Leavell-Morrison-Knudsen-Hardeman v. The United States

SKELTON, Judge

(dissenting):

The majority correctly holds that there was substantial evidence in the administrative record to support the Board’s finding that there was no customary trade practice in the air conditioning industry that did or did not call for the insulation of flexible connectors on the low-pressure side of an air conditioning system. Therefore, the question of trade practice in the industry is no longer in the ease.

This leaves two basic questions to be decided, which are:

(1) Did the contract specifications call for such insulation?
(2) Were the flexible “connectors” ducts ?

Sub-paragraph 58-25(b) of the contract specifications dealing with duct insulation provides as follows:

Duct Insulation — Ducts shall be insulated with 1-inch thickness as hereinafter specified. Insulation for circular ducts shall be of the flexible type with a minimum density of 1% lb. per cubic foot. Insulation for rectangular ducts shall be of semi-rigid type and shall have a minimum density of 3-lb.-per-cubic-foot and with flame resistant factory applied reinforced foil and kraft paper laminate, or laminated aluminum foil consisting of two plies of 1-mill aluminum foil with glass-yarn reinforcing. Insulation shall be secured to rectangular ducts by impaling over metal-stick clips spaced 12-inches on centers each way and noncombustible mastic. Round-duct insulation shall be secured by 18-gauge copperweld wire spaced not over 12-inches on centers. In all cases where insulation joints occur, facing tabs shall be lapped not less than 2 inches and sealed with approved adhesive and noncombustible tape, of the same material as the vapor barrier. All punctures in facing material shall be sealed and a continuous vapor barrier shall be provided. All fresh-air-*457intake ducts and air conditioning supply ducts (that are not internally lined) shall be insulated with 1-inch-thick material as specified hereinbe-fore unless noted otherwise on the drawings. Hot air duct from double duct units shall be insulated same as cold air duct except that the vapor barrier is not required to be sealed. All insulated ducts within equipment rooms and in other rooms exposed to view shall be provided with a 12-ounce brattice cloth and adhesive: Brattice cloth and adhesive shall be applied and shall meet all of the requirements specified under paragraphs 56-21 (d) (1) of the section, “Heating System Forced Hot-Water Steam Converter” of these specifications. [Emphasis supplied.]

The majority correctly holds that the above paragraph of the contract is unambiguous and called for the insulation of air conditioning ducts. This leaves only the question of whether or not the so-called “connectors” were as a matter of fact “ducts.” This is a fact question that could only be decided by the Board, inasmuch as this is 'a Wunderlich Act (41 U.S.C. §§ 321, 322) ease and can only be reviewed by our court according to the standards prescribed by the Act. The Board did not find specifically in so many words that the connectors were ducts, but such was the clear import and meaning of its findings. In its decision, it referred repeatedly to the connectors as “ducts,” “low pressure flexible ducts,” “uninsulated duct,” “the duct,” “flexible duct,” “such duct,” and “this duct.”

Notwithstanding the findings by the Board that the connectors were duets, which are binding on this court, the majority proceeded to make a contrary finding on this fact question by holding that the flexible connectors “are not duets.” I think this was error.

Furthermore, the connectors were ducts by the very terms of the contract specifications. Sub-paragraph 58-14 (b) (1) / provided as follows:

Flexible ducts for connection to high pressure mixing boses [sic] and ceiling slot diffusers shall be of the spiral reinforced fabric type. The spiral reinforced fabric weighing not less than 10. ounces per square yard and a spiral reinforcement which may be either a round steel wire or crimped steel strip. The spiral reinforcement shall be zinc-coated unless completely enclosed and sealed by the fabric. Flexible ducts shall not exceed five feet in length. Flexible duct shall meet the NBFU Standards, Pamphlet 90A, paragraph 113(a)3. Fabric shall be UL listed as flameproof. All duct-work shall be suitable for high pressure air distribution system with minimum leakage at recommended operating pressures. Duct shall be tested for burst pressure and this value shall be listed with the corresponding duct size. All connections on joints of duct shall be as recommended by the manufacturer to assure perfect seal. Each connection shall be taped. Required time for drying of joints shall be observed. Entire flexible hose shall be air tight by factory test when bent to full recommended radius and under not less than 15-inches H20 internal pressure. Flexible duets to lighting fixtures shall be 6-inch round and shall be provided with a transition piece from the flexible duct size to light fixture connection size.

It will be noted that the connectors are referred to nine times as either “flexible ducts,” “flexible duct,” “duct-work,” and “duct,” and one time as “flexible hose.” They are never called “connectors.” In my opinion, the single time when the words “flexible hose” were used, they were meant to be merely a descriptive phrase of flexible ducts because they resemble flexible hose. The contract required all ducts to be insulated unless the drawings showed otherwise. The drawings did not indicate that these flexible ducts were not to be insulated. The specifications were controlling and required their insulation.

*458These flexible ducts were ducts as a matter of fact. Those on the low pressure side of the mixing boxes served the same function as their identical counter-parts on the high pressure side, namely as conduits for the passage of air. The plaintiff admits that those on the high pressure side were ducts and insulated them as required by the contract and seeks no recovery for doing so. Yet, the contract makes no distinction between them as far as insulation was concerned. The plaintiff did not insulate the ducts on the low-pressure side because of an erroneous belief that customary trade practice in the industry did not require it. No such customary trade practice was found to exist.

Also, the Board found as a fact that such insulation would increase the efficiency of the system when it said:

* * " We accept the expert testimony of the Government witness that insulation would increase efficiency. * * * [Id. at 7.]

Such increased efficiency was, no doubt, the reason why the government required all ducts to be insulated by the contract specifications. Since the contract called for such insulation, the plaintiff had no right to decide unilaterally that it would not insulate the low-pressure ducts because in its opinion such insulation was not needed. If a contractor is allowed to change the specifications in this manner, the government could never be sure of getting what the contract calls for.

Furthermore, plaintiff submitted a drawing and a letter from the manufacturer of a “Wiremold Flexible Air Duct” which the manufacturer said complied with paragraph 58-14(b) (1)/ (quoted above) prior to installation. (Board opinion p. 4, Board Rec. Vol. 2, Exh. I.) In presenting these documents, plaintiff referred to the item as a “flexible air duct” and included a drawing of it and represented that it complied with the contract specifications. It would appear that plaintiff’s present contention that the flexible air ducts were not “ducts” is an afterthought.

I would affirm the decision of the Board and hold that the flexible air ducts were ducts within the meaning of the contract specifications and plaintiff was required to insulate them as a part of his obligation under the contract.

Accordingly, I would deny plaintiff’s motion for summary judgment and dismiss its petition, and grant the defendant’s motion for summary judgment.

CONCLUSION

Accordingly, the plaintiff’s motion for summary judgment is granted; the defendant’s cross-motion for summary judgment is denied; and judgment is entered for plaintiff in accordance with this opinion, with further proceedings stayed for a period of 90 days pursuant to Rule 167 pending an administrative determination of the equitable adjustment to which plaintiff is entitled.