
    ROBERT L. GUYLER v. THE UNITED STATES
    [No. 19-60.
    Decided March 6, 1963]
    
      
      Teavrl W. Lewis for plaintiff. Morriss, Morriss, Boat-wright <& Lewis was on the brief.
    
      David V. Anthony, with whom was Actmg Assistant Attorney General Joseph D. Guilfoyle, for defendant.
    Before JoNes, Chief Judge; Whitaker, Judge; Lara-more, Judge; Dureee, Judge, and Davis, Judge.
    
   JoNes, Chief Judge,

delivered the opinion of the court;

Plaintiff sues for the value of extra work which he alleges he was required to do in completing a construction contract. This work he asserts he was not required to do by the terms of the contract.

In April 1956 plaintiff entered into a contract for the construction of facilities at Ozona, Texas, consisting of 12 buildings and utilities.

The standard form contract with certain additions contained certain provisions which are set out in detail in findings 1, 2, and 3. The main issue turns upon whether the contract required the painting of the interior walls of masonry. The plaintiff contends that by the terms of the contract he was to finish the buildings and to paint the exterior and the woodwork of the interior, but that the contract and specifications required only the interior masonry walls of tlie operations room to be painted. Paragraph 27-8 of the specifications specifies that interior areas to be painted should include all wood, metal, concrete masonry units, gypsum hoard, cement-asbestos hoard, and similar surfaces, except where otherwise specified. Paragraph 27-8 (g) of the specifications, around which most of the controversy revolves, is as follows:

Masonry Surfaces. — Interior exposed masonry surfaces, indicated on the drawings to foe painted, shall be painted in accordance with the attached Figure 1.

It should be noted that this section refers to “attached Figure 1.” Reverting to Figure 1, it is found that it did not specify what surfaces were to be painted. However, one of the drawings clearly and specifically provided that the walls behind and beside the platform in the operations room of the Operations Building should be painted black. This drawing did not provide for the painting of any other interior masonry walls. No other sheet of drawings in the entire original set of drawings designated any other interior masonry walls to be painted.

When he made his preparations for bidding, plaintiff obtained bids from subcontractors for the painting work. The lowest bid figure for the painting was submitted by George E. Biediger & Son, a firm with more than 20 years’ experience in paint contracting. The plans, drawings, and specifications were furnished in advance to the subcontractor. After examining these, the subcontractor based its estimate and submitted a bid on its interpretation of the contract, drawings, and specifications as calling for painting the interior masonry of only one room, the operations room, a portion of which was designated to be painted black in the drawing referred to above.

In submitting his bid on the entire contract, plaintiff used the Biediger bid as the basis for that part of his bid covering painting. In June 1956, after the work had been started but before it had progressed to the point of painting the interior masonry walls, the resident engineer forwarded to plaintiff for pricing a number of changes in the specifications in the form of proposed supplemental specifications accompanied by revised drawings. Plaintiff’s project manager went over the proposed changes in detail to determine what additional costs would be involved in the supplemental specifications. One of the numerous changes outlined in the supplemental specifications was to be made in paragraph 27-8 (g), as follows:

Delete “, indicated on the drawings to be painted,”.

Plaintiff accordingly submitted a quotation of price revisions resulting from the supplemental specifications totaling $11,146.99 additional. No price was quoted for any additional painting of interior masonry walls.

On August 20, 1956, modification No. 3 was issued by the contracting officer and executed by plaintiff’s authorized representative. This modification provided for an increase in the contract price of $11,146.99.

Plaintiff executed and accepted the modification No. 3 without any reservation, qualification, or protest. His representative did not attach any significance to the deletion of the particular phrase. The contracting officer apparently attached no significance to the fact that the plaintiff’s detailed breakdown for the work under modification No. 3 did not include any amount for interior masonry painting, nor did the contracting officer call the matter to the plaintiff’s attention. He stated the basis of his action later in his findings of fact, which included the following:

1. The phrase “indicated on the drawings to be painted” in subparagraph 27-8 (g) was deleted from the specifications only to clarify the painting requirements.
2. This phrase was meaningless since the drawings are not intended to provide painting instructions. The painting requirements are contained in the specifications as is evident by paragraphs 27-8(a), 27-9 and 27-11, all of which indicate painting of interior masonry surfaces.;

This interpretation of the specification, however, was not communicated to plaintiff until after the disagreement about the requirements of the contract.

Some two months later plaintiff was advised by the defendant’s resident engineer that all interior masonry walls in tb.e various buildings covered by the contract were required to be painted. This information was conveyed by plaintiff to his painting subcontractor, who refused to paint any interior masonry walls except the interior masonry walls of the Operations Building which were designated as a painting requirement in the contract drawing. His reason for refusing to do the painting was that the contract did not require the painting of any other interior masonry walls, and that his bid did not include the cost of painting any other interior masonry walls.

