
    BINGHAMTON CONSTRUCTION CO., INC. v. THE UNITED STATES
    [No. 48525.
    Decided October 7, 1952.
    Plaintiff’s motion to amend judgment or for new trial and defendant’s motion for new trial overruled January 13, 1953]
    
    
      
      Mr. Jerome Beaudrias for the plaintiff.
    
      Mr. James J. Sweeney, with whom was Mr,. Assistant Attorney General Holmes Baldridge, for the defendant.
    
      Mr. William E. Day, Trial Commissioner.
    
      
      Plaintiff’s petition for writ of certiorari pending.
    
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff brings this suit to recover under its contract with the War Department Corps of Engineers for the construction of a flood wall along the Chemung River in Elmira, New York. Plaintiff presents three claims as follows:

Claim for reimbursement of wage rates paid to carpenters,
laborers, and concrete puddlers_$15,697.38
Claim regarding measurement of' sheeting and shoring— 14,785.55
Claim for finishing of concrete_ 6,934.26
Total_ 37,317.19

Plaintiff’s first claim is that it was misled by defendant as to the wages it would be required to pay in carrying out the contract. Briefly stated, the facts anent this controversy are these:

On March 29, 1941, plaintiff received from the Bingham-ton, New York, District office of the Corps of Engineers an invitation to bid upon the construction of Section 1 of the Elmira Flood Protection Project. .Plaintiff submitted a bid which defendant accepted on May 14, 1941. Formal notice to proceed was issued on June 5,1941.

The Standard Government Form of Invitation to Bid contained the following provision:

Investigation of Conditions. — Bidders are expected to visit the locality of the work and to make their own estimates of the facilities needed, the difficulties attending the execution of the proposed contract, including local conditions, availability of labor, uncertainties of weather, and other contingencies. * * * Failure to acquaint himself with all available information concerning these conditions will not relieve the successful bidder of responsibility for estimating the difficulties and costs of successfully performing the complete work. (Italics supplied.)

However, the contract specifications attached to the Invitation for Bids contained the following provision:

1-31. Wage and Labor Provisions, (a) The Secretary of Labor has determined the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work. In accordance with Article 17 of the contract, employees at the site shall be paid not less than these wages as listed below:
Designation Wage rate — hourly
Carpenters, Journeymen-$1.00
# # * * *
Laborers, unskilled_ 0.50
Laborers, Concrete Puddlers-1- 0.50
*****

This minimum determination had been made by the Secretary of Labor on January 31, 1941, at the request of the Corps of Engineers preparatory to including it in the Invitation for Bids for this contract. Such a determination was required by the Davis-Bacon Act of August 30,1935,49 Stat. 1011,40IJ. S. C. §§ 276a, 276a-l.

However, at "the time defendant issued the invitation for bids on March 29, 1941, and included therein the foregoing specifications relative to wage rates, the Secretary of Labor had since issued a new determination of the prevailing wage rates for Elmira. This was furnished to the Public Buildings Administration on March 4, 1941. In this it was said that the prevailing wage rates were as follows:

Classification Sourly rate
Carpenters, Journeymen_ $1.125
Laborers, unskilled_:_ 0.55'

This was not communicated to the Corps of Engineers, but the District Engineer was informed by the labor union as early as October 22, 1940, that a $.125 per hour increase for carpenters would take effect on January 1,1941. Despite this knowledge, the District Engineer before inviting bids on March 29, 1941, did not attempt to ascertain whether or not the Secretary of Labor had made a redetermination of the prevailing wage rates since his determination of J anuary 31, 1941, Had he done so he would have learned of the ■determination of March 4, 1941.

Prior to the submission of its bid, plaintiff did not attempt to make an independent investigation of the prevailing wage scale for the classes of labor to be utilized on this contract, but it computed its bid iii reliance upon the schedule of minimum wage rates contained in the specifications furnished.

