Petition for Writ of Certiorari — United States v. Urban Plumbing & Heating Co.

Supreme Court brief1970

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INDEX

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CITATIONS

Woy Products Corporation v. United Siates,

Me. 0 GOB. sb. socks ews cen

Automatic Radio Mfg. Hazeltine Re-

ee, 176 F. 2d op, “aiceed. 339 U.S.

E pal United States, 404 F. 2d 975______-_-

Bennett v. Mahon, 180 F. 2d 224, certiorari

denied, 339 U.S. 980___......-----_.-_--

Bolander v. United States, 186 Ct. Cl. 398_-__-

Centre Manufacturing Co. v. United States, 183

Ch 0: 116, 302 F.9d 220... 2-222. 225.

D. & L. Construction Co. v. United States, 185

Ct. Cl. 736, 402 F. 2d 990____..-...._--

Dean Construction Co. v. United States, Ct.

Cl. No. 95-67 (decided June 20, 1969) ____

Gill v. S.H.B. Corporation, 322 Mich. 700, 34

Te BO. bb Gonwe ccc tncedsudoeeua

— Mill v. United States, 271 U. .

ce Hellenis Lines Lid v. Louis Dreyfus Corp., 372

PE TD. <nmawcnaakundunmnweadbuewzusbwale

“Aircraft Associates v. United States, 357 F.

22, 23

11, 13

Cases—Continued i

J. D. Hedin Construction Co. v. United States,

408 F. 2d 424

King Construction Co. v. W.M. Smith Blears

Co., 350 S.W. 2d 940 (Tex. Civ. App.)

‘Kraus v. United States, 366 F. 2d 975_______

L. W. Foster Sportswear Co. v. United States,

405 F. 2d 1285

22,

Portland Hotel Corp. v. Fidelity Storage Corp.,

134 F.. 2d 57

16, 20, 21,2 |

United States v. Bethlehem Steel Corp., 315

U.S. 289

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So SO BS SBS HBO SB SE SF SS

Cases--Continued

United States v. Utah Construction & Mining _ Paee

Re i cn 16, 21, 22

United States v. Wunderlich, 342 U.S. 98_---- 16

Urban Plumbing and Heating Co. v. United

Se Ff eee 22, 23

Val-Rich Corporation v. Tole Electric Co., 196

i CEE: ci nactckeidedeenguaknennniims 13

Vines v. General Outdoor Advertising Co., 171

PO is cuen shoe cucbaaagioeieaes 13

WRB Corp. v. United States, 183 Ct. Cl., 409. 18

Oo vivicnpiddvccanioadcbbinnmenddamone 13

Williamson v. Bendix Corp., 289 F. 2d 389- -- 13

Woodcrest Construction Co. v. United States,

BE Fe Gi. Hib ki ee 17, 21, 22, 23

Statute:

The Wunderlich Act, Act of May 11, 1954,

c. 199, 68 Stat. 81, 41 U.S.C. 321____---- 2, 3,15

Miscellaneous:

Gamer, After Two Years: Cases in the Court of

Claims Since Utah and Grace, Public Contract

Newsletter, vol. 3, No. 3 (July, 1968) - - - -- 23

5 Williston, Contracts (rev. ed. 1937):

ee rn 14

Se eee 12, 14

: aa ee 14

DE tasccenndimecasacanenasaemnsee 14

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§n the Supreme Court of the Wnited States

OcToBER TERM, 1969

No. ——

UntrTep States oF AMERICA, PETITIONER

Ursan Pirumsina & HeEatine Co.

PETITION FOR A WRIT OF CERTIORARI TO THE UNIVED

STATES COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

opinion and order of the United States Court of

Claims entered in this case on March 14, 1969.*

OPINION BELOW

The opinion and order of the Court of Claims

(App. 25-44) is reported at 408 F. 2d 382. The opinion

and findings of the Armed Services Board of Con-

tract Appeals (App. 45ff.) are reported at 66-2 BCA

{ 6062, ASBCA No. 9831.

Although the decision of the Court of Claims is interlocu-

tory in the sense that it does not finally grant or deny relief,

but simply remands for computation of the amount of recov-

ery, this Court has jurisdiction under 28 U.S.C. 1255(1).

United States v. Caltex, Inc., 344 U.S. 149; United States v.

Central Eureka Mining Co., 357 U.S. 155; United States v.

Acme Process Equipment Co., 385 U.S. 138.

COPY BOUND CLOSE IN CENTER

JURISDICTION

The opinion and order of the Court of Claims wag

entered on March 14, 1969. By an order of June 4, 1969,

the Chief Justice extended the time for filing a peti.

tion for a writ of certiorari to July 27, 1969. The ju-

risdiction of this Court is invoked under 28 U.S.C.

1255(1). S,

QUESTIONS PRESENTED

1. Whether an amendment to a government cop-

tract is voidable for duress merely because it was

agreed to after a government agent threatened cancel-

lation for default in circumstances ultimately found

not to have constituted culpable default, there being

no proof either of bad faith on the agent’s part or of

incapacitating financial weakness on the part of the

contractor.

2. Whether the Court of Claims exceeded the scope

of review permitted it by the Wunderlich Act on re

view of factual findings of government boards of

contract appeals.

STATUTE INVOLVED

The Wunderlich Act, Act of May 11, 1954, c. 199,

68 Stat. 81, 41 U.S.C. 321, provides in relevant part:

Limitation on pleading contract-provisions re-

lating to finality ; standards of review.

No provision of any contract entered into by

the United States, relating to the finality or

conclusiveness of any decision of the head of

any department or agency or his duly author-

ized representatives or board in a dispute in-

volving a question arising under such contract,

shall be pleaded in any suit now filed or to be

=<. aseeen eee 6am 4886 6 4ee 8 SS Te. eT. eo

filed as limiting judicial review of any such

decision to cases where fraud by such official

or his said representative or board is alleged:

Provided, however, That any such decision shall

be final and conclusive unless the same is fraudu-

lent or capricious or arbitrary or so grossly

erroneous as necessarily to imply bad faith,

or is not supported by substantial evidence.

STATEMENT

In June, 1961, the Urban Plumbing and Heating

Company was awarded a fixed-price contract, as

low bidder, for the modification of the central heat-

ing and power plant at Eielson Air Force Base,

Alaska. The contract specified that the work was to

be completed within 120 days after the notice to pro-

ceed. That notice was issued on June 30, 1961, there-

by fixing the completion date as October 28, 1961.

Compliance with the specified completion date was

important because the contract work involved shut-

ting down a portion of the Base heating plant, which

could not be done during the Alaskan winter.

Among the contract requirements was the instal-

lation of three sorts of furnace appliances—coal scales,

combustion air coils, and ash removal equipment. The

specifications for these appliances were fully described,

and the contract required the contractor to submit draw-

ings of the equipment he proposzd to install for ap-

proval. (Contract Sec. 5-04; App. 48). Equipment

other than that specified would be approved only if

“equal” to the specified equipment;* and, it was pro.

vided, ‘‘[n]o extension of contract time will regu}

from submission of material and equipment dat,

which does not fulfill the requirements.” Ibid, Th

contract also provided for a procedure by which ¢op.

formity to the specifications would be measured—gyb.

mission of the specifications of substitute equipment

to a designated architect-engineer.

On July 11 and 13, 1961, two weeks after the notice

to proceed had been given, the contractor submitted

initial data as to each of the three items of equip.

ment (Pl. Ex. 41,° Govt. Exs. E, G, H; App. 47).

On July 17, although he had not yet formally been

retained (Tr. 476-481),* the Architect-Engineer in.

formed the contractor orally that he would reject the

* As to the coal scales, the contract provided :

The coal scale shall be of the stationary, automatic, dus-

proof, batch type, Model 46, manufactured by Stock Equip-

ment Company, or approved equal.

(Sec. 5-09; App. 49)

As to the combustion air coils, the contract provided:

Equipment differing from that specified may be pro-

posed, provided the Contractor clearly states such differ.

ences and provided all essential requirements of the

specifications are met. If the equipment offered under this

provision is, in the opinion of the Contracting Officer, equal

or better than that specified, it will be given consideration

(Sec. 7-02B; App. 51)

As to the ash removal equipment, the contract provided:

It is the intent of the drawings and specifications that

equipment for this contract shall be as manufactured by

the United Conveyor Corporation, or approved equal.

(Sec. 8-04; App. 52)

*The exhibits were in the proceedings before the Armed

Services Board of Contract Appeals (“Board”).

*“Tr.” designates the transcript of proceedings before the

Board.

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proposed coal scales and combustion air coils, and the

contractor promptly cancelled his orders for that

equipment (Pl. Exs. 3, 5; App. 56).’ Regarding the

ash removal equipment, the Architect-Engineer told

the contractor that the data was insufficient to permit

review (Pl. Ex. 3; App. 55); additional data was

submitted August 8, 1961 and he disapproved the

equipment on August 29, 1961, in a letter received by

the contractor September 5, 1961. (Pl. Exs. 14, 23, 31,,.

33; App. 57).

Partly as a result of these disapprovals, the con-

tract was not completed by October 28, 1961. During

September, when it became apparent that this would

happen, negotiations towards an extension of the

deadline were begun. The contractor first requested a

90-day extension; when he was offered 30 days, he

returned with a request for 120. (Rule 4 File * Doc. 9,

11, 13; App. 59). At this point, the deadline had

expired, and the contracting officer offered a 69-day

extension, corresponding to the total time elapsed be-

tween the June 30 notice to proceed and the Septem-

ber 5 disapproval of the ash removal equipment.’ Ibid.

This offer thus made no adjustment to reflect the insuf-

ficiency of the initial data, the time then taken to submit

additional data, or a reasonable period of time the Archi-

tect-Engineer might have taken to pass on the submis-

*The formal letters of rejection for these items were received

August 7, 1961 (Pl. Exs. 20,21; App. 56).

*The “Rule 4 File” is the official file of documents pertaining

to the contract, placed in the administrative record pursuant to

Rule 4 of the Armed Services Board of Contract Appeals Rules.

"Here the contracting officer made an arithmetical error; the

time elapsed between June 30 and September 5 is 67 days.

ree ns ee ee ee

sion.’ As an alternative—since at least some of the work

on the heating plant would not have been possible during

the Alaskan winter—the contracting officer offered a

Supplemental Agreement extending the completion date

to June 30, 1962, subject to the proviso that the extension

“neither increases or decreases contract costs.’’ (App

59.) The officer stated that he would terminate the con-

tract for default if the contractor rejected both al-

ternatives (App. 60),° and insisted that a choice be

made “within a very few days, two or three days any-

way.” (Tr. 83). After securing a change of language

from ‘‘no increase in cost” to “no increase in price,”

* At the Board hearing the contracting officer testified that

the offer of 69 days was made on the assumption that “the

Government takes « flat zero for approval of data which I think

is maybe a little unrealistic on the Government's side, I think

we are entitled to more than that in our normal approval chan-

nel up there, it was from 15 to 30 days, but I wanted to give

him the benefit of the doubt since my job is not only to protect

the Government, but also to protect the company, or the con-

tractor.” (Tr. 131; see also Tr. 220).

*The contract provided that “the right of the Contractor to

proceed shall not be terminated [for default] * * * because of

any delays in the completion of the work due to unforeseeable

causes beyond the control and without the fault or negligence

of the Contractor, including * * * acts of the Government,

either its sovereign or contractual capacity * * * and unusually

severe weather” (App. 34), The contracting officer’s threat to ter-

minate for default thus necessarily asserted that the delay which

had occurred, and the concomitant difficulties introduced by the ap-

proach of the Alaskan winter, were not entirely due to acts of

the Government. Although the Supplemental Agreement as signed

states that the delay was granted due to “adverse weather condi-

tions and Government delay in approval of data,” (App. 28), that

agreement is a compromise of the conflicting claims of the parties.

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BRZPRREFE “sQV TFrPP SST we

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the contractor signed the Supplemental Agreement on

November 16, 1961 (Tr. 84-85, 104-107; App. 28).”

Urban completed the contract by June 30, 1962, and

then made a claim for the costs it had incurred as a

result of the delay past the original contract deadline.

The Armed Services Board of Contract Appeals

denied that claim, after hearing, on the ground that it

was barred by the Supplemental Agreement (App.

45). Relying on the testimony of the Architect-

Engineer that the equipment the contractor submitted

for approval in July and August had significantly

deviated from the contract specifications (App. 18-19),

it found that the contractor was partially responsible

for the delay in delivery of the equipment and therefore

“was not entitled to a time extension adequate to permit

completion of the work’’ (App. 64). It followed that the

extension permitted by the Supplemental Agreement

was valuable consideration, sufficient to support it. Ibid.

