Petition for a Writ of Certiorari — Park v. Huff

SUPREME COURT, GL &

IN THE

Supreme Court of the Unit

=

October Term, 1974

No.-Z4=.12 99°

SERVICE TECHNICIANS, INC., a California corporation,

Petitioner,

VS. ° x

THE UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Claims.

H. Roy JEPPSON,

4640 Admiralty Way, Suite 805,

Marina Del Rey, Calif. 90291,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

I MERI © gah ccniceeebelincens Cnekansbtbiseameiassiinubapienbis l

PIE kiciccnsccesehidercochtveatinenteivemindssetincstaraamernes 2

IE. III, Sevincostsnkasenncarsevscobestcisatedassnennncnns 2

Constitutional and Statutory Provisions Involved .... 3

I Se I I gins crcnas ined Tienwetsnaccdsentanessnsnce 3

Reasons for Granting the Writ ....................2......---+- 7

I

The Rulings of the United States Court of Claims

Holding That in the Case of a Contract Draft-

ed by an Agency of the United States Govern-

ment Which is Ambiguous, an Interpretation

by the Other Party to the Contract Which Is

Reasonable Will Not Entitle That Party to Have

Its Interpretation Adopted by the Court Un-

less the Party Proves That in Addition to Its

Interpretation Being Reasonable the Ambiguity

Was Not Patent or Glaring, Is Inconsistent

With the Decisions of This Court and the Va-

SN Re sckteninierdcinncanvAtnnispnasachibaancrant eka 7

II

The Question of Which Party Bears the Burden

of an Ambiguity in a Government Contract Is

GE RRNOE THOT ORIIGD onan nina. asec neccencnissinss 11

5 I rer ar Re ace Src PEN EE een TRE Or TONE 12

Exhibit A. Technical Provisions, Section I, Scope

SE sSiccoiscachas donates nbtheeceteaeetibiokeibakccinapaaests 13

Exhibit B. Pertinent Chart of Buildings Involved

for “Regular Custodial Services” and “Extended

Custodial Services”.

ii.

INDEX TO APPENDICES

Page

WEE, Fi, CIE anna nsgi cnn nnnceeeeseens App. p. 1

IE EMI - sindannsiguhscasabsessisnssiaienenaevnims 2

Appendix C. Opinion on Motion for Reconsidera-

tion and Motion for Oral Hearing and Leave to

TE TID ii ncnccnsein dh avcesereccvacensvcswennsonnts 11

Appendix D. Opinion by Lt. Colonel Norris ........ 19

Opinion by Lt. Colonel Norris ...................... 31

DES LINE E TITS EIS LEP EAREMLDE ILLES DE OE SPIE A LEBEL GATENG ELS OER GE

ili.

TABLE OF AUTHORITIES CITED

Cases Page

Ace Construction Company v. United States, 185 j

Ct. Cl. 487, 401 F.2d 816 (1968) ................ 10 j

American Indem. Co. v. Sears, Roebuck & Co., 195

eR Oo RD, . ) ee aes 8 4

Anthony Grace & Sons, Inc. v. United States, 193

Ct. Cl. 248, 443 F.2d 766 (1970) .......22200222222. 9

Bay State Smelting Co. v. Ferric Industries, Inc., f

y B&B ye! B® ap, ) BRReR RUM NMeNnemnnneem 8 E

Bishop Engineering Co. v. United States, 180 Ct. Cl. 7

NEE I a lad cect tcavieeig ts naahadaciaibsoaebslecdios 10 :

Blount Bros. Const. Co. v. United States, 171 Ct. ¢

oN, Se Ek 6% aS. | eee 9 j

Boeing Co. v. United States, 202 Ct. Cl. 315, 480 :

ye ke. + Re een ee ens Cee 10 :

Callahan Construction Co. v. United States, 91 Ct. 1

ks Ee IID cisscicictehesadomaeicsaasannpraptdniaiienmaionias 8 i

Chris Berg, Inc. v. United States, 389 F.2d 401, :

i § eae & Ti: Gs + SRAM ea MenmnnUnraeen cr ere inaas 8 :

Dana Corp. v. United States, 200 Ct. Cl. 200, 470 :

OI Lich cudaesaitecssnsencbeceasaiiersines 9 7

Distillers Distributing Corp. v. J. C. Millett Co., ;

310 F.2e 162 (9te Cir. T1962) onc... c ncn... 8 E

F. H. McGraw and Co., 473 F.2d 465 (3rd Cir.

1973), cert. den. 414 U.S. 1022 (1974) ............ 8 E

Hollerbach v. United States, 233 U.S. 165 .......... 7 M

J. W. Bateson Co. v. United States, 196 Ct. Cl.

1 ae aR Bt. st Poe emnmenee 10 4

Jamsar, Inc. v. United States, 194 Ct. Cl. 819, 442 i

F.2d 930 (1971) 9 e

EIS 2 PH GEER, ROLES REO NEGLI TSO LEE

iv.

Page

John McShain v. United States, 199 Ct. Cl. 364,

Ae ee SII 0 NTE i cesvsncenecssnscnnsccepstsassssersconsns

Max Drill, Inc. v. United States, 192 Ct. Cl. 608,

TEE TEE RI NUE TIED vrttnsccicseseminnenacennenanetatnconaes

Medical Development Corp. v. Industrial Molding

Corp., 479 F.2d 345 (10th Cir. 1973) ..............

Megarry Bros., Inc. v. United States, 404 F.2d 479

IE RI I cans nlselilchndavidwandinansastnansibiehinngnese

Merando, Inc. v. United States, 201 Ct. Cl. 19, 475

I II ik cece ccesscsavascnsnacenenasbuiacenes

Merando, Inc. v. United States, 202 Ct. Cl. 1097,

7g 0 2 tL - | ey eee

Merritt v. United States, 95 Ct. Cl. 421 (1942) ..

National Equipment Rental, Limited v. Reagin, 338

F.2d 759 (2nd Cir. 1964) -200...........eeeeeeeeeee eee

North American Graphite Corp. v. Allan, 184 F.

Be EE Crs Gas RIOD wii ciccniinepacitescnscennesintons

Orino v. United States, 111 Ct. Cl. 491, 77 F.

Se IIE dacssnncandcsqacceasienentndipamnomeninenes

Peter Kiewit Sons’ Company v. United States, 109

ic Rat I ED psa cnansccnscedcrerctichnennansonnsmneasenes

Priebe & Sons v. United States, 332 U.S. 407 ........

Schwerman Trucking Co. v. Gartland S.S. Co., 496

F.2d 466, 475 (7th Cir. 1974) ..0000 ee.

Southern Construction Company v. United States,

176 Ct. Cl. 1339, 364 F.2d 439 (1966) ..........

Space Corporation v. United States, 200 Ct. Cl. 1,

oa § Be) | eee

S.R.A., Inc. v. State of Minnesota, 327 U.S. 558 ..

Tenneco, Inc. v. Greater LaFourche Port Commis-

sion, 427 F.2d 1061 (5th Cir. 1970), cert. den.

MD Tn He CRT) seinen sestnscssnssacscientrnennsiecens

10

Page

United States v. Alleghany County, 322 U.S..174 .. 7

United States v. Bethlehem Steel Corp., 315 U.S.

SUI” ids liacesncauietiedl aakahabie nities Macdonald eee ae aoe 7

United States v. Rice, 323 U.S. 106 ......0.000000000000... 7

United States v. Seckinger, 397 U.S. 203, rehear.

a NU cccstennicatoiecetiestlanenddeanactanie: 7

W. H. Armstrong & Co. v. United States, 98 Ct.

ce er ne ED. “giatcthevuoccsces aapacctonbatcaneataaiamactia dncmeaece 8

Webb v. Old Salem, Inc., 416 F.2d 223 (4th Cir.

PIU usin dc tataecugvensumabsedtuaaakernatk ae useheninte 8

WPC Enterprises, Inc. v. United States, 163 Ct. Cl.

Be ee a PTE MEINE seiikccnsicatncessacecdandoneessed 9, 10

Wunderlich Contracting Co. v. United States, 143

Ct. Cl. 876, 161 F.Supp. 741 (1958) .............. 8

Rules

Rules of United States Court of Claims, Rule 54

RRND sents ccincinastceaphebennmnipineniadubilianamniaeenmnceneeen 6

Rules of United States Court of Claims, Rule 166

Oe eels deceit ssesecsersseesecenecescecesnssossensneenseeseneeee 6

Statutes

United States Code, Title 28, Sec. 1255(1) ........ 2

United States Code, Title 28, Sec. 1491 0.0000... 5, 10

United States Code, Title 41, Sec. 321 ..0.000000000.... 5

Textbooks

DB Combi, Cre, TR, Be hives sicko isenccccciscsncess ~

Restatement of the Law of Contracts (1932),

Ns a ra lava cl sickling areata oes 7, 8

Restatement of the Law of Contracts (1932), Sec.

BNE Glacial odie saben abubicucastcksealbcnimetateres tcabiacbuss yf

4 Williston, Contracts (3rd ed. 1961), Sec. 621 .... 8

mae «na SE lily a A a actA A I

IN THE -

Supreme Court of the United States

October Term, 1974

eee

SERVICE TECHNICIANS, INC., a California corporation,

Petitioner,

vS.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Claims.

Petitioner respectfully prays that a writ of certiorari

issue to review the order of the United States Court of

Claims entered in this matter on January 17, 1975.

Opinions Below.

The opinion of the United States Court of Claims

sought to be reviewed is unreported at this time and is

set forth in Appendix A to this petition. (Appendix A,

s -32

The opinion of the trial judge of the Court of Claims

and the opinions of the Armed Services Board of Con-

tract Appeals are also reprinted in the Appendix as fol-

lows:

1. Opinion of Judge Willi filed February 22, 1974,

denying Plaintiff's motion for summary judgment and

granting Defendant’s cross-motion for summary judg-

ment. (Appendix B, pp. 2-10.)

coe

2. Opinion of Armed Services Board of Contract

Appeals rendered on April 9, 1973, denying Petitioner’s

motion for reconsideration. (Appendix C, pp. 11-18.)

3. Opinion of Armed Services Board of Contract

Appeals rendered on September 12, 1972, denying

Petitioner’s appeal. (Appendix D, pp. 19-42.)

Jurisdiction.

The order of the United States Court of Claims deny-

ing Petitioner’s motion for summary judgment, granting

Respondent’s motion for summary judgment and dis-

missing the petition of Petitioner is dated January 17,

1975, and was entered by the United States Court of

Claims on said date.

Jurisdiction is conferred upon this honorable court

by 28 USC §1255(1).

Questions Presented.

