Bayou Land & Marine Contractors, Inc. v. United States

37 Cont. Cas. Fed. 76,153, 23 Cl. Ct. 764, 1991 U.S. Claims LEXIS 364, 1991 WL 151384
CourtUnited States Court of Claims
DecidedAugust 8, 1991
DocketNo. 583-87C
StatusPublished
Cited by6 cases

This text of 37 Cont. Cas. Fed. 76,153 (Bayou Land & Marine Contractors, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayou Land & Marine Contractors, Inc. v. United States, 37 Cont. Cas. Fed. 76,153, 23 Cl. Ct. 764, 1991 U.S. Claims LEXIS 364, 1991 WL 151384 (cc 1991).

Opinion

OPINION

NETTESHEIM, Judge.

The issues to be decided on cross-motions for summary judgment are twofold. The first is whether the parties’ contract apprised a reasonably prudent contractor that marine divers would be required in the placement of pier timber bracings in the Mississippi River to repair a wharf deck at a small Navy boat landing. The second is, assuming that the contract was ambiguous, whether the ambiguity was patent or latent. The case was reassigned to this judge after argument had been held.

FACTS

The following facts are undisputed. Bayou Land and Marine Contractors, Inc. (“plaintiff”), a Louisiana corporation, was awarded Contract No. N62467-84-C-7219 by the Department of the Navy, Naval Facilities Engineering Command (“NAVFAC”), on December 14, 1984. Plaintiff was to repair the wharf deck at the small boat landing at the Naval Support Activity on the Mississippi River in New Orleans, Louisiana. The project included:

demolition and removal of railroad track-age, timber deck, stringers, bracing and pile caps and some timber piling; installation of new timber piling, reinstallation of new structural timber pile caps, stringers and diagonal bracing and installation of new precast concrete deck. Furnish and install new walkway cover and waiting room and other miscellaneous work.

Before award of the contract to plaintiff, NAVFAC amended the bid specifications three times. The first amendment added an Attached Wage Determination Decision of the Secretary of Labor, which established minimum wage rates and other labor standards. The second amendment postponed the opening of bids from 2:00 p.m. September 7, 1984, to 2:00 p.m. September 18,1984. The third amendment again postponed the opening of bids until 2:00 p.m. September 20, 1984, and also established a new requirement that the construction be phased so that Naval Support Activity personnel could have continuous use of the small boat landing, boathouse, and walkway during construction. Contract Drawing No. 5083271 designated “work area” by an arrow pointing to a peninsula-shaped protuberance into an area designated “Mississippi.”

On January 13, 1986, Michael J. Thompson, plaintiff’s Vice-President, dispatched a letter to the Resident Officer in Charge of Construction (“the ROICC”) stating that his company understood from the drawings that plaintiff was not required to paint the walkway and building steel framework, which need be galvanized only. The ROICC, however, instructed plaintiff to paint the galvanized framework royal blue. Plaintiff painted the framework as instructed. On September 30, 1986, plaintiff submitted a claim to the ROICC for $4,791.44 for painting the steel framework of the covered walkway and the waiting area building. On January 27, 1987, the contracting officer issued Final Decision 87-S-5 denying compensation. In denying plaintiff’s claim, the contracting officer referred to Contract Modification P00003, which, as negotiated and signed by an official of plaintiff’s organization, as well as by NAVFAC, provides for an increase of [766]*766$3,154.00 in the contract amount and authorizes a 75-day time extension. Item C of this modification stipulates that plaintiff “[p]aint galvanized steel walkway supports.” The contracting officer reasoned, therefore, that Contract Modification P00003, Item C specifically includes painting the walkway supports. Although the complaint includes a claim for this item, plaintiff did not move for summary judgment with respect to the necessity of painting the walkway and steel building framework. Therefore, this claim is deemed abandoned. Sheets v. United States, 2 Cl.Ct. 101, 102 n. 2 (1983) (citing Webco Lumber, Inc. v. United States, 230 Ct.Cl. 457, 465, 677 F.2d 860, 864 (1982); Ullman v. United States, 214 Ct.Cl. 308, 314, 558 F.2d 1, 4 (1977)).

The dispute that is the focus of the parties’ attention on summary judgment is whether the contractor was required to provide marine divers for repair work. NAVFAC Drawing No. 5083274 specified that 4 x 10 foot timber bracing be installed 18 feet below the concrete wharf deck planks which, according to plaintiff, converts to a river level of one to two feet below the river’s “zero feet” water level.1 NAVFAC Drawing No. 5083274 includes no water level indication. Other drawings, however, do include water level references. NAVFAC Drawing No. 5083275 depicts a water level indication specifically labeled “LOW W.L.”, or low water level, on a section of the drawing labeled “ELEVATION FENCE CLOSURE.” The drawing also indicates the “MUD LINE” below the low water level. NAVFAC Drawing No. 5083272 depicts two water level indications with architectural symbols and no labels. One of these indications is an architect’s sectional view from the river depicting the completed wharf project, including the existing small boat administration building and covered waiting area. The other indication, located on a different section of Drawing No. 5083272, is an architect’s sectional view looking west at the small boat landing depicting the new covered waiting area and the covered walkway. Neither of these last two water level indications contains any reference to a mean sea level elevation, the concrete decking, or any other portion of the wharf construction. Drawing No. 5083272 also gives mud line indications with architectural symbols.

Plaintiff interpreted the drawings and specifications to require that marine divers would not be needed to complete any of the repair work; therefore, plaintiff's bid sub-mittal contemplated neither the use nor cost of divers to perform the repair work. The bid specifications did not specify that divers or divers’ insurance was required, nor did the minimum wage rates and other labor standards of Amendment 00001 list wages for divers. Wages for many other laborer positions required to complete the repair work, however, were listed. Plaintiff’s insurance carrier stated in a letter dated August 4, 1986, that any employees working in the river waters would not be covered by plaintiff’s then-current policy.2

The high-low water levels of the river vary approximately 16 feet during any season. According to H.J. Hinrichs, Chief Engineer for the Port of New Orleans, the low water level season usually occurs during August and September. The repair work was originally scheduled to be completed by June 27, 1985. High water levels, however, postponed the completion date because general pile driving operations could not be performed.

Mr. Thompson’s letter dated September 16, 1985, to Ens. W.T. Cole, Assistant to [767]*767the ROICC, stated that in order to place the lower bracing 18 feet below the top of the concrete decking the river would have to be at a level of —1 to —2 feet on the Carrollton gauge. He wrote that at present the river no longer fell below zero and that diving work might be required, due presumably to the seasonal ebb and flow of the river. Enclosed with the letter were eleven annual hydrographs from the Carrollton observation gauge near the Naval Activity area charting the river water elevation, which show that the river did not fall below zero feet during the years from 1973 to 1983. At this time Mr. Thompson expressed his expectation that divers would be required to place the lowest timber bracing underwater. Mr. Thompson proposed to remedy the problem by installing a double 4 X 10 foot horizontal bracing at the lowest accessible point then available at the present river elevation.

On September 19, 1985, Milton L.

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Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,153, 23 Cl. Ct. 764, 1991 U.S. Claims LEXIS 364, 1991 WL 151384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayou-land-marine-contractors-inc-v-united-states-cc-1991.