Respondent had two construction contracts with the United
States, each of which provided that
"disputes concerning questions arising under this contract shall
be decided by the contracting officer . . . subject to written
appeal . . . to the head of the department."
Held:
1. Disputes as to extra pay for footing excavations and for
increased wages paid to bricklayers were "questions arising under
this contract" within the meaning of the quoted provision. Pp.
328 U. S.
238-239.
2. Respondent's failure to exhaust the administrative appeal
provisions of the contracts barred recovery in the Court of Claims
in respect of such disputes. P.
328 U. S.
239.
3. In the absence of clear evidence that the appeal procedure
prescribed is inadequate or unavailable, that procedure must be
pursued and exhausted before respondent may be heard to complain in
a court. P.
328 U. S.
240.
4. The designation on the covers of the contracts of the
disbursing officer who would make payment on the contracts was not
a part of the contracts, and cannot be used in any way to alter or
amend any actual provisions thereof. P.
328 U. S.
240.
Page 328 U. S. 235
5. Even if it be assumed that the dispute as to extra pay for
footing excavations concerned only the amount of payment under the
contract, such an issue is a question "arising under" the contract,
and therefore expressly subject to the administrative appeal
provision. P.
328 U. S.
241.
6. There being no evidence that the wage increase to bricklayers
was established by the Federal Emergency Administration of Public
Works, which, under the contracts, was the only agency that had
authority to do so, a provision for an automatic adjustment of the
amount due the contractor in that event did not become operative.
P.
328 U. S.
242.
104 Ct.Cls. 254, reversed.
The respondent brought two suits in the Court of Claims on two
contracts with the United States, and was adjudged entitled to
recover on both. This Court granted certiorari. 327 U.S. 772.
Reversed, p.
328 U. S.
243.
MR. JUSTICE MURPHY delivered the opinion of the Court.
The narrow question here is whether a contractor's failure to
exhaust the administrative appeal provisions of a Government
construction contract bars him from bringing suit in the Court of
Claims to recover damages.
Respondent, a building contractor, entered into two contracts
[
Footnote 1] with the United
States through the War Department in 1933 to construct officers'
quarters at Fort Sam Houston, Texas, which were being built as a
Federal
Page 328 U. S. 236
Emergency Administration of Public Works project. Disputes arose
as to excavations for footings and as to increased wages ordered to
be paid to respondent's bricklayers. Respondent brought suit
against the Government on these matters in the Court of Claims,
which entered judgments in favor of respondent on both items.
[
Footnote 2]
Article 15, which appeared in both contracts, provided:
"All labor issues arising under this contract which cannot be
satisfactorily adjusted by the contracting officer shall be
submitted to the Board of Labor Review. Except as otherwise
specifically provided in this contract, all other disputes
concerning questions arising under this contract shall be decided
by the contracting officer or his duly authorized representative,
subject to written appeal by the contractor, within 30 days to the
head of the department concerned or his duly authorized
representative, whose decision shall be final and conclusive upon
the parties thereto as to such questions. In the meantime, the
contractor shall diligently proceed with the work as directed."
The dispute concerning the footing excavations arose out of an
apparent inconsistency between certain figures used in the
specifications and in the drawings. The specifications estimated
that respondent was to excavate to a depth of 37 1/2 feet below the
first floor level of the buildings. The drawings, on the other
hand, were found by the Court of Claims to call for excavations to
the depth of 33 feet. Additional payments were to be made to
respondent for excavations deeper than indicated "on the drawings,"
while the Government was to receive a credit for excavations of a
lesser depth. Respondent made various
Page 328 U. S. 237
excavations ranging in depth from 27.58 feet to 42.42 feet. The
problem thus presented itself as to whether the 37 1/2-foot figure
in the specifications or the 33-foot figure in the drawings should
serve as the basis for extra compensation to the respondent and for
credit to the Government.
Article 2 of the contracts provided:
"In case of difference between drawings and specifications, the
specifications shall govern. In any case of discrepancy in the
figures or drawings, the matter shall be immediately submitted to
the contracting officer."
The specifications contained a similar provision, and added that
the constructing quartermaster was to be the interpreter of the
"intent and meaning of the drawings and specifications." The
constructing quartermaster duly resolved the discrepancy in this
instance by interpreting the specifications and drawings to mean
that the footing excavations were to be paid for on the basis of
the 37 1/2 feet estimated in the specifications. Respondent made no
attempt to appeal from this decision to the contracting officer or
to the departmental head in accordance with the terms of Article
15.
