Before CLARK, WATERMAN and LEWIS,*fn* Circuit Judges.
Plaintiff-appellant filed this action under 28 U.S.C.A. § 1346(a) (2) seeking $8,659.77 from the United States as the value of work done beyond the scope and terms of a contract for repair work performed at the Brooklyn Navy Yard. Plaintiff's claim had earlier been rejected by the Navy contracting officer and, after full hearing, by the Navy Contract Appeals Panel of the Armed Services Board of Contract Appeals. The administrative decisions in each instance were based upon the conclusion that the work done was within the terms of the contract and consequently within the contract price. The trial court reached a similar conclusion but also denied plaintiff relief upon the grounds that the administrative decision was final and conclusive because it was not shown to be fraudulent, capricious, arbitrary, grossly erroneous or not supported by substantial evidence.*fn1 The matter was submitted to the trial court upon the record made before the Appeal Board, the parties agreeing that the testimony and exhibits should be received and considered to the same extent as if originally received at the trial.
Although the contract provided that finality should be accorded to administrative decision upon disputed questions of fact*fn2 it is apparent that the instant controversy is not one of fact but is one of law. The testimony taken before the Board was undisputed and probed only the question of whether the work done was within the terms of the contract or beyond its scope. Such a dispute calls for an interpretation of the contract and constitutes a question of law. Congress has denied finality to administrative decision in such case and the trial court should have considered the question as one falling within its original jurisdiction. 41 U.S.C.A. § 322. See McKinnon v. United States, D.C.Or., 178 F.Supp. 913; Kenny Const. Co. v. District of Columbia, 105 U.S.App.D.C. 8, 262 F.2d 926.
The essence of plaintiff's contract work obligation was to strengthen and level 21 wooden trusses on the second and third floors of a sawmill and boat shop building in the Brooklyn Navy Yard. As the work progressed it became apparent that both latent and surface obstructions interfered with the installation of tie rods and would necessitate relocation. The government conceded its obligation for additional expense caused by the latent obstructions; plaintiff conceded his contractual obligation to relocate steam line hangers, conduits and ducts; and the instant dispute arose as to whether a contractual obligation existed to relocate steam lines, water lines, sprinkler lines, steam mains, electric junction boxes and a conveyor.
Three documents are involved in the interpretation of the contract between the parties: the contract itself, the specifications, and an attached drawing. The contract recited that the contractor was to furnish the materials and perform the work of repair to second and third floor trusses "complete and ready for use." Article 5 of the contract, important here because of an alleged conflict between the drawings and specifications, provides:
"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 the drawings and specifications the specifications shall govern. Omissions from the drawings or specifications or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of work but they shall be performed as if fully and correctly set forth and described in the drawings and specifications."
The specifications warned the bidders on the job that:
"1-21. - Before submitting bids, bidders shall inspect the site and satisfy themselves as to existing conditions and the extent and character of the work."
"3-01. * * * All dimensions shall be verified at site before commencing work. Procedure for performance of the work shall be as noted on the drawing * * * The contractor shall relocate existing steam line hangers, conduits or ducts interfering with the installation of new tie rods. * * *" (Emphasis added.)
Note 10 of the notes to the drawing, entitled "Procedure for erection of new tie rods," provided:
"10. Contractor to relocate all obstructions in way of tie rods." (Emphasis added.)
In addition to enumerating the obstructions requiring relocation, the specifications were precise in detailing the labor needed as carpenters, iron workers, painters, riggers, laborers and truck drivers. Further detail indicated the work included shoring, carpentry and joinery, iron and steel work, and painting. The contract designated minimum wage rates for the specified labor. The actual work required the employment of steam fitters, electricians and plumbers, trades not mentioned in the specifications. The contract as estimated and bid ...