1. Whether in the case of a contract entered into

with an agency of the United States government as a re-

sult of an advertised solicitation which contract is draft-

ed solely and exclusively by the United States govern-

ment and which contract contains an ambiguous provi-

sion should a reasonable interpretation of the contract

by the contractor entitle the contractor to an equitable

adjustment in the contract price in the event that said

interpretation does not coincide with the interpretation

given to the procuring agency of said provision.

2. Whether a bidder on an advertised solicitation

issued by an agency of the United States government

has a duty to search said solicitation for any ambigui-

ties therein and put the procuring agency on notice of

said ambiguities or suffer the risk of loss for adopting

a ae

a reasonable interpretation of said solicitation in the

event said interpretation may differ from that of the

procuring agency, and, if so, under what circum-

stances does said duty arise.

Constitutional and Statutory Provisions Involved.

This case involves matters of general contract law

and is not governed by any constitutional or statutory

provisions.

Statement of the Case.

Petitioner, a California corporation, was awarded

United States Air Force Contract No. F02604-71-C-

0211 on June 18, 1971, for the performance of cus-

todial services at Luke Air Force Base, Arizona, as a

result of an advertised procurement. The term of the

contract was July 1, 1971, through June 30, 1972,

and was in the amount of One Hundred Two Thousand

One Hundred Eighty-Two Dollars and Twenty-Eight

Cents ($102,182.28) on a firm fixed price basis.

Pursuant to the terms and provisions of the subject

contract Petitioner was to perform two specific types

of services, to wit: “Regular Custodial Services” and

“Extended Custodial Services”. Exhibit A hereof in-

cludes Section TP1-02 of the Technical Provisions of the

contract which attempts to define the term “Extended

Services” in a footnote on page 14 thereof which reads

as follows:

“*Extended service for these buildings shall in-

clude:

1. b(damp mopping), and u(application of

floor finish) weekly.

2. bb(floor finish removal) and cc(applica-

tion of floor finish) quarterly.

ao + hee initio,

Ming ERE ie SERIE PAIRS ie RAILS BN *

—

Example: In Bldg. 151 which has 2,760SF, the

+560SF only means that while the entire building

receives standard service, only 560SF receives ex-

tended service.”

Exhibit B consists of a chart which was part of the

contract which purportedly also defines the scope of

work for “Regular Custodial Services” and “Extended

Custodial Services” and the portion of each building

which is to receive said service.

Section 2-13 of the Technical Provisions of the con-

tract provided that damp mopping and application of

floor wax was to be performed weekly. Section TP2-15

stated that floor finish removal and primary floor finish-

ing was to be accomplished on a semi-annual basis.

The footnote at the bottom of Exhibit A and the

chart which consists of Exhibit B hereto illustrate that

the only difference between “Regular Custodial Services”

and “Extended Custodial Services” was in the floor

maintenance services. Other than floor maintenance all

other items to be performed under “Regular Custodial

Service” and “Extended Custodial Service” were iden-

tical.

In preparing its bid on the above-referenced contract

Petitioner assumed that “Extended Custodial Service”

was to be performed in lieu of “Regular Custodial

Service” and on the basis of the footnote contained in

Exhibit A for those areas denominated to receive “Ex-

tended Custodial Service” Petitioner prepared its bid

on the basis that the floors would be damp mopped

and floor wax applied once per week and floor finish

removal and application of floor finish would occur

quarterly. In the areas denominated to receive “Regular

Custodial Service” Petitioner prepared its bid on the

—

basis that damp mopping and application of floor fin-

ish would occur weekly and that floor finish removal

and application of floor finish would occur semi-

annually.

Shortly after the commencement of the contract a

dispute arose between Petitioner and Respondent in that

Respondent disagreed with Petitioner’s interpretation of

the specifications of the contract and took the position

that those areas which were denominated to receive

“Extended Custodial Service” were also to receive

“Regular Custodial Service” and, therefore, as to the

floor finish servicing of said area the floors were to be

damp mopped and floor wax applied twice per week,

once under the “Regular Custodial Service” provision

and once under the “Extended Custodial Service” pro-

vision, and that floor finish removal and application of

floor wax was to occur six times per year, to wit: twice

under the “Regular Custodial Service” and four times

under the “Extended Custodial Service”.

Petitioner duly performed the contract according to

Respondent’s interpretation thereof and timely filed a

claim for an equitable adjustment under the contract.

The contracting officer issued a final decision denying

said claim and Petitioner duly appealed said decision

to the Armed Services Roard of Contract Appeals. The

Armed Services Board of Contract Appeals denied Peti-

tioner’s appeal as well as a motion for reconsidera-

tion filed by Petitioner.

Petitioner filed its complaint in the United States

Court of Claims under 28 USC §1491 praying for re-

view of the decision of the Armed Services Board of

Contract Appeals pursuant to 41 USC $321. On Au-

gust 31, 1973, the court, on its own motion ordered

eae

a ei

Petitioner to file a motion for summary judgment in the

matter. Petitioner did, in fact, file said motion and Re-

spondent filed a cross-motion for summary judgment.

Petitioner in its motion argued that the specifications

relating to extended services under the contract were

vague and ambiguous and that the interpretation of

Petitioner of the specifications was a reasonable inter-

pretation. Petitioner further argued that since the con-

tract had been drafted by the government the ambiguity

should be construed against the government, and Peti-

tioner’s interpretation should be adopted since it was a

reasonable interpretation of the ambiguity.

The trial judge held that the contract was not am-

biguous (Appendix B, pp. 6-8) and that Petitioner’s

interpretation of the contract was “patently lacking

in reasonableness.” (Appendix B, p. 3.)

Petitioner duly requested review of the trial commis-

sioner’s recommendation pursuant to Rules 54(b)(3)

and 166(e) of the Court of Claims. Briefs were filed in

this matter and a hearing was held before a three-

court panel on January 10, 1975. On January 17, 1975,

the United States Court of Claims rendered its order

in this matter which appears to hold that glaring am-

biguities were present in the contract and that Petition-

er’s interpretation of the contract was reasonable. How-

ever, the Court holds that the ambiguity was so glaring

that there was a duty or obligation upon Petitioner

to make an inquiry before bidding and that Petitioner

was not free to adopt a unilateral interpretation of the

contract. (Appendix A, p. 1.)

. Oh GUO AT hl INNA

a

oe

REASONS FOR GRANTING THE WRIT.

I

The Rulings of the United States Court of Claims

Holding That in the Case of a Contract Drafted

by an Agency of the United States Government

Which Is Ambiguous, an Interpretation by the

Other Party to the Contract Which Is Reasonable

Will Not Entitle That Party to Have Its Inter-

pretation Adopted by the Court Unless the Party

Proves That in Addition to Its Interpretation Being

Reasonable the Ambiguity Was Not Patent or Glar-

ing, Is Inconsistent With the Decisions of This

Court and the Various Circuits.

It is hornbook law that the Federal government will

be treated as any other contractor when contracting

with private parties for goods and services and that the

general law of contracts will apply. United States v.

Rice, 323 U.S. 106, 111; Priebe & Sons v. United

States, 332 U.S. 407, 411; Hollerbach v. United States,

233 U.S. 165, 171, 172; United States v. Bethlehem

Steel Corp., 315 U.S. 289, 298, 299. Furthermore, in

determining the meaning and effect of contracts to

which the United States is a party the governing rules

must finally be determined by the Supreme Court of

the United States. §.R.A., Inc. v. State of Minnesota,

327 U.S. 558, 564; United States v. Alleghany County,

322 US. 174, 183.

The general principle is that in the case of an am-

biguity contained within a contract the ambiguity

will be construed most strongly against the party draft-

ing the contract provided, however, that the other par-

ty has adopted a reasonable interpretation of the con-

tract. United States v. Seckinger, 397 U.S. 203, 211. re-

hearing denied 397 U.S. 1031; Restatement, Con-

bd carer a a aad aad

as ae

tracts §§233, 236(d) (1932); 3 Corbin, Contracts

§559; 4 Williston, Contracts §621 (3rd ed. 1961).

The general rule as set forth above has been adopted

by all of the circuits. North American Graphite Corp.

v. Allan, 184 F.2d 387, 390 (D.C. Cir. 1950); Bay

State Smelting Co. v. Ferric Industries, Inc., 292 F.2d

96, 99 (ist Cir. 1966); National Equipment Rental,

Limited v. Reagin, 338 F.2d 759, 763 (2nd Cir.

1964); F. H. McGraw and Co., 473 F.2d 465, 468

(3rd Cir. 1973), cert. denied 414 U.S. 1022 (1974);

Webb v. Old Salem, Inc., 416 F.2d 223. 226 (4th Cir.

1969); Tenneco, Inc. v. Greater LaFourche Port Com-

mission, 427 F.2d 1061, 1065 (Sth Cir. 1970), cert.

denied 400 U.S. 904 (1970); American Indem. Co. v.

Sears, Roebuck & Co., 195 F.2d 353, 355 (6th Cir.

1952); Schwerman Trucking Co. v. Gartland S.S. Co.,

496 F.2d 466, 475 (7th Cir. 1974); Megarry Bros.,

Inc. v. United States, 404 F.2d 479, 487 (8th Cir.

1968); Distillers Distributing Corp. v. J. C. Millett Co.,

310 F.2d 162, 174 (9th Cir. 1962); Medical Develop-

ment Corp v. Industrial Molding Corp., 479 F.2d 345,

349 (10th Cir. 1973).

Early decisions of the Court of Claims were in

agreement with the general rule. Wunderlich Contract-

ing Co. v. United States, 143 Ct. Cl. 876, 878, 161

F.Supp. 741 (1958); Orino v. United States, 111 Ct.

Cl. 491, 518-519, 77 F.Supp. 938, 942 (1948); Chris

Berg, Inc. v. United States, 389 F.2d 401, 404, 182 Ct.

Cl. 23 (1968); Callahan Construction Co. v. United

States, 91 Ct. Cl. 538, 611-612 (1940); Peter Kiewit

Sons’ Company v. United States, 109 Ct. Cl. 390, 418

(1947): W. H. Armstrong & Co. v. United States, 98

Ct. Cl. 519, 527 (1943); Merritt v. United States, 95

Ct. Cl. 421, 428-429 (1942).

PSS AEN OLE LOLI DDI EL EET IO LIES FIELD LESLEY IGE LE LOS ELSE EDEL:

a eae

However, in recent years the United States Court of

Claims has gradually drafted an exception to the

general rule in cases in which the United States govern-

ment is the contractor. This exception is to the effect

that even though there is an ambiguity in the contract

drafted by the government and even though the inter-

pretation by the contractor is reasonable, if the am-

biguity is patent or glaring then the contractor has the

duty to determine whether its interpretation is, in fact,

the interpretation given to the contract by the govern-

ment. Jamsar, Inc. v. United States, 194 Ct. Cl. 819,

826-827, 442 F.2d 930, 934 (1971); Blount Bros.