Moreover, the Board concluded, that agreement was not

invalid for duress:

Where the contracting officer threatens default

termination, and the contractor is actually in

default, the contracting officer was threatening

°The contracting officer proposed the Supplemental Agree-

ment to Mr. Brewer, the contractor’s Alaska Superintendent.

Although Brewer had authority to sign the Agreement, he told |

the officer that he wished first to speak with Mr. Urban, the

president of the contractor. He called Mr. Urban, who told

him to sign the Agreement provided that the “no increase in

cost” language was changed to “no increase in price.” Brewer

then went back to the contracting officer and advised him that

he would refuse to sign unless this change was made. The con-

tracting officer agreed to the change, and the Supplemental

Agreement was signed. (Tr. 81, 84-85, 104-105, 107, Gov't Ex. 4;

App. 60).

Palait~-,"an-le bt :ates na’ — al *2.!s*..

to do only what he had the right to do. This ig

not duress. [Citation]. In the instant case the

appellant was in default for the completion date

was 18 days past when the modification was

signed. At least as to the coal thaw shed only

3 days of the delay was excusable.” The con-

tracting officer offered 69 days time extension

because of the delay in approvals. This would

not have permitted completion, but we cannot

find that it was not as much as was due for ex-

cusable cause.

Ibid.

Urban then brought this action in the Court of

Claims. That court rejected the Board’s finding that

the contractor was partially responsible for the delay

“because it offered equipment which did not meet

the contractual requirements * * *.’’ Ibid. The court

considered that the specifications should have been con-

strued to permit any equipment which would function

as well as the specified equipment, and concluded that

“the Board never found, and there is no proof,”’ that the

equipment offered by the contractor deviated from the

specifications as so construed. (App. 30, n. 3).

Having found therefore that the government was

solely responsible for the delay which prevented com-

11 The coal thaw shed was a portion of the project which the

Air Force urgently wished to complete as quickly as possible,

since in its present condition it was a major fire hazard. (Tr.

266, 268; App. 58). The work on the coal thaw shed did

not involve any of the equipment disapproved by the archi-

tect engineer (Tr. 45-52, 58-68). The three days delay which

the Board found to be excusable was caused by an error in the

contract drawings. (App. 59).

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pletion by the original contract deadline, the court

held that

* * * under the circumstances of this case, the

contracting officer had no right to terminate

the contract, except for the convenience of the

Government, and when he threatened to do so

to force the plaintiff to sign the supplemental

agreement, he was guilty of coercion and duress

against the contractor.

(App. 35). Accordingly, the court held that the

Supplemental Agreement was invalid, and thus did

not constitute a bar to recovery of the contractor’s

costs in excess of the contract price. It remanded the

ease to the Board for determination of the amounts

cs REASONS FOR GRANTING THE WRIT

1. The holding of the court below, permitting the

contractor to recover its delay-related costs, over-

head, and profit in excess of the fixed contract price

on the theory that the contracting officer’s threat to

cancel for default constituted duress invalidating the

Supplemental Agreement, is not only unsound but

conflicts with the decisions of this Court in Hartsville

Mill v. United States, 271 U.S. 438, and of the United

States Court of Appeals for the District of Columbia

Circuit in Board of Trustees v. O. D. Wilson Co., 133

F, 2d 399. It extends the concept of duress and

thereby substantially undercuts the government’s abil-

ity to defend its interests in contract renegotiations by

making compromise agreements unenforceable by the

government whenever its negotiators have asserted

contract rights later held unfounded, without regard

to good faith, the financial strength of the contractor,

or other relevant circumstances.

The opinion of the Court of Claims recites that

“[w]hether or not duress exists in a particular case,

depepds on the facts in the case’”’ (App. 35). But the

sole fact on which the Court of Claims relied to show

duress was the contracting officer’s threat to terminate

for default in a situation held after the fact not to in-

volve culpable default. There was no evidence, and no

finding by the Board or the court, that the contracting

officer acted in bad faith or with knowledge that he had

no right to terminate for default. In light of the Board’s

finding that the contractor was in default and the sub-

stantial evidence supporting that finding, it would be

impossible to conclude that the contracting officer go

acted. There was also neither evidence * nor any find-

ing » that the contractor was in such bad financial condi-

tion that it could not insist in its rights and bring suit in

**The only remotely relevant evidence as to financial condi-

tion was a notation in a memorandum written by the contract-

ing officer, stating: “In discussion with Mr. Brewer [Urban’s

Alaska Superintendent] he has indicated that his company has

had considerable bad luck on several construction projects this

year. They have had approximately $3,000,000 worth of busi-

ness and it seems as tho all other projects have gone sour.

had some flooding conditions oa a city project.” (Govt. Ex. A),

This notation does not show that Urban was in such bad condition

as to be unable to insist on its rights.

**The Board stated in its opinion that “from [the contrac-

tor’s] viewpoint, default termination was unthinkable” (App.

60), but did not suggest that this was because of financial

inability to insist on its rights. Such termination would be

unthinkable, for example, to a contractor who realized he was

likely to lose any such litigation as having in fact been in

material default.

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event of termination, rather than sign a supplemental

ent it did not wish to sign. Indeed, both the ex-

tended period of negotiations over the delay as a

whole and Urban’s successful insistence upon a change

of language in the contract suggest that the Supple-

mental Agreement was freely entered.

Under the existing case law, two facts must be

shown for a threat of contract cancellation to consti-

tute duress invalidating a contract amendment: (1)

that the threat was made in bad faith, with knowledge

that the other party was not in default; and (2) that

the other party was not in financial condition to stand

on its rights rather than accept the contract amend-

ment. The leading case is Hartsville Mill v. United

States, 271 U.S. 43. There the government made a

threat to “disregard the admitted obligations of its

contracts unless those entitled to the performance of

them would yield to its demands.’’ 271 U.S. at 48-49.

Characterizing this threat as ‘‘discreditable”’, Mr.

Justice Stone nevertheless held for the unanimous

Court that the contract amendment which resulted

from the threat was not invalid for duress (271 U.S.

at 49):

But a threat to break a contract does not in

itself constitute duress. Hefore the coercive ef-

fect of the threatened action can be inferred,

there must be evidence of some probable conse-

quences of it to person or property for which

the remedy afforded by the courts is inade-

quate. ** *

Since such consequences had not been shown, the

Court concluded that duress could not be found. 271

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U.S. at 47-48. See also United States v. Bethlehem

Steel Corp., 315 U.S. 289, 300-305.

The Court of Appeals for the District of Columbia

Circuit, in a similar case, held that a government con.

tract was not void for duress when made under the

government’s threat to forfeit the contractor’s bid

bond, even though the bid bond may have been re-

scindable for an error in the bid:

[The contractor] contends that it made the con-

tract under duress, since [the government]

threatened to forfeit the bid bond if it refused

to contract in accordance with the bid. But if

[the contractor] had, as it insists, a right to

rescind, [the government] had no power to

make good its threat. Its denial of the right to

rescind did not conclude the question. [The

contractor] could litigate it. * * * [The con-

tractor] simply chose to contract and perform

rather than have its right to rescind judicially

determined. It is bound by the contract and

cannot recover in this action.

Board of Trustees, etc. v. O. D. Wilson Co., 133 F.

2d 399, 400. The court restated its position in a case

between private litigants shortly thereafter, in the

following terms:

[A]ppellees were entitled to litigate, or

threaten to litigate, the question whether appel-

lants’ failure to make improvements ended their

rights under the lease. Where there is a genuine

controversy, a threat to sue is not duress. * * *

Portland Hotel Corp. v. Fidelity Storage Corp., 134

F. 2d 57. Accord: 5 Williston, Contracts § 1606, pp.

4501-4502 (rev. ed. 1937). State authorities agree

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that a threat to eancel a contract not in fact

subject to cancellation is not duress per se; there must

be proof that the threat was made in bad faith, and that

the other party was not in a position to have obtained

an adequate remedy by suing for damages if the

threat were carried out. The facts of cases previously

decided against the government on duress grounds

in the Court of Claims also bring them within these

principles.”

We recognize, of course, that what was found not

to constitute duress in Hartsville Mill, supra, might

be found to be so today.

[T]he modern tendency * * * is to regard any

transaction as voidable which the party seeking

to avoid was not bound to enter into and which

was coerced by fear of a wrongful act by the

other party to the transaction.

4 Williamson v. Bendix Corp., 289 F. 2d 389, 392-393 (C.A.

7) (applying Ind, law); W. 2. Grimshaw Co. v. Nevil 0. With-

rom Co. 248 F. 2d 896, 903-905 (C.A. 8), certiorari denied,

356 U.S. 912 (applying Ark. law). Bennett v. Mahon, 180 F.

9d 294, 231 (C.A. 8) (applying Mo. law), certiorari denied,

339 U.S. 980; Vines v. General Outdoor Advertising Co., 171

F. 9d 487 (C.A. 2) (applying N.Y. law); 7'ri-State Roofing

Co. of Uniontown v. Simon, 187 Pa. Super. 17, 142 A. 2d 333; Gill

v. S.H.B. Corporation, 322 Mich. 700, 34 N.W. 2d 526; Val-Rich

Corporation v. Tole Electric Co., 196 So. 2d 486 (Fla. App.).

Whero contract amendments have been voided for duress, both bad

faith and lack of an adequate legal remedy was clear. King Con-

struction Co. v. W. M. Smith Electric Co., 350 S.W. 2d 940 (Tex.

Civ. App.) ; cf. Ross Systems v. Linden Dari-Delite, Inc., 35 N.J.

329, 173 A. 2d 258.

% Fg. Aircraft Associates v. United States, 357 F. 2d 373;

WRB Corp. v. United States, 183 Ct. Cl. 409, 468-469 ; Shewan &

Sons v. United States, 73 Ct. Cl. 49, 79-95; compare Alloy Prod-

ucts Corporation v. United States, 302 F. 2d 528, 530.

358-025—69 2

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5 Williston, Contracts § 1603, p. 4495; Hellenic Lines,

Ltd. v. Lowis Dreyfus Corp., 372 F. 2d 753, 756-758

(C.A. 2). And the existence of a remedy at law—such as

the contractor here would have had under the Cour

of Claims’ view that he was blameless—is not neces.

sarily a conclusive answer where the contractor’s f-

nancial position or some other factor renders it in.

adequate. 5 Williston, Contracts § 1620, pp. 4529-4533,

But the Court of Claims’ holding in this case was made

in the absence of information about the contractor’s

financial situation; and the only wrongfulaess in the

contracting officer’s assertion that he would invoke the

contractual remedy of default was in his judgment,

ultimately found to have been erroneous, that he was

entitled to do so. ‘“‘[A] threat * * * to resort to reme-

dies given by the contract is not * * * duress * * * even

though there is no legal right to enforce the claim,

provided the threat is made in good faith; that is, in

the belief that a possible cause of action exists.” 5

Williston, Contracts § 1606, pp. 4501-4502; and see id,

at § 1607, p. 4504; Automatic Radio Mfg. Co., v. Ha-

zeltine Research, 176 F. 2d 799, 804-805 (C.A. 1), af-

firmed, 339 U.S. 827. None of the authorities suggests

that a threat to cancel a contract not actually subject to

cancellation is duress per se.

The question is important. By in effect adopting

a per se rule, the Court of Claims has severely limited

the government’s ability to engage in the negotiations

which are frequently required in the administration

of government contracts. Often, contracts cannot be

completed on time or delay or other factors create

a cost overrun; there is very often a dispute as to

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gho is responsible for the problem. Negotiations on

revised contract terms, looking toward avoidance of

the drastic steps of litigation or default, are the usual

and desirable first step in the resolution of these

disputes. Since the allocation of responsibility for the

delays and/or overruns will bear heavily on the terms

of the revisions made, each side can be expected

to press forcefully its views on that issue and the

contract remedies therefore available to it. But under

the Court of Claims’ opinion, the government’s nego-

tiator is subjected to an unequal burden of accuracy ;

if despite his good faith belief that default has oc-

curred the court later concludes that it did not, his

representations will be construed as duress if they in-

dude or can be interpreted as a threat to cancel. The

holding thus imposes an unwarranted limitation on

the ability of contracting officers to negotiate and

settle disputes in the performance of government

contracts.

9. The previous discussion assumes that the Court

of Claims correctly found the contractor not to have

heen in default. But the Board of Contract Appeals

had found that it was at fault for the delay—both

with respect to the coal thaw shed, where none of the

challenged equipment was required, and with respect

to the equipment, because it failed to meet the con-

tractual requirements (App. 64). In rejecting the

Board’s findings and in effect entering its own con-

trary findings, the court exceeded its power under the

Wunderlich Act, 41 U.S.C. 321, which confines it to

substantial evidence review of administrative findings.

