# Petition for Writ of Certiorari — United States v. Urban Plumbing & Heating Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1547%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 398 U.S. 958 ## Text INDEX one ions presented bbe hia ey ha aduk wn ao Masts Cae tke "i te involyed EE RHEE SOS ays Toe * 6 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. . 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 i 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- 64 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 ~o we | © OH oe 8 Ts SF Oo 65 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 66 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. 3. 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 67 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1547%3A1. Public record. Not legal advice.