Const. Co. v. United States, 171 Ct. Cl. 478, 496, 346

F.2d 962, 972-973 (1965); Anthony Grace & Sons,

Inc. v. United States, 193 Ct. Cl. 248, 254, 443 F.2d

766, 769 (1970); Southern Construction Company v.

United States, 176 Ct. Cl. 1339, 364 F.2d 439, 454

(1966); Space Corporation v. United States, 200 Ct.

Cl. 1, 5-6, 470 F.2d 536, 538-539 (1972).

Apparently in an attempt to rationalize this excep-

tion as merely an edification of the portion of the rule

which requires that the interpretation of the contractor

must be reasonable, the Court of Claims conceived the

“zone of reasonableness test”. Basically this test pro-

vides that even if the contractor’s interpretation of the

ambiguity is reasonable if the ambiguity is patent or

glaring the unilateral interpretation of the contract by

the contractor is not within the “zone of reasonable-

ness” and, therefore, the contractor cannot prevail.

John McShain v. United States, 199 Ct. Cl. 364, 378,

462 F.2d 489, 496 (1972); Dana Corp. v. United

States, 200 Ct. Cl. 200, 216, 470 F.2d 1032, 1043

(1972); Merando, Inc. v. United States, 201 Ct. Cl.

19, 475 F.2d 598 (1973); WPC Enterprises, Inc. v.

che ee |

ae

United States, 163 Ct. Cl. 1, 6-7, 323 F.2d 874, 877

(1963); J. W. Bateson Co. v. United States, 196 Ct.

Cl. 531, 543-548, 450 F.2d 896, 902-905 (1971).

Apparently dissatisfied with the “zone of reason-

ableness” test the Court of Claims has attempted to

rephrase the exception which it has created to the rule

to lend an appearance of compatibility with the rule.

For instance, the court has held that the portion

of the rules which requires the contractor to adopt a

reasonable interpretation of the contract also includes

a reasonable interpretation as to whether or not the

contract, in fact, contains an ambiguity. Max Drill, Inc.

v. United States, 192 Ct. Cl. 608, 625-626, 427 F.2d

1233, 1244 (1970); Bishop Engineering Co. v. United

States, 180 Ct. Cl. 411, 415 (1967); Merando, Inc.

v. United States, 202 Ct. Cl. 1097, 475 F.2d 601

(1973). An even more interesting concept has recently

been presented by the Court of Claims which states

that in order for a contract to be interpreted against

the drafter not only must the contractor have inter-

preted the contract in a reasonable manner, but the

ambiguity must be a “reasonable ambiguity”. Boeing

Co. v. United States, 202 Ct. Cl. 315, 329, 480

F.2d 854, 864 (1973); Ace Construction Company v.

United States, 185 Ct. Cl. 487, 495, 401 F.2d 816,

820 (1968).

Except for limited instances the Court of Claims

has exclusive jurisdiction to determine the claims of

private contractors arising under government contracts.

28 USC §1491. Due to the minimal possibility of the

niet meet —_

}

SDE PERE AMELIE ARE PISO

|) So

lack of direct conflict with decisions of the Court of

Appeals this court should grant a writ of certiorari to

determine the obligations of the government and the

private contractor in situations where the contract is

ambiguous.

II

The Question of Which Party Bears the Burden of an

Ambiguity in a Government Contract Is of Major

Importance.

The question of which party to the contract should

bear the primary duty of ascertaining and responding

to the ambiguity in the contract and that party’s duty

or lack thereof to the other party is of prime impor-

tance to persons dealing with the government.

In situations such as the case at bar in which the

contract was procured by advertised bid with the

private contractor having no other information except

the solicitation prepared by the government upon which

to prepare its bid, with no face to face contact with

the contracting officer of the procuring agency or abil-

ity to negotiate the contract, it is extremely important

to ascertain the rights and duties of each of the parties

in determining whether ambiguities are, in fact, present

and the party upon which the burden of the ambiguity

should rest.

The current status of the law as set forth by the

Court of Claims is that the government will be liable

for ambiguities in contracts which it drafts, provided,

however, that if it does a particularly poor job of

drafting it will be able to shift the damage caused

Sor PMR ——

-

ml

eS

by its inept drafting to the contractor. Indeed, the peti-

tioner can conceive of circumstances in which the agen-

cy may desire to draft its contracts in this manner since

at worst the contractor will adopt the agency’s interpre-

tation in bidding the contract and at best the contrac-

tor may choose the wrong interpretation and bid the

contract at a lesser price, thereby giving the agency a

windfall. The agency cannot lose in this situation and

may very well benefit at the expense of the contractor.

These possibilities place persons dealing with the

government in an intolerable position.

Conclusion.

It is respectfully requested that this court accept certi-

orari in this matter in order to determine the apparent

conflict in principle between the Court of Claims and

the Court of Appeals and to determine the rights and

duties of parties to an advertised government contract

containing an ambiguity.

Respectfully submitted,

H. Roy JEPPson,

Attorney for Petitioner.

—,

EXHIBIT A.

Technical Provisions

Section I

TP 1-01 SCOPE: The work covered by these specifications consists of furnish-

ing custodial services in strict conformance to these provisions and subject to the

Scope of Work

terms and conditions of the contract.

TP 1-02 GENERAL: This specification covers all buildings listed. Requirements

for all items of services may not exist in each building; some do not have car-

pets, windows, etc. Where they exist, they will be serviced. A pre-bid conference

of interested prospective bidders and tour of the buildings in the schedule of items

will be arranged.

Sq Ft

Bldg Floor

Nr. Area

151 2,760

17 3,155

439 7,220

128

128

935 14,561

il 10,120

12 5,000

470 17,515

999 8,328

163 4,200

656 11,700

904 15,350

700 12,490

799 10,344

25 3,630

159 4,300

Description

(Facility Occupant)

Post Office

Bank, Resident Auditor,

Red Cross

Base \

So. Mobile Base Ops

No. Mobile Base Ops

Base Supply (DMS)

Wing Headquarters

Base Headquarters

Wing Maint Cont Admin

to bynes Forces

NCO Academy

Academic Class Room

Cmbt Crew Tng Sqdn

Service Club

Chapel

Chapel

Educational Center

Re Ere, AF Ore A OO YZ

Time Period

Available For Number

Work Days

Performance Per Week

0800-1630 6 — *560 SF Only

1800-0700 5 — *513 SF Only

1800-0700 7 — *See Note #1

1800-0700 4

1800-0700 4

1800-0700 5—*

1800-0700 5 — *Includes 720 SF

—

1800-0700 5 — *Includes 1130 SF

i

1800-0700 5—* 1330 SF Only

This 1320 SF

area also receives

service on the

6th day.

1800-0700 5

1800-0700 5

1800-0700 5 — See Note #2

1800-0700 5 — *1068 SF Only

2300-0700 6 — *Includes 7340 SF

carpet

0800-1630 5 — *Includes 3712 SF

carpet

0800-1630 5—- Includes 997 SF

ca \

0800-1630 _

Note #1:

*Extended services for these buildings shall include:

—_] 4

Time Period

Sq Ft Available For Number

Bldg Floor Description Work Days

Nr. Area (Facility Occupant) Performance Per Week

195 2,615 Hg Gp Air Base 1630-0800 5 — Includes 762 SF

carpet

896 5,450 Youth Center 0800-1630 5

175 1,900 Personnel Processing 1800-0700 5

659 6,850 Personnel Processing 1800-0700 5-—*

129 4,360 Military Personnel 1800-0700 5

514 2,360 Military Personnel 1800-0700 5

164 4,300 Civilian Personnel 1800-0700 5

263 4,620 Civil Engr Admin 1800-0700 5

264 4,220 Civil Engr Admin 1800-0700 5

327 9,371 Civil Engr Cont Cent 1800-0700 5

416 6,530 Combt Crew Tng Sqdn 1800-0700 5 — *3630 SF Only

445 8,470 Combt Crew Tng Sqdn 1800-0700 5 — *4540 SF Only

473 8,400 Combt Crew Tng Sqdn 1800-0700 5 — *4300 SF Only

477 13,630 Combt Crew Tng Sqdn 1800-0700 5 — *8000 SF Only

905 7,600 Combt Crew Tng Sqdn 1800-0700 5 — *4100 SF Only

436 8,500 Combt Crew Tng Sqdn 1800-0700 5 — *4750 SF Only

601 10,392 Field Training Det 1800-0700 5

610 5,369 Field Training Det 1800-0700 |

958 5,734 Target Intelligence 1800-0700 5

627 1,560 Disaster Control 1800-0700 5

859 7,672 Special Weapons Tng 1800-0700 5 — See Note #2

432 3,280 S.M. F-104 Contract 1800-0700 5

628 1,350 Office of Security Inv 0800-1630 5

176 4,070 Base Communications 1800-0700 6 — *700 SF Only

228 1,450 TAC Management Team 1800-0700 5

121 13,921 Finance 1800-0700 5 — Vacuum Cleaning

only in the 1071

SF Computer room

218 1,550 Cont Maint 0800-1630 5

275 1,630 Driver Education 1800-0700 5

313 6,344 Purchasing & Contr 1800-0700 5 — *3430 SF Only

333 960 Transport Freight Off 1800-0700 5

324 3,270 Commercial Transp 1800-0700 5

550 4,268 Base Library 1800-0700 6

320 1,632 Commissary Office 1800-0700 >

1112 2,000 os Service & Pers 0800-1630 5

Affairs — oe

Three (3) rest room facilities plus 1600 SF of lounge area regular services every 12

hours in lieu of 24 hours, 7 days a week.

Note #2: These buildings contain blackboards to be serviced.

1. b(damp mopping, and u(application of floor finish) weekly.

2. bb(floor finish removal) and cc(application of floor finish) quarterly.

Example: In Bldg. 151 which has 2,760SF, the + 560 SF only means that while the entire

building receives standard service, only 560 SF receives extended service.

APPENDIX A.

Order.

In the United States Court of Claims.

Service Technicians, Inc. v. The United States. No.

199-73.

Before DAVIS, Judge, Presiding, KASHIWA and

KUNZIG, Judges.

