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April 21, 1964

in completion of the work, which was required to be completed within 50 days after receipt of notice to proceed.

The contract describes the principal components of the work to be performed near Yuma, Arizona, as follows:

a. Earthwork for and construction of approximately 2.5 miles of unreinforcedconcrete lined channel, having a bottom width of 2 feet.

b. Earthwork for and construction of structures, including siphons, siphon with metering structure outlet, and pipe drop outlet.

c. Furnishing and installing metal bridge railings and open flowmeter.

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Claim No. 1-Measurement and Payment for Embankments—$7,500

Contract Drawing No. 6 (423–300–158) is entitled "South Gila Valley Pump Outlet Channel No. 2. Typical Sections and Lining Details." It is conceded by the Government that the drawing prescribed minimum dimensions for embankments, and this can readily be seen by examination of the “Typical Section” portion of Drawing No. 423–300–158. The left side of the section shows an embankment “In Cut" area while the right embankment is "In Fill.” The top width of each embankment is shown as “3'0" Min.," while the height of each is shown as "1'0" Min.”

The contract provides, in substance, that the actual (or maximum) dimensions will be determined by the contracting officer. Subparagraph (b) of Paragraph 86—Drawings, of the Specifications, sets forth the authority of the contracting officer in the following terms:

b. General-Some of the drawings are typical designs only and the dimensions of each structure will be fixed by the contracting officer to adapt the structure to the existing conditions at the structure location. * *

Similar provisions are found in the first sentence of Paragraph 18 of the Specifications, which states as follows:

18. Staking Out Work

a. Lines and Grades. The contracting officer will establish lines and grades required for proper execution of the work. *

From the foregoing, it is clear that the contract permitted the contracting officer to establish maximum dimensions in the performance of the work. These maximums could be the same as, but not less than the minimum dimensions prescribed by the drawings (except, of course, that a change order could have been issued to reduce further the minimum dimensions).

During the pre-construction conference the contractor was instructed by representatives of the contracting officer that the 3-foot width and 1-foot height described on the drawings would be sufficient, except for an operating road on the south side of the east branch.

The contractor, although he voiced no dissent at that time, apparently regarded the instructions at the pre-construction conference (and also during performance at the site when similar directions and warnings were given) as being the result of misinterpretation by the contracting officer of the contract drawings. It is the position of the contractor that the contracting officer mistakenly considered the drawing dimensions to be maximum requirements, whereas such dimensions were actually minimum requirements. In taking this position, the contractor seems to have ignored the plain provisions of the Specifications quoted supra. In the performance of the work, he persisted in ignoring the directions and advice of the contracting officer's representatives, to the effect that the 3-foot top width and 1-foot height requirements should be adhered to, and that no payment would be made for quantities outside these lines. The contractor's theory, concerning the dimensions which should govern the quantities of material and volume of work, was that since no maximum dimensions were specified by the contract, the maximum dimensions should be those determined by the contractor from his experience and knowledge as being (according to his brief) “reasonably necessary to effect a proper embankment,” which “would fully insure protection for the canal lining * * *.”

It was stipulated by the parties under date of October 8, 1962, that the quantity of material covered by Claim No. 1 is 7,408.4 cubic yards. This represents the volume of material placed in embankments, outside the paylines and in excess of the instructions of the Government. It is also stipulated that the quantity of 7,408.4 cubic yards "includes an appropriate shrinkage factor, to compensate for the fact that the material was compacted when placed in the embankments.”

The stipulation that the shrinkage factor is an appropriate one leads us to assume that appellant is not now pressing the argument advanced in his brief dated May 10, 1962, to the effect that the shrinkage factor was not properly computed by the Government because of the fact that a large proportion of the borrow material was placed in muddy areas where a greater volume of the material was necessarily used. The total quantity of borrow, measured in excavation, was used in the Government's calculation of compaction. Actually the taking into consideration of such additional quantities of borrow material would result in a higher ratio of borrow to embankment for the shinkage factor, and thus would be more favorable to the contractor rather than otherwise. In any event, we conclude that the method of computation used by the Government was proper.