When work on the project was started on June 3, 1941, plaintiff was unable to obtain workmen for the rates specified, but had to pay the prevailing union rate of $.625 per hour for unskilled laborers, including concrete puddlers, and :$1.125 per hour for carpenters. The rate for carpenters was put into effect on J anuary 1, 1941. Prior to the Invitation for Bids the rates for common laborers had increased from $.50 to $.55, and on April 1, 1941, they had risen to $.625.

Plaintiff promptly notified the District Engineer, the contracting officer, that the minimum wage rates set forth in the •contract specifications were less than the currently prevailing rates, but plaintiff was informed by the District Engineer on June 27,1941, that the minimum wage rates had been determined in accordance with the applicable law and regulations, and, consequently, that he could not grant any relief. Plaintiff appealed this decision to the Chief of Engineers on July 10,1941. This appeal was denied by the Chief of Engineers on August 5,1941, principally on the ground that he lacked authority in law “to question the correctness of any determination made by the Secretary of Labor pursuant to the provisions of the above cited act [49 Stat. 1011].”

Following the completion of this project in December 1942, plaintiff on February 20, 1943, requested the Chief of Engineers to reconsider his action in dismissing its appeal of July 10,1941. On April 13,1943, the Chief of Engineers declined to change his earlier decision stating (1) that the contract made no representation as to the actual wage scales which would be in effect, and (2) that the increased costs did not arise from plaintiff’s contract obligations but from economic conditions which were ordinary contingencies contemplated under the terms of the contract.

The specifications furnished to plaintiff in connection with the invitation to bid specified the minimum wages to be paid in accordance with the determination of the Secretary of Labor. This determination was made by him pursuant to the requirements of the Davis-Bacon Act, sufra, which required him to determine the minimum wages to be paid “based upon * * * the wages * * * determined * * * to be prevailing” in the locality. His determination, therefore, so far as plaintiff’s rights are concerned, amounted to a determination of the prevailing wage. When made, his determination was correct, but before bids were invited, wages had gone up and he had made a new determination. Thus, when the Corps of Engineers represented that the Secretary of Labor had determined the prevailing wage rates to be $.50 and $1, this was a misrepresentation, although an unintentional one. Nevertheless, it was one upon which plaintiff was entitled to rely.

It was a positive representation, and, therefore, one from the consequences of which the defendant cannot be relieved because of the provision requiring the contractor to investigate “the availability of labor.” When defendant made this representation it assumed responsibility for its accuracy.

The fact that such a determination had been made some months before bids were requested does not relieve defendant. Plaintiff was entitled to rely on it as the Secretary’s latest determination — as a representation of the wages it would have to pay when the work was to be done.

The District Engineer had been advised by the union months before the Invitation for Bids was issued that the rate for carpenters would be increased effective on January 1,1941. Before issuing the invitation he should have made certain that the rates in effect were those he was representing them to be.

Plaintiff, therefore, is entitled to recover the difference between the wages specified in the Invitation for Bids ($.50 and $1.) and those which the Secretary of Labor determined on March 4,1941 to be the prevailing wages ($.55 and $1.125). Albert & Harrison, Inc. v. United States, 107 C. Cls. 292, 68 F. Supp. 732, cert. denied, 331 U. S. 810. In Irwin & Leighton v. United States, 115 C. Cls. 18, 32, the Court held that there was no misrepresentation. It did not intend to hold and did not hold that had there been a misrepresentation plaintiff could not recover.

Plaintiff urges that an additional misrepresentation took place following the issuance of invitations to bid and prior to the acceptance of plaintiff’s bid when the District Engineer failed to obtain from the Secretary of Labor an amendment of the contract wage schedule to reflect the increase from $.55 to $.625 obtained by the union for unskilled laborers and concrete puddlers on April 1,1941. However, plaintiff has failed to establish any of the circumstances surrounding this increase, so that it is impossible to determine whether the District Engineer knew or should have known of its existence at the time he awarded this contract to plaintiff. Furthermore, the evidence does not reveal that the Secretary of Labor made a wage determination recognizing this rate prior to the acceptance of plaintiff’s bid. In the absence of such proof there is no foundation for the claim that the District Engineer misrepresented to plaintiff the existence of this additional increase.