This case comes before the court on plaintiff's re-

quest, filed March 28, 1974, for review by the court

of the recommended decision filed by Trial Judge

George Willi on February 22, 1974, pursuant to Rule

166(c) on plaintiff's motion and defendant’s cross-

motion for summary judgment, having been submitted

on the briefs and oral argument of counsel. On the

basis of Trial Judge Willi’s discussion in his opinion

(copies of which have been forwarded to the parties),

the court is of the view that the Government’s construc-

tion of the contract is correct and that, at the best for

plaintiff, the contract had a glaring ambiguity calling

upon plaintiff to make an inquiry before bidding and

before following its own unilateral interpretation (even

if that interpretation, standing by itself, might be con-

sidered reasonable). See Space Corporation v. United

States, 200 Ct.Cl. 1, 470 F.2d 536 (1972).

IT IS THEREFORE ORDERED that plaintiff’s mo-

tion for summary judgment is denied, defendant’s mo-

tion for summary judgment is granted and plaintiff's

petition is dismissed.

BY THE COURT

/s/ Oscar H. Davis

Oscar H. Davis

Judge, Presiding

Jan. 17, 1975.

a

APPENDIX B.

Opinion.*

In the United States Court of Claims, Trial Division.

Service Technicians, Inc. v. The United States. No.

199-73.

Filed: Feb. 22, 1974.

On Plaintiff's Motion and Defendant's Cross-Motion

for Summary Judgment.

Ronald S. Berman, attorney of record, for plaintiff.

Lawrence S. Smith, with whom was Acting Assistant

Attorney General Irving Jaffe, for defendant.

WILLI, Trial Judge: Plaintiff, a janitorial service

concern, brings this suit under the Wunderlich Act, 41

U.S.C. §§ 321, 322 (1970), to upset an affirmance’

by the Armed Services Board of Contract Appeals

(the Board) of a contracting officer’s denial of plain-

tiffs claim for additional compensation under a June

18, 1971 fixed-price contract for the performance of

various custodial services at Luke Air Force Base,

Arizona, for the period July 1, 1971 to June 30, 1972.

While the subject contract covered all of the clean-

ing and litter disposal operations necessary to the gen-

eral upkeep of a number of different types of buildings

on the base, forty-nine in all, the present controversy

involves only a disagreement as to the contractor’s

obligations respecting the cleaning and care of floor

*The trial judge’s recommended decision and conclusion of

law are submitted in accordance with Rule 166(c). The neces-

sary facts are stated in the opinion.

172-2 BCA © 9673. In a subsequent unreported decision of

April 2, 1973 the Board denied plaintiff's motion for reconsidera-

tion.

surfaces. Specifically, the contract provided for both

“regular custodial service” and “extended custodial

service.”

Plaintiff contends here, as it did unsuccessfully be-

fore the Board, that as applied to floor care for a given

area the terms are mutually exclusive under the con-

tract so that any floor area within its coverage is to

receive either regular service or extended service but

not both.

It is unnecessary to decide whether the defendant's

contrary interpretation of the contract requirements is

implicit in every bit of relevant contract language be-

cause it is clear that plaintiff's understanding was so

patently lacking in reasonableness, in the context of

the contract as a whole, that it cannot be excused from

having failed to seek clarification prior to submission

of its bid. Space Corp. v. United States, 200 Ct. Cl. 1,

5-6, 470 F.2d 536, 538-39 (1972). A bare showing

of ambiguity does not license a contractor to proceed

under an interpretation of his own choosing.

In its petition and subsequent moving papers in this

court, plaintiff bases the reasonableness of its mutual

exclusivity construction of the contract requirements

primarily on the factual assertion that since both types

of service required a weekly damp mopping (a matter

not in dispute): “* * * the only difference between ex-

tended custodial service under the contract and regular

custodial service was that floor finish removal and ap-

plication of floor finish was to be provided on a quar-

terly basis [in the case of extended service] rather than

on a semi-annual basis [as in regular service].” Pet.,

§ 4.

RIDING LTT ee ea

preter

a

As will be seen, the above assumption is totally in-

validated by unmistakable language in this contract

that in certain other respects is not without some am-

biguous terminology.

The solicitation for bids in this instance included:

(1) Instructions, Conditions and Notices to Offerors;

(2) Technical Specifications; (3) Floor Plans, and

(4) Service Charts.

Paragraph 22 of the Instructions, Conditions and

Notices to Offerors, entitled Site Visit, provided as

follows:

Bidders are urged and expected to inspect the

site where services are to be performed and to

satisfy themselves as to all general and local con-

ditions that may affect the cost of performance

of the contract, to the extent such information is

reasonably obtainable. In no event will a failure

to inspect the site constitute grounds for with-

drawal of a bid after opening or for a claim after

award of the contract.

In respect to the above provision the Board observed

that the record before it gave no affirmative indication

as to whether plaintiff did or did not avail itself of the

opportunity to inspect the premises that were to receive

the custodial services for which it intended to bid. 72-2

BCA at 45,150. Plaintiff has provided no greater il-

lumination on the matter in this proceeding. It seems

fair to observe, however, that in the circumstances of

this case. a visit to the site would have most likely, if

not certainly rectificd plaintiff's misapprehension of the

a sn

work requirements. Thus, the floor plans with which

plaintiff had been provided as a part of the bidding

documents showed a plan view of each of the buildings

to be serviced, with the portions thereof that were to

receive extended service identified by cross-hatching.

Had plaintiff gone to the site it would have realized

that the areas designated for extended service were for

the most part subjected to so much more intense pedes-

trian traffic and use than were the regular service areas

that a commensurate differential in the degree of nec-

essary floor care would entail a far greater difference

than just the two floor finish applications and removals

per year that it says it implied on its own. The Board’s

inference to that effect is not shown in the present pro-

ceeding to have lacked substantial support. 72-2 BCA

at 45,149.

Paragraph 1-02 of Section 1, Scope of Work, of the

Technical Provisions, following a narrative introduc-

tion concluding with the statement that: “A pre-bid

conference of interested prospective bidders and tour of

the buildings in the schedule of items will be arranged”,

presented an annotated tabulation setting forth for

each of the forty-nine buildings involved in the con-

tract the same information as that given for the base

post office, as follows:

Cr OT UTES A 6

a

Time Period

x~ Description Available Number

Bidg. (Facility For Work Days

Nr. Area Occupant) Performance Per Week

151 2,760 Post Office 0800-1630 6—*560 SF Only

Insofar as pertinent here, a footnote at the bottom of

the tabulation stated as follows:

*Extended services for these buildings shall in-

clude:

1. b (damp mopping), and u (application

of floor finish) weekly.

2. bb (floor finish removal), and u (ap-

plication of floor finish) quarterly.

Example: In Bldg. 151 which has 2,760 SF,

the + 560 SF only means that while the

entire building receives standard service,

only 560 SF receives extended service.

* * *

The floor plan for the post office shows the cross-

hatching denoting extended service in a strip along

the building’s interior walls, with the explanation that

it signifies the “mail box area.”

Were it not for the express statement in the footnote

example to the effect that “* * * the entire building re-

ceives standard service * * *”, the square footage en-

tries preceded by an asterisk and followed by the word

“only,” as appearing in the columnar tabulation, would

be as susceptible of meaning that the referenced num-

ber of feet were to receive extended service only as

they would to connote that only that number of feet

were to receive extended service. If nothing else were

involved, plaintiff's conception of its contractual re-

sponsibilities might well prevail in accordance with the

PPitansewiersresrcieaninniominds Rea REAR «Ue tS ht A ease AEE MOURA GS Leaeeltand

en. Can

familiar principles applicable to the construction of a

unilaterally drawn contract. WPC Enterprises, Inc. v.

United States, 163 Ct. Cl. 1, 6-7, 323 F.2d 874, 876-

77 (1963). Plaintiff may not, however, persist in its

conception by ignoring the countervailing import of

either the express declaration in the tabulation’s inter-

pretative footnote or other pertinent indicia, such as

the associated floor plan, and the service chart to be

next discussion;* to say nothing of eschewing both the

opportunity of attending a pre-bid conference and the

repeated invitation to make a site inspection. Beacon

Construction Co. v. United States, 161 Ct. Cl. 1, 6-7,

314 F.2d 501, 504 (1963). If not alone, certainly in

combination, these factors render plaintiff's proffered

understanding unreasonable and therefore without the

pale of the WPC principle. Randolph Engineering Co.

v. United States, 176 Ct. Cl. 872, 880, 367 F.2d 425,

429-30 (1966).

The contract document that totally discredits the

premise on which plaintiff relies to support the reason-

ableness of its interpretation of the contract’s work

requirements, viz., that the only difference between

regular and extended custodial service on floors is two

applications and removals of primary finish per year,

is a so-called service chart. On that chart each building

is identified by number, usage and total square foot-

age. For example, the seventh entry on the chart refers

to Bldg. No. 151, the 2,760 square-foot Post Office

building described just as it is in the footnote illustra-

t

4

%

POR AK a

“Victory Carriers, Inc. v. United States, 199 Ct. Cl. 410.

467 F.2d 1334, 1342 (1972): Hol-Gar Manufacturing Co. vy.

United States, 169 Ct. Cl. 384, 395-96, 351 F.2d 972. 979

(1965).

FAA ANP ISE RAM RET AIIOL HAD LR NN

nition

tion, previously discussed, that expressly states that the

entire building is to receive standard service. For each

building and in separate categories labeled “Regular

Custodial Service” and “Extended Custodial Service”

the chart specifies the nature and frequency of each of

the custodial functions to be performed. Under the

heading “Extended Custodial Service” appear three

subheadings: one entitled “Area In Square Feet Of

Extended Services”; a second entitled “Every Week,”

under which the functional notations “Damp-Mop

Floors” and “Application Floor Finish” appear; and

the third entitled “Quarterly,” under which the com-

panion items “Floor Finish Removal” and “Primary

Floor Finish” appear. As opposed to just the weekly

and quarterly subheadings found under the heading of

“Extended Custodial Service,” there are six compara-

ble subheadings under “Regular Custodial Service,”

e.g., “Daily,” “Every Other Day,” “Weekly,” Quarterly,”

“Semi-Annual” and “Annual.” One of the six separate

operations specified under the subheading “Daily” is

“Sweep Interior Floors,” an undertaking not elsewhere

mentioned on the chart and notably missing from the

“Extended Service Category.” Thus, crediting plain-

tiff’s avowed impression of the mutual exclusivity of

floor care obligations would require the assvmption

that the footage earmarked in the chart for “Extended

Custodial Service” was not to be swept during. the en-

tire one-year term of the contract—an hypothesis that

by anyone’s standards, janitor even more than judge,

completely transcends the most extravagant limits of

the “zone of reasonableness” envisioned in WPC Enter-

prises, supra.

Two matters remain for consideration. Both were con-

sidered and rejected by the Board in its April 2, 1973

ee

denial’* of plaintiff's motion for reconsideration of the

reported decision of September 7, 1972. 72-2 BCA

q 9673.

