends is the only reasonable interpretation).” There is no doubt that the bid documents contain significant expressions favoring each side. On the one hand, the defendant can point to the contract diagram which was utterly irreconcilable with plaintiff’s scheme. If the diagram itself could be entirely disregarded (because of the legend that it was “schematic” and “for the puipose of estimation only”) then there were specific parts of the specifications which appeared to implement the general plan of the diagram and were very hard to harmonize with plaintiff’s position.3 On the other hand, plaintiff relies primarily on the diagram’s legend and the absence of any statement that the diagram plan was mandatory; on the references in the specifications to the contractor’s responsibility for the “design” of cofferdam and dewatering “systems” as well as to the contractor’s “proposed diversion plan”; and on the explicit and unqualified statement that the contractor would be responsible “for the adequacy of the plan.”

[130]*130We cannot escape the conclusion that a knowledgeable bidder, as S.O.G. admittedly was, should have recognized at once that there would be a grave problem as to whether its proposed diversion plan conformed with the IFB. Those documents appeared on their very surface to be internally inconsistent on the important point of the diversion plan; the contradiction was not subtle, hidden, or minor but patent, blatant, and significant.

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Bluebook (online)
546 F.2d 367, 23 Cont. Cas. Fed. 80,878, 212 Ct. Cl. 125, 1976 U.S. Ct. Cl. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sog-of-arkansas-v-united-states-cc-1976.