Plaintiff then notified the defendant of the position taken by the subcontractor and stated that if the additional work was required he should be compensated for it as extra work. He listed the painting items for the interior masonry walls in the 11 buildings on the proj ect. The engineer replied that the painting was required under the terms of the contract as revised and that plaintiff’s request for additional payment had been forwarded to the contracting officer for consideration. The plaintiff, under protest, had his subcontractor paint the additional interior masonry walls in dispute and paid the subcontractor for the performance of that work the sum of $3,496.14, which is found to be fair and reasonable compensation for the painting of tire interior masonry walls other than the walls in the Operations Building.

A conference was held by the contracting officer and his representatives with representatives of the plaintiff in February 1957, to consider plaintiff’s claim for equitable adjustment under the “Changes” clause in the general provisions of the contract. At that meeting plaintiff’s representatives took the position that under the terms of the original contract, paragraph 27-8 (g) of the specifications and the accompanying drawings specifically limited the painting of interior masonry walls to those so shown on the drawings. The contracting officer disputed this, claiming that before it was modified, the contract required the painting of all interior masonry walls. However, he stated that, if he was in error, there had been a mutual mistake and that in such event plaintiff’s right to reimbursement for the cost of the additional painting would not be prejudiced by the fact that plaintiff had executed modification No. 3.

The claim, for an equitable adjustment was denied December 4, 1956, by the contracting officer, the decision being, in writing and containing his findings of fact. This decision was transmitted to the plaintiff under date of February 28, 1957.

An appeal was taken to the Corps of Engineers Claims and Appeals Board which denied the claim November 29, 1957. Although the Board did not expressly disagree with the contracting officer’s assertion that the original contract required the painting, of all interior masonry walls, the Board pointed out that his position would have been more tenable were it not for the facts that the contract drawing in question gave some meaning to the wording of the specification and that other specifications dealing with the painting of the exterior masonry walls were explicit on painting requirements. However, the Board held that change order No. 3 removed any doubt as to the meaning of the contract and declined to grant relief on the ground that it had no authority to reform a contractual instrument.

Appeal then was taken to the Armed Services Board of Contract Appeals. A portion of its decision is set out in finding 20. In denying the appeal, the Board expressed regret “that poor draftmanship contributed to the mistake made by appellant’s subcontractor.” Nevertheless, the Board concluded that the contract as worded prior to the issuance of modification No. 3, if carefully read and properly interpreted, required the additional painting.

Thus, one appeals board held that modification No. 3 removed any doubt as to the requirement that interior masonry walls were to be painted. The second appellate board concluded that the original contract, while it was poorly drawn, should be construed to require the additional painting and that modification No. 3 made no such change in the requirement as would form a basis of recovery. The contracting officer held that the change in language was meaningless, while the resident engineer said that the contract, as revised, required the additional painting.

One is reminded of the John G. Saxe story of the six blind men of Indostan who went to see the elephant just to find out what the animal was like. The first fell against his side and reported, “The elephant is very like a wall.” The second, feeling of his tusk, stated it was clear that an “elephant is very like a spear.” The third one, taking hold of the squirming trunk, spake, “I see the elephant is very like a snake.” The fourth, getting hold of the knee, said, “It is very like a tree.” The fifth, catching the ear, said it was “like a fan.” The sixth began to grope, and grasping the tail, “I see,” quoth he, “the elephant is very like a rope.” The Saxe poem ends this way:

And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!

This confusion in the interpretation of the contract and specifications is to be contrasted with the uniform construction of the contract documents by the subcontractor and prime contractor, as well as by the defendant’s resident engineer, who felt that until the contract was revised it was to be interpreted as contended for by the painting subcontractor and by plaintiff. These three men at the site of the work were faced with the practical problem of reading through hundreds of pages of specifications, gleaning the specific from the general, and then deciding what work was to be done. The drawing No. swd 60-02-01, sheet 1 of 12, sequence 115, did not provide for the painting of any other interior masonry walls. No other sheet of the drawings in the entire original set of drawings designated any other interior masonry walls to be painted.

Although the contract makes the decision of the Armed Services Board of Contract Appeals final as to questions of fact, the issue presented here involves a question of law because it requires an interpretation of the language of the contract. It must be remembered that the contract and specifications were prepared by representatives of the defendant and that any doubts and ambiguities must be resolved against it. We agree that the specifications take precedence over the drawings, but the phrase “except where otherwise specified” in paragraph 27-8'(a) of the specifications dealing with interior painting and the phrase “indicated on the drawings to be painted” in paragraph 27-8 (g) of the same specifications and specific provisions to which more general language must yield. In order for these quoted words to have any meaning, it was necessary for the contractor to resort to the drawings to which he was specifically directed by the very language of the specifications.