In its initial decision the Board observed, in passing,

that plaintiff had confirmed defendant’s interpretation

of the contract by filing a performance schedule, as re-

quired by Paragraph 2-07 of the Technical Provisions,

showing that extended service would be furnished in

addition to, rather than in lieu of regular service. 72-2

BCA at 45,149. In its motion for reconsideration plain-

tiff asserted that it had prepared the schedule in that

manner only because the contracting officer threatened

default termination if it failed to do so. Accordingly,

it sought leave to reopen so that it could adduce ad-

ditional evidence showing that this had been the case.

The Board correctly dismissed plaintiff's duress argu-

ment because the contracting officer’s threat, if made,

demanded no more than adherence to the only rea-

sonable interpretation of the contract’s work require-

ments. Hicks Corp. v. United States, 203 Ct. Cl. ....,

487 F.2d 520, 522 (1973); Beatty v. United States,

144 Ct. Cl. 205, 207, 168 F. Supp. 204, 207 (1958).

Finally, plaintiff accompanied its motion for recon-

sideration with affidavits from two of the eight unsuc-

cessful bidders on the subject contract. Zach affiant

stated in wholly conclusory fashion that he had prepared

his bid on the assumption that all extended service

required by the contract was to be furnished in lieu of,

rather than in addition to regular service. The Board

summarily rejected the notion that these materials im-

parted reasonableness to plaintiff's similar view of the

contract, saying: “We are not convinced that there is

8See n. 1, supra.

a

any magic in mathematical equations in determining the

_ reasonableness of an interpretation of contract lan-

guage. Just because one-third of the bidders read the

language the: same way does not mean that they were

right and we find that this evidence is unconvincing.”

Were the parties’ competing interpretations in even

colorable balance, the understandings of other bidders

would certainly be at least arguably relevant. But

where, as here, one of the versions becomes tenable

only if substantial portions of the contractual writing

are ignored, then the only rational assumption as to

others who reached the same view is that they did so

by similarly closing their eyes to the obvious. So de-

rived, an interpretation unanimously announced by a

battalion of bidders is meaningless. Upton v. Tribilcock,

91 U.S. 45, 50 (1875).

CONCLUSION

For the reasons given, plaintiff's motion for summary

judgment should be denied, defendant’s motion for

summary judgment granted, and the petition dismissed.

=~] j—__

APPENDIX C.

Opinion on Motion for Reconsideration and ‘iotion

for Oral Hearing and Leave to Take Depositions.

Armed Services Board of Contract Appeals.

Appeal of—Service Technicians, Inc. Under Contract

No. F02604-71-C-2011. ASBCA No. 16996.

Appearances for the Appellant: H. Roy Jeppson,

Esq., Jeppson and Berman, Marina Del Rey, Califor-

nia.

Appearances for the Government: Colonel William

F. Herbert, USAF, Chief Trial Attorney, John Q.

Adams, Esq., Trial Attorney.

Appellant filed a timely Motion for Reconsidera-

tion of the Board’s decision (72-2 BCA par. 9673)

and also a Motion for Oral Hearing and Leave to take

Depositions.

The parties submitted the appeal for decision on the

record. That record consisted of the pleadings and the

Rule 4 file as supplemented by an affidavit of appel-

lant’s executive vice-president and the non-commissioned

officer in charge of the office which let, awarded and

administered the contract and, finally, a brief filed by

appellant.

In the contracting officer’s final decision he stated

that appellant had submitted a frequency schedule (as

it was required to do under the contract) which was

not in conformance with appellant’s later contention

as to performance of the services. The affidavit sub-

mitted by the non-commissioned officer in charge of the

a |

en a

procurement division adverted, briefly, to such portion

of the contracting officer’s final decision. The next refer-

ence to this frequency schedule was in the brief filed

by appellant’s counsel wherein he stated:

“The Declaration of Msgt Brian L. Finnemore

states in Paragraph 5 thereof that the contractor

did, in fact, submit an acceptable approved an-

nual performance schedule on 27 July 1972 [sic].

This schedule was submitted by the contractor

under threat of default by the contracting officer

if a schedule was not submitted in accordance

with the government’s views. The submission of

the schedule under direction of the contracting of-

ficer does not in any way constitute a waiver by

Appellant of its claim hereunder.”

The Board in its decision referred to the frequency

schedule issue as follows:

“It should be noted that appellant’s statement as

to its understanding that no extended weekly serv-

ice was required is somewhat contracted by the

fact that its weekly service schedules submitted

under TO 2-07 contained provisions for both reg-

ular and extended weekly service. Appellant’s

counsel, in his brief, has tried to downgrade the

significance of this schedule by stating that it was

only submitted as a result of a threat of a termina-

tion if a schedule meeting the contracting officer’s

understanding of the contract terms was not sub-

mitted. There is no evidence of any such threats

or other duress to submit the schedule in that

manner.”

The sole issue involved in the appeal was one of

contract interpretation. Appellant contended that by the

DA ce MIO ae, |

=

language of the contract certain services listed therein

were to be performed in lieu of other services also

listed, while respondent contended that both had to be

performed. The Board concluded that when the con-

tract was read as a whole there was only one reason-

able interpretation of its terms and that was the in-

terpretation made by respondent. We found that ap-

pellant’s interpretation was unreasonable because it

rendered a significant portion of the contract language

meaningless while respondent's interpretation gave mean-

ing and purpose to all parts of the contract. After we

had concluded that appellant’s interpretation was not

reasonable we set forth our views as to the frequency

schedule as we have heretofore quoted them.

In its Motion for Reconsideration appellant states

that the Board gave “great weight” to the fact that ap-

pellant had submitted a frequency schedule which con-

formed to respondent’s view of the contract language.

It thereafter submitted an affidavit of the supervisor

appellant employed at the job site to the effect that he

had only submitted that schedule as a result of a threat

of default termination if he failed to do so. To counter-

act that affidavit the Government submitted affi-

davits of the two Government personnel who were al-

leged to have made the threats and they denied having

made them. It is to explore this area of the controversy

that appellant seeks leave to take depositions of the

two Government witnesses and to have an oral hearing

to develop the matter further.

Appellant is incorrect in concluding that we gave

“great weight” to the frequency schedule. We men-

tioned it in passing mainly because appellant’s coun-

sel had alluded to it in his brief and had made state-

ments regarding it not supported by the record. As a

os ee

matter of fact, insofar as the dispute is concerned it

would have made no difference if the frequency sched-

ule had never been submitted. The positions of the

parties were not changed by the schedule and it was

required as a planning guide so that the parties would

know when during the performance period the work

would be accomplished. The frequency schedule did

not establish the work requirements but rather the con-

tract itself did that. For purposes of deciding the Mo-

tion for Reconsideration we will assume that the evi-

dence which appellant wishes to introduce would es-

tablish that appellant was, in fact, required to submit

a frequency schedule which was contrary to its inter-

pretation of the contract terms. So assuming, we find

that such factor is irrelevant to the issue to be decided.

Determining that appellant was forced to submit a

frequency schedule which conformed to respondent’s

views and was contrary to its own does not establish

that appellant’s interpretation of the contract terms was

reasonable. The unreasonableness of its interpreta-

tion was established, as we stated in our decision, by

the fact that it rendered meaningless a portion of the

work schedule. We cannot perceive how it could

benefit appellant to take the depositions of the two

Government witnesses and to have an oral hearing on

the issue of the frequency schedule. Were we to

allow such request we would still be faced with the

identical question which we decided in our decision

i.e., whether appellant’s or respondent’s interpretation

of the contract terms is correct. Under these circum-

stances no useful purpose would be served by appel-

lant’s taking of depositions and presenting evidence on

this issue at an oral hearing. Appellant’s motion in this

regard is denied.

per ee

Appellant also seeks to show that its interpretation

was reasonable by submitting affidavits of the presi-

dents of two other firms which submitted bids pur-

suant to the Invitation for Bids which resulted in the

award of this contract to appellant. In each instance

the respective president stated that in preparing his bid

it was assumed that the extended services were in lieu

of, and not in addition to, the regular services listed

in the work schedule. In connection with the submis-

sion of each of these affidavits appellant asserts that

the existence of these facts was not known until after

our decision was rendered, presumably to qualify them

as newly discovered evidence. It should be noted

that in order to establish that evidence is newly dis-

covered, more must be shown than the fact that the

evidence was only discovered after the hearing or

decision. A showing must also be made that such evi-

dence could not have been discovered, through the ex-

ercise of reasonable diligence, before the hearing or

decision. Appellant has not shown that it could not

have obtained the evidence it now seeks to have con-

sidered before we rendered our decision. Technically,

therefore, appellant has failed to show the existence of

newly-discovered evidence. However, in the exercise of

our discretion, we will consider these affidavits.

Appellant states that there were nine bidders for

this contract including itself and that two others and

appellant—one-third of the bidders—read the pro-

posed contract terms in the same way. It thus con-

cludes that the terms must have been unclear and am-

biguous. We are not convinced that there is any magic

in mathematical equations in determining the reason-

ableness of an interpretation of contract language. Just

because one-third of the bidders read the language the

ere ower gD

= =e

same way does not mean that they were right and we

find that this evidence is unconvincing. See Gelco

Builders & Burjay Construction Corp., GSBCA No.

734 (24 May 1963); Motion for reconsideration de-

nied 29 November 1963; Gelco Builders & Burjay

Construction Corp. v. United States, 177 Ct. Cl. 1025

(1966).

Even if we were to find, as a result of appellant’s

evidence, that the contract language was ambiguous,

we would be required to conclude that the ambiguity

was a patent one because it would require that one

portion of the specification be read out of the contract

entirely. An ambiguity which causes that result is a

glaring discrepancy. Where a bidder is faced with a

patent or glaring discrepancy he must seek clarification

from the Government’s representative if he intends to

bridge the crevasse in his own favor. Beacon Construc-

tion Co. v. United States, 161 Ct. Cl. 1, 7 (1963);

J. A. Jones Construction Co. v. United States, 181

Ct. Cl. 1, 12, 13 (1968); Brezina Construction Co. v.

United States, 196 Ct. Cl. 29, 34 (1971). Since ap-

pellant did not do that it is not now in a position

to complain.

We have carefully reexamined the entire record. We

have assumed, arguendo, that the frequency schedule

submitted by appellant on or about 27 July 1971

was submitted as it was as a result of threats by Gov-

ernment personnel to terminate the contract for de-

fault if the schedule were submitted in any other man-

ner. We have also considered fully the affidavits sub-

mitted by appellant and the points raised by appel-

lant’s counsel in his Memorandum of Points and Au-

thorities in Support of Motion for Reconsideration.

a. ae

After having considered all of the above we reach

the same conclusion we did originally. This contract

was not ambiguous since there was only one reason-

able interpretation and that was the interpretation of

the Government. We must, therefore, and hereby do

reaffirm our earlier decision.