CORY BROLIN) CIrOsEe IN COA TKD

As is set out at length in this Court’s opinion in

United States v. Carlo Bianchi & Co., 373 Us,

709, the rationale of the Wunderlich Act, enacted in

1954, was to relieve certain restrictions on Court of

Claims review of the findings of government contra¢t

boards operating under the “disputes” clause of goy-

ernment contracts. These restrictions had last been

stated in this Court’s decision in United States y,

Wunderlich, 342 U.S. 98, 100. The dominant purpose

of the Act was to permit the Court of Claims to act

essentially as any other court reviewing the findings of

an administrative agency. 373 U.S. at 713-718. The

history of the Act in this Court shows, however, that

the Court of Claims has tended to assume authority

above and beyond that which reviewing courts gen-

erally exercise over administrative agencies; the gov-

ernment has come to this Court on three occasions in

order to protect that finality of administrative findings

which the Act does require. Thus, in Bianchi, supra,

this Court dealt with the practice of holding de novo

trials to determine whether administrative findings

were supported by substantial evidence. In United

States v. Utah Construction & Mining Co., 384 US.

394, this Court rejected the position of the Court of

Claims that in ruling on claims outside the scope of the

disputes clause it could ignore administrative findings

made under that clause in related claims under the

same contract. And in United States v. Anthony Grace

& Sons, Inc., 384 U.S. 424, this Court rejected the

assumption of authority to hold a de novo trial and

make findings where an administrative board had

erroneously failed to make them, and required the

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gurt, in effect, to remand to the Board for such

proceedings.

In the present case, the court has avoided its obli-

gation to accord finality to administrative findings

by purporting to apply the substantial evidence rule,

but then ignoring substantial evidence in the record

supporting the findings. A decision involving applica-

tion of the substantial evidence rule to a particular

set of facts would not normally warrant review by

this Court. There has, however, been a pattern of sim-

lar decisions having the cumulative effect of a re-

assumption by the Court of Claims of a large measure

of the de novo review power which it lost when this

Court put an end to its practice of taking new evi-

dence. This case and Woodcrest Construction Co. V.

United States, 408 F. 2d. 406 (Ct. Cl.), in which the

government is filing a petition for certiorari together

with the present petition, are the latest in this series of

decisions. The approach taken in these cases should be

reviewed by this Court with a view to restoring the

proper balance between the Court of Claims and the

administrative contract boards in government contract

cases,

In the present case, the court overturned the admin-

istrative finding (that the contractor was partially at

fault for the delay “because it offered equipment

which did not meet the contractual requirements”

(App. 64)) by simply ignoring the evidence on

which it was based. In a footnote, the court brushed

this finding aside, stating that “[t]here is no showing

that plaintiff was responsible for any substantial

part of the delay” and that there is “no proof” that

COPY BOUND CLOSE IN CENTER

the equipment proffered by the contractor failed tp

meet the requirement of functional equality with the

equipment required by the specifications, (App.

30-31).”* It then proceeded to decide the case on the basis

of what was in effect its own finding that the contractor

was without fault. Establishment of such a new factual

premise was, however, beyond the authority of a review.

ing court in light of the facts supporting the Board’;

findings.

The Architect-Engineer, who disapproved the equip-

ment offered by the contractor, testified before the

Board that the equipment differed from the contract

0. 96-67 (June 20, 1969) (formal findings of con-

tracting officer “constitute a strong presumption or an evidentiary

admission of the extent of the government's liability [but] are

always subject to rebuttal”.).

Nor could the Court of Claims rationally conclude that the

Board found the government to be solely responsible for any

particular period of delay, in view of the Board’s finding that

the parties were “jointly responsible” and that it was “unable

to apportion the causes of delay.” (App. 64).

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‘eoations in several respects having an important

pearing on the operation and maintenance of the Base

heating plant. Regarding the ash removal equipment,

he noted that the proposed equipment had not met

reliability requirements which seemed particularly

important in view of Alaska’s remoteness and the

harshness of its winters, and that it embodied a fea-

ture which—unlike complying equipment—would have

required replacement of parts every three or four

weeks (Tr. 482-483, 488, 524; Pl. Exs. 31, 33; App.

52-55). The coal scales submitted, unlike those specified,

had only a slight gradient between coal bunker and fur-

nace ,which would make it hard to feed in frozen coal

(Tr. 495-497, 499, 502-503), and used a type of conveyor

belt which could be repaired only by technicians who

would have to come from Seattle (Tr. 499). The combus-

tion air coils submitted would have presented a mainte-

nance problem during the coldest weather—the most

critical time—which the specified coils would not present

(Tr. 508), and were conceded not to meet the specifi-

cations by a representative of the manufacturer (Tr.

506-507). Although there was contrary testimony and

evidence tending to show that the equipment did con-

form to the specifications (Tr. 463-464; Pl. Exs. 6,

17, 19, 37, 39; Govt. Ex. E), the Board’s finding

accepted the Architect-Engineer’s testimony (App.

48-55). Moreover, the Board also found that the con-

tractor was in default in its work on the coal shed, where

the challenged equipment was not involved and only

three days’ delay was excusable (n. 11, supra; App.

58-59, 64). The court simply ignored this finding in

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concluding that the contractor was not culpably in

default when the contracting officer threatened

termination.

We do not contend that the court was required to

affirm the Board’s opinion, since certain portions of it

are confusing and might be read to indicate that the

Board was adopting an erroneous legal standard,”

But the proper remedy in such a case, where there is

substantial evidence to support the Board’s findings

under a proper legal approach, is to remand the case

for reconsideration under a correct standard; the

Court of Claims may not make its own findings on

conflicting evidence in the administrative record. See

United States v. Anthony Grace & Sons, Inc., 384

U.S. 424, 433, n. 10. In making such findings, the court

"The first two paragraphs of the Board's opinion have

some language which appears to ignore the “or equal” clauses

of the specifications (see n. 1, supra), which the Court of

Claims reads to require acceptance of equipment that is fune-

tionally equivalent to the equipment described in the specifica-

tions. See Jack Stone Co. v. United States, 170 Ct. Cl. 281,

344 F. 2d 370. However, the opinion does state: “Many of the

specified details may have been unnecessary. Others were clearly

desirable for this particular application, and some of these

details were not met by the offered equipment” (App. 62,

emphasis added). Moreover, Board Findings 7a and 7b are

clearly addressed to functional differences between the speci-

fied equipment and the equipment offered by the contractor

(App. 50).

The last paragraph of the Board’s opinion might be read to

indicate that any failure to meet the completion date would be

a default by the contractor, regardless of who was responsible

for the delay (App. 64). This would be an erroneous view of

the law, as the Court of Claims pointed out (App. 34).

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dearly exceeded its review powers under the Wunder-

jich Act.”

There are disturbing indications that the decisions

of the Court of Claims here and in Woodcrest Con-

struction Co., supra, are not isolated examples. Since

this Court’s decisions in United States v. Anthony

Grace & Sons, Inc., 384 U.S. 424, and United

States v. Utah Construction & Mining Co., 384

US. 394, finally precluded the Court of Claims

from taking new evidence on questions within the

contract boards’ jurisdiction under the disputes clause,

that court has assumed a large measure of de novo

review power by simply reweighing evidence in ad-

ministrative records. A review of the reported de-

cisions of the Court of Claims between the date of

the Grace and Utah decisions (June, 1966) and the

current decisions (March, 1969) shows that of the

87 government contract cases in which decisions of

administrative contract boards were under review on

the basis of the administrative record, 35 cases (40%

%The court would have had authority under the Act to

interpret the contract in the light of the Board’s findings. But

it would have been unjustified in holding under the contract

that the government had no right to terminate the contract

in November, 1961 despite the contractor’s culpable default

because it, too, was responsible for some delay. Section 5-04 of

the contract specifications provided that “[n]o extension of

contract time will result from submission of material and

equipment data which does not fulfill the requirements.” Sec-

tion 5 of the contract provided that “(t]he right of the Con-

tractor to proceed shall not be terminated * * * because of any

delays in the completion of the work due to unforeseeable

causes beyond the control and without the fault or negligence

of the Contractor * * *.” (App 34).

= mine + BA ASS ee,emhlC KM FlhlCO Me oO hUCr KC lL ee eo oe eee

iemmeindnaaaie

of the total) were reversed in whole or part. It is

difficult to tell how many of the reversals were based

on a reweighing of evidence in the administrative

record, since the court’s opinions, as here, do not al-

ways reveal the extent of the evidence supporting the

administrative decision, and frequently treat as ques-

tions of law (not subject to Wunderlich Act finality)

issues which involve a large factual element.” How-

ever, the court has clearly reviewed the evidence and

rejected administrative factual findings in at least

13 cases (15% of the total cases decided, and 37%

of the reversals) ;” of these 13, 6 were decided in the

last 6 months of the period surveyed, representing

40% of the 15 cases decided in those months (October

1 For example, the court so treated the issue of duress here

(App. 35). In some cases, it goes so far as to enter formal or

additional findings of fact. Kraus v. United States, 366 F. 2d

975; Bolander v. United States, 186 Ct. Cl. 398; KECO Indus-

tries v. United States, 364 F. 2d 838. Making such findings of

fact in the course of reviewing an administrative record is

inconsistent with the limitations on the court’s role underlined

in Utah and Grace.

2° United Contractors v. United States, 177 Ct. Cl. 151,

368 F. 2d 585; Johnson & Sons, Inc. v. United States, 180 Ct.

Cl. 969; Loral Electronics Corp. v. United States, 181 Ct. Cl.

822; S. S. Mullen Inc. v. United States, 182 Ct. Cl. 1, 389

F. 2d 390; Sundstrand Turbo v. United States, 182 Ct. Cl. 31,

389 F. 2d 406; Centre Manufacturing Co. v. United States, 183

Ct. Cl. 115, 392 F. 2d 229; Morrison-Knudsen Co. vy. United

States, 184 Ct. Cl. 661; D & L Construction Co. vy. United

States, 185 Ct. Cl. 736, 402 F. 2d 990; Bell v. United States, 404

F. 2d 975; L. W. Foster Sportswear Co. vy. United States, 405

F, 2d 1285; J. D. Hedin Construction Co. v. United States, 408

F. 2d 424; Woodcrest Construction Co. vy. United States, 408

F. 2d 406; Urban Plumbing and Heating Co. v. United States,

408 F. 2d 382.

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1968 through March 1969)." While it would unduly

jengthen the petition were we here to discuss the

merits of each of these cases, we believe they bear

out our concern that, as shown by the opinions in

Woodcrest Construction Co. and the present case, the

Court of Claims is not heeding the limitations in-

herent in the substantial-evidence standard of review

prescribed by the Wunderlich Act.” The effect is to

transfer to the Court of Claims the administrative

fact-finding function.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ErwIn N. GRISWOLD,

Solicitor General.

WituiaM D. RUCKELSHAUS,

Assistant Attorney General.

Rosert V. ZENER, Attorney.

Juty 1969.

1D & L Construction Co. v. United States, supra; Bellv. United

States, supra; L. W. Foster Sportswear Co. v. United States,

supra; J. D, Hedin Construction Co. v. United States, supra;

Woodcrest Construction Co. v. United States, supra; Urban

Plumbing and Heating Co. v. United States, supra.

2Gamer, After Two Years: Cases in the Court of Claims

Since Utah and Grace, Public Contract Newsletter, vol. 3, No.

3 (July, 1968), surveys the post-Grace and Utah decisons of

the Court of Claims as of April, 1968. Commissioner Gamer

concludes: “I found that the Boards were sustained in whole

or in part in 41 cases * * * and that they were reversed in

whole or in part in 23 cases. * * * Of the 23, six were reversed

for lack of substantial evidence.” Since Commissioner Gamer’s

survey, the trend of factual reversals seems to have accelerated.

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APPENDIX A

§n the Bnited States Court of Claims

No. 70-67

(Decided March 14, 1969)

URBAN PLUMBING & HEATING CO., AN OREGON

CORPORATION v. THE UNITED STATES

Warde H. Erwin, attorney of record for plaintiff.

James A. Pemberton, Jr., with whom was Assistant At-

torney General Edwin L. Weisl, Jr., for defendant.