After considering the several provisions of the specifications and drawings in the light of the briefs that the parties have submitted, we conclude that the interpretation by the plaintiff and his subcontractor as to the painting requirements on interior masonry walls is a reasonable one and that any interpretation to the contrary would require a resolution of doubtful and ambiguous language in favor of the party who prepared the documents.

The question then reverts to the effect of the deletions made by modification No. 3 which, among other changes, eliminated from paragraph 27-8 (g) of the specifications the phrase “indicated on the drawings to be painted.” This negative provision was described by the contracting officer as meaningless, since he considered that it did not change the painting requirements in any way. It was equally without significance to the plaintiff, particularly since it was not accompanied by any reference as to its purpose.

The elimination of a few words from a section of the specification that was characterized by the Armed Services Board of Contract Appeals as poor draftsmanship would appear to be an attempt to modify language that the contracting officer thought needed clarification.

When the plaintiff submitted his price quotations for the changes covered by modification No. 3, he sent a detailed breakdown for each item of work but he included nothing for interior masonry painting. This omission must have been clear to the contracting officer, who examined the breakdown submitted before he approved the plaintiff’s bid for the additional work. In spite of this, plaintiff’s attention was not called to the matter by the contracting officer— again for the reason that this official felt that the deletion quoted above did not change the contract in any way. Perhaps it was for this reason that at the conference held to consider plaintiff’s request for reimbursement, the contracting officer stated that if his interpretation of the original contract and the deletion was in error, there was a mutual mistake and that plaintiff’s claim would not be prejudiced by his acceptance of modification No. 3.

The painting of the interior masonry walls, other than the operations room, was extra work not provided in the original contract. The contracting officer did not consider that the deletion changed the terms of the contract. If the language deleted had the effect of changing the obligation, then it was a change order calling for extra work for which an adjustment should be made in the contract price under the “Changes” provision, paragraph 3, of the contract. In either event it was extra work for which plaintiff should be paid.

It will be noted that while section 3 of the contract contains the usual provision that any claim for an adjustment under a change order must be asserted in writing within 30 days from the receipt by the contractor of the notification of change, the latter clause has attached to it the following modifying proviso:

Provided, however, That the Contracting Officer, if he determines that the facts justify such action, may receive and consider, and adjust any such claim asserted at any time prior to the date of final settlement of the contract.

This proviso is attached as a qualifying part of the 30-day notification requirement.

The contracting officer was hundreds of miles away. As soon as plaintiff learned that the contracting officer intended to require the plaintiff to paint the interior masonry walls, he immediately filed a claim for pay for the extra work. These facts clearly called for the contracting officer to make an adjustment under the plain terms of the proviso. The ends of justice required that he do so. If the facts of this case do not justify the use of the quoted proviso, it is difficult to conceive a set of circumstances that would.

In tbe light of the entire record, we find that plaintiff is entitled to recover on his claim for the additional painting, the reasonable cost of which is not in issue. Judgment will be entered for plaintiff in the sum of $3,496.14.

Davis, Judge,

concurring in the result:

I agree that the contract, as originally written, did not provide for painting the interior masonry surfaces (except for some in the operations room). The general direction in specification 27-8 (a) for painting “concrete masonry units” (among other things) contains the qualification “except where otherwise specified”; this general paragraph must therefore yield to specific paragraph 27-8 (g) declaring, in effect, that the only interior exposed masonry surfaces to be painted are those indicated on the drawings. What ambiguity there may be should be resolved against the Government, as the court points out. This contract, like that in Beacon Construction Co. v. United States, also decided this day, ante, p. 1, incorporates an Article 2 directing the contractor to bring to the Contracting Officer’s attention discrepancies in the specifications and drawings, but the cases differ significantly in at least three ways: (a) The discrepancy here, if one existed at all, was not of the gross and patent character with which the court is dealing in Beacon Construction Co., but could, rather easily, be resolved by reading the contract as a whole; (b) the possible ambiguity came to light only after the contract was signed, not before it was consummated; and (c) that ambiguity was obviously apparent to the contracting officer prior to the time plaintiff discovered it. In this case, accordingly, there was no breach by the contractor of the requirements of Article 2.