Plaintiff’s next claim is that defendant incorrectly computed the amount due for “sheeting and shoring.”

The construction of the new flood wall necessitated much trench excavation, both in open unimproved areas and also in close proximity to' six buildings adjacent to the project site. In order to maintain safe working conditions and in order to furnish adequate lateral support for the adjoining structures, the contract called for the installation of an estimated quantity of 9,200 square feet of sheeting and shoring^ It provided that plaintiff was to receive $.65 per square foot for the quantities actually' installed to be measured by the “square foot of the protected area.”

Plaintiff accepted, without protest, monthly payments for this work based upon the estimates of the defendant’s resident engineer, but, when on completion of the project the Government’s final estimate of the sheeting and shoring installed was substantially less than plaintiff’s computation, plaintiff protested and requested information as to the method used by the Government in obtaining its total. Plaintiff was advised that of the 10,152.1 square feet of sheeting and shoring contained in the Government’s final estimate, 6,738.2 square feet were for the protection of the work (trenches) and 3,413.9 square feet were for the protection of adjacent property.

Plaintiff disagreed with this computation and on February 9, 1943, wrote to the District Engineer requesting a recom-putation. The District Engineer denied this request, saying that the measurements had been made in strict accordance with the provisions of the contract specifications. Plaintiff on March 19,1943, filed an appeal with the Secretary of War, but the Secretary of War denied plaintiff’s appeal, stating in part as follows:

* * * The record shows that the pay quantities of sheeting placed adjacent to existing structures were.determined by measurements to specific payment lines where such lines are shown on the drawings. Where specific payment lines were not indicated, the quantities were computed by using the length of the area actually sheeted and the difference in elevation between the top of the sheeting and the bottom elevation of the adjacent structures. The pay quantities for sheeting not placed adjacent to any existing structure were computed by multiplying the difference in elevation between the ground surface and the bottom elevation of the trench by the length of the area sheeted. * * *

Plaintiff agrees with defendant’s, method of computation of the shoring for the protection of the work, but says that the computation was in error.

In many decisions both this court and the Supreme Court have held that under contracts similar to the one in this case, the decision of the contracting officer on the amount of work done is conclusive. See e. g., B-W Construction Co. v. United States, 101 C. Cls. 748, 768, reversed on other grounds, 324 U. S. 768; Penker Construction Co. v. United States, 96 C. Cls. 1; Wunderlich v. United States, 342 U. S. 98.

As to the computation for the protection of the buildings adjacent to this project, plaintiff urges that under the terms of the specifications, which provided that sheeting and shoring would be measured by the “square foot of the protected area,” the District Engineer should have computed the pay quantities on the basis of the ground area of the buildings and structures so protected, that is to say, if the building to be protected had a total area of 100' x 50', it should be paid for 5,000 square feet. Defendant computed the amount by taking the difference between the “top of the sheeting and the bottom elevation of the adjacent structures.”

We must, therefore, determine the meaning of the term “protected area” as used in the specification. The decision of .the District Engineer upon this question is not final. Bell Aircraft Corp. v. United States, 120 C. Cls. 398, 100 F. Supp. 661, cert. granted, 343 U. S. 913; McWilliams Dredging Co. v. United States, 118 C. Cls. 1; W. E. Callahan Construction Co. v. United States, 91 C. Cls. 538.

Both sides have offered expert testimony to aid the court in determining the meaning of this term. It shows that the purpose of this sheeting and shoring was to replace the natural support removed in the course of excavation. The ground area of a structure from which a portion of the natural support has been removed does not appear to have any reasonable relationship either to the amount or to the cost of providing the substitute support. Bather, the “protected area” is the area of the surface laid bare by excavation, such as the foundation wall of a building next to which sheeting is placed. Defendant computed it on this basis. Plaintiff is not entitled to recover upon this cause of action.

Plaintiff’s next claim is on defendant’s requirements for the finishing of the concrete.