Before Cowen, Chief Judge, Laramorr, Durree, Davis,

Coutins, SKELTON, and Nicnors, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR

SUMMARY JUDGMENT

Sxz.ton, Judge, delivered the opinion of the court:

The plaintiff, Urban Plumbing & Heating Company, is

an Oregon Corporation. Jc entered into a contract with the

Department of Defense, Alaska Air Command, of the United

States on June 23, 1961, in which it agreed to make certain

modifications in the centval heating and power plant at

Eielson Air Force Base, Alaska, for the sum of $487,775."

The contract required the work to be completed within 120

days after June 30, 1961, the day that notice to proceed was

given. Performance was to commence about July 1, 1961, and

the project was to be completed by October 28, 1961, well in

advance of the usual beginning of severe winter weather in

1 Contract No. AF 65(508)-1505.

CADDY BTIinnt CTMce 8) CoarTree

Alaska. In fact, the expected winter weather made it neces.

sary for the project to be completed by October 28, 1961,

because much of the work had to be done inside the central]

heating and power plant, and, while the work was going

on, the plant had to be shut down. Since the plant supplied

the heat and power for the air base, it could not be shut down

during the severe Alaskan winter season. Under these circum.

stances, time was of the essence, because after the winter

weather set in, it would be impossible for the plaintiff to work

effectively on the project, either inside or outside of the plant,

The contract required the plaintiff to submit to the archi.

tect-engineer (hereinafter called AE) of defendant for ap.

proval or rejection the products it proposed to use in the

project. The contract specified certain named brands, “or

equal,” of the items to be supplied by the contractor. The

contractor was given the right to submit materials and equip-

ment it proposed to use other than the named brands, but

which it considered equal to those named. Of course, this

arrangement required the defendant to promptly name or

appoint an AE, otherwise the contractor would not have any-

one to whom it could submit its products for approval.

The defendant delayed the appointment of the AE for a

period of time. The defendant says the delay in the appoint-

ment was 18 days, but plaintiff contends it was 38 days and

that it did not have notice of the appointment for 4 more

days. We do not have to resolve this time dispute between

the parties. However, we do take note of the fact that there

was a substantial delay by defendant in appointing the AE.

In our opinion, this delay materially affected the progress

of the work, but, as will be seen below, it was not the only

delay on the part of the defendant that the contractor

encountered.

After the AE was appointed, the contractor submitted to

him for approval samples of the products it proposed to use,

as required by the contract. The contractor says these prod-

ucts were equal to or better than the named brands set forth

in the contract. The AE delayed approval or rejection of the

submitted items. In the meantime, plaintiff had tentative

arrangements with suppliers of the products to furnish the

Pt Set FLIF IIL OUD MmMbD rma DY

—

items for the project, but the suppliers would not manufac-

ture them until they were approved. Time was passing and

both parties were getting nervous about the progress of the

project. After a substantial delay, the AE rejected the prod-

ucts submitted by plaintiff as not meeting the specifications

of the contract. There is a dispute between the parties as to

how long the AE delayed making his decision, but it appears

to be undisputed that he did wait an unreasonable length of

time to make a decision and that this delayed the contractor

in the performance of the work. The contractor was required

to order the named brands of items listed in the contract

after the AE rejected others submitted by it, and this required

more time.

On August 30, 1961, the contracting officer notified plain-

tiff in writing that the Government considered plaintiff's

progress @ condition that was endangering the performance

of the contract, and that unless the condition was cured

within 10 days, the Government “may terminate subject con-

tract for default.” The plaintiff answered by its letter of

September 7, 1961, in which it excepted to the Government’s

notice and pointed out the delays that had been caused by the

Government. It asked for a time extension of 90 days because

of these delays. The contracting officer answered this request

in writing by letter of September 26, 1961, in which he ad-

mitted “since some time delay was caused by disapproval of

material an extension of 30 days is considered fair and reason-

able to cover the delay involved.”

The contractor rejected the offer of a 30-day extension by

its letter of October 18, 1961. It again detailed the delays

caused by the Government and requested a time extension of

120 days.

The contracting officer answered this request in writing on

November 13, 1961, in which he said, among other things:

However, since the time required by the Government

to approve or pape, data submitted was over 30

days and in part is beyond the control of the contractor,

a reasonable time extension is considered in order. In

accordance with General Provision Clause 5(c) a time

extension of 69 days (58+11) is considered the time

delay which was beyond the control of the contractor.

As an alternative, the contracting officer offered an amend.

ment to the contract which would give the contractor », 245

day extension (to June 30,1962) provided it followed the,

work schedule prescribed by the Government and agreed to

the following clause in the amendment ; !

This supplemental agreement neither increases or {sic

darcendastcamraas y

This extension would give the contractor 120 days after the

winter was over to finish the project. This was equal to the

ing statement :

The above extension of time is granted due to adverse

weather conditions and Government delay in approval

of data.

The contractor finished the work within the 245 day time

extension granted in the supplemental agreement. However,

its costs in doing so were $79,905.22 more than the original

contract price. An audit by the Air Force confirmed the cor-

rectness of this figure. The contractor presented his claim of

$79,905.22 in extra costs, plus overhead of 15 percent of the

total contract cost of $567,680.22 amounting to $85,152.03,

plus profit of 10 percent on the total cost and overhead

($652,832.25) amounting to $65,283.25, plus cost of its bond

(01 percent of $718,115.47) in the sum of $7,181.15, plus taxes

in the sum of $1,795.38, making its total claim $239,316.98

(the difference between the original contract price of $487,-

775 and the final costs, plus overhead, profit, cost of bond and

taxes as set forth above in the total sum of $727,091.98).

The contracting officer rejected plaintiff's claim and it

ed to the Armed Services Board of Contract Ap-

peals (hereinafter called the Board), which also refused

plaintiff’s claim in its entirety in an opinion dated Decem-

ber 30, 1966, 66-2 BCA 96062. Its motion for reconsideration

was denied by the Board on February 8, 1967. The plain-

tiff filed suit in this court on March 13, 1967, and asserts the

same claim that he made to the contracting officer and to the

Board. The defendant filed an answer contesting plaintiff's

claim. Both parties have filed motions for summary judg-

ment which we will now consider. __

- The contract involved here contained the standard Sus-

pension of Work clause. Therefore, plaintiff's delay claim is

redressable at the administrative level. United States v.

Anthony Grace & Sons, Inc., 384 U.S. 424 (1966). The

plaintiff has exhausted his administrative remedies, except

for the amount of his damages, and the case is now before us

for review. The defendant insists that since this case falls

within the purview of the Wunderlich Act, we are bound by

the decision of the Board. It contends that the decision of the

Board is supported by substantial evidence, is neither arbi-

trary, capricious, nor grossly erroneous, and that its deter-

minations of questions of law are correct. The plaintiff, on

the other hand, takes the opposite position on all of these

points. It especially urges that the » sion of the Board on

questions of law is erroneous.

Both plaintiff and defendant have devoted most of their

briefs to the question of whether or not there was an accord

and satisfaction of all claims of the parties, past, present,

and future, by their signing the supplemental agreement on

November 16, 1961, wherein the plaintiff was given a time

extension of 245 days to complete the contract and wherein

it was stated that “This Supplemental Agreement neither

increases or [sic] decreases contract price.” The plaintiff says

that the word “costs” was changed to “price” at its request

and that it understood the meaning of the provision as

changed to be that it would be entitled to collect additional

costa if any were sustained by reason of the time extension.

*ASBCA No. 9881, appeal of Urban Plumbing & Heating Company, under

Contract No. AF 65(503)-—1505.

358-025—69—-3

— ; —

Consequently, plaintiff says there was no accord and gatis.

faction of anything.

The defendant says that plaintiff was in default at the tims

the amendment was signed and it did not have to grant the

time extension but could have defaulted the plaintiff; thet

the giving of the time extension was consideration for, and aa

accord and satisfaction of, all of plaintiff's claims, and that

this was the plain meaning of the word “price” in the amend-

ment. The Board agreed with the defendant.

It is our opinion that it is not necessary to reach the accord

and satisfaction question in disposing of this case.

We start with the threshold question of whether or not the

Government delayed the contractor, and, if so, how much

and what were the consequences of such delay. The first part

of this question is easily answered, because it is undisputed

that the Government did delay the contractor. The contract-

ing officer admitted this delay in his letters of September 26

and November 13, 1961, mentioned above. The amendment

(Supplemental Agreement) signed by the parties on Novem-

ber 16, 1961, acknowledged such delay on the part of the

Government when it provided that the time extension was

granted “due to adverse weather conditions and Government

delay in approval of data.” Also, the Board found that the

Government delayed the contractor. It stated in its opinion,

“The respondent did unreasonably delay acting upon these

submittals. * * * there is no reasonable excuse for de-

laying official action on the Durabilt submittal until

29 August * * *.” Again, the Board said: “The parties were

* There is no showing that plaintiff was responsible for any substantial

of the delay. As indicated in the quotation from its opinion set

mediately above in the text, the Board erroneously assumed that the

part

Fz,

Pie

eccount of the contractor’s express right under the contract to propese for

approval other materials and equipment which it considered equal to the

brands specified. These “or equal” provisions did not mean that

substitutes had to comply with every detail of the specifications (which

—

How much delay was caused by the Government is more

difficult to determine, but it seems clear that it was at least

69 days. In the contracting officer’s letter of November 153,

1961, to the contractor, he said that the records of his office

showed, “81 days government delay on disapproval of

Richardson Scales & Combustion Coils” and “58 days gov:

ernment delay on disapproval of Durabilt Equipment.” In

the same letter he said “* * * a time extension of 69 days

(58+11) is considered the time delay which was beyond the

control of the contractor.” The Board, in commenting on the

69 days offered by the contracting officer as a time extension

said, “This was apparently computed as the total lapsed time

between the notice to proceed and appellant’s receipt of the

rejection of the Durabilt ash removal equipment.” The Board

went on to say: “The contracting officer offered 69 days time

extension because of the delay in approvals. * * * we can-

not find that it was not as much as was due for excusable

cause.” We regard this as a finding by the Board that the

Government did delay the contractor 69 days. If it could be

said that the Board did not so find, then we conclude that

the evidence on the matter was such that as a matter of law

the Board could have made only one finding of fact with

respect to it. Under these circumstances, we are authorized to

make the finding on the question. Maxwell Dynamometer Co.

v. United States, 181 Ct. Cl. 607, 631, 386 F. 2d 855, 870

(1967). Accordingly, we find that the contractor was delayed

69 days by the Government. -

We now consider what effect this 69 day delay had on the

performance of the contract by the contractor. We agree with

the contractor that under the conditions existing in Alaska,

there is a vast difference between 69 days in the summer and

fall when working conditions are favorable and 69 days in

based on particular brands, without naming them). The “or equal” clauses

were designed to establish a “standard of equality” and meant only that the

proffered “deviation” had to function as well as the specified equipment. See

Jack Btone Co. v. United States, 170 Ct. Ci. 281, 844 F. 24 870 (1965). The

Board found that the plaintiff's proposals did not meet every single detail of

the specifications, but the Board never found, and there is no proof, that these

proposals failed to meet the “or equal” standard in the broader sense in which

it should have been construed, On the record, therefore, the plaintiff cannot

be held responsible for offering “equipment which did not meet the contractual

requirements.”

the wintertime when little, if any, work can be done. This wag

particularly true in this case, because the facts show that

most of the work had to be done inside the heating and power

plant. This plant bad to be shut down in order for the plain.

tiff to work in it. The Government could not allow it to te

shut down in winter, because it supplied heat and power for

the air base. If the plaintiff worked at all inside the plant

while it was in operation, there was danger of an explosion

of the combustible coal dust found inside. For all these rea.

sons, the plaintiff could not work inside of the plant

the winter months. It could not work outside the plant in

the winter because of the extreme cohd, snow, and ice

in that area. The record shows that the winter of 1961-49

was a severe one in Alaska, with temperatures below zero

much of the time. By the time the amendment to the contrac

was signed on November 16, 1961, the temperature had been

as low as 20 degrees below zero and bitter cold prevailed

most of the time.

The parties intended that the project be completed by

October 28, 1961, before the onset of the Alaskan winter. The

plaintiff did not contract to work under conditions which

exist during the winter in Alaska. The Government delayed

the work of the contractor 69 days, which prevented its com-

pletion of the project before winter. In other words, the de-

lay caused by the Government would have required the con-

season was impossible. Even the Board said: “The 69 days

would have been useless * * *.” It is obvious that the Gov-

ernment realized the situation when it asked the contractor

to accept a 245 day time extension, which would extend the

time of performance through the winter and allow it 120 days

theres fter to finish the project.

