Union Roofing & Sheet Metal Co., Inc. v. The United States

909 F.2d 1496

36 Cont.Cas.Fed. (CCH) 75,974

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
UNION ROOFING & SHEET METAL CO., INC., Appellants,
v.
The UNITED STATES, Appellee.

No. 90-1163.

United States Court of Appeals, Federal Circuit.

July 20, 1990.

Before MARKEY, MAYER and PLAGER, Circuit Judges.

DECISION

MARKEY, Circuit Judge.

1

Union Roofing & Sheet Metal Co., Inc. appeals from a decision of the Postal Service Board of Contract Appeals, No. 2366, affirming a contracting officer's denial of an equitable adjustment under the Differing Site Condition Clause of the contract. We affirm.

OPINION

2

We affirm on the basis of the board's opinion.

3

PLAGER, Circuit Judge, dissenting.

4

Because I do not agree that the facts support the majority's conclusion, I respectfully dissent. The Board found that "[d]rawings 2 and 3 depict the components of the then-existing roof and indicate areas showing 2 1/2 inch lightweight concrete in Roof Sections 2-6. None of these drawings, or any of the other contract documents, disclose the existence of welded wire mesh in the lightweight insulating concrete." Union Roofing & Sheet Metal, Inc., PSBCA No. 2366, slip op. at 3 (Nov. 28, 1989) (footnotes and citations omitted). The Board further found that "[a]ppellant was informed that Drawings 1-3 correctly represented the composition of the roof on the Johnstown Post Office" and that while Roof Sections 3-6 contained welded wire mesh, "Roof Section 2 was not reinforced with wire mesh." Id. at 3-4. Drawing 1 contains a "Material Legend," the symbols of which are consistently used in the roof cross-sections detailed in the drawings 1-3. Though the Material Legend contains a symbol for steel, and though the drawings depict various steel components with both symbols and words, none of the drawings reveal the existence of welded wire mesh in any of the roof sections.

5

Under these facts, the boilerplate language in the contract suggesting that the contractor inquire further as to conditions of the roof sections cannot operate to relieve the Government from the impression it created that the roof sections are accurately depicted in the contract. The contract, including bid materials which were provided by the Government, was so detailed concerning the roof composition that the Government's failure to reveal the existence of welded wire mesh, in my opinion, is an omission amounting to a Type I differing site condition for which it should be held accountable.