Ralph Larsen & Son, Inc. v. United States

35 Cont. Cas. Fed. 75,662, 17 Cl. Ct. 39, 1989 U.S. Claims LEXIS 80, 1989 WL 52194
CourtUnited States Court of Claims
DecidedMay 17, 1989
DocketNo. 446-87C
StatusPublished
Cited by13 cases

This text of 35 Cont. Cas. Fed. 75,662 (Ralph Larsen & Son, 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
Ralph Larsen & Son, Inc. v. United States, 35 Cont. Cas. Fed. 75,662, 17 Cl. Ct. 39, 1989 U.S. Claims LEXIS 80, 1989 WL 52194 (cc 1989).

Opinion

OPINION

MARGOLIS, Judge.

This contract case is before the court on defendant’s motion for summary judgment. The plaintiff asserts that contract specifications concerning the installation of conduit at the Mail Bag Depository of the United States Postal Service Center in Richmond, California, were ambiguous, and that genu[41]*41ine material factual issues are in dispute precluding summary judgment. After careful consideration of the entire record, and after hearing oral argument, the court has determined that the contract specifications in question are not ambiguous, and that the government’s requirement that wrapped rigid steel conduit be installed at the site was not a change entitling the plaintiff to an equitable adjustment. The court has also determined that there are no genuine material factual issues in dispute and that the defendant is entitled to judgment as a matter of law. Accordingly, the defendant’s motion for summary judgment is granted.

FACTS

On July 7, 1986, the Facilities Service Center of the United States Postal Service (USPS) in San Bruno, California issued Invitation For Bids (IFB) No. 059984-86-A-0085. The IFB was for the expansion of the Mail Bag Depository in Richmond, California. Opening of bids was scheduled for August 7, 1986; however, on August 5, 1986, three amendments to the IFB were issued. Consequently, the opening of bids was rescheduled for August 18, 1986. When the bids were opened, Ralph Larsen and Son, Inc. (Larsen) was determined to be the lowest bidder. On September 9, 1986, the USPS awarded the contract to Larsen. By September 26, 1986, the USPS had received performance and payment bonds for Larsen as required by the contract, and on that date issued Larsen a notice to proceed.

Once Larsen commenced performance on the contract, Triple S Electrical Company (Triple S), Larsen’s subcontractor responsible for the electrical construction, indicated its intention to use Schedule 40 PVC plastic conduit on the project. In a letter dated September 29, 1986, Larsen’s Project Superintendent, Darrel Tucker, directed Triple S “to install rigid steel conduit and protective coating system as specified in the Contract Documents.” Tucker cited item 6 of the amendment to the contract, which states:

B. Page 16111-3, Subsection 3.01: Add the following paragraph:

“H. Electrical metallic tubing will not be installed below grade, where subject to severe corrosive conditions, or embedded in concrete. Only rigid steel conduit may be used where exposed to damage, or where exposed five feet or less above floors. Rigid steel conduit not larger than FA-inch and 2-inch may be installed on the centerline of 5-inch and 8-inch concrete slabs on grade, respectively. Conduit embedded in a structural slab shall comply with applicable provisions of the American Concrete Institute (ACI) Standard 318. Where conduit is run below slabs-on-grade, conduit will be rigid steel and shall be field-wrapped with 0.010-inch thick pipe-wrapping plastic tape applied with a 50-percent overlay, or shall have a factory-applied plastic resin, epoxy, or coal-tar coating system. Zinc coating may be omitted from rigid steel conduit, or from IMC which has a factory-applied epoxy system.”

and section 03100, paragraph 3.05-D2, which states:

D. Conduits:

* * * * * *
2. Run electrical and telephone conduits in concrete only with written authority by the Contracting Officer. If allowed, conduits to be 3/4" diameter maximum.

On October 8, 1986, Larsen’s Quality Control Representative, Ivory Jones, submitted a letter to Keller and Gannon (K & G), the architectural and engineering firm responsible for review of the materials to be used on the project. The letter requested K & G’s approval of the proposed list of materials to be used on the project, indicating that Larsen’s electrical subcontractor wanted to use Schedule 40 PVC conduit “[bjelow slabs and bottom l/3rd of concrete slabs.” The letter requested that the list be reviewed for compliance with amendment 6(B) to paragraph 3.01.

[42]*42Larsen’s October 8th letter was returned by K & G with markings indicating K & G’s disapproval for the use of Schedule 40 PVC conduit below and in the bottom 1/3 of the slabs. Larsen’s subcontractor, Triple S, believed that K & G’s interpretation of the specification restriction against Schedule 40 PVC conduit was in error, and requested clarification. Because of the substantial difference in cost between the plastic PVC conduit and the wrapped rigid steel conduit, Larsen forwarded Triple S’s concerns to K & G. Larsen noted, however, that it had ordered Triple S to use the wrapped rigid steel conduit. On November 13, 1986, Larsen sent Triple S a letter acknowledging that a large quantity of PVC conduit had been delivered to the site and that Triple S apparently intended to install the material despite Larsen’s direction to the contrary. Following a meeting that day with the architect and the USPS representative, Larsen stated in its letter that Larsen and USPS were emphatic that the PVC conduit would not be acceptable and instructed Triple S to install the specified conduit without further delay.

At the request of Triple S, a meeting was held on November 20, 1986, to discuss Triple S’s proposed use of the Schedule 40 PVC conduit. Present at the meeting were representatives of Triple S, Larsen, K & G, and the USPS. At the meeting, Triple S indicated that it interpreted the specifications to mean that if the conduit is in the slab, but not at the centerline, the conduit does not have to be of rigid steel. Moreover, Triple S considered the gravel drainage base for the slab as part of the “slab-on-grade.” Therefore, Triple S reasoned, if the conduit is installed in the gravel base, it does not have to be of rigid steel. In response, representatives of the USPS pointed out that the specifications and drawings established that the slab-on-grade did not include the gravel drainage base. Furthermore, they added, any conduit embedded in the concrete would have to be first approved by the contracting officer.

Triple S began installing wrapped rigid steel conduit in November 1986. On November 28,1986, Triple 'S submitted a claim to Larsen for $42,583.18 based upon the direction to use wrapped rigid conduit as opposed to the Schedule 40 PVC conduit Triple S believed it was permitted to use. On December 11, 1986, Larsen forwarded Triple S’s claim, as its claim, to the USPS. On January 28, 1987, the contracting officer denied Larsen’s claim.

Plaintiff, on behalf of Triple S, the real party in interest, asserts that the contract language is ambiguous and that material factual issues exist warranting a trial. Plaintiff also contends that pouring concrete over conduit placed in or on top of the gravel drainage base constitutes “embedding” conduit in the slab, and that Triple S was entitled to use Schedule 40 PVC conduit for such embedding. Defendant argues that the contract is unambiguous in requiring wrapped rigid steel conduit and that Triple S’s installation method was below slab-on-grade, which unequivocally required the use of wrapped rigid steel conduit. The defendant also alleges that no material factual issues exist precluding summary judgment.

DISCUSSION

A. Summary Judgment Standards

The defendant filed a motion for summary judgment under Rule 56 of the United States Claims Court. RUSCC 56.

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Cite This Page — Counsel Stack

Bluebook (online)
35 Cont. Cas. Fed. 75,662, 17 Cl. Ct. 39, 1989 U.S. Claims LEXIS 80, 1989 WL 52194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ralph-larsen-son-inc-v-united-states-cc-1989.