It is clear that at the time the Government made the three

alternative propositions to the plaintiff on November 16, 1961,

it had delayed the plaintiff until the date for the completion

of the contract (October 28, 1961) had passed, through no

fault of the contractor. The offer of a 69 day extension at

that time meant nothing whatsoever, because even if it had

been granted and accepted, the Government would not have

BLEED THROUGH POOR COPY

weather.

time of year was an

as far as the contractor was

left of the alternatives was the demand of

mination, the contractor is entitled to an equitable adjust.

ment in accordance with the Termination for Convenience

clause of the contract (paragraph 31). See Litchfield Mfg,

Corp. v. United States, 167 Ct. Cl. 604, 613, 388 F. 2d 94, 95

(1964) ; Bailey Specialieed Buildings, Ino. v. United States,

Ct. Cl. No. 90-67, decided December 13, 1968.

The contract, itself, prohibits termination for default by

the Government under the circumstances of this case, except

for the convenience of the Government. Paragraph 5 of the

contract provides:

5. TERMINATION FOR DEFAULT—DAMAGES

7 oe eerie

be termi fet Oo rate treet (a). nor

the Contractor charged with liqui ahd

ages, as provided in paragraph ghey = because of

any delays in the completion of the work due to unfore-

seeable causes beyond the control and without the fault

or negligence of the Contractor, incl » but not re-

stricted to, * * *, acts of the G orn om ater

sovereign or contractual capacity, unusually

severe weather, * * *. [Emphasis supplied)

time specific! in this contract, or any extension thereof, or falls to complete

said work within auch time, the Government may, by written notice

BLEED THROUGH POOR COPY

The Board decided that the contractor was in default and

thst in threatening to terminate the contract for default, the

contracting officer was threatening to do only what he had a

scht to do. We agree in part and disagree in part with this

decision. These are questions of law and we are not bound by

the decision of the Board with respect to them. T.C. Bateson

Constr. Oo. v. United States, 162 Ct. Cl. 145, 187, 319 F. 2d

135, 160 (1963). We agree that the Board correctly decided

that the contractor was in default on November 16, 1961,

any clear-cut definition, and the courts have stated that

its application must of necessity “pene upon the cip.

cumstances of each individual case. Morrill v, Amoskeag

Sav. Bank, 9 Atl. 2d (N.H.) 519, 524. An examination of

the cases, however, makes it clear that three elements are

common to all situations where duress has been

to exist. These are: (1) that one side involuntarily ac.

cepted the terms of another; (2) that circumstances

permitted no other alternative; and (3) that said circum.

a ee ~ result - omaha 3 the spa

- United States v. Bethlehem

B80, 301; French Schoemaker, 14 Wall. (US) 34

332. In order to substantiate the al ation of eco

duress or business compulsion, the plaintiff must go be.

ond the mere showing of a reluctance to accept and of

ial embarrassment. There must be a showi of acts

on the part of the defendant which produced these

factors. The assertion of duress must be proven to have

been the result of the defendant's conduct and not by the

plaintiff’s necessities, * * *

We think the three elements common to the duress cases

quoted above are present in the instant case.

The Board found that no duress existed, citing v.

United States, 67 Ct. Cl. 348, 381 (1929) for the proposition

that in order to constitute duress there must be something

present other than threatened financial disaster. While it is

true that the court in that case indicated by dicta that the

fact that a contractor is in a bad financial condition for which

the Government is in no way responsible, at the time an agree-

ment is signed, is not enough to constitute duress, this is

not the situation here. The Board cites Commonwealth Engi-

neering Co. of Ohio v. United States, 148 Ct. Cl. 330, 180 F.

Supp. 396 (1969), cert. denied, 364 U.S. 820, in supPport of its

holding “where the contracting officer threatens default ter-

mination, and the contractor is actually in default, the con-

tracting officer was threatening to do only what he had a right

to do. This is not duress.” It is at once apparent that this is

not the situation here. The cases cited by the Board are clearly

distinguishable from our case and are not controlling. We

are not bound by this decision of the Board on questions of

law.

On the question of duress, the instant case is governed by

the principles announced in the decisions in Aircraft As-

BLEED THROUGH POOR COPY

sciates & Mfg. Oo. v. United States, 174 Ct, Cl. 886, 357 F. 2d

373 (1966) ; James Shewan & Sons, Ine. v. United States, 73

Ct. Cl. 49 (1981); Universal Sportswear, Ine. v. United

States, 145 Ct. Cl. 209, 180 F. Supp 391 (1959) ; Struck

Constr. Co. v. United States, 96 Ct. Cl. 186 (1942), and simi-

lar cases.

In Aircraft Associates & Mfg. Co. v. United States, supra,

the plaintiff bid on the purchase of a number of discarded

airplanes from the Government for the purpose of salvaging

aluminum from them. After plaintiff made its bid and before

the planes were delivered to it as the successful bidder, the

Government removed large quantities of aluminum parts

from the planes. When the plaintiff learned of this and com-

plained, the contracting officer refused to allow the plaintiff

to continue with the contract, locked the gates to the air base

to keep plaintiff's workmen out, and threatened to terminate

the contract for default unless plaintiff signed an agreement

releasing his claims for the missing parts. At that point, the

plaintiff was behind in its payments to the Government, be-

cause the Government had denied it access to the planes, so

that it was unable to sell the parts it had salvaged, and, ac-

cordingly, it was in technical default through no fault of its

own. In this situation, the plaintiff signed the release, finished

the contract, and then sued the Government for the value of

the missing parts, contending that it signed the release be-

cause of duress and coercion by the Government. We held

that the facts showed that the contracting officer was guilty

of duress and coercion, and we entered judgment for the

plaintiff saying:

When all of the facts recited above are coupled with

the exclusion of plaintiff and its workmen from the base

= oe paca rere of the Ky 4 r) ity plaintiff

n vernment, we con-

clude that t the paar carp SF men by the Kind of duress

which renders the release invalid and not binding upon

the plaintiff. James Shewan & Sons v. United States,

73 Ct. CL 49 (1931) and Struck Construction Company

v. United States, 96 Ct. Cl. 186 (1942). As the court

stated in the Shewan case at page 93 :

In cases of this kind the defendant should not be

permitted to take advantage of its own failure to

358-025—69—_4

rm & oe © contract obligation in order to

exact from the other — wpe wee

render of rights which he would not otherwise be

compelled to give up.

In that decision the court pointed out that settlements

and payments exacted by officials of the Government

without lawful authority and in arbitrary Rp oe to

Ww. ve to financial disaster

ioe box aaee ee senaeween Gnenitinas ter the Su-

preme Court. Thus, in Robertson v. Frank Brothers Co,

132 US. 17, 23 (1889), the Supreme Court stated :

When the duress has been exerted by one clothed

with official authority, or exercising a public em-

loyment, less evidence of compulsion or pressure

Gretel an Wines tn dba exacts 1 z

or ® common carrier excessive charges. But the

— is applicable in all cases according to the

re and exigency of each. /d. at 898.

The contractor was awarded a contract by the Government

in the case of James Shewan & Sons, Inc. v. United States,

supra, to repair and dry-dock ships belonging to the Gov-

ernment. The contract specified that the contractor would be

paid monthly, but the Government did not make the payments

on time and many of them were long overdue. The Govern-

ment suddenly terminated the contract while the work was

in progress. A year and seven months later, the Government

offered to pay the contractor $850,427.10 on the long overdue

bills, on condition that the contractor sign a full release of all

other claims. The contractor protested because the amount

offered was far below what it was entitled to receive. Much

of the amount due was for actual outlay of labor and ma-

terials on the part of the contractor, all of which was known

to the Government. There was at least $250,000 in pending

claims over and above the amount the Government offered.

The contractor owed the bank and its income tax, which it

could have paid but for the delinquency of the Government.

Also, the Government threatened to turn the money appro-

priated by Congress for this work back to the Treasury if the

contractor did not sign the release, which would require the

contractor to procure the passage of a special act of Congress

for it to get its money. In this situation, and faced with these

threats, the contractor signed the release under protest. It

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—_—

Jater sued for the balance of the money due it. We held that

the release was procured by duress and awarded the plaintiff

a judgment, We said in that case:

authorities, has receded from its ancient strictness and

has been accepted in numerous instances wherein it ap-

that the parties were not on equal terms and no

alternative existed except to submit to an illegal exaction

or suffer irreparable injury to business.

The Supreme Court in Swift hm v. United

States, 111 U.S. 22, 28-29, a case invo wey Bowe illegal

exaction by officials of the Internal Revenue Department,

used this significant language:

“The jes were not on equal terms. The appellant

had no choice. The only alternative was to submit to an

illegal exaction or discontinue its business. It was in

the power of the officers of the law and could only do as

they required. nom, | paid or other value tome with,

under such pressure, has never been regarded as a volun-

tary act within the meaning of the maximim, volenti non

fit mjuria.” Id, at 83-84.

* * : et * *

* * * The contract provided that the Navy Deportes

should pay for the work done within thirty ays. The

defendant did not comply with this provision and it was

only because of this, which resulted in the plaintiff being

faced with financial disaster and irreparable loss, that

the defendant was able by its failure to fulfill its _

ment to exact from the plaintiff an unconscionable re-

lease of all claims ess of their merit. But for the

failure of the defendent to fulfill its definite and clear

romises under the contract, plaintiff could very well

ve refused to sign the release. In cases of this kind the

defendant should not be permitted to take advantage of

its own failure to perform a solemn contract obligation

in order to exact fom the other parties to the contract

a surrender of rights which he would not otherwise be

compelled to give up. Jd. at 93.

+ * *

* * * It was the department’s duty under the contract

to make final payments for work Parte when the

work was completed on each vessel designated and take a

release as to that vessel, and if the department had ex-

hibited the same degree of zeal in making settlements, as

the contract required, as it did exhibit in procuring the

final release involved, this plaintiff would not have bone

brought to the brink of bankruptcy and compelled by a

chain of circumstances, not of its own making, to do

what it did. Jd. at 95.

We hold that the facts in the instant case show that the

plaintiff signed the supplemental agreement because of the

duress and coercion on the part of the Government. Conse-

quently, the agreement is not binding on the plaintiff.

We conclude that the rights of the parties must be deter.

mined without regard to the supplemental agreement. This

being true, the Suspension of Work clause (paragraph SP

1-12) of the contract becomes important.* This clause pro-

vides that the contractor shall be entitled to an equitable

adjustment in the contract price if a suspension is for an

unreasonable length of time not due to the fault or negligence

of the contractor and causes additional expense or loss to the

contractor. It is our opinion that under the facts and cir-

cumstances of this case the delay was for an unreasonable

length of time, was not due to the fault or negligence of the

contractor, was for the convenience of the Government, and

caused additional expense or loss to the contractor. All of the

prerequisites for the issuance of a suspension of work order

by the contracting officer were present. We think it should

have been issued.

The situation here is much like that in the case of 7. 0.

Bateson Constr. Co. v. United States, supra. There the Gov-

ernment delayed the contractor 38 days by causing a strike

when it required the contractor to use non-union employees.

The contractor sued for delay damages, claiming that the

Government should have issued a suspension of work order

and made an equitable adjustment of the contract price. We

said in that case:

*SP 1-12 SUSPENSION OF WORK

The Contracting Officer may order the Contractor to suspend all or any

part of the work for such period of time as may be determined by him to be

necessary or desirable for the convenience of the Government. Unless such

suspension unreasonably delays the progress of the work and causes addi-

tional expense or loss to the Contractor, no increase in contract price will be

allowed. In the case of suspension of all or any part of the work for an un-

reasonable length of time, causing additional expense or loss, not due to the

fault or negligence of the Contractor, the Contracting Officer shall make an

equitable adjustment in the contract price and modify the contract

accordingly.

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—

In this posture of the case, our opinion is that the

rovisions of Article GC-11 [suspension of work clause]

are brought into — The Government’s action

demonstrates that, knowing all the consequences, its

determination to use civil service employees which

caused the strike could only be for the convenience of the

Government. Under these circumstances, when it did

cause delay and additional expense and since it was not

the fault of the contractor, we think the contracting

officer should have suspended the work and an equitable

adjustment of the contract price should have been made

under Article GC-11. Failing in this, we think the Gov-

ernment is liable. /d. at 187.

We reach the same conclusion here that we did in that case.

The contracting officer should have issued a suspension of

work order and made an equitable adjustment of the contract

price with the contractor. Since this was not done, the Gov-

ernment is liable.

The liability of the Government here where no suspension

of work was issued, but should have been, is the same as it

would have been if it had been issued. A case that illustrates

the latter situation is the case of Morrison-Knudsen Co. v.

