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Keywords

contractmotionsummary judgmentmotion for summary judgment
contractplaintiffdefendantmotionsummary judgmentmotion for summary judgment

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Merando, Inc. v. U. S., 201 Ct.Cl. 19, 475 F.2d 598

Facts

The case encompasses two contracts for construction work at Fort Myer, Virginia, and the United States Soldiers' Home in Washington, D.C. A dispute arose over the painting requirements, specifically whether concrete ceilings needed to be painted. The contractor refused to paint the ceilings, interpreting 'exposed concrete' in the Finish Schedules as unpainted concrete, while the government insisted that the ceilings must be painted according to the Painting Schedules, which did not list ceilings as surfaces not to be painted.

In both instances, during the course of performance, a dispute arose as to the painting requirements under the respective contracts. Plaintiff refused to paint the concrete ceilings. Despite the fact that the Painting Schedules did not include the ceilings in the category of 'SURFACES NOT TO BE PAINTED', plaintiff interpreted 'exposed concrete' in the Finish Schedules as meaning unpainted concrete.

Issue

The main legal issue was whether the contractor's interpretation of the painting requirements was reasonable given the discrepancies between the Painting Schedules and the Finish Schedules.

In issue is the reasonableness of the contractor's conduct regarding items to be painted when faced with discrepancies between Painting Schedules and Finish Schedules.

Rule

The court applied the rule that in case of differences between drawings and specifications, the specifications shall govern. It also noted that where ambiguities are obvious, the contractor has a duty to inquire before bidding.

Section 2 of Standard Form 23-A (which was part of this contract) clearly states: In case of differences between drawings and specifications, the specifications shall govern.

Analysis

The court found that the Painting Schedules clearly designated areas to be painted and did not include ceilings in the category of surfaces not to be painted. The Finish Schedules' description of ceilings as 'exposed concrete' did not alter the requirements set forth in the Painting Schedules. The court emphasized that the discrepancy was obvious, and the contractor should have sought clarification prior to submitting bids.

Thus, the instant discrepancy is not subtle, but obvious. The only reasonable conduct for the contractor would have been an inquiry prior to submission of the bid. This the contractor did not do.

Conclusion

The court granted the United States' motion for summary judgment and dismissed the contractor's petition, affirming the Board's conclusion that the Painting Schedules controlled the painting requirements.

Accordingly, the plaintiff's motion for summary judgment is denied; the defendant's cross motion for summary judgment is granted; and the petition is hereby dismissed.

Who won?

The United States prevailed in the case because the court found that the Painting Schedules clearly required the painting of ceilings, and the contractor's interpretation was unreasonable.

Motion of the United States granted; petition dismissed.

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