The principal remaining argument advanced by appellent involves invocation of the doctrine of contra preferentem. We have applied that doctrine, where properly applicable, on numerous occasions. Here, however, there was no ambiguity. The authority of the contracting officer to "fix the dimensions of each structure” and to "establish lines and grades for proper execution of the work” was clearly

April 21, 1964

spelled out by the contract. It has been held that where no ambiguity exists there is no need to construe the contract.

Also, if the contractor, in computing his bid price, relied, as claimed, on his alleged assumption that the minimum dimensions on the drawing could be reasonably exceeded, the absence of specific maximum dimensions in the contract should have prompted an inquiry by him, since such absence of maximum dimensions is the alleged ambiguity complained of by appellant.

Here the contractor remained silent as to the supposed ambiguity, not only during the bidding period but in the preconstruction conference, where he appeared to acquiesce in the instructions concerning the limitation of pay lines for embankments. The contractor offers an interpretation of the contract, which is based mainly on the presence of minimum dimensions in the drawing and the absence of explicit maximum dimensions for embankments. This construction of the contract would make the contractor, rather than the contracting officer, the arbiter concerning the maximum quantities and volume of work to be performed.

Such an interpretation is so strained as to be unreasonable. The unreasonableness of the interpretation precludes the application of the doctrine of contra proferentem.?

In Consolidated Engineering Co., Inc. v. United States, the Court said:

*** We think that plaintiff, aware of an ambiguity, perhaps inadvertent, in the defendant's invitation to a contract, could not accept the contract and then claim that the ambiguity should be resolved favorably to itself.

Accordingly, the Board concludes that, as to the work performed and materials used in the construction of embankments outside of the pay lines established by the representatives of the contracting officer, the contractor was a mere "volunteer" and may not recover additional compensation. Claim No. 2Concrete Encasement of Mitered Pipe Bends—$800.00

The contractor claims that it is entitled to additional compensation for work of encasing in concrete 9 mitered pipe bends. A total of 11 such pipe bends were involved, the encasing of 2 of them having been paid for by the Government. The contracting officer found that

3

1 Hongkong & Whampoa Dock Company, Limited v. United States, 50 Ct. Ci. 213, 222 (1915); Triangle Construction Company, IBCA-296 (March 2, 1964); Northwest Marine Iron Works, IBCA-213 (October 26, 1960), 60–2 BCA par. 2837, 2 Gov. Contr. 568 (i).

Promacs, Inc., IBCA-317 (January 31, 1964), 71 I.D. 11, 1964 BCA par. 4016, 6 Gov. Contr. 116(a); E. W. Construction Company, IBCA-297 (October 23, 1963), 1963 BCA par. 3922, 5 Gov. Contr. 565(d), and cases cited therein.

898 Ct, Cl. 256, 280 (1943).

* Breymann Dredging Co. v. United States, 105 Ct. Cl. 400 (1946); citing Great Lakes Dredge & Dock Company v. United States, 104 Ct. Cl. 818 (1946); Carson Construction Company, IBCA-21, IBCA-25, IBCA-28, IBCA-34 (November 22, 1955), 62 I.D. 422, 428, 6 CCF par. 61, 736.

only these 2 pipe bends were ordered by the Government to be encased in concrete, pursuant to the contract provisions and drawings which make the performance of any such encasement work dependent on specific instructions therefor by the contracting officer. The contractor contends that the contract provisions and drawings direct that all mitered pipe bends be encased in concrete.

The pertinent portion of Paragraph 59 of the Specifications entitled "Bends," is as follows:

59. Bends. Bends at changes in alinement or grade of pipelines may be made by the use of precast elbows or mitered bends, or where indicated on the drawings or where approved, bends may be made by opening the joints on one side of the pipeline a maximum of 14 inch. Where shown on the drawings or where directed, pipelines shall be laid on long-radius curves in lieu of constructing bends.