United States, 184 Ct. Cl. 661, 397 F. 2d 826 (1968). That

case, like the one before us, involved a contract for work on

a project in Alaska, The contractor was required to do the

grading, drainage, and related construction work on a 45

mile segment of an existing roadway. The eontract required

the work to be completed by November 15, 1954, before the

onset of severe winter weather in that part of Alaska. Dur-

ing the progress of the work, the Government made various

changes in the contract which delayed the contractor. On Oc-

tober 26, 1954, the Government issued a suspension of work

order on the project until further notice because of severe

weather conditions which had frozen the subgrade and had

produced six inches of snow on the roadway. The work was

resumed the following spring and finished in about three

weeks. The contractor contended that he could have com-

pleted the contract on time if the Government had not de-

layed him. He sued for damages resulting from the delay

and suspension of work. We held in that case:

* * * Completion of the contract having thus been

delayed through fault of the defendant, it is liable for

damages incurred by plaintiff as a result of

tion of the work info the 1955 ceaakroction wttan

eg Jefferson Construction Co, v. United States, 183 Ct,

Cl. 720, 392 F. 2d aed gl George A. Fuller Oo. vy,

United States, 108 Ct. Cl. 70, 94, 69 F. Supp. 409, 411

1947) ; Donald M. Drake Co. v. United States, 158 Ct,

433, 440 (1961); S Delays-Damages on Gov-

ernment Contracts, 26 G.W.L. Rev. 505, 518 et seq.

We think these principles are applicable to the case before

us even though the Government did not stop the work of the

contractor by a suspension of work order as authorized by

the contract. It accomplished the same purpose for its own

convenience by forcing the contractor to agree to the supple.

mental agreement by the coercion and duress discussed above,

The plaintiff is entitled to recover whatever damages it suf-

fered by reason of such delay.

We come now to consider the question of equitable adjust-

ment or damages claimed by the contractor. It has presented

its claim on the basis of the total cost theory." In this connec-

tion, it shows that it spent $79,905.22 more than the original

contract price of $487,775 because of the delay aforesaid. It

contends that it is entitled to recover this amount, plus over-

head and profit, on the original contract price, as well as on

the additional costs, plus the cost of its bond and taxes, all

in the total sum of $239,316.98 over and above the original

contract price of $487,775. The defendant admits that an Air

Force audit shows that plaintiff spent $79,905.22 more than

the contract price of $487,775, but says these are only total

cost figures and denies that plaintiff is entitled to recover that

much even if it is entitled to a recovery in some amount. It

points out that the Board made no determination as to the

amount of plaintiff’s damages and that under the Wunderlich

Act, damages must be found in the first instance by the Board.

We agzee with the defendant. The amount of an equitable

adjustment is a pure question of fact. United States v. Calla-

han Walker Constr. Co., 317 U.S. 56, 61 (1942). The total

cost theory has never been favored by this court if there is

any other way to determine the amount of the equitable ad-

7 See Rubin, The Total Cost Method of Computing An Equitable Adjustment-

An Analysis, 26 Fed. B.J. 308 (1966).

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j t. We said in Phillips Constr. Co. v. United States,

194.Ct. Cl. 249, 894 F’, 2d 884 (1968) :.

* * * [T]his method is not preferred by the court and.

will be used only in an extreme case. The reasons for its

reluctance to apply the total cost approach are explained

by the court in a much-quoted excerpt from its opinion

in F. H. McGraw & Oo. v. United States, 131 Ct. Cl. 501,

130 F. Supp. 894 (1955). The court said: :

This method of proving is by no means satis-

factory, because, among other it assumes plain-

tiff’s costs were reasonable and that plaintiff was not

responsible for any increases in cost, and because it as-

sumes plaintiff’s bid was accurately computed, which is

not always the case, by any means.

Our opinion in Great Dredge & Dock Co. v.

United States, supra, [119 Ct. Cl. 504, 96 F. Supp. 923

(1951), cert. dened, 342 U.S. 953 (1952 ] was not in-

tended to give approval to this method of proving dam-

age, in an extreme case and under proper safe-

guards, 131 Ct. Cl. 511, 180 F. Supp. 400. Jd. at 260-61.

Again, we held in WRB Corporation v. United States, 188

Ct. Cl. 409 (1968) :

For claims 22 and 26, acer submission is the

“total cost” standard (the difference between actual ex-

and bid or estimated costs). This theory has never

favored by the court and been tolerated onl

when no other mode was available and when the reliabil-

ity of the supporting evidence was fully substantiated.

See 7'wv Ine. v. United States, 180 Ct. Cl. 1010

1025-26, 389 I. 2d 1007, 1015 (1967) ; J. D. Hedin Con-

struction Co. v. United States, 171 Ct. Cl. 70, 86-87, 347

F. 2d 235, 246-47 (1965) ; River Construction Corp. v.

United States, su 159 Ct. Cl. at aes 270-71;

Oliver-Finnie Co. v. United States, 150 189, 200,

979 F. 9d 498, 505-06 (1960); F. H. McGraw & Co. v.

United States, 181 Ct. Cl. 801, 510-12, 180 F. Supp. 394,

on proof that (1) the nature of the particular losses

make it impossible or highly impracticable to determine

them with a reasonable degree of accuracy; (2) the

plaintiff's bid or estimate was realistic; (3) its actual

for the added expenses. See J. D. Hedin Construction Co.

v. United States, supra, 171 Ct. Cl. at p 86-87, 347

F. 2d at pages 246-47 ; Oliver-Finnie Co, v. United

States, su; 150 Ct. Cl. at pages 197, 200, 279 F.

at pages 05-06; F. H. McGrew a Co. v. United States

su 131 Ct. Ci. at page 511, 130 F. Supp. at page 400,

Id. at 426.

It is clear that we cannot make initial findings of fact on

the amount of plaintiff’s recovery. The case must be returned

to the Board so that it may make this determination. United

States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 480-31

(1966).

Accordingly, we hold that plaintiff is entitled to recover

on its claim for delay damages and judgment is entered for

plaintiff thereon, and to that extent its motion for summary

judgment is granted, the amount of recovery to be deter-

mined in the first instance by the Armed Services Board of

Contract Appeals. Proceedings in the case in this court are

hereby suspended for a period of 120 days from this date for

such Board determination, and the case is returned to the

Board for this purpose. The plaintiff will comply with Rule

100 and the appropriate provisions of the General Order of

the court of April 1, 1968, implementing it. Upon the con-

clusion of the proceedings of the Board, the plaintiff will

report the result to the court and the parties will take further

action for the final disposition of the case in this court. The

motion for summary judgment of defendant is denied.

APPENDIX B

ARMED SERVICES Boarp oF CoNTRACT APPEALS

WASHINGTON, D.C.

ASBCA No. 9831

Appeal of

Ursan PLuMBING AND HeEatinG Co.

Under Contract No. AF 65(503)-1505

Appearances for the Appellant: Warde H. Erwin,

Esq., Portland, Oregon.

Appearances for the Respondent: Colonel David C.

Yeoman, USAF, Chief Trial Attorney, Major Eugene

M. Solimine, USAF Trial Attorney.

OPINION BY Mr. ANDREWS

The appellant contends that its work was delayed,

extended, and interfered with as the result of the

respondent’s tardy review of submittals and improper

rejection of equipment offered under the contract. The

claim is in the amount of $239,316.90, which is com-

puted by adding to its total direct costs of perform-

ance, assumed percentage mark-ups for overhead,

profit, bond premiums, and Alaska business tax, and

subtracting therefrom the contract price.

Findings of Fact

1. The contract was awarded to the appellant on

23 June 1961 for modification of the central heating

and power plant at Eielson Air Force Base, Alaska,

(45)

at a price of $485,704.00. It specified that the

ent must issue the notice to proceed by 30 June 196],

and appellant must complete the work within 120 cal.

endar days thereafter. The notice to proceed was

actually issued on 30 June 1961, thus fixing the com.

pletion date as 28 October 1961.

2. There were several major features of the work,

A system was to be installed whereby outside air could

be taken into the power plant and heated as combus.

tion air for the boilers. A new handling system was

to be installed for removal of ashes from the boilers,

A concrete floor, new heaters, and other miscellaneous

work was to be performed in the coal thaw shed ad.

jacent to the powerhouse. A centralized vacuum clean-

ing system was to be installed in the powerhouse, And

finally new coal handling equipment was to be in-

stalled to modify the existing system.

3. This plant furnished most of the heat and elec.

tricity for the operations buildings and quarters at

Eielson AFB. Some of the installation work would

require that operation of portions of the plant's

equipment be shut down. Obviously operation of the

plant could not he completely stopped, and the speci-

fications provided as follows:

1-04 COORDINATION WITH USING AGENCY: The

r shall execute all work with a mini-

mum of interference with the using :

Any work which will cause a disruption of

normal operations of facilities will first be

cleared in writing with the Contracting Officer

or his authorized representative.

1-06 INSPECTION oF sITE: The Contractor

shall thoroughly examine the site prior to sub-

— a bid and become thoroughly familiar

with all conditions that might affect the cost of

the mane The Contractor shall also notify

the Contracting Officer of any discrepancies be-

tween the contract drawings and actual field

conditions.

1-09 rnTeRFERENCES: The Contractor shall

store all materials and schedule all work so

as to provide a minimum of interference to

the normal operations of the Power Plant.

In extremely cold winter weather it became neces-

sary to place into operation 5 of the 6 boilers in the

, and to hold the remaining one on stand-

by. Thus, that part of the work which required the

cessation (of a part) of the plant’s operation could

not be accomplished at all in winter. The short per-

formance period was designed to assure completion

before the onset of winter weather.

4. Appellant was required to make a site inspection

prior to bidding and did so. It thus, presumably, be-

came familiar with the powerplant and the nature of

the work.

5. The specifications directed that the contractor

submit to the contracting officer, for his approval, a

listing of the equipment to be furnished, and such

descriptive information as would permit a review to

determine whether or not such equipment met the re-

quirements of the snecifications. Such submittal was

required within 10 days of contract award on the coal

handling and ash removal equipments and within 30

days after award for the ash removal equipment.

While there were numerous items of equipment to

be supplied, those involved in this appeal were the

coal scales, the combustion air coils, and the ash re-

moval equipment. Some drawings on these equipments

were delivered on 5 or 6 July 1961. Formal submittals

were made to the contracting officer on 11 July and

13 July 1961. The respondent made no immediate

review of these submittals, for it had not been decided

whether such review would be made by the architect-

engineer (hereinafter AE) or by the Base iy)

Engineer.

6. Section 5 of the specifications described the coal

handling equipment. Relevant portions are as follows:

5-04 MATERIAL AND EQUIPMENT SCHEDULE:

A. As soon as practicable and within 10 days

after the date of award of contract and before

commencement of installation of any materials

or equipment, a complete schedule of the mate.

rials and equipment proposed for installation

xs ha ee en a Aig oe assem, teeta

include catalogs, cuts, di ms, i

and such other descriptive data as may be re.

quired. In the event any items of materials or

uipment contained in the schedule fail to com-

ply with the specifications or the requirements

of the drawings, such items will be rejected. In

case of rejection, similar data on other ma-

terials or equipment shall be immediately sub-

mitted until they shall comply with the i

ments. No extension of contract time will result

from submission of material and equipment

data which does not fulfill the requirements,

[Emphasis supplied]

B. The manufacturer’s drawings shall be re.

viewed to determine that the equipment to be

furnished will fit into the available space and

will cause no structural interference. * * *

* . o * * * .

5-06 EXISTING SYSTEMS:

A. Coal Bunker to Boiler: The existing coal

bunker to boiler system conveys coal through

the coal bunkers to the stoker feeder hoppers

through a three-way gate valve at the di

of the coal bunkers, thence through a chute into

a circular downspout and into conical spreaders

on Boilers 1, 2, 3, & 4. On Boilers 5 & 6, the

three-way gate valve discharges through a

chute into coal scales at elevation 581’-2’’, from

which the working parts have been removed.

aS? KFRSPSTR SHS es Frag

Se ste Saad sE&.

The discharge from the coal scales drops into

spreaders to the stoker feeder hop-

existing three-way gate valves are

Designed to direct coal either to the chutes lead-

ing to the spreaders or to an_under-bunker

conveyor which has been partially removed.

« * + * * * .

5-09 DESCRIPTION & CAPACITY OF NEW EQUIP-

MENT:

D. Coal Scale:

The coal seale shall be of the stationary, auto-

matic, dust-proof, hatch type, Model 46, manu-

factured by Stock >< t Company, or ap-

proved equal. Scale have a rated capacity

of 10 tons per hour and a hopper capacity of

200 pounds. Distance between center line of in-

let and center line of outlet is to be 2’-8’’.

