Darwin Construction Co. v. United States

39 Cont. Cas. Fed. 76,673, 31 Fed. Cl. 453, 1994 U.S. Claims LEXIS 112, 1994 WL 278505
CourtUnited States Court of Federal Claims
DecidedJune 24, 1994
DocketNo. 92-765 C
StatusPublished
Cited by3 cases

This text of 39 Cont. Cas. Fed. 76,673 (Darwin Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darwin Construction Co. v. United States, 39 Cont. Cas. Fed. 76,673, 31 Fed. Cl. 453, 1994 U.S. Claims LEXIS 112, 1994 WL 278505 (uscfc 1994).

Opinion

OPINION and ORDER

TURNER, Judge.

This opinion addresses defendant’s motion for summary judgment filed on May 6, 1998. We conclude that defendant’s motion should be denied.

I

On March 27, 1986, the General Services Administration (GSA) awarded fixed-price contract No. GS-11P86MKC7209 to Darwin Construction Company (plaintiff). For the contract price of $2,553,355, plaintiff was required to furnish all labor and materials and perform various sitework at the Southwest Quadrant Development International Chancery Center in Washington, D.C. A portion of the work consisted of supplying and planting a number of trees, shrubs, perennials and bulbs in certain locations designated on contract drawings.

This dispute arises from the parties’ differing interpretations of contract drawing 17-4, entitled “Planting Plan D & Plant List.” Def.Br., Appendix 1. On the left-hand side of drawing 17-4 are two adjacent but distinctive columns. At the top and center of the column on the left, in enlarged capital letters, is the heading “PLANT LIST.” Underneath this heading is a lengthy list of plants divided into three categories: “Trees/Shrubs;” “Perennials ” and “Bulbs.” To the right of this column beginning approximately one third of the way down from the top of the drawing is the second column. At the top and center of this column is the heading “PLANTINGS BY LOTS.” Underneath this heading there is also a list of plants. However, unlike the “PLANT LIST” column, in the “PLANTINGS BY LOTS” column the plants are divided by “Lot.” The lot numbers correspond to plots mapped on the accompanying drawings of the grounds.

The two columns give the appearance of functionally distinct lists. Plaintiff, in fact, considered the two as such and accordingly prepared its bid based upon the quantities enumerated beneath the “PLANT LIST” heading.1 Only after close comparison of the two columns does it become clear that the two columns contain different quantities of plants. During the performance of the contract, plaintiff learned that the GSA considered both columns as a single, inclusive list. Pursuant to this interpretation, the GSA required plaintiff to supply and transplant all of the plants listed in the “PLANTINGS BY LOTS” column in addition to those in the “PLANT LIST” column. Plaintiff complied with GSA’s interpretation and completed the contract.

Plaintiff, pursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 601-613 (1988 & Supp. IV 1992), submitted to the contracting officer (CO) a claim for an equitable adjustment of $115,831 for costs incurred in performing work that was not required by the contract. The CO thereafter issued a final decision, denying plaintiff’s claim. The CO held that

The Government’s] position is that the plants listed on drawing 17-4 are one list. The portion of the list in the right column identified as “PLANTING[S] BY LOTS” reflects those plants planted at the front of each lot, while the portion of the list comprising the left column with sub headings “TREE[S]/SHRUBS”, “PERENNIALS”, “BULBS”, and “OTHER BULBS” are the plants to be provided in the general planting area at the rear of the lots. The sum of plants in both the left and right columns [455]*455total the plants to be provided under the contract.

Complaint, Appendix at 1. Plaintiffs complaint seeks the equitable adjustment denied by the CO’s final decision. Defendant has moved for summary judgment.

II

Defendant argues that plaintiffs interpretation of the contract would render superfluous and meaningless the “PLANTINGS BY LOTS” portion of the specifications. Because the preferable method of construing a contract is to avoid rendering language superfluous and meaningless, defendant urges us to reject plaintiffs interpretation. Def.Br. at 3-6. In effect, defendant argues that the specifications in contract drawing 17-4 are unambiguous and that the “PLANTINGS BY LOTS” column is clearly an extension of the “PLANT LIST.” In the alternative, defendant contends that if the contract is ambiguous, the ambiguity is patent and plaintiff failed in its obligation to seek clarification before bidding on the contract. Therefore, concludes defendant, the ambiguity should be construed against plaintiff. Id. at 7.

Plaintiff responds that its interpretation is the only reasonable one because, based on the plain meaning of contract drawing 17-4 and the custom in the landscaping industry, plaintiff understood the “PLANTINGS BY LOTS” list solely as designating where the various plants on the “PLANT LIST” were to be placed. Pl.Br. at 9-10. Plaintiff has submitted the affidavits of its president, Lester Robinson, who has been bidding on landscape work as part of construction contracts for over forty years, and of landscape architect Walter Reynolds, who has over twenty years of experience in the industry. Both aver that the long-standing practice in the industry is to rely on and bid from a “PLANT LIST” and that a “PLANTINGS BY LOTS” list is used only to designate plant locations. Pl.Br., Appendix 1 and 2.

Plaintiff also argues that if we determine that the contract is ambiguous, we should adopt its interpretation of the contract because it is within the “zone of reasonableness” and under the rule of contra proferen-turn, where a contract is susceptible to more than one interpretation, the contract must be construed against the drafter. Id. at 15.

III

Our first responsibility in construing disputed contract terms is to ascertain whether an ambiguity exists. John C. Grimberg Co., Inc. v. United States, 7 Cl.Ct. 452, 456, aff'd, 785 F.2d 325 (Fed.Cir.1985). If, as defendant contends, the language of the contract is unambiguous, then the words “are to be given their plain and ordinary meaning.” Thanet Corp. v. United States, 219 Ct.Cl. 75, 82, 591 F.2d 629 (1979). Although defendant states this general rule, notably absent from defendant’s briefs is any argument that plaintiffs understanding deviated from the plain and ordinary meaning of the contract. Furthermore, defendant has not proffered its own alternate definition of the plain and ordinary meaning of the terms “PLANT LIST” and “PLANTINGS BY LOTS.”2 The contract does not define or explain the two terms, nor does it expressly state that the “PLANTINGS BY LOTS” column is a part of the “PLANT LIST.” Because defendant has not pointed to specific contract terms (to support its interpretation), we cannot conclude here that the contract is unambiguous.

Instead, defendant relies heavily on the rule that, “[a]n interpretation that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves portions of the contract meaningless.” Fortec Constructors v. United States, 760 F.2d 1288, 1292 (Fed.Cir.1985) (emphasis added). But the fact that defendant’s interpretation gives meaning to all the contract terms does not require us to conclude that this is the mutually intended meaning of the contract. Plaintiff has raised a genuine issue of material fact as to the possible existence of a spe[456]*456cialized meaning and usage in the industry of the term “PLANTINGS BY LOTS.”

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Bluebook (online)
39 Cont. Cas. Fed. 76,673, 31 Fed. Cl. 453, 1994 U.S. Claims LEXIS 112, 1994 WL 278505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darwin-construction-co-v-united-states-uscfc-1994.