CHAPTER SIX MODIFICATION OF CONTRACTS Section 1. Constructive Change BISHOP ENGINEERING COMPANY, INC. v. THE UNITED STATES 180 Ct. Cl. 411 (1967) ON DEFENDANT'S MOTION TO DISMISS THE PETITION OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT DURFEE, Judge, delivered the opinion of the Court: This is an action for breach of a fixed price research and development contract for the design, manufacture and furnishing of an instrumentation semi-trailer vehicle by plaintiff, a Maryland Corporation, for defendant, acting through the National Aeronautics and Space Administration (NASA) at a price, as subsequently amended, of $79,093.47. Specifications of the contract called for a trailer approximately 39 feet long. Plaintiff alleges that it designed such a trailer but that defendant indicated it required a longer trailer and by constructive change compelled plaintiff to redesign and build a 40-foot trailer at an additional cost of $67,598.58 for the extra foot. The breach alleged is defendant's refusal to pay the latter sum, presumably as an equitable adjustment under the standard changes clause of the contract, upon acceptance of the trailer, and its refusal to accept the 39-foot design. Under the standard disputes clause of the contract, plaintiff appealed an adverse decision of the Contracting Officer to the NASA Board of Contract Appeals, which denied the appeal. Plaintiff now alleges that the Board decision was arbitrary, capricious, contrary to the evidence and administrative record, and contrary to law. Plaintiff advanced several claims before the Board which have not been pleaded to the court, and attention will be directed only to the change-in-length claim which is asserted here. As to that claim, the specifications, in pertinent part, read: 1.1.1 *** The van will be built with accommodations for as The overall dimensions of the semi-trailer will be the maxi- [Emphasis 4.2 External Dimensions The external dimensions will meet the following criteria: 4.2.1 The semi-trailer will be air-transportable on the 4.2.2 The semi-trailer will be within the legal road 4.2.3 Semi-trailer shall be approximately 39 feet in At a meeting on October 23, 1963, Government representatives expressed dissatisfaction concerning the electronic rack layout and the insufficiency of available working space as shown in drawings prepared up to that time by the contractor. The latter stated that defendant's desires and requirements could be met only by extending the length of the trailer to 40 feet. Plaintiff ascertained that a 40-foot trailer would go into a C-133 type. The trailer, as heretofore stated, was then redesigned and built to be one foot longer than the 39-foot length first designed by plaintiff. There is no dispute as to whether the 40-foot trailer met the requirements of paragraphs 4.2.1 and 4.2.2 of the specifications. Plaintiff argues, however, that the 39-foot design also met the contract requirements and that the redesign allegedly required by defendant amounted to a constructive change, as it was not formalized by a written change order. If There is no ambiguity in the specifications that should be construed against defendant which drafted them, despite plaintiff's contention. paragraph 4.2.3 stood alone, plaintiff would have been justified in assuming that 39 feet would be sufficient. However, the specifications must be read together and, if a 39-foot trailer was not the maximum that would go into a C-133 type aircraft, as required by paragraph 1.1.1, then, plainly, its length should be extended to the maximum that would do so--in this case, 40 feet. There is nothing inconsistent or ambiguous about these paragraphs when they are read together. Plaintiff can prevail only if the words "maximum" in paragraph 1.1.1 or "approximately" in paragraph 4.2.3 are construed to mean something entirely different, or are deleted. If plaintiff thought there was a patent ambiguity, it was its duty to inquire, but it did not do so. Blount Bros. Construction Company v. United States, 171 Ct. Cl. 478, 316 F. 2d 962 (1965); WPC Enterprises, Inc. v. United States, 163 Ct. Cl. 1, 323 F. 2d 874 (1963). The Board's opinion also pointed out that other specifications placed full responsibility, initially, ་ upon the plaintiff-contractor to ascertain with precision the maximum length for C-133 loadability. Its failure to do so, coupled with its failure to request guidance from the Government concerning any doubts it had as to the relationship between paragraphs of the specifications, which it now says were confusing, led to its unnecessary design effort that was not approved. Defendant made no change, constructive or otherwise. It simply stood pat on the language of the specifications agreed to by the parties. Where a contract is amenable to only one reasonable construction, in light of all pertinent provisions, it should be enforced according to its tenor as a whole without regard to possible ambiguity in only one provision. Construction Service Company v. United States, 174 Ct. Cl. 756, 357 F. 2d 973 (1966). "Where a contract is amenable to only one reasonable construction upon its face, it would not be appropriate to strain the language of other contractual provisions to create an ambiguity. Jansen v. United States, supra, at 356, 344 F. 2d at 370. Plaintiff's interpretation of the specifications is not within what this court has called, in other cases, the "zone of reasonableness." Any group of words can be twisted by strained construction into ambiguity, but this is not permissible for it does violence to the intention of the parties as expressed in the contract language and specifications. Hotpoint Company v. United States, 127 Ct. C1. 402, 406, 117 F. Supp. 572, 574 (1954), cert. denied 348 U.S. 820; Duhame et al. v. United States, 127 Ct. C1. 679, 683, 119 F. Supp. 192, 194-5 (1954). "Also, an interpretation which gives a reasonable meaning to all parts of an instrument will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless,or superfluous; nor should any provision be construed as being in conflict with another unless no other reasonable interpretation is possible." Hol-Gar Manufacturing Corporation v. United States, 169 Ct. Cl. 384, 395, 351 F. 2d 972, 979 (1965). Nor is a contract rendered ambiguous by the mere fact that the parties disagree as to its meaning when the disagreement is not based on reasonable uncertainty of the meaning of the language used. Carter Oil Company v. McCasland, et al., 190 F. 2d 887, 890-91 (10th Cir. 1951), cert. denied, 312 U.S. 870. The fact that an improvident interpretation placed by a contractor upon the specifications may even be considered conceivable, is not a sufficient basis alone for construction of the contract against the author of the language, if not reasonable when the contract is considered as a whole and in light of the purpose of the contract. Randolph Engineering Company v. United States, 176 Ct. Cl. 872, 367 F. 2d 425 (1966); Southern Construction Company v. United States, 176 Ct. Cl. 1339, 364 F. 2d 439 (1966); Jefferson Construction Company v. United States, 151 Ct, Cl. 75, 84 (1960). |