1. The coal seale shall be a complete unit in-

eluding the body, belt feeder, feeder drive,

bypass, weighing mechanism, weigh hopper,

controls, counter, circuit breaker, control trans-

former and all other items requied to make a

completely automatic coal scale.

The remaining portions of paragraph 5-09 give a

fairly detailed listing of the mechanical requirements

of the coal scales.

7. The coal scales offered by appellant were a stand-

ard model manufactured by Richardson Scale Com-

pany. From its own correspondence, Richardson is

the largest manufacturer of such equipment in the

country. The evidence is uncontradicted that this firm

enjoys an excellent reputation and its products are of

good quality. Admittedly, however, the equipment of-

fered did not meet many of the required mechanical

features set out in the specifications, which actually

deseribed the ‘‘brand name”’ Stock Equipment Com-

pany seales in considerable detail. We mention only

a few of the differences which the AE considered

important.

a. Richardson scales had been installed on boilers

5 and 6 when these boilers had been added to the

powerhouse. It was found that the configuration of

the Richardson scales was not compatible with the

location of the boilers. The firing aisle in this power

plant is unusually wide, while in the Richardson

equipment the distance from the bottom of the coal

hoppers to the scale itself is relatively short. As the

result, the chute does not have sufficient slope s

that the coal would flow through it by gravity. The

working parts had been removed from the scales

on boilers 5 and 6, as stated in paragraph 5-06,

quoted above, and these scales were to be replaced as a

part of the contract work.

b. The specifications contained a requirement for

an endless rubber feed belt without splice. The Rich-

ardson equipment contained a laced belt. The nearest

belt lacers to Fairbanks, Alaska, are in Seattle, Wash-

ington. An untenable delay could be encountered in

the event a belt broke.

e. A solenoid counter was specified while the Rich-

ardson equipment offered a mechanical counter.

8. Relevant provisions of Section 7 of the specifica-

tions, describing the combustion air system are as

follows:

7-02 GENERAL: The applicable drawings indi-

cate the extent and general arrangement of

the installation. If any departures from these

drawings are deemed necessary by the Con-

tractor, details of such departures and the rea-

sons therefor shall be submitted as soon as

practicable to the Contracting Officer for

proval. No such departures shall be made wi

out the prior written approval of the Contract-

ing Officer.

A. Standard Products: The equipment to be

furnished under this specification shall be es-

sentially the standard product of the manv-

BLEED THROUGH POOR COPY

ee ee |

facturer. Where two or more units of the same

class of equipment are required, these units

shall be products of a single manufacturer;

however, the component parts of the system

need not be the products of the same manu-

facturer.

B. Material and Equipment Schedule: As

soon as practicable and within 30 days after

the date of award of contract and before com-

mencement of installation of any materials and

equipment, a complete schedule of the materials

and equipment proposed for installation shall

be submitted for approval of the Contracting

Officer. * * * Equipment differing from that

specified may be proposed, provided the Con-

tractor clearly states such differences and

rovided all essential requirements of the spec-

ification are met. If the equipment offered

under this provision is, in the opinion of the

Contracting Officer, equal or better than that

specified, it will be given consideration. * * *

+ + . ” .

D. Manufacturer: Mechanical equipment to

be furnished under this specification shall be

the product of a reputable manufacturer who

shall have had not less than five years experi-

ence in the design and construction of equip-

ment for the purpose and service intended for

this system and of a capacity equal or greater

than specified which shall have been proven in

suecessful operation for at least five years,

under like or more severe conditions. Required

accessories sha!l also be of proven design and

the product of experienced and reputable

manufacturers.

In addition paragraph 7-07 of the specifications gives

many required mechanical features of the combustion

air coils. While no brand name is given, it appears

from the testimony that combustion air coils manu-

factured by L. J. Wing Co. was used as a model in

writing the specifications. Appellant’s proposal offered

: 52 |

Pace combustion air coils to be furnished by Brod

and McClung. These coils differed from the specifica-

tion requirements in a number of particulars; notably,

the coils would have steel tubing while non-ferroys

metal was specified, and the connection to the headers

was different from that specified. No proof was fur-

nished that the manufacturer of this equipment had

the experience qualifications detailed in specification

paragraph 7-02D.

9. Section 8 of the specifications describes the ash

removal equipment, in relevant part as follows:

8-04 GENERAL: The contract drawings indicate

the extent and general arrangement of ash

removal equipment to be replaced. It is the

intent of these specifications and drawings to

obtain an ash conveyor installation which will

eliminate the excessive maintenance and poor

operational functions of the system now being

used on Boilers 1, 2, 3, and 4. The newer sys-

tem used on Boilers 5 and 6 is quite satis-

factory from a maintenance and operational

standpoint. It has therefore been decided to

extend the system used on Boilers 5 and 6 to

Boilers 1 thru 4, and replace the ash handling

equipment on these boilers.

It is the intent of the drawings and speci-

fications that equipment for this contract shall

be as manufactured by the United Conveyor

Corporation, or approved equal. If any depar-

ture from the contract drawings are deemed

necessary by the Contractor, details of such

departures and the reasons therefor shall be

submitted as soon as practicable to the Con-

tracting Officer for approval. No such depar-

tures shall be made without the written ap-

proval of the Contracting Officer.

+ + - + * * *

B. Standard Products: The equipment fur-

nished under this section of the specifications

shall be essentially the standard products of

BLEED THROUGH POOR COPY

sacar

manufacturers regularly engaged in the produc-

tion of these types of equipment and shall be

the types, sizes, and capacities and for the kinds

of service specified. Each item of equipment

shall be of the most recent type which has been

roven in successful commercial operation for

at least three (3) years without major changes

in design. The air washers and receivers and

other items of equipment where two or more

units of the same class are required, shall be

products of the same manufacturer; however,

the cumponent parts of the equipment need not

be the products of the same manufacturer.

C. Manufacturer’s Lists, Drawings & Refer-

ences: Within ten (10) days after award of con-

tract, the Contractor shall submit to the

Contracting Officer for approval a tabular list,

in triplicate, of all the different individual

items, listing opposite each item the manufac-

turer's name, address, and identifying number

together with any drawings or specifications

pertinent to the equipment selected. Within

thirty (30) days after award of contract, the

Contractor shall submit detailed drawings show-

ing equipment location, foundation details, and

connections to existing ash conveying piping, to

the Contracting Officer for approval. Further,

the Contractor shall submit to the Contracting

Officer the addresses of five installations of com-

parable size with air washers operating under

vacuum in conjunction with mechanical ex-

hausters where the manufacturer of the major

items of equipment selected (blowers, air

washers, receiver) has furnished similar-

designed equipment with satisfactory perform-

ance. No materials of an untried nature will

be acceptable.

There followed detailed mechanical requirements for

the equipment.

10. The ash removal equipment proposed by the

appellant was to be manufactured by the Durabilt

358-025—69-——5

CORY BOTINT) CTOSE IN CONTE SP

Conveying Systems Division of Chicago Fire Brick

Company. No proof was offered that this equipment

met the experience requirements of the contract, In

addition, the AE reported to the contracting officer a

variation from the mechanical requirements of the

specifications, by letter of 29 August 1961, as follows.

4. The equipment presented does not include a

weighted, nonvibrating relief valve to provide

pressure control, plus overload protection for

the blower as required under Specification Sec.

tion 8-06A(1) entitled Equipment Design.

5. Equipment submittal arrangement of the

Durabilt drawings No’s. AHE-3-593-2 and

AHE-3-593-3 indicate the blower motor as-

sembly foundation as 41%4’’ high to accomodate

[sic] the air washer top outlet. The contract

drawings specifically show on sheet 38 of 42 a

foundation three feet high.

6. Specification Section 8-06B, Equipment De-

sign, specifically calls for an air washer of the

impact type capable of successfully operating

under full 14’ Hg vacuum with satisfactory

water operation. The air washer submittal is of

the centrifugal type which does not meet the

specifications. The above data is shown on sub-

mittal drawing No. AHA-1-5983.

7. Specification Section 8-06C, Equipment

Design, indicates the receiver and secondary

separator be constructed of not less than 34”

thick hard alloy cast plate with 2” thick wear

plates. Drawing AHA-1-5299 does not indicate

this requirement, nor does this submittal indi-

cate utilization of existing openings and anchor

pi aga removal of existing equipment is

possible.

Drawing No. AHA-3-513 by Durabilt does

not show a swing gate nor a removable wear

plate as called for under this section of the

specifications.

—

8, Durabilt Drawing No. AHE-1-593 does

not satisfactory indicate the wear and abrasive

resistant pipe required at each change indirec-

tion as called for under Section 8-06G.

9. Durabilt Drawing No. AHA-2-5993, Ro-

tary Slide Gate, does not show or indicate dust

seal rings as called for under Specification Sec-

tion 8-061.

10. Durabilt Drawing No. SK-5757 indicates

plain end ash pipe will be utilized, however lo-

eation of such ash line is not shown on the

drawings.

11. Pressure and temperature rating of the

8’’ steam exhauster shown on Durabilt Draw-

ing No. AHA-1-507 is not shown.

In addition to the above, no information is

rovided for vacuum cleaning system interlock

y ash conveyor control, exhauster interlock,

control panel, and other equipment details.

The above basic factors are in direct con-

flict with the detailed specifications either by

non-availability of information, or equipment

that does not meet the specified equipment de-

sign. This establishes that the submittal pre-

sented is unacceptable.

That such variations did exist is not controverted in

the record. 3

11. Following the submittal of the data on this

equipment, one of appellant’s engineers traveled to

Fairbanks where, on 17 July 1961, he conferred with

the AE and the contracting officer. While the AE had

not actually yet been retained to review the proposals,

he informed appellant’s engineers that he would not

approve the Brod and McClung Combustion Air Coils

or the Richardson Scales, and that the information

submitted on the Durabilt Ash Removal Equipment

was not in sufficient detail to permit review. Testi-

mony is conflicting as to actually what was said at the

—

meeting. In any event appellant’s engineer gained

the impression that only Stock Seales, Wing Coils,

and United Conveyor Ash Removal Equipment would

be approved. On the same day as the conference, he

wrote a memorandum to his purchasing department

to cancel the orders which had been placed for the

offered equipment and to place orders for that named

last above. Appellant did send cancellation notices to

the suppliers of rejected equipment on 19 July 1961,

12. Upon receipt of the notice of cancellation, Brod

and McClung discussed their equipment with the AE,

agreed that it did not meet the requirements of the

specifications, and accepted the cancellation. While

appellant did not receive formal rejection of the Brod

and McClung Coils until 7 August 1961, the informal

rejection was effective. Appellant actually ordered

the Wing Combustion Coils immediately after the 17

July meeting. The order was confirmed by the jobber,

on 26 July 1961, with the statement that the three

weeks delay in placing the order resulted in a prom-

ised shipping date of 11 September 1961.

13. Richardson refused to accept the cancellation of

appellant’s order for its scales. It insisted to both the

appellant and the AE by telephone calls and letter of

24 July that, while its equipment did not meet the de-

tailed requirements of the specifications, it was equal

in utility to the “named brand,” and demanded to

know the reasons for the rejection. The AE for-

warded a formal rejection of the Richardson Scales

to the contracting officer on 26 July 1961. This was re-

ceived by the appellant on 7 August 1961. In response

to repeated arguments, the AE gave detailed reasons

for rejection of this equipment in a letter of 17 Au-

gust 1961.

14. Appellant had placed an order for Stock Equip-

ment Company Scales on 20 July 1961. The order was

confirmed 25 July 1961, with tentative delivery in Oc-

tober. Delays resulted because of the arguments with

Richardson, and incomplete data submission by Stock.

Appellant received final approval of the shop draw-

ings on 5 September 1961. The equipment was shipped

on 3 December 1961 and arrived at the job site 18

January 1962.

15. Chicago Fire Brick Co. also initially refused

to accept cancellation of appellant’s order for the

Durabilt ash handling equipment. The AE then ad-

vised appellant that he had not received any data on

this equipment. Durabilt submitted such data to ap-

pellant on 4 August and it was received by the AE

on 8 August 1961. It was disapproved by him on

29 August, for the reasons stated in finding 10, above.

16. Appellant placed an order for United Conveyor

ash handling equipment on 29 July 1961 but, in view

of the Chicago Fire Brick Co. protest, considered it

wise to place a verbal stop on the order. United Con-

veyor Corporation submitted data on its equipment to

appellant on 24 July 1961. This data was mailed to

the contracting officer on 6 September and approved

by the AE on 15 September 1961. All of this equip-

ment, except the control panel, was shipped on 24

November 1961 and arrived at the job site 9 January

1962. The control panel was shipped 30 December

1961 and received 31 January 1962.