Dated 2 April 1973.

I concur

/s/ Rudolf Sobernheim

RUDOLF SOBERNHEIM

Member of Division No. 8

Armed Services Board of

Contract Appeals

I concur

/s/ Richard C. Solibakke

RICHARD C. SOLIBAKKE, Chairman

Armed Services Board of

Contract Appeals and

Member of Division No. 8

/s/ Basil S. Norris,

BASIL S. NORRIS, Lt. Col., USAF

Member of Division No. 8

Armed Services Board of

Contract Appeals

I concur

/s/ William J. Ruberry

WILLIAM J. RUBERRY |

Member of Division No. 8

Armed Services Board of

Contract Appeals

PES ATES Ee foe et Eee ey

—

I concur

/s/ Harris J. Andrews

HARRIS J. ANDREWS, JR., Vice

Chairman, Armed Services Board

of Contract Appeals and

Member of Division No. 8

I certify that the foregoing is a true copy of the

opinion and decision of the Armed Services Board of

Contract Appeals in ASBCA No. 16996, appeal of

Service Technicians, Inc., rendered in conformance

with the Board’s Charter.

Dated:

GEORGE L. HAWKES, Recorder

Armed Services Board of

Contract Appeals

f we ieee, .)

a

APPENDIX D.

Opinicn by Lt. Colonel Norris.

Armed Services Board of Contract Appeals.

Appeal of Service Technicians, Inc. Under Contract

No. F02604-71-C-0211. ASBCA No. 16996.

Appearances for the Appellant: H. Roy Jeppson,

Esq., Jeppson and Berman, Marina Del Rey, California.

Appearances for the Government: Colonel William

F. Hebert, USAF, Chief Trial Attorney, John Q. Adams,

Esq., Trial Attorney.

This is an appeal from a final decision of the con-

tracting officer requiring appellant to furnish extended

custodial services in addition to, rather than in lieu of,

regular custodial services. The parties have submit-

ted the dispute for resolution on the record which con-

sists of the pleadings, Rule 4 documents, affidavits

submitted by each party and a brief filed by appel-

lant’s counsel. The parties have agreed that only the

issue of entitlement is presently before the Board with

the issue of quantum, if any, reserved for later con-

sideration.

I

FINDINGS OF FACT

A. The Contract.

Respondent awarded Contract No. F02604-71-C-

0211 to appellant on 18 June 1971. For the firm fixed

price of $102,182.28 appellant was required to provide

specified custodial services at Luke Air Force Base,

Arizona during the period from 1 July 1971 through

30 June 1972.

The contract provisions applicable to this dispute

are as follows:

“TP 1-02 * * *

CAI SOP DETR et OLE EAM GP ite |

—20—

. Ft. Description Available Number

joe remem) Patocmence Per Week

2,760 Post Office 0800-1630 6—*560 SF Only

*x* *k *

“*Extended service for these buildings shall in-

clude:

1. b(damp mopping), and u(application of

floor finish) weekly.

2. bb(floor finish removal) and cc(applica-

tion of floor finish) quarterly.

“Example: In Bldg. 151 which has 2,760SF, the

+ 560 SF only means that while the entire build-

ing receives standard service, only 560 SF receives

extended service.”

All of the other buildings listed which required ex-

tended services had an asterisk in the last column

which referred to the note and example set forth above.

Also included in the contract are twenty-two pages

of extended service floor plans. Several examples of

these plans will suffice to show what they were intended

to, and did, convey. Building 151 is the Base post of-

fice building. The floor plan for this building has a

hatched area with a notation stating that the extended

service area is the mail box area. Building 17 houses

the bank, resident auditor and the Red Cross. The floor

plan for this building states that the extended service

area is the lobby of the bank. Building 11 is the Wing

Headquarters building. The note on that floor plan

states that all floors, except carpeted areas, are to re-

ceive extended service. Building 12, the Base Head-

quarters building is in the same category as the Wing

. re eae

LAC RINER L oT

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Headquarters, i.e., all floors, except carpeted areas,

are to receive extended service. Other floor plans show

hallways, lounge areas, areas directly in front of service

desks or counters, class rooms, service club floors, etc.

which are to receive extended service.

There were other documents in chart form which

listed all the buildings. There are two major break-

downs entitled “Regular Custodial Service” and “Ex-

tended Custodial Service.” Beneath the heading “Regu-

lar Custodial Service” are two columns showing the num-

ber of square feet to receive such service and the num-

ber of days per week the services were to be rendered.

There are also six sub-headings. They are:

Daily

Every other day

Weekly

Quarterly

Semi-annual

Annual

Beneath each of these six sub-heading are specific

tasks to be performed. Under the heading “Daily” are

tasks such as “Clean and Wash Latrines and Shower

Rooms,” “Clean Water Fountains” etc. Under these

columns an “X” appears opposite each building which

is to receive the specific task.

Beneath the heading “Extended Custodial Service”

are two subheadings. They are:

Every Week

Quarterly

Under the “Every Week” sub-heading are two tasks, i.e.,

“Damp Mop Floors” and “Application Floor Finish.”

Under the “Quarterly” subheading are two other tasks.

P06 PEO AAAI AIT A TE

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i.e., “Floor Finish Removal” and “Primary Floor Fin-

ish.” Also under the major heading is a listing of the

number of square feet which are to receive extended

services. As was the case with the “Regular Custodial

Service” an “X” appears opposite the building in which

these services are required.

Using Building 151 as an example, the chart con-

tained “X’s” which showed that 2,760 square feet of

the building would require four specific tasks to be per-

formed daily, two to be performed every other day,

four to be performed weekly, four to be performed

quarterly, two to be performed semi-annually and two

to be performed annually. It also showed that 560

square feet of that building would require two tasks

to be performed every week and two to be performed

quarterly. In other words, there were “X’s” under both

major headings, i.e., “Regular Custodial Service” and

“Extended Custodial Service.”

Perusal of these charts reveals that under the regular

service “Weekly” column appellant was required to

damp mop floors and apply floor finish. Under the ex-

tended service “Every Week” column it was also re-

quired to damp mop floors and apply floor finish. Under

the regular service “Semi-Annual” column appellant had

to remove floor finish and apply a primary floor

finish. Under the extended service “Quarterly” column

it also had to remove floor finish and apply a primary

floor finish (Rule 4, Tab 2).

Technical Provision 2-07 required the contractor to

furnish to the contracting officer an annual schedule

within fifteen days after starting work. Such schedule

had to show the day of the week that weekly services

would be performed, day and week that quarterly serv-

wane

ices would be performed and the dates and month that

semi-annual services would be performed (Rule 4,

Tab 2). ;

The Invitation for Bids which resulted in this con-

tract contained a Site Visit clause which stated that

prospective bidders were urged and expected to visit the

site of the work and familiarize themselves with all

local conditions affecting the work (Rule 4, Tab 2).

The contract incorporates the ASPR 7-103.12(a) Dis-

putes Clause by reference.

B. Basis for Appellant's Bid.

Appellant’s Executive Vice President submitted an af-

fidavit to the Board in which he stated that he was

responsible. for preparing appellant’s bid. He also

stated that in computing such bid he assumed that under

Technical Provision TOP 1-02, Section I, Scope of

Work in those instances where extended service was

called for it was in lieu of and not in addition to the

regular custodial services. He attached his work papers

to his affidavit and claims that these papers support

his contention that he did not include any factor in

appellant’s bid for performing the extended services in

addition to the regular services (Affid. Bovee, 29 Jul

72).

C. Contract Performance.

Appellant commenced performance on 1 July 1971

thus. by the provisions of TP 2-07 it was required to

submit an annual schedule by 15 July 1971. In a

meeting held on 12 July 1971 appellant advised that

it would submit its schedule on that date. Some sched-

ules were received by respondent by at least 23 July

1971. There was evidently some lack of or delay in

communications between parties in the base procure-

a

ment office. On 27 July 1971 one contracting officer

approved portions of the appellant’s schedule submis-

sion. On 29 July 1971 another contracting officer sent

a letter to appellant advising it that as of 22 July 1971

its schedule had not been submitted (Rule 4, Tab 4),

whereas such a schedule had been submitted and ap-

proved (Rule 4, Tab 3). Appellant was later allowed

to revise portions of its schedule and. on 10 Angust

1971 the contracting officer approved the revised sched-

ule. The schedule as approved by the coi. acting of-

ficer included provisions for the furnishing of both

regular and extended weekly services (Rule 4, Tab 3).

On 20 August 1971 a cure notice was sent to ap-

pellant. Appellant was informed, among other things,

that, its failure to adhere to the approved schedule was

endangering contract performance (Rule 4, Tab 4).

Within a few weeks all of the items endangering per-

formance had been corrected except the schedule prob-

lem. By letters of 31 August and 16 September 1971

appellant submitted two suggested additional revisions

to the schedule neither of which included both regular

and extended services. On 8 October 1971 the con-

tracting officer advised appellant that he would ease

the requirement for having each type of service per-

formed on a specified day of the week but would not

relax the requirement that both regular and extended

services be performed (Rule 4, Tab 4). Appellant's

counsel replied to the 8 October letter on 29 October

1971 by stating that appellant’s interpretation was the

correct one and if the contracting officer did not agree

a final decision should be issued (Rule 4, Tab 1). The

contracting officer’s final decision, issued on 29 Novem-

ber 1971, required the performance of both regular and

extended services (Rule 4, Tab | ).

—25— \

I |

DECISION

The issue to be decided here is whether the contract

language as heretofore quoted required appellant to

perform both regular and extended services as con-

tended by respondent or whether the extended services

were in lieu of the regular services as contended by

appellant. It is, in other words, a question of contract \

interpretation.

—

aa

se

The rules relating to contract interpretation are well \

settled. Contract language is ambiguous when it is sus-

ceptible to more than one reasonable interpretation. A \

contractor who reasonably interprets the language and

acts thereon will be upheld unless the ambiguity was \

patent or glaring. This rule is based upon the theory

that the drafter of the language, should, under such \

circumstances, bear the responsibility for its choice of

language.

The key word is “reasonable.” The court and board

opinions which hold that contract interpretations must

be reasonable are numerous and unanimous. Not every

interpretation of which 4a party can conceive can be

held to be reasonable.

In our opinion appellant’s interpretation was not rea-

sonable. Appellant has stated that it construed the lan-

guage relating to extended services to mean that the only

difference between regular service and extended service

was that floor finish removal and the application of

floor finish was to be done quarterly rather than semi-

annually. Under appellant’s interpretation the language

of the contract relating to extended services on a weekly

basis was rendered meaningless. The rule is well estab-

lished that an interpretation which gives meaning and

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=

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effect to all portions of the contract language is pre-

ferred over one which renders a portion meaningless.