The contractor shall furnish precast 242 degree elbows, containing not less than the prescribed reinforcement for the adjacent pipe, sufficient in number to provide the required bend in the pipeline; or mitered bends may be fabricated as shown on Drawing No. 10 (423–300–152).

Methods of constructing mitered pipe bends are shown on Drawing No. 10 (423–300-152). The contractor shall construct concrete encasements where shown on the drawings or directed, and in accordance with the details shoron on Drawing No. 10 (423–300-152). The pneumatically applied mortar used for encasing mitered pipe bends shall conform to the requirements specified below for mitered bends. (Italics supplied.)

Drawing No. 10 (423–300–152), as stated in Paragraph 59 quoted above, merely shows methods of constructing mitered bends, and details of constructing concrete encasements therefor as one of the methods of reinforcement. It does not purport to show where mitered pipe bends are to be installed in the pipelines, nor does it purport to show which mitered pipe bends are to be encased in concrete. None of the other drawings attached to the contract show where concrete encasements shall be constructed.

Accordingly, since none of the drawings show where concrete encasements shall be constructed, such work is to be performed where directed

The contractor had an option, under Paragraph 59, either of furnishing precast elbows for bends in the pipelines, or of fabricating mitered pipe bends. It chose the latter method; however, that option did not include the encasing any of the mitered pipe bends in concrete. Encasement in concrete was only one of several methods shown on Drawing No. 10 for constructing and reinforcing mitered pipe bends. Another method shown was that of bending the mitered pipe bends, which was the method the contractor was directed to use for the 9 pipe bends now in dispute. That method he failed to employ. We see no ambiguity in the drawing or in the specifications. Hence, there is no need to construe them.5

5 Note 1 supra.

April 21, 1964

The contractor apparently chose to rely on its interpretation of the specifications and drawings, in lieu of following the correct explanation and directions of the contracting officer. In taking this course of action the contractor assumed the character of a “volunteer" concerning the additional work involved in the use of concrete encasement, and hence, is not entitled to additional compensation therefor.

Claim No. 2 is denied.

Claim No. 3Excusable Delay-$850 Notice to proceed was received by the contractor on August 19, 1961, thus establishing November 17, 1961, as the required date for completion of the work. It was actually completed and accepted on December 13, 1961. In paragraph 6 on page 3 of the contracting

3 officer's Findings and Decision, it is stated that as a result of Change Order No. 2, "November 27, 1961 was considered the new contract completion date.” The Board computes the delay period as consisting of the 3 days remaining in November plus the first 13 days of December, or a total of 16 days. Nevertheless, the contractor was charged with 17 days and $850.00 liquidated damages. This, obviously, is incorrect.

Moreover, the Board differs from the position taken by the Government in denying extensions of time for overruns of estimated quantities. It is true, as stated by Department Counsel, that in the absence of appropriate contract provisions, there can be no adjustment of the established contract unit prices, where the actual quantities vary from the original estimated quantities.? However, that is not the issue before us.

In order for a delay in performance of a contract to be excusable (as provided in subparagraph (d) (1) of Clause 5 of Standard Form 23-A), such delay must arise from "* * * unforeseeable causes beyond the control and without the fault or negligence of the Contractor * * * »

The Board considers that these criteria have been satisfied, as will be discussed infra.

The Government relies (mistakenly) on the so-called “Approximate Quantities” clause in paragraph 4 of the Specifications of the contract, which reads as follows:

4. Quantities and Unit Prices. The quantities noted in the schedule are approximations for comparing bids, and no claim shall be made against the Government for excess or deficiency therein, actual or relative. Payment at the

Note 4 supra. . Otis Williams and Company, IBCA-324 (September 5, 1962), 69 I.D. 135, 1962 BCA par. 3487, 4 Gov. Contr. 471; J. D. Armstrong Company, Inc., IBCA-40, 63 I.D. 289, 305 (1956).

730-483-64

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