I am more troubled, however, than is the court by modification No. 3 which indisputably required all interior surfaces to be painted. The plaintiff, who is an experienced contractor, should not be excused in court because his representative did not understand the plain agreement he was signing, any more than the Government would be relieved of an obligation if its contracting officer inadvertently agreed to something he soon regretted. “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say, that he did not read when he signed it, or did not know what it contained.” Upton v. Tribilcock, 91 U.S. 45, 50 (1875). Nor was the Government at fault for not realizing that plaintiff had signed the modification without understanding its import. Since the original contract was not absolutely clear and the problem had not yet arisen, the contracting officer could well think that plaintiff understood the contract in the same way as the Government and acquiesced in the “clarifying” amendment, or even that the plaintiff was willing to absorb the costs of any additional painting in view of his over-all remuneration. Under the accepted objective theory of contract formation there was a valid agreement and no such mutual mistake, or palpable unilateral mistake, as to the facts which should lead to rescission or reformation. Cf. Vakas v. Manuel, 316 F. 2d 369 (C.A.D.C., 1963). This result would not be altered by the circumstance that after the modification had been signed the contracting officer told plaintiff that, if the original contract failed to require painting of the interior masonry walls, the modification had been made under a mutual mistake. This after-the-event statement was simply an erroneous legal conclusion by the contracting officer which was not binding on the defendant.

Nevertheless, I am led to concur in the court’s judgment because the contracting officer treated modification No. 3, with respect to the painting, not as an independent binding agreement but as a contract-change subject in full to the regular procedure for changes. The modification was actually a change in the original contract which caused an increase in the amount due and which should therefore have occasioned an equitable adjustment. The contracting officer, however, did not make an equitable adjustment (because he incorrectly believed that no increase in cost was being added). The plaintiff, in turn, did not make a timely claim under the Changes article, but he did file an untimely request. The Changes article expressly permits the contracting officer, in his discretion, to consider any such belated claim up to the date of final settlement. As the findings show, this contracting officer treated plaintiff’s claim in exactly that fashion. He told plaintiff that modification No. 3 would not prejudice his claim; he considered the claim on its merits and did not deem the plaintiff’s acceptance of the modification to be conclusive; and he mistakenly decided that the change was only a formal one, not increasing the amount due under the contract. Thus, the contracting officer exercised his discretionary authority to weigh plaintiff’s prayer for additional compensation under the Changes article (even though he was not compelled to do so), and chose to deny the claim on its merits, despite the existence of the modification. In those circumstances, it is proper under the contract for us to deal with the issue just as if plaintiff had never accepted modification No. 3 but all along had demanded extra compensation. In that posture he would be entitled to recover, since the contracting officer’s denial of the equitable adjustment rested on an erroneous interpretation of the original contract.

Whitaker, Judge,

dissenting:

I agree that, as originally drawn, the contract required the painting only of those interior masonry surfaces which were indicated on the drawings. However, after the words, “indicated on the drawings to be painted”, had been eliminated, the portion of the contract pertinent to the issue before us read:

Masonry surfaces. — Interior exposed masonry surfaces shall be painted in accordance with the attached Figure 1.

This was a modification of the contract to which both parties agreed. As so modified, there can be no doubt that such a contract required the plaintiff to paint all interior exposed masonry surfaces.

As the majority opinion states, the resident engineer, in June 1956, after the work had started, forwarded to plaintiff a number of changes in the specifications and requested from him a bid covering the proposed changes. Among the changes proposed was the deletion of the words, “indicated on the drawings to be painted,” from the provision of the specifications with reference to painting interior exposed masonry surfaces. Upon receipt of this request, plaintiff submitted a certain figure, which the Government accepted. From this there resulted a contract between the parties which required plaintiff to paint all interior masonry surfaces, unless there was a mutual mistake of fact.

Plaintiff does not deny that he knew these words had been deleted, but he says he did not understand the significance of this. Why he did not understand it, I am at a loss to understand. All he had to do was to read this provision of the specifications with these words stricken. Anybody— certainly a contractor of the experience of this plaintiff— reading this provision of the specifications with these words deleted, would know that the contract required that all interior masonry surfaces should be painted. The long and short of the matter is plaintiff was careless. We cannot reform a contract because a party did not exercise due care in reading it.

But, even if plaintiff made an excusable mistake, we do not think the contracting officer was chargeable with knowledge thereof. It does appear that the contracting officer knew that plaintiff had not set down any specific sum for the extra painting which the modification required; but, it still does not appear that the contracting officer was aware that the plaintiff did not understand that he would be required, under the modified contract, to do more painting than he had originally contemplated. Unless the contracting officer knew this, there was no mutual mistake of fact. The contracting officer may have thought that the plaintiff was willing to absorb the cost of doing the additional painting, or he may have thought the plaintiff figured on painting all the interior masonry walls in the first place. The plaintiff never told him, and he had no way of knowing, why the plaintiff failed to include any specific sum for the additional painting. He never knew that the plaintiff was unaware that he was to be required to do more painting under the modified contract than he had originally contemplated; or, if so, why he did not include a specific figure for this work.

