M.A. Mortenson Company v. Les Brownlee, Acting Secretary of the Army

363 F.3d 1203, 2004 U.S. App. LEXIS 6649, 2004 WL 736682
CourtCourt of Appeals for the Federal Circuit
DecidedApril 7, 2004
Docket03-1276
StatusPublished
Cited by16 cases

This text of 363 F.3d 1203 (M.A. Mortenson Company v. Les Brownlee, Acting Secretary of the Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.A. Mortenson Company v. Les Brownlee, Acting Secretary of the Army, 363 F.3d 1203, 2004 U.S. App. LEXIS 6649, 2004 WL 736682 (Fed. Cir. 2004).

Opinion

MAYER, Chief Judge.

M.A. Mortenson Company (“Morten-son”) appeals the decision of the Armed Services Board of Contract Appeals concluding that it is not entitled to an equitable adjustment for installing manual balancing dampers at all points in the duct system where duct sizes change. M.A. Mortenson Co., ASBCA No. 53431, 03-1 B.C.A. (CCH) ¶ 32,078, 2002 WL 31501914 (2002). The board determined that the drawings in the contract clearly required installing the manual balancing dampers at all such points. Because we conclude that the specification and the drawings were unambiguous in their requirements for manual balancing dampers at all points in the duct system where duct sizes change, we affirm.

Background

On September 16, 1994, the United States, acting through the Army Corps of Engineers, awarded Mortenson Contract No. DACA85-94-C-0031 for the construction of the Composite Medical Facility at Elmendorf Air Force Base in Anchorage, Alaska (“the project”). Mortenson, as the prime contractor to the government, subcontracted the mechanical portion of the project to W.A. Botting Company/The Poole & Kent Company, A Joint Venture (“BPK”), who in turn subcontracted the installation of the project’s heating, ventilation, and air conditioning (“HVAC”) ductwork to SSM Industries, Inc. (“SSM”). Mortenson relied in part on SSM’s interpretation of the contract to prepare its bid.

The contract divided the project’s HVAC system into three zones, which collectively is known as the integrated building system. The two zones relevant to this appeal are the distribution zone — the space “from either the roof or the floor slab of the room above down to a walk-on deck” — and the connection zone — “the space between the walk-on deck and the finished ceiling for the occupied space below.” M.A. Mortenson Co., 03-1 B.C.A. (CCH) at 158,524. Within these zones, manual balancing dampers (also referred to throughout the contract as “volume dampers”) were to be installed at specific points in the ductwork. These dampers would allow manual variance of the volume of air in the ductwork to maintain balance within the system.

To determine the number of manual balancing dampers required by the contract, SSM looked to both the specifications and the drawings of the contract. Contract specification 15895.2.7.2.5 called for manual balancing dampers to “be provided at points on supply, return, and exhaust systems where submains, branch mains, or branches and run-outs are taken from larger ducts.” Plan Drawings Ml.201-M1.232 and M1.301-M1.333 showed the layout of the connection zone and required “a manual volume damper at each branch/runout take-off.” Plan Drawings M1.250-M1.281 and M1.350-M1.382 showed the layout of the distribution zone *1205 and required “a manual balancing damper at each terminal unit run-out duct.” Both the connection zone and distribution zone drawings also required that “all devices and equipment indicated on [the] plan shall be fabricated and/or installed in accordance with the applicable typical details on the M6 series of drawings of these contract documents.” SSM concluded from this information that the project required installation of 2,936 manual balancing dampers, and Mortenson’s bid reflected this conclusion.

After SSM purchased and installed the manual balancing dampers for the project, Mortenson requested that BPK “[vjerify that balancing damper [sic] are install [sic] at all duct branches, flexible take-offs, and duets taps [sic] as specified in section 15895.2.7.2.5.” In response, BPK initiated a request for information on November 8, 1996, to confirm whether the work completed on the project complied with the relevant specification. On November 26, 1996, the contracting officer’s representative replied as follows: “Do not confirm your interpretation. Provide and install manual balancing dampers at all locations specified in TS 15895.2.7.2.5, as indicated on details 5, 6, and 7/M6.02, on all terminal unit run-out ducts ..., at each branch duct or run-out take-off ... and at all other locations shown in the contract documents.”

On January 22, 1997, SSM noted that it was proceeding “under protest” and subsequently installed the additional 1,283 manual balancing dampers needed to satisfy the government’s request. Mortenson then filed a pass through claim with the contracting officer for an equitable adjustment of $297,608 — the cost for installing the additional dampers — which was denied in a final decision dated June 5, 2001. Mortenson timely filed an appeal with the board, and now timely appeals the board’s decision here. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(10) (2000).

Discussion

In reviewing a board’s decision, we will not set aside a decision on any question of fact “unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence.” 41 U.S.C. § 409(b) (2000). We review decisions on questions of law de novo. Eastman Kodak Co. v. Rumsfeld, 317 F.3d 1377, 1379 (Fed.Cir.2003) (citing 41 U.S.C. § 409(b) (2000)). Contract interpretation is a question of law; therefore, the board’s decisions regarding this matter are not binding. R.B. Wright Constr. Co., v. United States, 919 F.2d 1569, 1571 (Fed.Cir.1990). Because “the board has considerable experience and expertise in interpreting government contracts,” however, “its interpretation is given careful consideration and great respect.” Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed.Cir.1993).

The crux of this appeal is whether the language “provided at points” in specification 15895.2.7.2.5 means “provided at all points” or “provided at various points.” Mortenson argues that the “provided at points” language, when read in light of what the contract drawings show, must mean the latter, and the government’s requirement that manual balancing dampers be installed at all points where larger ducts meet smaller ones constitutes a change in the contract. The government agrees with the board’s conclusion that “the contract drawings require manual balancing dampers at each point where a smaller duct connects to a larger duct for all types of pressure ducts and in all zones including the distribution zone,” and consequently the installation of the 1,283 manual *1206 balancing dampers was required for performance to comport with the original terms of the contract. M.A. Mortenson Co., 03-1 B.C.A. (CCH) at 158,527.

In resolving disputes involving contract interpretation, we begin by examining the plain language of the contract. Gould, Inc. v. United States,

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363 F.3d 1203, 2004 U.S. App. LEXIS 6649, 2004 WL 736682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ma-mortenson-company-v-les-brownlee-acting-secretary-of-the-army-cafc-2004.