Seville Construction, Inc. v. United States

40 Cont. Cas. Fed. 76,909, 35 Fed. Cl. 242, 1996 U.S. Claims LEXIS 45, 1996 WL 141655
CourtUnited States Court of Federal Claims
DecidedMarch 29, 1996
DocketNo. 93-585C
StatusPublished

This text of 40 Cont. Cas. Fed. 76,909 (Seville Construction, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seville Construction, Inc. v. United States, 40 Cont. Cas. Fed. 76,909, 35 Fed. Cl. 242, 1996 U.S. Claims LEXIS 45, 1996 WL 141655 (uscfc 1996).

Opinion

ORDER

MOODY R. TIDWELL, III, Judge:

This case is before the court on the parties’ cross motions for summary judgment, filed [243]*243pursuant to RCFC 56. For the reasons set forth below, the court grants defendant’s motion for summary judgment and denies plaintiffs cross motion.

FACTS

The following material facts are undisputed. On September 3,1990, Seville Construction, Inc. (“Seville”) entered into contract No. DACA 51-90-C-0063 with the Army Corps of Engineers (the “Corps”) to renovate the heating, ventilation and air conditioning (“HVAC”) system in Building No. 407 at Fort Hamilton, Brooklyn, New York. The $707,000 contract calls, in part, for the installation of dampers1 in the ducts of the HVAC system.

Various provisions of the contract govern the installation of the dampers. Section 21.9 of the contract specifications states that “fire dampers conforming to UL555 ... shall be provided where shown.” (Pl.’s Ex. 3.) UL555 is the Underwriters Laboratory designation for a fusible link fire damper. According to the “Specifications and Drawings for Construction” provision of the contract, FAR 52.236-21(c), “as shown” or similar words require the contractor to refer to the drawings accompanying the contract for clarification unless otherwise stated. (Def.’s App. at 37.) A pre-bid amendment to the contract added a note to the drawing entitled “Site Plan and Mechanical Room.” The amendment provides, in part, that

[i]n each of the seven ventilation zones, there shall be a smoke/fire detector in the duct exiting the heating ventilating (HV) unit. There shall be a fire/equipment control panel in each of the seven mechanical rooms. At each location where a supply duct penetrates a (one, two hour, or other) fire rated or non-combustible wall, partition, or floor there shall be a smoke/fire damper____

(Def.’s App. at 6-7.)

The drawings contain over a hundred symbols for the installation of dampers. Note 3, which appears on each of the HVAC floor plans, reads:

Where ductwork penetrates fire rated walls and/or floors provide and install a combination smoke-fire damper with access door. Note: Combination smoke-fire damper [sic] are to be provided and installed by contractor, wiring to a common panel. Panel to be located in mechanical room(s). (Control panel & dampers “Ruskin” or equal).

(Def.’s App. at 1, 2, 2A; Pl.’s Exs. 9-11.) Each of the floor plans also contains a variation of an additional note, with an arrow drawn to one of the damper symbols, which states: “At all corridor walls install 12 x 4 top register w/combination smoke/fire damper. Typical for all supply air shown unless otherwise noted.” (Def.’s App. at 1, 2, 2A; PL’s Exs. 9-11.)

On August 1, 1991, Seville submitted a request for approval of fusible link fire dampers. This request was approved by the Corps subject to the code C* designation: “Approved except as noted on drawings. Refer to attached sheet resubmission required.” (PL’s Ex. 6 at 3.) The approval further required plaintiff to show damper connections to smoke and fire panels. (Def.’s App. at 13.)

Plaintiff installed fusible link fire dampers at all locations except in the seven mechanical rooms, where it installed combination smoke/fire dampers. The Corps issued a “Notice of Non-Compliance” on August 22, 1991, for failing to install required smoke/fire dampers in ductwork passing through all the buildings’ fire rated walls. (Def.’s App. at 14.) The Corps then verbally instructed Seville to install smoke/fire dampers in the ductwork. In a letter dated October 24, 1991, plaintiff objected to this instruction and contended that smoke/fire dampers were only required in the mechanical rooms. (Def.’s App. at 15.) The Corps again responded by stating that smoke/fire dampers were required throughout the building.

[244]*244An inspection in early 1992 revealed that smoke/fire dampers had not been installed, and on February 3, 1992, the Corps directed plaintiff to install the combination smoke/fire dampers at all locations indicated on the contract drawings. Following a March 11, 1992 meeting between Seville and the Corps, plaintiff stated it would install the smoke/fire dampers, although it continued to dispute such a contractual obligation. (Def.’s App. at 30. )

On April 13, 1993, Seville submitted a claim for $326,130.29 to the contracting officer, contending that the installation of smoke/fire dampers was not required under the contract and the directive to install them constituted additional work. (Def.’s App. at 31. ) After not receiving a final decision on its claim, plaintiff filed a complaint in this court on September 22, 1993, on the basis that its claim was deemed denied. Defendant filed its motion for summary judgment on July 5, 1995. Plaintiff filed its cross motion for summary judgment on August 12, 1995.

Plaintiff argues that the contract calls for fusible link dampers pursuant to specification 21.9 and the symbols on the contract drawings. If there is any conflict in the contract, plaintiff notes that FAR 52.236-21(a) commands that the specifications control. FAR 52.236- 21(a) provides that “[i]n ease of difference between drawings and specifications, the specifications shall govern.” 48 C.F.R. 52.236- 21(a) (1990). Defendant asserts that specification 21.9 instructs the installation of fusible link dampers only “where shown” on the drawings, and the drawings, because of several notes, call for smoke/fire dampers at all locations. Defendant urges that any contractual discrepancies should have been submitted to the Corps for clarification, pursuant to FAR 52.236-21(a), which further states that “[i]n case of discrepancy in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to the Contracting Officer, who shall promptly make a determination in writing.” Id.

DISCUSSION

I. Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c). Genuine issues of material fact are those that would change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In the instant case, the parties have filed cross motions for summary judgment. A cross motion is a party’s claim that it alone is entitled to summary judgment. The fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988). In this case, the court must scrutinize each motion on its own merits. “Accordingly, this court must draw all reasonable inferences against the party whose motion is under consideration.” Robinson Contracting Co. v. United States, 16 Cl.Ct. 676, 680 (1989), aff'd, 895 F.2d 1420 (Fed.Cir.1990). The court is not required to grant judgment as a matter of law for one party or the other; it may deny both. Mingus Constructors, Inc. v. United States,

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Bluebook (online)
40 Cont. Cas. Fed. 76,909, 35 Fed. Cl. 242, 1996 U.S. Claims LEXIS 45, 1996 WL 141655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seville-construction-inc-v-united-states-uscfc-1996.