Cherry Hill Sand & Gravel Co. v. United States

33 Cont. Cas. Fed. 74,030, 8 Cl. Ct. 757, 1985 U.S. Claims LEXIS 919
United States Court of Claims·Decided September 18, 1985·No. No. 180-84C·Published·Cited by 15 cases

Opinion

OPINION

LYDON, Judge:

In this contract case, the court is presented with plaintiff’s motion and defendant’s cross-motion for summary judgment. Both parties contend that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. The dispute in this case surrounds the interpretation of a contract provision regarding the proper measure of payment for the installation of sound barrier walls along a highway. Plaintiff contends that the plain and ordinary meaning of the contract language controls. Defendant, on the other hand, maintains that a patent ambiguity existed in the payment provision which required plaintiff to inquire into the meaning of the provision before submitting its bid. In addition, defendant contends that plaintiff’s interpretation of the contract provision at issue is unreasonable given the totality of the circumstances. Having reviewed the uncontroverted facts, the submissions of the parties, and pertinent case law, and after oral argument, the court concludes that defendant’s cross-motion for summary judgment should be granted.

I.

On November 24, 1981, the United States Department of Transportation, Federal Highway Administration (FHWA) issued an Invitation for Bids (IFB) for grading, drainage, base, surfacing, structures and other work along the Dulles Access Highway Extension in Fairfax County, Virginia. Such work included the installation of sound barriers or noise walls along one portion of the highway. Eighteen bids, received in response to this IFB, were opened on January 19, 1982, and plaintiff’s bid ($6,886,228.50) was the low bid. The FHWA estimate for the job, which was unpublished until bid opening, was $9,510,-000, and the other bids received ranged from $7,400,000 to $10,000,000. The contract (No. DTFH71-82-C-00001) was awarded to plaintiff on February 5, 1982.

Plaintiff presents no claim regarding the payment it received for the grading and drainage work performed by it. There is no dispute over the quality of that work. The only dispute in this case involves the installation of the noise walls. Plaintiff’s bid price on the noise wall portion of the IFB was $1,162,000. The estimate of defendant’s engineers for the same work was $764,800. The other bids ranged from $1,010,000 to $1,450,000. Plaintiff commenced installation of the sound barriers in early 1983 and completed the work by September of the same year. No issue has been raised concerning the quality of the work performed.

However, a dispute did arise in this case regarding the proper method of payment as provided for in the contract. Sections 640.06 and 640.07 of the contract govern the method of payment. These sections as originally set out in the IFB stated:

METHOD OF PAYMENT

640.06. Laminated wood noise walls will be measured by the square foot of ex[759] posed area (as seen from the roadway) of the same type (thickness) of panels.

BASIS OF PAYMENT

640.07. Noise wall will be paid for at the contract unit price per square foot, complete in place, which price shall be full compensation for all panels, cap boards, hardware, excavation, backfill and compaction, disposal of surplus or unsuitable material, restoration of property, and all materials, labor, tools, and equipment, and incidentals necessary to complete the work.
Pay Item Pay Unit
640(a) Laminated wood noise wall........square foot

The IFB was amended, however, on December 30, 1981 to alter the method of payment as set out in section 640.06. The amended section 640.06 read:

640.06. Laminated wood noise walls will be measured by the square foot of surface area for the same type (thickness) of panels. This includes the portion in the ground.

Section 640.07 was not changed. At the same time that section 640.06 was amended, the estimated quantities for the laminated wood noise walls included in the IFB were altered to reflect the revised method of measurement, in section 640.06. The original and revised quantity estimates were as follows:

Estimated Quantities Estimated Quantities
Per Original As Revised Per
Pay Item Specifications Addendum #1
640 (1A) 5.000 sq. ft. 5,500 sq. ft.
640 (IB) 15,500 sq. ft. 23.000 sq. ft.
640 (1C) 7,800 sq. ft. 11.000 sq. ft.
640 (ID) 26,000 sq. ft. 37.000 sq. ft.
640 (IE) 8.000 sq. ft. 10.000 sq. ft.
640 (IF) 9,500 sq. ft. 13.000 sq. ft.1

This increased the total quantity of noise wall from 71,800 to 99,500 square feet. That is an increase of 27,700 square feet. Such an increase corresponds approximately with the area of the 4,900 linear feet of noise wall that had to be buried in the ground at an average depth of 5V2 feet (4,900 x 5V2 equals 26,950). The remaining linear feet of barrier were to be bolted to concrete barriers as opposed to being buried. There were no changes in the IFB as to the location or length (total of 6,335 linear feet) of the sound barriers.

While plaintiff was installing the noise walls2 along the highway in 1983, it ascertained from defendant’s February 1983 pay estimate that the project engineer was only measuring the area of one side of the panels for payment purposes instead of mea[760] suring the surface area of all six sides of the three dimensional wooden panels. {See supra, note 2.) Plaintiff assumed that such a measuring technique was an oversight, according to its interpretation of section 640.06 of the contract, and brought the error to the attention of the FHWA in a March 25, 1983, letter.

In an April 12, 1983 letter, H.C. Wieland (Wieland), Division Engineer for the FHWA, responded to plaintiffs March 25, 1983 inquiry concerning the proper manner in which to measure the noise wall panels for payment purposes. Wieland wrote in pertinent part:

By your letter dated March 25, 1983, you requested payment for noise walls by measuring six sides and referenced Contract Special Provisions, Subsection 640(6) as amended by Amendment No. 1. Subsection 640(6) provided that the noise walls were to be measured by the square-foot of exposed area as seen from the roadway. The amendment changed the measurement to include that portion below ground.

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Cherry Hill Sand & Gravel Co. v. United States, 33 Cont. Cas. Fed. 74,030, 8 Cl. Ct. 757, 1985 U.S. Claims LEXIS 919 (cc 1985).

33 Cont. Cas. Fed. 74,030 (Cherry Hill Sand & Gravel Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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