Gresham, Smith & Partners v. United States

37 Cont. Cas. Fed. 76,247, 24 Cl. Ct. 796, 1991 U.S. Claims LEXIS 596, 1991 WL 279396
CourtUnited States Court of Claims
DecidedDecember 23, 1991
DocketNos. 91-60C, 91-109C
StatusPublished
Cited by9 cases

This text of 37 Cont. Cas. Fed. 76,247 (Gresham, Smith & Partners 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
Gresham, Smith & Partners v. United States, 37 Cont. Cas. Fed. 76,247, 24 Cl. Ct. 796, 1991 U.S. Claims LEXIS 596, 1991 WL 279396 (cc 1991).

Opinion

OPINION

NETTESHEIM, Judge.

This case is before the court after argument on defendant’s motion for partial summary judgment against a subcontractor, suing on behalf of the prime. The issue for decision is whether the prime contractor released the subcontractor’s [798]*798claim and whether the doctrine of patent ambiguity bars both contractors’ claims.

FACTS

The following facts are undisputed, unless otherwise noted. On June 14,1985 the United States Postal Service (the “Postal Service”) and Rentenbach Constructors, Inc. (“Rentenbach”), entered into Contract, No. 109320-85-V-0049 (the “prime contract”) for the construction of the General Mail Facility (the “GMF”) in Nashville, Tennessee. On September 25, 1985, Rentenbach and Swift Roofing, Inc. (“Swift”)1 entered into a subcontract, whereby Swift contracted to install the roof at the GMF in accordance with the prime contract.

The specifications pertaining to the roof require the installation of two layers of insulation. The first layer is a 3ys-inch thick iscoyanurate foam board mechanically attached to the roof deck, followed by a second layer of 1-inch thick perlite roof board set in hot asphalt. Above the two layers of insulation, a roof membrane consisting of four plies of glass fiber felts all laid in moppings of coal tar was to be installed. The specifications then called for a “double aggregate surface course” such that a flood coat of 50 pounds per square of bitumen would first be applied, to which 200 pounds of gravel aggregate would be cast; this first aggregate surface course would be followed by a second flood coating of 75 pounds of bitumen and 300 pounds of gravel aggregate.

The language of Part Three “Execution” of section 07510 of the prime contract, “Built-up Bituminous Roofing (Coal Tar),” requires the contractor to “[coordinate the installation of roofing materials and associated work so as to provide a complete system complying with the recommendations of the manufacturers.” Part Three “General Installation Limitations” of section 07510 further states that the plies of roofing membrane (felt and hot coal tar pitch) must be installed in the fashion specified in the contract, unless deviation is required “in order to comply with the recommendation of the roofing materials manufacturer.” Under a separate heading, “Double Aggregate Surface Course,” Part Three of the specification also requires the installation of two separate courses of “gravel aggregate,” or rock (“double rocking”). The specific material manufacturer is not designated in the prime contract, although several are listed.

Manville Roofing Systems, Inc. (“Man-ville”), the materials manufacturer for the GMF project, recommended to Swift that a single course of gravel aggregate was necessary for the GMF roof. Manville did not recommend or include a specification for a double rocking procedure in its manual for 1985. This was true, as well, for all the other manufacturers listed in the specification. Manville recommended to Swift that only a single course of gravel aggregate was necessary for the roof and recommended a smaller amount of aggregate. Manville issued a guarantee on the roof. Swift provided a copy of the Manville manual to the Postal Service’s architect and agent, plaintiff Gresham, Smith & Partners (“Gresham, Smith”) sometime prior to August 1985. Gresham, Smith reviewed and approved Manville’s manual specifications for roof installation; the stamp indicating this approval is dated August 20, 1985.

In addition to articulating the design and construction of the roof, Part One of section 07510 also provides for a “Preapplication Conference” “for the purpose of reviewing materials selections and procedures to be followed in performing the work in compliance with the requirements specified.” The provision specifies that the conference is to be attended by the contracting officer, the contractor, the roofing sub-contractor, the primary roofing materials manufacturer, and the inspection and testing representative. At the preapplication conference for the roofing contract on November 18, 1985, Rentenbach and Swift communicated to the Postal Service that Manville’s recommendations for the amount of gravel aggregate required on the roof varied with the specifications in the contract. This conversation is reflected [799]*799in the minutes of the preapplication conference. At this conference Rentenbach and Swift were directed to install rocking on the roof at the GMF “per Specs.” Swift requested that this claimed variance with the contract be in writing.

At some point the contracting officer directed Swift to provide additional rock. After the roof was installed, it began to split apart in several places. Rentenbach held a general meeting to discuss the problem at the GMF on January 21, 1987. The minutes of the meeting reflect that Swift maintained that the source of the roofing splits was the double rocking. Both Rentenbach and Swift questioned the architect about the necessity for double rocking. The architect would permit no deviation from the design set forth in the contract. It was agreed that Swift would repair the existing splits to the roof.

On July 18,1988, Rentenbach’s Assistant Vice President, Sam Smith, executed PS form 7307, Contractor’s Release (“release”). The release states, as follows:

Pursuant to the terms of subject contract and in consideration of the sum of $12,824,539.00 (twelve million, 824 thousand 539 dollars and no cents [) ] which has been or is to be paid under said contract to Rentenbach Constructors, Inc. (hereinafter called the Contractor) or its assignees, if any, the Contractor, upon payment of said sum by the UNITED STATES POSTAL SERVICE, (hereinafter called the Postal Service), does remise, release and discharge the Postal Service, its officers, agents and employees, of and from all liabilities, obligations, claims, and demands whatsoever under or arising from said contract except:
1. Specified claims in stated amounts, or in estimated amounts where the amounts are not susceptible of exact statement by the Contractor, as follows:
Any and all claims related to roofing repairs.[2]

Rentenbach and Swift communicated to the Postal Service prior to the execution of the general release that they believed the double rocking was a cause of the roof splits that Swift was required to repair. According to Thomas C. Walton, Rentenbach’s Senior Vice President, at the time Rentenbach executed the general release, all parties, including the Postal Service, were fully aware of the problems with the roofing system and claims relating to the roof. Affidavit of Thomas C. Walton, Oct. 24, 1991, II3. Mr. Walton also avers that, after executing the general release in July 1988, Rentenbach, Swift, and the Postal Service held several meetings during which the parties’ claims regarding the roof were discussed, including Swift’s double rocking claim, and that the Postal Service considered it on the merits. Id. H 6.

Also on July 18, 1988, the Postal Service executed PS Form 4211-B, Invoice and Payment Authorization, authorizing final payment to Rentenbach for completion of construction under the prime contract. The amount of this payment was $1,000.00. This payment authorization was not executed by the contracting officer until April 11, 1989. On April 13, 1989, the Postal Service’s contracting officer wrote to Rentenbach enclosing a copy of this final payment authorization.

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Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,247, 24 Cl. Ct. 796, 1991 U.S. Claims LEXIS 596, 1991 WL 279396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gresham-smith-partners-v-united-states-cc-1991.