This is not a case for an equitable adjustment under the changes article of the contract. The party had already agreed on the adjustment, after the contracting officer had proposed the changes to be made and had asked the plaintiff for a bid on those changes and the plaintiff had submitted his bid. The result was a modified contract, agreed to in advance of doing the work.

In my opinion plaintiff is not entitled to recover.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Wilson Cowen, and the briefs and argument of counsel, makes findings of fact as follows:

1. On April 30, 1956, plaintiff Robert L. Guyler and the defendant entered into contract No. da 41-443-eng-4826 for the construction of the A.C. & W. facilities at Ozona, Texas, consisting of some 12 buildings and utilities. Norman L. Harwell was plaintiff’s project manager. He helped prepare the bid and supervised the construction. The contract was a combination lump-sum and unit price contract and the work to be performed was described in the contract, which was on Standard Form 23 and included Standard Form 23A. The contract contained the following pertinent provisions:

2. SPECIFICATIONS AND DRAWINGS
The Contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the Contracting Officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer who shall promptly make a determination in writing. Any adjustment by the Contractor without this determination shall be at his own risk and expense.- The Contracting Officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided.
3. CHANGES
The Contracting Officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim of the Contractor for adjustment under this clause must be asserted in writing within 30 days from the date of receipt by the Contractor of the notification of change: Provided, however, That the Contracting Officer, if he determines that the facts justify such action, may receive and consider, and adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in Clause 6 hereof. But nothing provided in this clause shall excuse the Contractor from proceeding with the prosecution of the work as changed. Except as otherwise herein provided, no charge for any extra work or material will be allowed.
‡ ‡
6. DISPUTES
Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the contracting officer, who shall reduce his decision to writing and mail, or otherwise furnish a copy thereof to the contractor at his address shown herein. Such decision shall be final and conclusive unless, within 30 days from the receipt thereof, the Contractor appeals in writing to the Chief of Engineers, whose written decision thereon, or that of his designated representative or representatives shall be final and conclusive upon the parties hereto unless, within 30 days after the receipt thereof by the Contractor, he appeals in writing to the Secretary, which appeal shall operate to vacate said decision of the Chief of Engineers. If the dispute is determined by the Secretary, his written decision or that of his designated representative or representatives, shall, unless determined by a court of competent jurisdiction to have been fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence, be final and conclusive upon the parties hereto. The Chief of Engineers or the Secretary may designate an individual, or individuals, other than the Contracting Officer, or a board as his authorized representative to determine appeals under this article. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and offer evidence in support of his appeal. Pending final decision of a dispute hereunder the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.

2. The statement of work contained in the contract is as follows:

The Contractor shall furnish all labor, equipment, and materials unless otherwise specified and perform the work above described for the amount stated above in strict accordance with the General Provisions (Standard Form 23a), specifications, schedules, drawings, and conditions all of which are made a part hereof and designated as follows: “Specifications for A.C. & W. Facilities, Ozona TM-187, Ozona, Texas,” dated December 1955 (Invitation No. ENG-41-443-56-61, as amended by Addenda Nos. 1, 2, 3, & 4). Schedule of Designations and Unit Prices attached as pages 13 to 16 inclusive. Drawings described in paragraph SC-2 of the specifications.

3. The contract specifications for painting were set forth in Part IV, Technical Provisions, Section 27, headed “Painting; General.” The following paragraphs are pertinent to the issues:

