Division of Capital Planning & Operations v. TLT Construction Corp.

7 Mass. L. Rptr. 311
CourtMassachusetts Superior Court
DecidedAugust 15, 1997
DocketNo. 956251F
StatusPublished

This text of 7 Mass. L. Rptr. 311 (Division of Capital Planning & Operations v. TLT Construction Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Division of Capital Planning & Operations v. TLT Construction Corp., 7 Mass. L. Rptr. 311 (Mass. Ct. App. 1997).

Opinion

Fremont-Smith, J.

On August 18, 1995, an administrative magistrate for the Division of Administrative Law Appeals (“DALA”) reversed the Division of Capital Planning & Operation’s (“DCPO”) decision to deny TLT Construction Company’s (“TLT”) request for approval of a contract modification to cover additional costs of asbestos abatement at the Roxbury District Court. In reversing DCPO, the administrative magistrate found that DCPO’s contract for the containment and removal of asbestos from the courthouse was ambiguous, that TLT’s interpretation of DCPO’s ambiguous contract was reasonable, and held that TLT was entitled to a contract modification in the amount of $108,700. DCPO now seeks judicial review of DALA’s decision pursuant to G.L.c. 30A, §14, and moves to vacate DALA’s award of Change Order No. 30, as TLT and DALA’s interpretation of DCPO’s asbestos abatement contract was incorrect as a matter of law.

BACKGROUND

A. Procedural Background:

On August 2, 1993, DCPO awarded TLT Construction Corporation State Project No. JSB90-4 for renovations to the Roxbury District Courthouse. (R.A.,1 72-94.) The initial phase of TLT’s general contract with DCPO required TLT to remove all asbestos containing material (“ACM”) from the courthouse. (Section 02055, R.A., 20-48.) On July 6, 1993, TLT subcontracted with Coastal Energy, Inc. (“Coastal”), an asbestos abatement contractor, to remove all ACM from the courthouse. (R.A., 108-110.) Coastal’s asbestos abatement subcontract with TLT was for $317,000. (R.A., 108-110.)

Following the completion of asbestos abatement, on December 28, 1993, TLT submitted Change Order No. 30, in the amount of $108,700.00, to DCPO, based on the final quantities of ACM removed from the courthouse. (R.A., 11.) DCPO rejected TLT’s request for change order No. 30 on March 29, 1994. (R.A., 10.) Following DCPO’s rejection, TLT appealed to the Commissioner of DCPO for reconsideration on July 15, 1994. (R.A., 4.) The Commissioner rejected TLT’s appeal by letter, dated, August 17, 1994. (R.A., 4.)

TLT appealed to DALA on September 1, 1994, for review of DCPO’s refusal to issue Change Order No. 30. (R.A., 5.) An appellate hearing was held on April 7, 1995, before Kimberly Fletcher, Administrative Magistrate for DALA. (R.A., 129-261.) At the hearing, Administrative Magistrate Fletcher (“Fletcher”) heard the testimony of Ronald Bussier, from Coastal, and of William DuLong, from DCPO. The witnesses testified regarding the interpretation of DCPO’s asbestos abatement contract. (R.A., 129-261.) Following the hearing, Fletcher reversed DCPO’s refusal to issue Change Order No. 30 and awarded TLT $108,700. (R.A., 11.) In issuing her decision, Fletcher made, inter alia, the following factual findings:

9. The cost of constructing the three-room decontamination unit called for on page 26 of Section 02055 is the same whether one square foot or 1,000 square feet of asbestos is removed.
10. The cost to remove asbestos depends on the amount of insulation on the outside diameter of the pipe, not just the size of the pipe. (R.A., 115-119.)

From the facts, Fletcher drew the following conclusions:

Mr. Bussier’s interpretation that the “base bid” of Section 02055 represented only the containment cost of the abatement process was reasonable, Mr. Bussier’s interpretation that ACM removal costs were to be paid to the contractor pursuant to the unit price section was reasonable, and that the ambiguiiy created by DCPO was to be held against DCPO, the drafter of the agreement. (R.A., 115-119.)

Following Fletcher’s grant of Change Order No. 30, DCPO petitioned for rehearing and reconsideration on August 29, 1995. (R.A., 120-125.) DALA granted a rehearing on September 29, 1995. (R.A., 126.) Following rehearing, Fletcher made one additional finding of fact:

11. Included in the base bid was the amount of $43,200.00, representing the total amount of nine (9) separate unit price amounts.

Subsequently, Fletcher affirmed her decision to reverse DCPO’s refusal to issue Change Order No. 30. (R.A., 126-128.) DCPO now seeks judicial review of DALA’s decision pursuant to G.L.c. 30A, §14.

B. Contractual Background:

Section 02055 of the general contract between TLT and DCPO governs asbestos removal from the courthouse. (R.A., 20.) Initially, the contract sets forth:

Asbestos Abatement Contractor shall furnish all labor, materials, equipment, and services for the removal and disposal2 of specified asbestos-containing materials from the Roxbury District Court. (Section 02055 at Section 1.01(B), R.A., 20.)

[312]*312Section 02055 also governs the scope of asbestos abatement to be performed at the courthouse, as well as the submission of bids to DCPO for the removal of all asbestos-containing material (“ACM”). Further, Section 02055 directs the estimating contractor to the unit price section, Section 01025, for adjustments to the scope of ACM removed from the courthouse.

Under the “scope” section, the contract requires the asbestos abatement contractor to:

remove and dispose of all ACM and specified non-ACM, prepare work areas, remove and dispose of all insulating materials located in the work area, decontaminate all surfaces and piping containing ACM, perform all necessary demolition to access hidden ACM, decontaminate and clean-up following removal activities, re-insulate all piping, etc., furnish all labor and materials, and comply with all state and federal laws. (Section 02055 at Section 1.02(A)(1-11), R.A., 21.)

In submitting estimates for asbestos abatement, Section 02055 provides at Section 1.13(A):

Bids shall not be based solely on the information provided. Asbestos Abatement Contractor shall make their own estimate of the amount of material to be removed, decontaminated, cleaned and disposed. Bids and cost of the work to be performed shall be based on the Asbestos Abatement Contractor’s own estimate of the work required. The amounts identified in this Section and on sketches represent the scope of work for the base bid. Any amount of material beyond or below the indicated scope of work shall be addressed using the unit price schedule to add to or deduct from the base bid amount.

Additionally, Section 1.13(B) provides:

ACM identified on the sketches is meant as a guide to the Asbestos Abatement Contractor in order to facilitate the Asbestos Abatement Contractor’s determination of the work and amount of ACM to be removed. Quantities and descriptions shown on the sketches are for information only and may not indicate the actual location and/or quantity of all ACM required to be removed by Asbestos Abatement Contractor under this Section.

Finally, Section 1.13(C) provides:

Asbestos Abatement Contractor is required to remove all ACM from Roxbury Distrtct Court specified within the scope of work for this Section.

In short, Section 1.13(A-C) requires the asbestos abatement contractor to examine the specifications “identified in this section” and the “sketches” in order to ascertain the scope of asbestos abatement for the base bid.

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