The other dispute concerned a required increase in wages for
respondent's bricklayers. The contracts established $1.00 per hour
as the minimum wage rate for skilled labor unless, as of April 30,
1933, there should be a higher prevailing hourly rate prescribed by
collective agreements between employers and employees. Article
18(e) provided that this minimum wage rate "shall be subject to
change by the Federal Emergency Administration of Public Works on
recommendation of the Board of Labor Review," in which case "the
contract price shall be adjusted accordingly." On March 3, 1934,
the Board of Labor Review ruled that bricklayers on another Army
construction project at San Antonio, Texas, with which
respondent
Page 328 U. S. 238
was unconnected, should be paid at the rate of $1.25 per hour
retroactive to February 2, 1934. Respondent was informed of this
decision, and, on March 23, 1934, the constructing quartermaster
advised respondent that all bricklayers employed on the instant
project "will be paid at the rate of $1.25 per hour." Respondent
stated that it "would be governed accordingly, but under protest,
and [that it] expected reimbursement of the difference of 25 cents
per hour." On May 12, 1934, the constructing quartermaster advised
respondent
"that it was the decision of the contracting officer that
bricklayers employed on War Department construction projects at San
Antonio, Texas, and vicinity [Fort Sam Houston is in this vicinity]
should be paid $1.25 per hour, retroactive to February 2,
1934,"
and that respondent would be within its rights "to file appeal
with the Board of Labor Review from the decision of the contracting
officer." [
Footnote 3] No such
appeal was taken; respondent merely paid its bricklayers $1.25 per
hour and then filed a claim in the court below for the 25-cent
differential. Here again, the provisions of Article 15 were
ignored.
We cannot sanction respondent's failure to abide by the appeal
provisions of Article 15 of the contracts which it made with the
United States. Both the dispute over the
Page 328 U. S. 239
footing excavations and the dispute over the bricklayers' wages
were "questions arising under this contract" within the meaning of
Article 15. The first was a question arising under Article 2 of the
contracts as well as under the specifications, which expressly
contemplated that Government officers would resolve all
discrepancies between specifications and drawings. Their decisions
in such matters were clearly appealable under Article 15. The
second dispute was a question arising under the wage provisions of
Article 18 of the contracts; that question involved a consideration
of the factual situation surrounding the required wage increase and
a determination of the validity and effect of the increase under
the circumstances. Any decision or order of a subordinate
Government officer in this respect was also appealable under
Article 15. Yet respondent did not even seek the contracting
officer's opinion as to the footing excavation decision of the
constructing quartermaster. And, as to the contracting officer's
order requiring an increase in the bricklayers' wages, respondent
neglected to file a written appeal to the departmental head or his
representative.
But Article 15 is something more than a dead letter to be
revived only at the convenience or discretion of the contractor. It
is a clear, unambiguous provision applicable at all times and
binding on all parties to the contract. No court is justified in
disregarding its letter or spirit. Article 15 is controlling as to
all disputes "concerning questions arising under this contract"
unless otherwise specified in the contract. It creates a mechanism
whereby adjustments may be made and errors corrected on an
administrative level, thereby permitting the Government to mitigate
or avoid large damage claims that might otherwise be created.
United States v. Blair, 321 U. S. 730,
321 U. S. 735.
This mechanism, moreover, is exclusive in nature. Solely through
its operation may claims be made and adjudicated
Page 328 U. S. 240
as to matters arising under the contract.
United States v.
Blair, supra, 321 U. S. 735;
United States v. Callahan Walker Const. Co., 317 U. S.
56,
317 U. S. 61. And,
in the absence of some clear evidence that the appeal procedure is
inadequate or unavailable, that procedure must be pursued and
exhausted before a contractor can be heard to complain in a
court.
It follows that, when a contractor chooses without due cause to
ignore the provisions of Article 15, he destroys his right to sue
for damages in the Court of Claims. That court is then obliged to
outlaw his claims, whatever may be their equity. To do otherwise is
to rewrite the contract.
In this instance, no justifiable excuse is apparent for
respondent's failure to exhaust the appeal provisions of Article
15. Certainly the reasons relied upon by the Court of Claims are
lacking in merit. The court felt that the dispute over the footing
excavation figures involved only a matter of contract price
computation, and that the responsibility for such a computation
rested solely with the Army Finance Officer at Fort Sam Houston,
any decision by the contracting officer on the matter being on more
than advisory. Since the contracts made no provision for an appeal
of the Finance Officer's computation, the Court of Claims held that
there was no appealable decision confronting respondent, and that
respondent's claim could be heard and determined by that court.