27-1. Scope. — The work covered by this section of the specifications consists of furnishing all plant, labor, equipment, appliances, and materials, and of performing all operations in connection with painting and finishing (exclusive of protective painting of metal surfaces, and painting of mechanical equipment in unfinished spaces), complete, in strict accordance with this section of the specifications and the applicable drawings, and subject to the terms and conditions of the contract.
27-8. General. — The term “paint”, as used herein, includes emulsions, enamels, paints, varnishes, and sealers. All colors shall be subject to the approval of the contracting officer. In general surfaces requiring paint will be painted as specified in Figure 1, except as otherwise specified herein.
ifc ifc ‡ * ❖
27-8. Interior Painting, Base Goats and Special Treatments
(a) Generad. — Interior areas to be painted Shall include all wood, metal, concrete masonry units, gypsum board, cement-asbestos board, plaster, slurry coat, structural steel 'and similar surfaces, except where otherwise specified. Horizontal runs of overhead pipes, pipe covering, and ducts shall be painted the same colors as ceilings. Vertical pipes, pipe covering, and ducts shall be pamted the same colors as walls. Concealed piping shall be left unpainted. No interior painting will be required on walls and ceilings of the pump house, janitor closets, mechanical and heater rooms, and storage rooms.
* ❖ * $ ‡
(g) Masonry Surfaces. — Interior exposed masonry surfaces, indicated on the drawings to be painted, shall be painted in accordance with the attached Figure 1.
27-9. Interior Finish Goats. — Interior finish coats shall be in accordance with the attached Figure 1, except as otherwise specified hereinbefore.
ífe H* iji 5ft
27-11 Paint cmd Golor Schemes. — Paint and color schemes ¿hall conform to the following color scheme numbers from Air Force Regulations 89-8 and are set forth herein as a guide only, since the finished color shall be approved by the contracting officer.
Building Color Scheme Number*
61 Man Dormitory_ - 8
89 Man Dormitory_ _ 8
17 Man BOQ_ _ 8
Administration and Dispensary _Adm. 3
Administration and Dispensary -Dip. 4
'Community Building_ _ 4
AIO/MT Shop_ - 3
Dining Hall_ - 8
Control & Identification_ _ 3
Supply Building_ _ 3
Transmitter Receiver_ _ 3
Operations Building_ (see note) 3
'Power Building_ - 3
Color scheme 8 for the operations building shall be modified in the operations room as follows:
(1) Use black paint on the end wall opposite platform and on the 12-foot wide portions of side walls adjacent thereto.
(2) A 12-foot wide strip of off-white acoustical tile ceiling adjoining the black end wall shall be painted black.
(3) Remaining walls shall be light green.
(4) Handrails shall be striped in white.
(5) All paints shall be flat or matte finish type.
♦The color scheme numbers given above shall be as follows:

4. The “Figure 1” referred to in paragraphs 27-3 and 27-8 (g) of the contract was a tabulation setting out the type and number of coats of paint to be used on the various types of surfaces. It did not specify what surfaces were to be painted and bore the notation “Use Applicable Items Only.”

5. Drawing No. swd 60-02-01, sheet 1 of 12, sequence 115, of the original drawings contained designations of interior masonry walls to be painted black, that is, the walls behind and beside the platform in the operations room of the Operations Building. The drawing did not provide for the painting of the interior masonry walls of any other rooms. No other sheet of drawings in the entire original set of drawings designated any other interior masonry walls to be painted.

6. In preparing his bid for the contract, plaintiff obtained bids from subcontractors for the painting work. The lowest of these was submitted by George E. Biediger & Son, and plaintiff used the subcontractor’s bid in computing his bid on the entire contract. The plans, drawings, and specifications were furnished in advance to the subcontractor, and after examining these, the subcontractor included in its estimate and bid to plaintiff only the cost of painting the interior masonry walls designated to be painted black upon the drawing referred to in finding 5. After plaintiff’s bid on the prime contract was accepted 'by defendant, plaintiff awarded the painting contract to George E. Biediger & Son.

7. On June 29, 1956, after work on the project had been initiated but before the work had progressed to the point of painting interior masonry walls, the resident engineer forwarded to plaintiff for pricing a number of changes in the specifications in the form of proposed supplemental specifications accompanied by revised drawings. Plaintiff’s project manager thereupon broke down the changes in detail to determine what additional costs were involved in the supplemental specifications. Paragraph 5 of the supplemental specifications read as follows:

Page @7-10, Paragragh '@7-8(g). — Delete “, indicated on the drawings to be painted,”.

8. On August 1, 1956, plaintiff submitted a quotation of price revisions resulting from the supplemental specifications totaling $11,146.99. No price was quoted for any additional painting of interior masonry walls.

9. On August 20, 1956, modification No. 3 to the contract was issued by the contracting officer and executed by plaintiff’s authorized representative. Modification No. 3 provided for an increase in the contract price of $11,146.99, the exact amount proposed. Included in the modification were the supplemental specifications referred to in finding 7, including paragraph 5.

10. Plaintiff executed and accepted modification No. 3 as issued without reservation, qualification, or protest. Although plaintiff’s representative read the supplemental specifications, he overlooked or did not attach any significance to the deletion of the phrase “indicated on the drawings to be painted” from paragraph 27-8 (g) of section 27 of the specifications, nor did he send the revised specifications to his painting subcontractor for the purpose of obtaining a quotation of the cost of additional work.

11. The contracting officer did not attach any significance to the fact that plaintiff’s detailed breakdown for the work under modification No. 3 did not include any amount for interior masonry painting. Likewise, the contracting officer did not call the matter to plaintiff’s attention, and the basis for his action was stated in his findings of fact as follows:

1. The phrase “indicated on the drawings to be painted” in subparagraph 27-8 (g) was deleted from the specifications only to clarify the painting requirements.
2. This phrase was meaningless since the drawings are not intended to provide painting instructions. _ The painting requirements are contained in the specifications as is evident by paragraphs 27-8(a), 27-9 and 27-11, all of which indicate painting of interior masonry surfaces.

