Space Corp. v. United States

470 F.2d 536, 19 A.L.R. Fed. 636, 200 Ct. Cl. 1, 1972 U.S. Ct. Cl. LEXIS 214
CourtUnited States Court of Claims
DecidedDecember 12, 1972
DocketNo. 328-70
StatusPublished
Cited by52 cases

This text of 470 F.2d 536 (Space Corp. 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
Space Corp. v. United States, 470 F.2d 536, 19 A.L.R. Fed. 636, 200 Ct. Cl. 1, 1972 U.S. Ct. Cl. LEXIS 214 (cc 1972).

Opinion

KtjNzig, Judge,

delivered the opinion of the court:

In issue in this government contract case is whether Decision No. 10365 of the Armed Services Board of Contract Appeals (the Board) that a missing drawing created an obvious omission will withstand Wunderlich Act Beview, él U.'S.'C. ■§§ 321, 322 (1970). Is the decision so arbitrary and unsupported by substantial evidence or is it so erroneous as a matter of law that it should be overturned ?

We hold that Decision No. 10365 does warrant finality and that the Board’s action is conclusive.

Plaintiff also seeks recovery on two alternative grounds which we hold to be equally without merit.

On July 31, 1962, the Ü.S. Army Ordnance Missile Command at Bedstone Arsenal, Alabama (Bedstone) forwarded to the St. Louis and other Ordnance Districts copies of Bequest for Quotations (BFQ) and two sets of drawings and specifications for the procurement of Pershing missile containers. The St. Louis District proceeded to assemble bid packages which would include the BFQ, a set of the drawings received from Bedstone, engineering parts lists (EPL) which listed all necessary parte and parts generation lists (PGrL) and specifications.

The bid packages were sent to prospective bidders, including the plaintiff, and were received on the 25th or 26th of August 1962. Upon receipt of the drawings, approximately 1,500 in number, plaintiff’s chief estimator sought to organize the drawings into two groups — one showing parts to be purchased for which quotations were needed in the prepa[4]*4ration of the bid, and one indicating those parts which could be ‘fabricated internally. In the process the chief estimator became quickly aware that there was no drawing which was indicated on the EPL as drawing number 10608202 (Drawing 202). relating to a monitoring system. The chief estimator thereupon decided (and was supported 'by his superiors) on the basis of plaintiff’s prior experience in manufacturing such containers for Hawk, Sergeant and Nike Hercules missiles, which progressively became more complex, that the cost of the monitoring system would come to about $35.00 per unit. Plaintiff incorporated this figure in its bid.

Drawing 202, which plaintiff did not receive, was a Martin Corporation component drawing. Although it did not show the construction or functions of the monitoring system, it stated that Aerodyne Corporation was the original source.

On September 24, 1962, after the submission of plaintiff’s bid, a negotiation meeting was held at which the parties reviewed the bid package and price aspects of plaintiff’s bid. Plaintiff’s representative at the meeting, its chief estimator, pointed out that some specifications and drawings were missing and, on request, gave as examples drawings which existed but which lacked detail. The government representatives relayed the examples to Eedstone, which advised that all required detail was present and that plaintiff was required to furnish only to the extent of detail shown. Although the Board found that Drawing 202 was the only missing drawing which described a component part as such and the monitoring system was the only component about which plaintiff did not receive information in the bid package, the chief estimator did not refer to Drawing 202 or inquire about the monitoring system.

Due to a change in the contract from Eedstone, plaintiff was given an opportunity to resubmit a higher bid, which it did, but still failed to make any mention that Drawing 202 was missing.

After being awarded the contract on November 23, 1962, plaintiff requested and received an additional set of drawings directly from Eedstone. It was then that plaintiff for the first time saw Drawing 202. It immediately contacted [5]*5Aerodyne Corporation, the original source of the monitoring system, and discovered that the per unit cost was $410.00 rather than the $35.00 estimate that had been included in its bid. Despite good faith efforts by the government, additional information was not available which would have enabled the plaintiff to construct the system at a cost of less than $410.00.

On or about February 1,1963, plaintiff ordered the necessary number of monitoring systems from Aerodyne at $410.00 per unit and simultaneously advised the government that it would file a claim for reimbursement. The contracting officer rejected plaintiff’s claim and this decision Avas affirmed by the Board.

Plaintiff seeks recovery on three alternative theories:

Ithe Board’s decision is arbitrary and capricious and is thus not final;
IIthere was a mistake in the contract which merits reformation; and
IIIthe government breached the contract by not supplying sufficient information.

I

To sustain plaintiff’s principal position, it would be necessary for this court to find, contrary to the Board, that plaintiff acted reasonably in preparing its bid, knowing that the drawing was missing and not inquiring as to its contents. We find that the Board’s conclusion is supported by substantial evidence and is not erroneous as a matter of law.

Assuming arguendo that the drawing was missing, it is difficult to see how anything short of an inquiry about the contents of Drawing No. 202, so as to ascertain the actual contract requirements, could be considered reasonable conduct. It is clear that when a contractor is faced with an obvious omission, inconsistency or discrepancy of significance, he is obligated to bring the situation to the government’s attention if he intends subsequently to resolve the issue in his own favor. Anthony Grace & Sons, Inc. v. United States, 193 Ct. Cl. 248, 254, 433 F. 2d 766, 769 (1970); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 496, 346 F. 2d 962, 972-73 (1965); Beacon Constr. Co. v. United States, 161 Ct. Cl. 1, 7, 314 F. 2d 501, 504 (1963); Jefferson [6]*6Constr. Co. v. United States, 151 Ct. Cl. 75, 89-91 (1960).

'In Beacon there was an article of the contract which made it clear that all discrepancies in the figures, drawings or specifications should be brought to the government’s attention.1 Such a contract clause was not present here. However, an obligation to seek clarification as to an obvious omission is inherent. Thus despite the absence of the Beacon clause, the plaintiff should be held to the Beacon requirement of inquiry. Blownt Bros. Constr. Co. v. United States, supra at 496, 346 F.2d at 972.

Plaintiff argues that this case does not fall under Beacon and similar cases because the missing drawing was not an obvious omission, but rather created an ambiguity in the contract agreement. Plaintiff would have us look to the ambiguity cases which do not impose the duty to inquire. While ambiguous contract provisions are construed against the author (Peter Kiewit Sons’ Co. v. United States, 109 Ct. Cl. 390 (1947)), and a contractor is not usually obligated to seek clarification of all interpretative problems, he must nevertheless inquire where the discrepancy, omission or conflict is obvious. Jefferson Constr. Co. v. United States, supra.

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Bluebook (online)
470 F.2d 536, 19 A.L.R. Fed. 636, 200 Ct. Cl. 1, 1972 U.S. Ct. Cl. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/space-corp-v-united-states-cc-1972.