C & L Construction Co. v. Board of Trustees

19 Ct. Cl. 191
CourtWest Virginia Court of Claims
DecidedFebruary 5, 1993
DocketCC-90-393
StatusPublished

This text of 19 Ct. Cl. 191 (C & L Construction Co. v. Board of Trustees) is published on Counsel Stack Legal Research, covering West Virginia Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C & L Construction Co. v. Board of Trustees, 19 Ct. Cl. 191 (W. Va. Super. Ct. 1993).

Opinion

BAKER, JUDGE:

This is an action for breach of contract involving a multi-prime project for the construction of the Marshall University Fine Arts Center in Huntington, Cabell County. Marshall University is a facility under the auspices of the Board of Trustees of the University of West Virginia, respondent herein.

Although this project was first bid as a single-prime contract, the bids were rejected as too costly. The project was subsequently re-bid as seven separate prime contract. C & L Construction Company, Inc., hereinafter referred to as C & L, alleges that confusion resulted in this re-bid transformation of the plans from single to multi-prime: Questions arose as to which of the seven contractors would be responsible for specific work duplications and omissions resulted; approximately 200 change orders were made.

The claimant was responsible for the Structural Steel and Metal Decking contract. However, claimant raised questions concerning items variously referred to as spandrel lintels or spandrel beams, and catwalks or fly floor framing, claimed that such items were not a part of its work, and sought additional compensation through requested change orders, asserting that these were covered under the Miscellaneous Iron section of the General Contract. C & L also alleges that it was required to perform additional work from a redesign of the fly tower, the mislocation of anchor bolts by the general contractor, the use of leveling nuts instead of leveling plates, and its being required to grout the base plates. It seeks $750,000.00 in damages. The Court must determine whether C & L is entitled to be compensated for changes in the work which comprise this claim , and then determine the amount, if any, which C & L may recover as an award from the Court. The requested change orders will be considered by the Court, respectively, as issues:

REQUESTED CHANGE ORDERS
CHANGE ORDER NO. 5 SPANDREL LINTELS (SPANDREL BEAMS)
CHANGE ORDER NO. 6 CATWALKS (FLY-FLOOR FRAMING)
CHANGE ORDER NO. 7 FLY TOWER REDESIGN
CHANGE ORDER NO. 8 MISLOCATED ANCHOR BOLTS-SLOTTING BASE PLATES
CHANGE ORDER NO. 9 DELETION OF LEVELING PLATES; ADJUSTING LEVELING NUTS; GROUTING BASE PLATES

The respondent avers that the work covered by the requested change orders nos. 5,6, and 9 was included in claimant’s contract; that the materials included in requested change orders nos. 5 and 6 were furnished by C & L’s subcontractor, Trojan Steel Company, hereinafter referred to as Trojan, under its original bid to C & L when the project was bid and that to allow C & L to recover the cost of such materials from respondent under these change orders would constitute unjust enrichment; that the amounts claimed under requested change order nos. 7 and 8 were greatly overstated; and that C & L did not provide notice to respondent of its intentions to file [193]*193claims related to certain of the requested change orders in a timely manner.

Requested change orders nos. 5 and 6 both relate to a document which C & L alleges it relied upon in calculating its bid to respondent. This document was prepared by V. J. Associates and is titled as follows:

FINAL BUDGET ESTIMATE
FINE ARTS CENTER
PHASE I
MARSHALL UNIVERSITY
HUNTINGTON, WEST VIRGINIA
DECEMBER 12, 1988

This budget estimate was prepared for the architect of the Fine Arts Center by V. J. Associates to provide an estimate of costs for the construction of this project. A representative of the respondent, J. C. Kotas, provided a copy of this document to C & L prior to the bids being received by the respondent when the multi-prime contracts were being let. Mr. Kotas testified that he delivered the V. J. Associates Estimate of Jeff Moffitt, one of the owners of C & L, because there had been no representatives of C & L at meetings with other bidders. His purpose for providing this document was to ascertain the accuracy of the tonnage of steel for the project. Mr. Kotas did not discuss any of the particulars in the estimate with Jeff Moffitt. C & L contends that it relied upon portions of this document which list items to be provided by the structural steel contractor and those items to be provided by the general contractor as a part of the miscellaneous iron. In the multi-prime bidding process, the miscellaneous iron was a part of the general contractor’s obligation. C & L contends that it had every right to rely upon this document based upon the fact that it was provide by the owner, respondent herein. It is necessary for the Court to address and to render its decision as to this issue before it affects the Court’s consideration of requested change orders nos. 5 and 6. This document appears to be an extraneous document provided to the contractor for limited purposes. C & L was informed at a pre-bid meeting held in May 1989 that all items on the structural drawings, S-l — S-20, were a part of the structural steel bid. In Addendum No. 3 to the contract, the questions and answers at the pre-bid conference were recited and the information was reiterated for the bidders that the structural steel bid was the work shown on the structural drawings S-l — S-20, and in the contract documents at §05300 - Metal Decking. Miscellaneous iron was stated to be a part of the general contractor’s contract and was shown on the architectural drawings with reference made to three sections of the contract. The Final Budget Estimate prepared by V. J. Associates was not one of the Bid Documents. It appears to the Court that a reasonable, prudent contractor would not rely upon an extraneous document in bidding a project. In retrospect, it is regrettable that the respondent furnished the Final Budget Estimate to the claimant, but if C & L was misled by the information in the V. J. Associates Estimate to its detriment, it can only look to itself. The contract documents are controlling and the Court will base its decision upon those documents.

The Court will now consider each requested change order which constitutes a claim [194]*194and its decision as to C & L’s entitlement to any additional compensation for each such requested change order.

REQUESTED CHANGE ORDER NO. 5

Requested change order no. 5 is for additional work which C & L alleges twas required by it for providing and installing steel spandrel lintels. There was a disagreement between the parties as to the terms “lintel” and “spandrel beam. ” The American Institute of Steel Construction Code of Standard Practice for Steel Buildings and Bridges (hereinafter referred to as the AISC Code) defines Structural Steel as follows:

§2.0 Classification of Materials
2.1 Definition of Structural Steel
“Structural Steel,” as used to define the scope of work in the contract documents, consists of the steel elements of the structural steel frame essential to support the design loads. Unless otherwise specified in the contract documents, these elements consist of material shown on the structural steel plans and descried as: (A list of items follows and includes this reference)
Lintels, if attached to the structural steel frame.

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§ 14-3-1
West Virginia § 14-3-1

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Bluebook (online)
19 Ct. Cl. 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-l-construction-co-v-board-of-trustees-wvctcl-1993.