The contract specifications contained detailed instructions as to the manner in which the concrete was to be mixed, placed, cured and finished. Paragraph 7-05 (d) of the specifications provided:

(d) Finishing. — Immediately following removal of forms, all form tie holes shall be filled, protruding fins or other surface irregularities removed by carborundum stone and all other defects repaired. Where necessary to obtain a suitable surface finish, the contractor shall remove the forms and finish the surfaces when and as directed by the contracting officer at no additional cost to the United States. The curing specified in subpara-Sraph 7-05 (e) following shall be temporarily suspended uring such repairing or finishing as directed. The finished surfaces shall be free from sand streaks or other defects and the plastering over of such surfaces will not be permitted. Defective concrete shall be repaired by cutting out the unsatisfactory material and placing new concrete which shall be formed with keys, dovetails, and anchors to attach it securely to the other work. This concrete shall be drier than the usual mixture and shall be thoroughly tamped into place. * * *

When the forms were stripped from monoliths Nos. 1 through 17 an unsightly and unsatisfactory surface condition was revealed. Portions of the surface were stained with rust from the water pipes used in curing. Other areas showed numerous honeycombs, air bubbles, and pockmarks. Defendant’s resident engineer called these conditions to the attention of plaintiff’s superintendent and directed him to finish these surfaces in the manner he said was required by the contract specifications. These instructions were disregarded until on October 20, 1941, the contracting officer directed the following letter to plaintiff:

Reference is made to Par. 7-05 (d), Finishing of Concrete Surfaces, of your Contract No. W-321-eng-261 for the construction of the Elmira Flood Protection Project, Section 1.
I have examined the concrete work constructed to date under your contract and find that it has not been finished in accordance with the provisions of the contract specifications. You are directed to correct these deficiencies at once. My field representatives will indicate the defective work and furnish details of the required corrective measures.

Thereafter, on October 29, 1941, defendant’s resident engineer furnished plaintiff with a detailed statement of the corrective measures which were to be taken, which required plaintiff, among other things, to remove all protruding fins, cut out and patch honeycombs, fill the form tie rod holes, and then place over the entire surface a thin coat of mortar composed of sand and white portland cement.

On October 31, 1941, plaintiff replied to the District Engineer stating that it would carry out such instructions subject to its right to recover the resulting additional expenses. After finishing the surfaces of monoliths Nos. 1 to 17 in accordance with these instructions, plaintiff, on November 27, 1941, submitted a request to the District Engineer for the payment of $864.07 to cover the cost of this portion of the work. The District Engineer on December 10, 1941, denied plaintiff’s request because, he said, the finishing treatment was required by the specifications. Plaintiff’s additional claim of $6,070.19 for the costs of finishing the surface of concrete placed in 1942 was denied on the same grounds, as were plaintiff’s subsequent appeals.

We think the District Engineer’s decisions were correct. While the original contract specifications indicated in a general way the results to be obtained, they did not specify in detail any particular method to be used by the contractor in obtaining a suitable surface finish. It was thus necessary and proper for the District Engineer, upon whom, as contracting officer, responsibility for the satisfactory performance of this project was placed, to direct the issuance of instructions supplementing, where necessary, the original specifications. Barlow v. United States, 35 C. Cls. 514.

Paragraph 7-05 (d) of the specifications required that the finished surface of the concrete “shall be free from sand streaks or other defects” and it prohibited “the plastering over of such surfaces.” It also provided:

* * * Where necessary to obtain a suitable surface finish, the contractor shall remove the forms and finish the surfaces when and as directed by the contracting officer at no additional cost to the United States. * * *

■ No more was required of .plaintiff than was justified by tlie specifications.

In addition to the $100 which the United States withheld from the final payment made to plaintiff, and which the United States concedes to be due and owing, plaintiff is entitled to recover $7,863.22, making a total of $7,463.22.

It is so ordered.

Howell, Judge; MaddeN, Judge; LittletoN, Judge; and JoNes, Chief Judge, concur.  