
    No. 28-72.
    November 23, 1973
    William F. Klingensmith, Inc.
   Contracts; interpretation; default termination. — Plaintiff entered into a fixed-price contract with the National Park Service, Interior Department, to furnish labor, plant, machinery, etc. for construction and landscaping of a recreation center. The contracting officer terminated the contract for default for failure of plaintiff to fulfill its planting obligations, and reprocurement costs were subsequently assessed. Plaintiff alleges the contract appeals board erroneously found that the discrepancy between the quantity requirements for red oak trees shown on the plant list and the drawings was a patent and obvious error of which plaintiff knew or should have known so as to require inquiry of the contracting-officer prior to submission of bids and that plaintiff’s interpretation of the contract provisions was unreasonable. Plaintiff also contends that the -board erroneously found that the Government properly partially terminated the contract for default. In a recommended decision filed April 24, 1973 (reported in full at 18 CCF para. 82197), Trial Judge ITogenson concluded that plaintiff is not entitled to recover for the planting of additional red oak trees as required by the contracting officer. He also concluded that there was no waiver of plaintiff’s defective planting performance, that at the time of default termination plaintiff had not completed a material part of the work required under the contract, either within the time specified therein or within the extended period agreed to by the parties, and that plaintiff was in breach of the contract which was validly terminated for default. The case was submitted to the court on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the recommended decision, by order dated November 23, 1973 it adopted the said decision as the basis for its judgment in this case that plaintiff is not entitled to recover, and it denied plaintiff’s motion for summary judgment, granted defendant’s cross-motion and dismissed the petition.  