See Hol-Gar Manufacturing Corp. v. United States, 169

Ct. Cl. 384 (1965); States Roofing and Metal Company

Inc., ASBCA No. 16265, 72-1 BCA par. 9453. Appel-

lant would have us conclude that the language which

states that an extended service required damp mopping

and application of floor finish on a weekly basis in

specified buildings was completely devoid of meaning.

We cannot do as requested for it is apparent to oe

these words do have meaning and that a reasonab

interpretation can be applied to them. Under these cir-’

cumstances appellant’s interpretation is not reasonable.

It should be noted that appellant’s statement as to its

understanding that no extended weekly service was re-

quired is somewhat contradicted by the fact that its

weekly service schedule submitted under TP 2-07 con-

tained provisions for both regular and extended weekly

service. Appellant’s counsel, in his brief, has. tried to

downgrade the significance of this schedule by stating

that it was only submitted as a result of a threat of

termination if a schedule meeting the contracting offi-

cer’s understanding of the contract terms was not sub-

mitted. There is no evidence of any such threats or other

duress to submit the schedule in that manner.

Examination of the documents in the contract reveal

that something special was intended by the requirement

for “Extended Custodial Service.” The areas in which

this service was required fell into two main categories.

First, there were major common-use areas of heavy pe-

destrian traffic. The second category included areas

most subject to the receiving of visitors, e.g., the Wing

and Base Commander’s Headquarters. These latter

areas may also involve heavy pedestrian traffic. To any-

—

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Ring

a.

one in the janitorial services business it would be obvious

that areas subjected to heavy foot traffic would require

extra care to preserve the finish and appearance of

the floor surfaces. Respondent’s interpretation of the con-

tract terms is that under regular services an entire build-

ing would be damp mopped once a week and have floor

finish applied. For the areas of the building specifically

designated to receive extended services a second damp

mopping and application of floor finish would be re-

quired weekly. In other words, the entire building would

be damp mopped and receive an application of floor fin-

ish once a week. A second damp mopping and another

application of floor finish would be applied in areas

receiving a great deal of wear. Likewise the floor finish

would be stripped off the floor of the entire build-

ing twice a year while in the areas of greatest wear

this operation “Weuld be required an additional four

times. We find that this is a reasonable contractual

requirement and that a reasonable interpretation of the

contract language’ would have caused appellant to

understand that that was what was required of it.

It is to be noted, too, that the solicitation, and the

contract, contained the Site Visit Clause in which bid-

ders were told that they were expected to visit the site

of the work and satisfy themselves as to any conditions

which would affect the work. The record does not

reveal whether appellant did or did not visit the site. In

either event it was afforded a full opportunity to inspect

the areas where extended services were to be performed

and to ask questions about the meaning of the require-

ments.

Appellant’s Executive Vice President prepared the

appellant's bid which resulted in the instant contract. He

furnished an affidavit to the Board in which he stated

y OO re ee ee

—,

that he did not include any factor in appellant’s

bid for both regular and extended service since in his

view the extended service was in lieu of the regular serv-

ice. Giving full credence to this evidence it does not

alter our opinion. At most this evidence would estab-

lish a unilateral mistake on appellant’s part. As such,

it does not authorize the payment of extra compensation

for the services which appellant was required to provide

by the terms of the contract in the absence of some evi-

dence that the contracting officer knew or should have

known of appellant’s mistake. There is no evidence in

this file to show that the contracting officer knew or

should have known that appellant’s bid was in error

because it did not include a factor for performing both

regular and extended services. Nor is there evidence of

an obvious mistake on the face of the bid or any signifi-

cant disparity between appellant’s bid and other bids.

There is nothing in the record before us which would

justify granting appellant relief from performing the con-

tract according to its terms and conditions.

It is obvious to us that appellant’s Executive Vice

President either overlooked the explanation of what ex-

tended services entailed or did not clearly understand

it. If he overlooked the explanation that oversight is not

compensable when the required work is actually in-

sisted upon by the Government and performed by the

appellant. See Service Technicians, Inc., ASBCA No.

15609, 72-1 BCA par. 9327. If he did not understand

what he read appellant is equally precluded from recov-

ery for, as a matter of law, to sign a contract is to

inte, saat Aha a iAOMO ATIC LEAMA AN Bip PEARCE LL NBL LORELEI LEGA

esti

ilies

know its clear and unambiguous terms. See Syming-

ton Wayne Corp., ASBCA Nos. 8162, 8430 and 8431,

1964 BCA par. 4083. We have earlier held that the

contract terms were clear and unambiguous since there

was only one reasonable interpretation thereof.

Appellant’s appeal is, therefore, denied.

Dated 7 September 1972.

I concur

/s/ William J. Ruberry

WILLIAM J. RUBERRY

Member of Division No. 8

Armed Services Board of

Contract Appeals

/s/ Basil S. Norris

BASIL S. NORRIS, Lt. Col., USAF

Member of Division No. 8

Armed Services Board of

Contract Appeals

RUDOLF SOBERNHEIM

Member of Division No. 8

Armed Services Board of

Contract Appeals is absent

on official business.

I concur.

/s/ Richard C. Solibakke

RICHARD C. SOLIBAKKE, Chairman

Armed Services Board of

Contract Appeals and Member

of Division No. 8

e

:

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2

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= =

I concur

/s/ Joel P. Shedd

JOEL P. SHEDD, Vice Chairman

Armed Services Board of

Contract Appeals and Member

of Division No. 8

I certify that the foregoing is a true copy of the

decision and opinion of the Armed Services Board of

Contract Appeals in ASBCA No. 16996, Appeal of

Service Technicians, Inc., rendered in conformance with

the Board’s Charter.

Dated: 12 September 1972

/s/ George L. Hawkes

GEORGE L. HAWKES, Recorder

Armed Services Board of

Contract Appeals

PPLE LI LE OPPS ROLE EPS ORIEL IPE I OAT _"

ea. DE LEPINE LE IO LORE

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—

|

Opinion by Lt. Colonel Norris.

Armed Services Board of Contract Appeals.

Appeal of—Service Technicians, Inc. Under Con-

tract No. F02604-7 1-C-0211. ASBCA No. 16996.

Appearances for the Appellant: H. Roy Jeppson,

Esq., Jeppson and Berman, Marina Del Rey, Califor-

nia.

Appearances for the Government: Colonel William

F. Hebert, USAF, Chief Trial Attorney, John Q.

Adams, Esq., Trial Attorney.

This is an appeal from a final decision of the con-

tracting officer requiring appellant to furnish ex-

tended custodial services in addition to, rather than in

lieu of, regular custodial services. The parties have sub-

mitted the dispute for resolution on the record which

consists of the pleadings, Rule 4 documents, affidavits

submitted by each party and a brief filed by appellant’s

counsel. The parties have agreed that only the issue of

entitlement is presently before the Board with the

issue of quantum, if any, reserved for later considera-

tion.

I

FINDINGS OF FACT

A. The Contract.

Respondent awarded Contract No. F02604-71-C-

0211 to appellant on 18 June 1971. For the firm fixed

price of $102,182.28 appellant was required to pro-

vide specified custodial services at Luke Air Force

Base, Arizona during the period from |! July 1971

through 30 June 1972.

The contract provisions applicable to this dispute are

as follows:

| “TP 102% * *

a

FP —_Desrption pat —

Ft es :

Hos: (Facili For Work fess :

Area Occupant) Performance Per Week

2,760 Post Office 0800-1630 6—*560 SF Only

“*Extended services for these buildings shall in-

clude:

1. b(damp mopping), and u(application of

floor finish) weekly.

2. bb(floor finish removal) and cc(applica-

tion of floor finish) quarterly.

“Example: In Bidg. 151 which has 2,760SF, the

+ 560 SF only means that while the entire building

receives standard service, only 560 SF receives ex-

tended service.”

All of the other buildings listed which required extend-

ed services had an asterisk in the last column which

referred to the note and example set forth above.

Also included in the contract are twenty-two pages

of extended service floor plans. Several examples of

these plans will suffice to show what they were in-

tended to, and did, convey. Building 151 is the Base

post office building. The floor plan for this building has

a hatched area with a notation stating that the extended

service area is the mail box area. Building 17 houses

the bank, resident auditor and the Red Cross. The floor

plan for this building states that the extended service

area is the lobby of the bank. Building 11 is the Wing

Headquarters building. The note on that floor plan

states that all floors, except carpeted areas, are to re-

ceive extended service. Building 12, the Base Head-

quarters building is in the same category as the Wing

Headquarters, i.e., all floors, except carpeted areas, are

to receive extended service. Other floor plans show

hallways, lounge areas, areas directly in front of service

desks or counters, class rooms, service club floors, etc.

which are to receive extended service.

There were other documents in chart form which

listed all the buildings. There are two major break-

downs entitled “Regular Custodial Service” and “Ex-

tended Custodial Service.” Beneath the heading “Regu-

lar Custodial Service” are two columns showing the

number of square feet to receive such service and the

number of days per week the services were to be ren-

dered. There aer also six sub-headings. They are:

Daily

Every other day

Weekly

Quarterly

Semi-annual

Annual

Beneath each of these six sub-heading are specific tasks

to be performed. Under the heading “Daily” are tasks

such as “Clean and Wash Latrines and Shower Rooms,”

“Clean Water Fountains” etc. Under these columns an

“X” appears opposite each building which is to receive

the specific task.

Beneath the heading “Extended Custodial Service”

are two subheadings. They are:

Every Week

Quarterly

Under the “Every Week” sub-heading are two tasks, i.e.,

“Damp Mop Floors” and “Application Floor Finish.”

Under the “Quarterly” subheading are two other tasks.

i.e., “Floor Finish Removal” and “Primary Floor

SPA AIAOY ATARI tia ORLA

a

Finish.” Also under the major heading is a listing of

the number of square feet which are to receive ex-

tended services. As was the case with the “Regular Cus-

todial Service” an “X” appears opposite the building

in which these services are required.

Using Building 151 as an example, the chart con-

tained “X’s” which showed that 2,760 square feet of

the building would require four specific tasks to be per-

formed daily, two to be performed every other day,

four to be performed weekly, four to be performed

quarterly, two to be performed semi-annually and two

to be performed annually. It also showed that 560

square feet of that building would require two tasks

to be performed every week and two to be performed

quarterly. In other words, there were “X’s” under both

major headings, i.e., “Regular Custodial Service” and

“Extended Custodial Service.”