17. The specifications required that work be started

and completed as established by a schedule of work

prepared and approved by the contracting officer

before any work was commenced. The progress sched-

ule submitted and approved contemplated that work

would first be started in the coal thaw shed, and that

this part of the work would be completed by 31 Au-

gust 1961. The operational parts of the shed consisted

of railroad tracks on ties, surrounded by gravel,

running through the shed, and a crusher called a

“‘grizzly’’ into which the coal was dumped. The eoa]

was then conveyed from the grizzly into the power-

house. Appellant was to remove the tracks, lay a con-

crete floor, and replace the tracks. Some concrete wag

to be replaced around the grizzly. A car puller was to

be installed. Heaters were also to be installed.

18. The respondent considered this work to he

urgent, for the shed in its existing condition was a

severe safety hazard. A large part of the combustion

air for the existing powerplant was drawn through

open doors. As the outside temperature reached ex-

treme cold of —30° and below, it became necessary

to close the doors to prevent freezing of lines and in-

struments. The boilers then generated negative air

pressure in the plant. Coal dust, which had permeated

the gravel floor, was then drawn into the plant from

the coal thaw shed and from the bunkers, creating a

dangerous, explosive, condition. The concrete floor

would permit the coal thaw shed to be kept clean.

19. In anticipation of the work, the respondent had

placed a stockpile of coal by an outside crusher and

conveyor. When appellant commenced work in the

coal thaw shed, respondent stopped using it. The work

in the coal thaw shed was not completed in accordance

with the progress schedule. In fact the work, other

than installation of heaters, was not completed until

approximately 20 November 1961. The heaters were

installed in the spring of 1962. The concrete work,

and setting the rails in the coal thaw shed was com-

pleted the first week in October 1961, concurrently

with arrival of the first deep snowfall. It was then

necessary for the respondent to commence using the

coal thaw shed to feed the boilers. The respondent

confined its use of the shed to night hours as much as

possible, but could not do so entirely because the

BLEED THROUGH POOR COPY

heaters had not been installed. The respondent’s use

of the shed naturally interfered with appellant’s work.

When coal was hauled in and dumped only at night,

appellant’s workmen must put away their tools and

materials so as not to obstruct the tracks. Cars stand-

ing in the shed reduced working space. Extra precau-

tions in welding were necessary and a fire watch was

required. When coal was being dumped and welding

was in progress, the doors were opened to disperse

coal dust and prevent explosion. The extreme cold

then reduced efficiency.

90. The work was delayed about 3 days due to an

error in elevations. No other delaying factor can be

attributed to the respondent as preventing completion

of work in the coal thaw shed within the scheduled

time. A tractor did damage anchor bolts for the car

puller, but the evidence shows they were in the wrong

locations, thus could not have been used anyway.

921. On 7 September 1961 appellant requested 90

days time extension for delays in procuring the ash

handling equipment. The contracting officer offered

to extend the time 30 days by letter of 26 September.

The appellant then, on 18 October 1961, requested

120 days time extension. The contracting officer, on

12 November 1961, replied that he would grant 69

days time extension for delay in approvals. This was

apparently computed as the total lapsed time between

the notice to proceed and appellant’s receipt of the

rejection of the Durabilt ash removal equipment. As

an alternative the contracting officer offered a con-

tract amendment which would delay the start and

completion of certain items of the work, and establish

the final completion date as 30 June 1962. The draft

supplemental agreement contained the following:

This Supplemental Agreement neither increases

or [sie] decreases contract costs. [Emphasis

supplied ]

COPY BOUND CLOSE IN CENTER

This offer was motivated by the fact that the power

plant could not be shut down for work in the

and the contemplated time extension would allow th.

appellant 120 days, equal to the entire contract per.

formance time, after winter would be over.

22. Appellant’s Alaska Representative met with the

contracting officer on 16 November. The appellant was

given the alternatives of accepting the 69 days time

extension, signing the proposed modification, or hay.

ing the contract terminated for default. The 69 days

would have been useless and, from appellant's view.

point, default termination was unthinkable. Appel-

lant objected to the statement in the draft agreement

that there would be no change in costs. Its represents.

tives knew extra costs would be incurred by

the performance period. The local representative con.

tacted one of appellant’s principal officers and was

told to sign the agreement provided the word “costs”

be changed to “price.” The parties then signed Sup-

plemental Agreement No. 1, which reads in substan.

tial part as follows:

gine eve mmmmered contract is modified as

_ Pursuant to Clause 5 entitled “Time Exten-

sion”’

1. extendi ormance period as follows:

rx Coal +d pemes heatiog apetens extended

to 20 November 1961, except for insulation of

pipe to be completed by 27 November and

SY Bad maar agee prior to 30 June 1962,

(b) ion air system modification and

ash removal equipment and auxiliaries shall be

completed by 15 May 1962 and prior to installa-

tion and modification of coal scales.

(ce) Installation and modification of coal

scales shall be completed 45 days after comple-

tion of the combustion air system modification

vy CE vae Vas ee Pea aS” Vow a

>. FF eee Pe eee ce —

ditions mt said contract as

remain unchanged and in full force and effect.

This Supplemental Agreement is entered into

pursuant to the authority of basic contract.

23. Appellant continued to work through the winter,

with attendant problems. There were interferences

from the severe weather and the operation of the

. While there was some rearrangement

of the interim schedules, the work was substantially

completed on 30 June 1962.

%4. An audit conducted by the Air Force after com-

pletion shows a cost to the appellant of $567,680.22.

This is $79,905.22 in excess of the final contract price.

25. The original claims consisted of the allegations

of delay and interference detailed in the foregoing

findings, and several smaller claims founded on par-

ticular alleged changes. Several of the smaller claims

were abandoned at the hearing, and none of the others

were supported by adequate proof to warrant specific

findings.

OPpixion

The first question presented is whether or not the

coal seales, combustion air coils, and ash removal

equipment initially offered by the appellant was im-

properly rejected by the respondent. Appellant argues

——_

that this equipment met the “intent” if not the de

tailed requirements of the specifications. It says thet

the details of fabrication and operation given wer

unduly restrictive and in violation of the provisions

of the Armed Services Procurement Regulation 1.

lating to description by “‘brand name or equal.” }j

says that respondent would accept only the named

brands, thus should have specified them alone. We cay

assume that every allegation made by the appellant

is correct, but still find that the equipment was prop.

erly rejected.

Prior to award of a contract, prospective bidders,

suppliers, or even interested taxpayers may object to

restrictive specifications which unnecessarily restriet

competition. These objections may be, and frequently

are, made to the contracting officer, his superiors, or

to the General Accounting Office. When the restric.

tions are found to be more stringent than the needs

of the service dictate, the specifications are amended.

But a bidder may not remain silent during the bid.

ding period, then after receipt of award of the

contract contend that he has the right to furnish some

thing less expensive and not meeting the requirements

of the specifications. To allow such would be equally

damaging to the competitive bidding system with u-

duly restrictive specifications. Many of the specified

details may have been unnecessary. Others were

clearly desirable for this particular application, and

some of these details were not met by the offered

equipment. The Richardson Scales, Brod and Me

Clung Coils and the Durabilt equipment clearly did

not meet the requirements of the contract and were

properly rejected.

The appellant was the innocent victim of represen-

ae ee, ee a ee tn F&F ewe TE S&H T

tations by its prospective suppliers that their equip-

ments would meet the specified requirements. We

have no reason to believe they were not acting in good

faith. But this would not entitle appellant to recover

its losses from the Government. Under the most lib-

eral view it could, at most, receive a time extension,

and this the appellant got.

The respondent did unreasonably delay acting upon

these submittals. The contract gave appellant only 10

tion on the Durabilt submittal until 29 August, par-

ticularly since it had already been decided to reject it.

Appellant argues that by insisting upon changing

the word “costs” to the word “price” in Supplemental

Agreement No. 1, it avoided agreeing that the contract

consideration would not be increased as the result of

the extended contract performance time. This is not a

reasonable construction of the provision which states,

“This Supplemental Agreement neither increases or

[sie] decreases contract price.” The other provisions

of the agreement reschedule performance. We think

it clear that the quoted sentence stated an agreement

that the contract price would not be changed by

reason of performance under the new schedule. The

appellant’s losses were directly attributable to such

performance.

The appellant next contends that the supplemental

agreement was without consideration, thus not bind-

ing upon it. The appellant was actually in default at

the time the supplemental agreement was made, The

parties were jointly responsible for the delay in de

livery of the equipment, the appellant because it of.

fered equipment which did not meet the contractual

requirements, and the respondent because it delayed

too long in rejecting it. We are unable to apportion

the causes of delay for the evidence is directed to.

ward the time lapse between submittal and action

thereon. A time extension is properly computed upon

how long the work is delayed, not how long the de.

laying causes continue in existence. We know when

the approved equipment was delivered, but not when

it would have been delivered but for the respondent's

delay in rejecting the unsuitable equipment. In any

event, the appellant was not entitled to a time exten.

sion adequate to permit completion of the work,

The receipt of such time in the modification was a

valuable consideration.

Appellant’s final argument is that the supplemental

agreement was signed by it under duress. In order

to constitute economic duress, there must be something

present other than threatened financial disaster.

DuPuy v. United States, 67 Ct. Cl. 348, 381 (1929).

Where the contracting officer threatens default termi-

nation, and the contractor is actually in default, the

contracting officer was threatening to do only what he

had the right to do. This is not duress. Commonwealth

Engineering Company of Ohio v. United States, 48

Ct. Cl. 330 (1960), cert. denied 364 U.S, 820. In the

instant case the appellant was in default for the com-

pletion date was 18 days past when the modification

was signed. At least as to the coal thaw shed only 3

days of the delay was excusable. The contracting of-

ficer offered 69 days time extension because of the

delay in approvals. This would not have permitted

BLEED THROUGH POOR COPY

or Tra wr iB SPS SET SB ABP SS SB

completion, but we cannot find that it was not as

much as was due for excusable cause.

The appeal is denied.

Dated: 30 December 1966.

Harris J. ANDREWS, Jr.,

Member of Division No. 3,

Armed Services Board of Contract Appeals.

I concur.

Hvuou B. ArcHer,

Acting Vice Chairman, Armed Services Board

of Contract Appeals, and Member of Division

No. 3.

Rosert J. O’Connor,

Member of Division No. 3, Armed Services

Board of Contract Appeals, did not par-

ticipate.

Armep Services Boarp or Contract APPEALS

ASBCA No. 9831

Appeal of

Ursan PLUMBING AND HeEatine Co.

Under Contract No. AF 65(503)-1505

Appearances for the Appellant: Warde H. Erwin,

Esq., Portland, Oregon.

Appearances for the Respondent: Colonel David C.

Yeoman, USAF, Chief Trial Attorney; Major Eugene

M. Solimine, USAF, Trial Attorney.

On Morton For RECONSIDERATION

The appellant has moved for rehearing and redeter-

mination of certain of the Board’s findings set out in

COPY BOUND CLOGE IN CENTER

its opinion of 30 December 1966, which denied the

appeal.

The first allegation of error is that the member of

the Board who conducted a portion of the hearing dig

not participate in the decision. This member retired

soon after the hearing, and was not a member of the

Board at the time this case was ready for decision,

The Board has held many times that preparation of

the opinion by a member who did not preside at the

hearing is not error. Buckeye Union Casualty Co,

ASBCA No. 6770 (On Reconsideration), 1962 BCA

P 3309, and cases cited therein. See also Racine Screw

Company v. United States, 156 Ct. Cls. 256 (1962).

The remaining allegations of error present nothing

which was not fully considered by the Board in reach-

ing its decision.

The Motion for Reconsideration is denied.

Dated 8 February 1967.

Harris J. ANDREWS, JR.,

Member of Division No. 3,

Armed Services Board of Contract Appeals.

I concur:

Huou B. ARcHER,

Acting Vice Chairman, Armed Services Board of

Contract Appeals and Member of Division No.

Wu11aM T. Grirrirn,

Lt. Colonel, USAF, Member of Division No. 3,

Armed Services Board of Contract Appeals,

did not participate in the determination of this

decision.

I certify that the foregoing is a true copy of the de-

cision and opinion of the Armed Services Board of

Contract Appeals in ASBCA No. 9831, Appeal of

Urban Plumbing and Heating Co., On Motion for

BLEED THROUGH POOR COPY

Reconsideration, rendered in conformance with the

Board’s Charter.

Dated

GerorceE L. HAWKES,

Recorder, Armed Services Board of

Contract Appeals.

U.S. GOVERNMENT PRINTING OFFICE: 1969

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.