Sullivan v. State ex rel. Department of Transportation & Development

623 So. 2d 28, 1993 La. App. LEXIS 2565, 1993 WL 254348
CourtLouisiana Court of Appeal
DecidedJuly 2, 1993
DocketNo. CA 92 1395
StatusPublished
Cited by3 cases

This text of 623 So. 2d 28 (Sullivan v. State ex rel. Department of Transportation & Development) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. State ex rel. Department of Transportation & Development, 623 So. 2d 28, 1993 La. App. LEXIS 2565, 1993 WL 254348 (La. Ct. App. 1993).

Opinion

WHIPPLE, Judge.

Defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a judgment rendered in favor of plaintiff, Frank G. Sullivan, Jr. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The DOTD prepared plans and specifications and published invitations for bid on State Project Number 266-01-09, which involved construction of Louisiana Highway 22 from Interstate-10 to Sorrento, Louisiana. Sullivan Construction Company prepared and submitted its bid on this project, and bids were received and read (an event known as “bid letting”) on July 27, 1988. Sullivan Construction, being the successful low bidder, was awarded the job, and a formal contract was executed on August 25, 1988 for a total contract price of $3,837,025.16.

The plans and specifications contained provisions for temporary signs and barricades as part of this construction project. At some point prior to signing of the formal contract, the DOTD became aware that while the contract contained plans for temporary signs and barricades, no pay item for the signs and barricades was included in the summary of bid items.1 The DOTD stipulated that the unit pay item for signs and barricades was unintentionally omitted from the plans.

However, Dempsey White, chief engineer for the DOTD, testified that the standard specifications contained a provision regarding payment for temporary signs and barricades, both where a direct pay item was included in the contract and where it was not. The standard specifications provided that if no pay item was included in the contract, the cost of temporary signs and barricades would not be measured for payment, but rather, should be included in the various bid items of the contract. This omission led to confusion on the part of several contractors bidding on the job, who called the DOTD to question the omission. Nonetheless, White saw no reason to take any action to notify the bidders of this omission.

On August 29,1988, a preconstruction conference was held, and at the conference, Gary Sullivan, a representative of Sullivan Construction, became aware that the contract had omitted a pay item for temporary signs and barricades. Upon learning of this omission, Gary Sullivan requested additional pay for the signs and barricades, since Sullivan Construction’s bid had not included the cost of such signs and barricades.

The DOTD’s project engineer, Gordon Nelson, told Gary Sullivan to submit a breakdown of the cost of the signs and barricades, which Gary Sullivan submitted to him on October 6, 1988. Meanwhile, Sullivan Construction was authorized to commence work on September 14, 1988, and its crew began putting up the signs and barricades on September 15, 1988. Sullivan Construction was obligated to commence work, including the erecting of the temporary signs and barricades, as of September 14, 1988, and could not wait until resolution of the payment dispute to commence work.

On October 12, 1988, Nelson submitted to Thomas Bergeron, district construction engineer for the DOTD, a proposed plan change requesting direct compensation for Sullivan Construction in the amount of the cost of the temporary signs and barricades. Bergeron recommended approval of the proposed plan change on October 25, 1988, and forwarded the request to Earl Cryar, chief construction engineer administrator for the DOTD. After discussing the matter with Chief Engineer White, Cryar rejected the proposed plan change by letter dated December 21,1988, as contrary to the specifications.

On October 25, 1990, Frank Sullivan filed suit against the DOTD. A bench trial was held on April 13, 1992, and by judgment dated April 20, 1992, the trial court rendered judgment in favor of Frank Sullivan, Jr., in the amount of $50,398.72, the stipulated cost of the temporary signs and barricades.

[30]*30The DOTD appeals, alleging that the trial court erred: (1) in finding the contract had been breached by the DOTD, (2) in failing to apply the clear and unambiguous terms of the contract, (3) in allowing Sullivan to take advantage of an alleged error in the contract where Sullivan Construction had failed to discharge its obligations under the contract and law, (4) in reforming the public works contract between Sullivan and the DOTD to reflect the intent of a DOTD employee other than the chief engineer, and (5) in allowing parol and other evidence outside the four corners of the written contract between Sullivan and the DOTD.

DISCUSSION

Legal agreements have the effect of law between the parties, and courts are bound to give legal effect to all such contracts according to the true intent of the parties. Con-Plex, Division of U.S. Industries, Inc. v. Louisiana Department of Transportation & Development, 439 So.2d 567, 570 (La.App. 1st Cir.1983). The parties’ intent is to be determined by the words of the contract when they are clear and explicit. However, where the terms of the agreement are unclear, ambiguous or will lead to absurd consequences, the court may go beyond the original agreement to determine the true intent of the parties. Con-Plex, 439 So.2d at 570.

A contractor is obligated to perform in accordance with contract plans and specifications. O & M Construction, Inc. v. State Division of Administration, 576 So.2d 1030, 1039 (La.App. 1st Cir.) writ denied, 581 So.2d 691 (La.1991). However, it is well settled that the requirement of public bidding, LSA-R.S. 38:2211 et seq., is not fulfilled unless the plans and specifications are sufficiently definite and explicit beforehand. Con-Plex, 439 So.2d at 569. If the DOTD fails to provide sufficiently definite and explicit plans and specifications, it will be liable for the additional costs incurred as a result of this failure. See Con-Plex, 439 So.2d at 570.

The contract documents involved in this ease include the contract with the summary of bid items, the specific plans and specifications, and the 1982 edition of the Louisiana Standard Specifications for Roads and Bridges. The issue at hand involves the interpretation of these documents to determine if the contract was explicit and specific regarding the provisions for temporary signs and barricades.

Regarding payment for temporary signs and barricades, the trial court concluded, in oral reasons for judgment, that the “DOTD failed to provide sufficiently detailed and explicit plans and specifications, i.e. failure to include as a bid item the temporary signs and barricades.” We agree.

Section 107.10 of the Standard Specifications, entitled “BARRICADES AND WARNING SIGNS,” provides in pertinent part:

Unless a pay item for “Temporary Signs and Barricades” is provided in the contract, all materials furnished and work performed as provided by this Subsection shall be considered as subsidiary and the costs thereof shall be included in the various bid items of the contract.

Section 713.05(a) further provides in pertinent part:

713.05 METHOD OF MEASUREMENT.
(a) Temporary Signs and Barricades: When the contract does not include a pay item for “Temporary Signs and Barricades,” the providing of temporary construction signs, barricades and related devices necessary for the protection of the public will not be measured for payment.

However, the special provisions of the contract provide in pertinent part:

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623 So. 2d 28, 1993 La. App. LEXIS 2565, 1993 WL 254348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-state-ex-rel-department-of-transportation-development-lactapp-1993.