Perusal of these charts reveals that under the regular

service “Weekly” column appellant was required to

damp mop floors and apply floor finish. Under the ex-

tended service “Every Week” column it was also re-

quired to damp mop floors and apply floor finish.

Under the regular service “Semi-Annual” column ap-

pellant had to remove floor finish and apply a primary

floor finish. Under the extended service “Quarterly”

column it also had to remove floor finish and apply a

primary floor finish (Rule 4, Tab 2).

Technical Provision 2-07 required the contractor to

furnish to the contracting officer an annual schedule

within fifteen days after starting work. Such schedule

had to show the day of the week that weekly services

would be performed, day and week that quarterly serv-

ices would be performed and the dates and month that

in made

sh hc AT OEE TOPPLED SELLE LIE Ve PDS CO

oor

semi-annual services would be performed (Rule 4, Tab

2).

The Invitation for Bids which resulted in this contract

contained a Site Visit clause which stated that prospec-

tive bidders were urged and expected to visit the site

of the work and familiarize themselves with all local

conditions affecting the work (Rule 4, Tab 2). The

contract incorporates the ASPR 7-103.12(a) Disputes

Clause by reference.

B. Basis for Appellant's Bid.

Appellant’s Executive Vice President submitted an

affidavit to the Board in which he stated that he was

responsible for preparing appellant's bid. He also

stated that in computing such bid he assumed that

under Technical Provision TP 1-02, Section I, Scope

of Work in those instances where extended service was

called for it was in lieu of and not in addition to the

regular custodial services. He attached his work papers

to his affidavit and claims that these papers support his

contention that he did not include any factor in appel-

lant’s bid for performing the extended services in ad-

dition to the regular services (Affid. Bovee, 29 Jul

72).

C. Contract Performance.

Appellant commenced performance on 1 July 1971

thus by the provisions of TOP 2-07 it was required to

submit an annual schedule by 15 July 1971. In a meet-

ing held on 12 July 1971 appellant advised that it

would submit its schedule on that date. Some schedules

were received by respondent by at least 23 July 1971.

There was evidently some lack of or delay in com-

munications between parties in the base procurement

ER PREM DT PPV LM TEs :

—_

a

office. On 27 July 1971 one contracting officer ap-

proved portions of the appellant’s schedule submission.

On 29 July 1971 another contracting officer sent a

letter to appellant advising it that as of 22 July 1971

its schedule had not been submitted (Rule 4, Tab 4),

whereas such a schedule had been submitted and ap-

proved (Rule 4, Tab 3). Appellant was later allowed

to revise portions of its schedule and on 10 August

1971 the contracting officer approved the revised sched-

ule. The schedule as approved by the contracting of-

ficer included provisions for the furnishing of both

regular and extended weekly services (Rule 4, Tab 3).

On 20 August 1971 a cure notice was sent to ap-

pellant. Appellant was informed, among other things,

that its failure to adhere to the approved schedule was

endangering contract performance (Rule 4, Tab 4).

Within a few weeks all of the items endangering per-

formance had been corrected except the schedule

problem. By letters of 31 August and 16 September

1971 appellant submitted two suggested additional re-

visions to the schedule neither of which included both

regular and extended services. On 8 October 1971

the contracting officer advised appellant that he would

ease the requirement for having each type of service

performed on a specified day of the week but would |

not relax the requirement that both regular and ex-

tended services be performed (Rule 4, Tab 4). Ap-

pellant’s counsel replied to the 8 October letter on 29

October 1971 by stating that appellant’s interpretation

was the correct one and if the contracting officer did

not agree a final decision should be issued (Rule 4.

Tab 1). The contracting officer’s final decision. issued |

on 29 November 1971, required the performance of |

both regular and extended services (Rule 4, Tab 1). |

MII LOE IE ES LOL CR SOBA LE, : oe Sa ot , A

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.

—37—

Il

DECISION

The issue to be decided here is whether the contract

language as heretofore quoted required appellant to

perform both regular and extended services as con-

tended by respondent or whether the extended serv-

ices were in lieu of the regular services as contended

by appellant. It is, in other words, a question of con-

tract interpretation.

—w

The rules relating to contract interpretation are well

settled. Contract language is ambiguous when it is

susceptible to more than one reasonable interpretation.

A contractor who reasonably interprets the language

and acts thereon will be upheld unless the ambiguity

was patent or glaring. This rule is based upon the ;

theory that the drafter of the language, should, under f

such circumstances, bear the responsibility for its choice ;

of language. ! ,

8

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The key word is “reasonable.” The court and board

opinions which hold that contract interpretations must

| be reasonable are numerous and unanimous. Not every

interpretation of which a party can conceive can be

| held to be reasonable.

| In our opinion appellant’s interpretation was not

reasonable. Appellant has stated that it construed the

language relating to extended services to mean that

the only difference between regular service and ex-

tended service was that floor finish’ removal and the

application of floor finish was to be done quarterly

rather than semi-annually. Under appellant’s interpreta-

tion the language of the contract relating to extended

services on a weekly basis was rendered meaningless.

eee a ee ee |

—

The rule is well established that an interpretation

which gives meaning and effect to all portions of the

contract language is preferred over one which renders

a portion meaningless. See Hol-Gar Manufacturing Corp.

v. United States, 169 Ct. Cl. 384 (1965); States Roof-

ing and Metal Company, Inc., ASBCA No. 16265,

72-1 BCA par. 9453. Appellant would have us con-

clude that the language which states that an extended

service required damp mopping and application of floor

finish on a weekly basis in specified buildings was

completely devoid of meaning. We cannot do as re-

quested for it is apparent to us that these words do

have meaning and that a reasonable interpretation can

be applied to them. Under these circumstances appel-

lant’s interpretation is not reasonable. It should be

noted that appellant’s statement as to its understanding

that no extended weekly service was required is some-

what contradicted by the fact that its weekly service

schedule submitted under TP 2-07 contained provisions

for both regular and extended weekly service. Appel-

lant’s counsel, in his brief, has tried to downgrade the

significance of this schedule by stating that it was only

submitted as a result of a threat of termination if a

schedule meeting the contracting officer’s understand-

ing of the contract terms was not submitted. There is

no evidence of any such threats or other duress to

submit the schedule in that manner.

Examination of the documents in the contract reveal

that something ‘special was intended by the require-

ment for “Extended Custodial Service.” The areas in

which this service was required fell into two main cate-

gories. First, there were major common-use areas of

heavy pedestrian traffic. The second category included

areas most subject to the receiving of visitors. e.g..

SRG ie pb Bn 4

COTA TI OHED PCD BAe —

the Wing and Base Commander’s Headquarters. These

latter areas may also involve heavy pedestrian traffic.

To anyone in the janitorial services business it would

be obvious that areas subjected to heavy foot traffic

would require extra care to preserve the finish and

appearance of the floor surfaces. Respondent’s inter-

pretation of the contract terms is that under regular

services an entire building would be damp mopped

once a week and have floor finish applied. For the

areas of the building specifically designated to receive

extended services a second dainp mopping and appli-

cation of floor finish would be required weekly. In

other words, the entire building would be damp

mopped and receive an application of floor finish once

a week. A second damp mopping and another appli-

cation of floor finish would be applied in areas receiv-

ing a great deal of wear. Likewise the floor finish

would be stripped off the floor of the entire building

twice a year while in the areas of greatest wear this

operation would be required an additional four times.

We find that this is a reasonable contractual require-

ment and that a reasonable interpretation of the con-

tract language would have caused appellant to under-

stand that that was what was required of it.

It is to be noted, too, that the solicitation, and the

contract, contained the Site Visit Clause in which

bidders were told that they were expected to visit the

site of the work and satisfy themselves as to any con-

ditions which would affect the work. The record does

not reveal whether appellant did or did not visit the

site. In either event it was afforded a full opportunity

to inspect the areas where extended services were to

be performed and to ask questions about the meaning

of the requirements.

_"

Appellant’s Executive Vice President prepared the

appellant’s bid which resulted in the instant contract.

He furnished an affidavit to the Board in which he

stated that he did not include any factor in appellant’s

bid for both regular and extended service since

in his view the extended service was in lieu of

the regular service. Giving full credence to this evi-

dence it does not alter our opinion. At most this

evidence would establish a unilateral mistake on ap-

pellant’s part. As such, it does not authorize the pay-

ment of extra compensation for the services which

appellant was required to provide by the terms of the

contract in the absence of some evidence that the con-

tracting officer knew or should have known of appel-

lant’s mistake. There is no evidence in this file to show

that the conracting officer knew or should have known

that appellant’s bid was in error because it did not

include a factor for performing both regular and ex-

tended services. Nor is there evidence of an obvious

mistake on the face of the bid or any significant dis-

parity between appellant’s bid and other bids. There

is nothing in the record before us which would justify

granting appellant relief from performing the contract

according to its terms and conditions.

It is obvious to us that appellant’s Executive Vice

President either overlooked the explanation of what ex-

tended services entailed or did not clearly understand

it. If he overlooked the explanation that oversight is

not compensable when the required work is actually

insisted upon by the Government and performed by

the appellant. See Service Technicians, Inc., ASBCA

No. 15609, 72-1 BCA par. 9327. If he did not under-

stand what he read appellant is equally precluded

from recovery for, as a matter of law, to sign a con-

AOI TOR OP IN SO

sities

tract is to know its clear and unambiguous terms. See

Symington Wayne Corp., ASBCA Nos. 8162, 8430

and 8431, 1964 BCA par. 4083. We have earlier held

that the contract terms were clear and unambiguous

since there was only one reasonable interpretation

thereof.

Appellant’s appeal is, therefore, denied.

Dated 7 September 1972.

I concur

/s/ William J. Ruberry

WILLIAM J. RUBERRY

Member of Division No. 8

Armed Services Board of

Contract Appeals

/s /Basil S. Norris

BASIL S. NORRIS, Lt. Col., USAF

Member of Division No. 8

Armed Services Board of

Contract Appeals

RUDOLF SOBERNHEIM

Member of Division No. 8

Armed Services Board of

Contract Appeals is absent

on official business.

I concur.

/s/ Richard C. Solibakke

RICHARD C. SOLIBAKKE, Chairman

Armed Services Board of

Contract Appeals and Member

of Division No. 8

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I concur

/s/ Joel P. Shedd

JOEL P. SHEDD, Vice Chairman

Armed Services Board of

Contract Appeals and Member

of Division No. 8

I certify that the foregoing is a true copy of the

decision and opinion of the Armed Services Board of

Contract Appeals in ASBCA No. 16996, Appeal of

Service Technicians, Inc., rendered in conformance

with the Board’s Charter.

Dated 12 September 1972.

/s/ George L. Hawkes

GEORGE L. HAWKES, Recorder

Armed Services Board of

Contract Appeals