Enrico Roman, Inc. v. United States

30 Cont. Cas. Fed. 70,907, 2 Cl. Ct. 104, 1983 U.S. Claims LEXIS 1817
CourtUnited States Court of Claims
DecidedMarch 21, 1983
DocketNo. 10-82C
StatusPublished
Cited by20 cases

This text of 30 Cont. Cas. Fed. 70,907 (Enrico Roman, 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
Enrico Roman, Inc. v. United States, 30 Cont. Cas. Fed. 70,907, 2 Cl. Ct. 104, 1983 U.S. Claims LEXIS 1817 (cc 1983).

Opinion

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

OPINION

SETO, Judge:

This Government contract case is before the court on cross-motions for summary judgment regarding plaintiff’s “direct access” action under the Contract Disputes Act of 1978 to recover costs allegedly incurred in excess of the contract amount.

For the reasons stated below the court grants defendant’s motion for summary judgment and finds that plaintiff’s claim for additional compensation should be denied.

FACTS

General Services Administration (“GSA”) published a Solicitation No. 3VRC-MG-80-S0024, its Invitation for Bids (“IFB”), on April 8, 1980. The IFB concerned a contract to remove an existing section of raised floor of approximately 3,621 square feet (in the Philadelphia Veterans Administration Data Processing Center) and replace it with a new raised floor.1 The bid opening date was set for April 30,1980.

Mr. Thomas Keon, a subcontractor for plaintiff, Enrico Roman, Inc. (hereinafter “Roman”), inspected the work site in preparation of the bid and determined that clarification was needed in regard to specific areas of the floor, namely the area under four cooling units and the closet walls. Pre-bid inspection revealed that the air conditioning units were permanently installed with soldered water pipes and that the closet walls were permanently bolted to the floor.

At the time of the work-site inspection while formulating plaintiff’s bid, the subcontractor made an oral inquiry of Mr. Ernest Hunter, the GSA building manager, as to whether the air conditioning units and closet walls were to remain in place. Mr. Hunter received word from the head of the computer department that the computers were to remain functioning throughout the construction; the existing floor was to be removed only as far as possible; and the air conditioning units were not to be removed while the floor was replaced. This information was relayed to Mr. Keon, the subcontractor, by telephone.

Mr. Albino L. Roman, secretary for Roman, also inspected the work site and was aware that the four cooling units and several closet walls were permanently bolted to the floor. These items had not been indicated in the IFB or drawings, or in any amendments to the IFB.

Subsequent to the subcontractor’s conversation with Mr. Hunter, the GSA building manager, an amendment to the IFB was published on April 29, 1980. As a result, the bid opening date was extended to May 12, 1980. This amendment covered minor changes to the scope of the work section of the IFB, but still did not render clear the ambiguity of whether the floor space was to be removed and replaced under the closet walls and four cooling units. Rather, it excepted just two small areas (the steps and handrail) from the approximate 3,621 square feet of floor to be installed.

[106]*106Plaintiff’s subsequent bid in the amount of $39,633 was accepted by the GSA contracting officer. Although afforded reasonable opportunity, plaintiff never submitted any request for clarification, either oral or written, to Mr. Michael C. Grieco, the person designated on the IFB and Standard Form 22 to receive all requests for clarification.

A pre-construction conference was held on July 3, 1980. At this time, plaintiff stated that its interpretation of the scope of its work did not cover the floor area under the cooling units and closet walls. Plaintiff then asserted that an additional compensation would be necessary to cover that work. By letter, Mr. Grieco, the Government’s representative, informed plaintiff that its claim for additional compensation was denied. Plaintiff took exception to the letter, stating it would proceed under protest and requested a decision from the contracting officer.

On November 10, 1980, plaintiff requested a change order for additional work performed in the amount of $2,158.17. The contracting officer, Mr. Gerald M. Wood, issued a final decision denying plaintiff’s additional claim, on January 9, 1981.

DISCUSSION

In this case, there are conflicting interpretations presented by plaintiff and defendant of the specified area of floor to be replaced. According to plaintiff’s contention, the areas under the four air conditioning units and the closet walls, were outside the scope of the contract. In reaching this conclusion, plaintiff relies on the absence of any notation of these areas on the drawing, which accompanied the IFB outlined dimensions of the floor area. Moreover, plaintiff adduces that confirmation from Mr. Ernest Hunter, the GSA building manager, supported plaintiff’s interpretation of the scope of the contract.

Defendant, on the other hand, asserts that once plaintiff admitted the need for clarification of the contract regarding these disputed areas during its pre-bid inspection, a duty arose, at that time, to resolve these issues with Mr. Grieco (the Government agent designated on the IFB and Standard Form 22, to receive any requests for clarification).

Plaintiff’s question concerning the disputed areas of floor2 buttresses the fact that an ambiguity existed in the IFB and attached drawings, when compared with the actual work site.

This court can be guided by the opinion of the Court of Claims in George E. New-som v. United States, 231 Ct.Cl. -, 676 F.2d 647 (1982), wherein the court said:

The analytical framework for cases like the instant one was set out authoritatively in Mountain Home Contractors v. United States. It mandated a two-step analysis. First, the court must ask whether the ambiguity was patent. This is not a simple yes-no proposition but involves placing the contractual language at a point along a spectrum. Is it so glaring as to raise a duty to inquire? Only if the court decides that the ambiguity was not patent does it reach the question whether a plaintiff’s interpretation was reasonable. The existence of a patent ambiguity in itself raises the duty of inquiry, regardless of the reasonableness vel non of the contractors’s interpretation.3 (Emphasis in original.)

In accordance with the court’s reasoning in the Newsom case, this court’s first responsibility is to ascertain analytically whether vel non an ambiguity existed regarding the replacement of the floor area under the air conditioning units and the [107]*107closet walls. Second, the court must ascertain if the ambiguity was so patent and glaring, as to impose an affirmative duty on the part of plaintiff to seek clarification from the designated Government agent before submitting its bid.

Only if the court ascertains that a patent ambiguity does not exist, may it proceed to determine f plaintiff’s interpretation of the contract terms is reasonable.

The foregoing analysis is ineluctable since the doctrine of patent ambiguity is an exception to the contra proferentem4 rule which requires that the contractual language be construed against the drafting party.

Policy considerations for this exception to the contra proferentem

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Bluebook (online)
30 Cont. Cas. Fed. 70,907, 2 Cl. Ct. 104, 1983 U.S. Claims LEXIS 1817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enrico-roman-inc-v-united-states-cc-1983.