Support for this novel interpretation was sought in the statement
on the covers of the contracts that payment on the contracts was to
be made "by the Finance Officer, U.S. Army, Fort Sam Houston,
Texas." The short answer is that this designation of a disbursing
officer is not a part of the contracts and cannot be used in any
way to alter or amend any actual provisions thereof. The
designation only identifies the person whose duty it is to perform
the ministerial
Page 328 U. S. 241
function of disbursement and is subject to change at any time by
the War Department without notice to the contractor. [
Footnote 4] Moreover, even if it be assumed
that the issue did concern only the amount of payment under the
contracts, [
Footnote 5] such an
issue is a question arising under the contracts, and hence
expressly subject to the provisions of Article 15.
Page 328 U. S. 242
The Court of Claims sought to justify respondent's refusal to
appeal the contracting officer's decision to increase the
bricklayers' wages by holding that this decision automatically
increased the contract price under the terms of Article 18(e). It
stated that the constructing quartermaster reasonably construed the
ruling of the Board of Labor Review in regard to the San Antonio
project as applicable to the vicinity of San Antonio as well, the
wages prevailing in the vicinity being the wages to apply to a
contract within that vicinity. Thus, it was said that it was
plainly of no special interest to respondent to appeal the
contracting officer's decision. But the assumption that this
decision automatically resulted in a contract price increase is not
in accord with the facts, or with the contract provisions. Under
Article 18(e), no automatic price increase results unless the wage
change is established by the Federal Emergency Administration of
Public Works on recommendation of the Board of Labor Review.
[
Footnote 6] The Board alone
cannot effect a change; it can only make a recommendation. Here,
however, there was no evidence that the wage increase either as to
respondent or as to the San Antonio project was established by the
Federal Emergency Administration of Public Works, the only agency
that had authority to do so. Accordingly, the provision of Article
18(e) for an automatic price increase did not come into operation,
as was recognized by respondent in its protest. Serious questions
were thus raised as to the authority of the contracting officer to
direct a wage increase under these circumstances and as to the
validity
Page 328 U. S. 243
and effect of the ruling of the Board of Labor Review.
Respondent should have secured a determination of those questions
by challenging the contracting officer's decision pursuant to the
provisions of Article 15.
Respondent having failed to avail itself of the procedure
created by Article 15 for the settlement of disputes arising under
the contracts, it was precluded from bringing suit on such matters
in the Court of Claims. And the Court of Claims erred in
entertaining and deciding the claims involving those disputes.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of these cases.
[
Footnote 1]
The contracts here involved were both executed in U.S.
Government Form No. P.W.A. 51.
[
Footnote 2]
The Court of Claims entered separate judgments and opinions in
relation to each of the two contracts, although both of them were
identical and involved the same issues. The only difference between
the contracts concerned the particular buildings to be
constructed.
[
Footnote 3]
The constructing quartermaster was in error in stating that
respondent could have appealed the wage increase decision to the
Board of Labor Review. Under Article 15, the Board is charged with
handling appeals only on matters involving "labor issues." This
plainly means labor issues between employers and employees.
See
Blair v. United States, 99 Ct.Cl. 71, 149-150, reversed in
other respects,
321 U. S. 321 U.S.
730. Here, however, the only controversy lay between the respondent
and the Government, rather than between respondent and its
bricklayers. Hence, the ordinary review provisions of Article 15
were applicable, enabling respondent to appeal the contracting
officer's decision to the departmental head or his representative.
The Court of Claims made a like error in this respect.
[
Footnote 4]
The Government points out that, in 1933 and 1934, there were 18
Army Finance Officers located at various places in the United
States, and that all the notation on the cover could mean was that
payment was to be made by the Finance Officer at Fort Sam Houston,
Texas, and not by a Finance Officer located elsewhere.
Moreover, an affidavit by the Chief, Receipts and Disbursements
Division, Office of the Fiscal Director, Army Service Forces,
appearing as an appendix to the Government's brief, states in
regard to the notation:
"This is merely an indication to the constructing quartermaster
to which disbursing officer the constructing quartermaster should
certify vouchers. The designation of the Finance Officer is not a
term of the contract. It is part of an outline showing the parties,
the amount, the site of the work, the services to be performed, and
the authorized accounts to which payments will be charged. . . . On
a construction contract containing the above terms, the disbursing
officer would not, in practice, alter or modify, and would not be
authorized to alter or modify, the decision of a certifying
construction quartermaster as to the basis on which payments can be
made under the contract when such basis, as here, is dependent upon
an interpretation of the specifications or has been covered by a
decision on a dispute by the contracting officer. . . . Another
reason why the Finance Officer would not undertake to determine the
question presented in this case is that finance officers, as a
rule, have no experience with construction, and would not be
qualified to make such decisions."
[
Footnote 5]
Such an assumption is faulty in that nearly every dispute
between a contractor and the Government ultimately involves the
amount of payment under the contract. Hence, under the view of the
Court of Claims, all such disputes would be subject to the Finance
Officer's review, thereby nullifying Article 15 as well as other
portions of the contract contemplating final decision by the
contracting officer or the departmental head on these matters.