This interpretation of the specifications was not communicated to plaintiff until after the dispute arose.

12. In October 1956 plaintiff was advised by the defendant’s resident engineer that all interior masonry walls in the various buildings covered by the contract were required to be painted. Notice to that effect was given by plaintiff to his painting subcontractor, who refused to paint any interior masonry walls except the interior masonry walls of the Operations Building which were designated to be painted on contract drawing No. swn 60-02-01, sheet 1 of 12, sequence 115 (finding 5), on the ground that his bid did not include the cost of painting any other interior masonry walls.

13. On November 9,1956, plaintiff submitted to defendant a claim for the additional painting work. The plaintiff’s letter read in part as follows:

We transmitted a copy of your color selection to our painting subcontractor. He advises this office the schedule infers that the interior of exterior masonry walls shall be painted. After further checking we find that in Change Order No. 3 a change in specifications was made deleting the phrase “indicated on the drawings to be painted” from Section 27, Paragraph 27-8 (g), of the contract specifications. This change, in effect, required that all interior masonry surfaces be painted whereas before they were not. No quotation for this change was included in our proposal of 1 August 1956 as indicated by our breakdown. Our painting subcontractor has presented us with a quotation for this change. We respectfully request you consider our claim for the following amounts to be added to our contract because of this change order.

The remainder of the letter consisted of 11 bid items for painting interior masonry walls in 11 buildings on the project.

On January 7,1957, the resident engineer replied by letter, reading in pertinent part as follows:

It has been brought to the attention of this office that your painting subcontractor is omitting painting of the interior of exterior walls and is proceeding with the painting of interior partitions.
You are advised that it is necessary to paint these walls under the terms of your contract as revised and that it is your responsibility to correct any laps in painting that may show due to the procedure now being followed in not painting parts of room areas.
Your request for additional payment has been forwarded to the contracting officer for consideration and you will be advised at a later date as to a determination on the request.

14. Under protest, plaintiff had his subcontractor paint the additional interior masonry walls in dispute and paid the subcontractor for the performance of that work.

15. The amount of $3,496.14 is fair and reasonable compensation for painting all interior masonry walls of the buildings included in plaintiff’s contract other than the interior masonry walls designated on original drawing No. swd 60-02-01, sheet 1 of 12, sequence 115, to be painted black.

16. A conference, attended by the contracting officer and his representatives and by representatives of the plaintiff, was held on February 27, 1957, to consider plaintiff’s claim for equitable adjustment under the “Changes” clause in the general provisions of the contract. At that time, the contracting officer informed plaintiff’s representatives that it was defendant’s position that the painting of the interior masonry walls was required by the terms of the contract prior to the issuance of modification No. 3, whereupon plaintiff’s representatives advised the contracting officer that it was plaintiff’s position that prior to the issuance of modification No. 3, only the interior masonry walls behind and beside the platform in the operations room of the Operations Building were required to be painted.

17. During the conference held on February 27,1957, plaintiff’s representatives were advised that the execution and acceptance of modification No. 3 would not prejudice plaintiff’s claim before the contracting officer since, if the interpretation of the contracting officer was held to be erroneous and the painting of interior masonry walls was not a contract requirement until the deletion of the disputed phrase, there had been a mutual mistake with regard to the issuance and acceptance of modification No. 3.

18. Plaintiff’s claim for equitable adjustment was denied on December 4, 1956, by decision of the contracting officer contained in his written findings of fact. The decision of the contracting officer, including his findings of fact, was transmitted to plaintiff by letter dated February 28, 1957. It is in evidence as plaintiff’s exhibit 12-A and is made a part hereof.

19. From the adverse decision of the contracting officer, plaintiff made a timely appeal to the Corps of Engineers Claims and Appeals Board, which denied the claim by decision of November 29, 1957. The decision read in part as follows:

In view of the original language in paragraph 27-8 (g) which states that interior exposed masonry walls indicated on the drawings to ~be fainted shall be painted the contractor claims that no cost for such painting was included in the contract price. Subsequently, when Change Order No. 3 was agreed upon, the change to paragraph 27-8 (g) was not noticed by the contractor although this does make the painting of interior masonry walls a requirement of the contract. The contracting officer to the contrary held that the Change Order No. 3 did not change the original contract requirement but did correct a meaningless statement. The position of the Government in this respect is that the painting requirements are never found on the drawings but are contained in the specifications and that the general requirement of paragraph 27-8 (a) controls with the wording “interior areas to be painted shall include all wood, metal, concrete masonry units, gypsum board. * * * except where otherwise specified.” The position of the contracting officer would be more tenable if one drawing did not state the painting requirement for masonry walls in one building thus giving some meaning to the original specification wording.
Also in the same specification with respect to the exterior painting of masonry units the contracting officer used other words which clearly express the requirement that all exterior masonry walls are to be painted with cement-water paint. However, Change Order No. 3 removed any doubt. It was accepted by the contractor without protest and it is conceded that, by the change in language in subparagraph 27-8(g), this change did incorporate a requirement that all interior exposed masonry walls be painted. To now correct the clear effect of Change Order No. 3 on the contract would necessitate reformation of a contractual instrument which is beyond the authority of this Board. Therefore the claim must be DENIED.

20. Plaintiff duly appealed from the decision of the Corps of Engineers Board of Contract Appeals to the Armed Services Board of Contract Appeals. In its decision of June 16, 1959, the Board held that plaintiff was not entitled to an equitable adjustment under the “Changes” clause of the contract and denied the appeal. The decision, which is in evidence as plaintiff’s exhibit 13 and is made a part hereof, read in part as follows:

As a matter of analysis, a distinction must be drawn between specifications defining to hat is to be done and specifications defining how the prescribed work is to be performed. With respect to interior painting the what as related to the matter presently in dispute, is stated in paragraph 27-8 (a):
“Interior areas to be painted shall include all * * * concrete masonry units * * * except where otherwise specified.”
The last sentence of the same paragraph states one exception:
“No interior painting will be required on walls and ceilings of the pump house, janitor closets, mechanical and heater rooms, and storage rooms.”
We find no other exceptions stated.
Appellant says that paragraph 27-8 (g), which originally contained the deleted (and disputed) phrase “indicated on the drawings to be painted,” constitutes another exception. It would seem clear however, that the subparagraphs following 27-8 (a) specify not what is to be painted, but how the painting on the areas otherwise designated is to be performed, e.g., in 27-8 (g) “in accordance with the attached Figure 1.” The phrase “indicated on the drawings to be painted,” at least as a matter of grammatical construction, modifies and limits the “Interior exposed masonry surfaces” which are to be “painted in accordance with the attached Figure 1.” While the phrase would indicate, contrary to the fact, that the interior exposed masonry surfaces to be painted in accordance with Figure 1 would be shown on the drawings, it does not constitute an exception to the general requirement that interior areas to be painted include all concrete masonry units. The ambiguity is with respect to the how and not the what.
It is to be regretted that poor draftsmanship contributed to the mistake made by appellant’s subcontractor. However, we think that despite this poor draftsmanship, a fair and careful reading of the contract would lead “a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration” (Restatement, Contracts, Section 230) to conclude that interior concrete masonry surfaces, except those in the pump house, janitor closets, mechanical and heater rooms and storage rooms, were to be painted. Since we conclude that the contract, properly interpreted, required the painting of the disputed surfaces prior to the issuance of Modification No. 3, the latter aid not change this requirement so as to form a basis for recovery under the “Changes” clause of the contract. Dean Construction Company, Inc., asbca No. 5037, decided 18 May 1959, 59-1 bca 2228.

21. Subsequently, on October 19,1959, the Armed Services Board of Contract Appeals denied plaintiff’s motion for reconsideration.

22. Plaintiff has not established that the decision of the Armed Services Board of Contract Appeals was capricious, arbitrary, so grossly erroneous as necessarily to imply bad faith or that it is not supported by substantial evidence. However, the decision was on a question of law, since it is based upon an interpretation and construction of the contract and the specifications.

CONCLUSION OF LAW

Upon tbe foregoing findings of fact, which, are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover in the amount of three thousand four hundred ninety-six dollars and fourteen cents ($3,496.14), and judgment is entered to that effect. 
      
      
        Garrison v. United States, 7 Wall. 688, 690.
     
      
       In Beacon Construction Co. v. United States, ante, p. 1, we are today refusing the Government's request to disregard a modification, agreed to by both parties, -which later turned out to have been improvident on the Government’s part and which it tried unilaterally to rescind.
     
      
       Once the contracting officer exercised his authority to consider the belated claim on its merits (under the Changes article), the appellate administrative bodies could no longer stand on modification No. 3 alone. Cf. P.L.S. Coat & Suit Corp. v. United States, 148 Ct. Cl. 296, 300-301, 180 F. Supp. 400, 403 (1960).
     
      
      
        Callahan Construction Co. v. United States, 91 Ct Cl. 538; Ready-Mix Concrete Co. v. United States, 141 Ct. Cl. 168.
     