[
Footnote 6]
The Board of Labor Review, although a part of the Federal
Emergency Administration of Public Works, is a distinct entity. And
Article 18(e) of the contracts made a clear functional distinction
between the two in regard to wage rate increases. We are not free
to disregard that distinction and rewrite the procedure established
by Article 18(e).
MR. JUSTICE DOUGLAS, dissenting in part.
The Court requires this contractor to pay out of his own pocket
the wage increase which he was directed to make. Whatever support
that conclusion may have in a literal reading of the contract, it
is so harsh and unfair as to be avoided if the contract does not
compel the result. I do not think it does.
The contract set a minimum wage rate of $1 an hour for
bricklayers. But it also provided that, if the "prevailing" hourly
rates under agreements between organized labor and employers on
April 30, 1933, were above that minimum rate, the higher rate would
become the minimum and be paid. [
Footnote 2/1] The Federal Emergency Administration of
Public Works, on recommendation of the Board
Page 328 U. S. 244
of Labor Review could change the contract rate of $1 an hour; it
could also change the "prevailing" hourly rate. If it did either,
it would establish a "different" minimum wage rate within the
meaning of the contract. [
Footnote
2/2] And the contract price would be adjusted accordingly.
The Board of Labor Review, acting for the Federal Emergency
Administration of Public Works, [
Footnote 2/3] ruled that bricklayers on another
government project at San Antonio should be paid at the rate of
$1.25 an hour. San Antonio, as held by the Court of Claims, is in
the same vicinity as Fort Sam Houston, where the present projects
were under way. And plainly the "prevailing" hourly rate refers to
the rate which obtains in the vicinity.
So the respondent paid the extra wages under a ruling which, as
I read the contract, was binding on him. It seems therefore
manifestly unfair to hold that he must pay the wage increase out of
his own pocket.
A contractor confronted with an order of the quartermaster to
raise the wages of his employees is in an extremely
Page 328 U. S. 245
difficult position. If he disobeys the order, he risks a strike
and industrial turmoil. Yet the Court holds that he must take that
risk or else pay the wage increase from his own pocket. Such a
literal reading of the contract is not a fair one. And it is not a
necessary one, as I have shown. Hence, I would choose a
construction which avoided that harsh and unfair result and did not
victimize the contractor. If he had not protested the order of the
quartermaster, but had acquiesced, I suppose no one would say that
there had been a "dispute concerning questions arising under" the
contract, [
Footnote 2/4] which
should have been or could have been appealed. It is not doubted
that then the contractor would be entitled to reimbursement. I see
no difference in substance if the contractor, after an initial
protest, acquiesces in the ruling and accepts the new "prevailing"
rate and thus avoids dissension with his employees.
There is justice in what the Court of Claims ruled, and I would
sustain it.
MR. JUSTICE FRANKFURTER and MR. JUSTICE RUTLEDGE join in this
dissent.
[
Footnote 2/1]
"In the event that the prevailing hourly rates prescribed under
collective agreements or understandings between organized labor and
employers on April 30, 1933, shall be above the minimum rates
specified above, such agreed rates shall apply:
Provided,
That such agreed wage rates shall be effective for the period of
this contract, but not to exceed 12 months from the date of the
contract."
[
Footnote 2/2]
"The minimum wage rates herein established shall be subject to
change by the Federal Emergency Administration of Public Works on
recommendation of the Board of Labor Review. In event that the
Federal Emergency Administration of Public Works acting on such
recommendation establishes different minimum wage rates, the
contract price shall be adjusted accordingly on the basis of all
actual labor costs on the project to the contractor, whether under
this contract or any subcontract."
[
Footnote 2/3]
The suggestion that the wage increase at San Antonio was not
authorized by the Federal Emergency Administration of Public Works
is not warranted by the record. The Board of Labor Review is a part
of the Federal Emergency Administration of Public Works. It did not
"recommend" an increase at San Antonio. It "formally ruled" that
the bricklayers on that project "should be paid at the rate of
$1.25 per hour." The Court of Claims treated that as action by the
Federal Emergency Administration of Public Works. That seems to me
to be the fair construction, and it was so treated both by the
quartermaster and the contractor.
[
Footnote 2/4]
The government concedes that the quartermaster's advice to
respondent that he could file an appeal with the Board of Labor
Review was erroneous. It points out that the Board of Labor Review
was charged with the decision only of "labor issues," which embrace
controversies between employers and employees. The confusion
existing in the mind of the government's own representative
emphasizes the trap set for this contractor, whether he followed
the quartermaster's suggestion or acquiesced in his ruling.