Underground Construction Co. v. United States

35 Cont. Cas. Fed. 75,604, 16 Cl. Ct. 60, 1988 U.S. Claims LEXIS 202, 1988 WL 131563
United States Court of Claims·Decided December 9, 1988·No. No. 683-85C·Published·Cited by 6 cases

Opinion

OPINION

BRUGGINK, Judge.

FACTUAL BACKGROUND

Plaintiff, Underground Construction Company, Inc. and Continental Heller Corporation, A Joint Venture (“Underground”), was awarded contract No. 3-CC-20-00520 in the amount of $14,456,000.20 by the Department of the Interior, Bureau of Reclamation (“Bureau”). The contract called for construction of the Pacheco Pumping Plant and Substation near Gilroy California. The pump station is part of a system transporting water from the Bureau’s previously existing San Luis Reservoir to users in the Santa Clara Valley.

The purpose of the plant is to take water from Reach 1 of the Pacheco Tunnel, which delivers water to the pump plant from the reservoir, and lift it approximately 325 feet. The pump plant then delivers the water to Reach 2 of the Pacheco Tunnel which in turn is connected to a distribution network. The principal features required by the Pacheco Pumping Plant contract were a fifteen foot diameter surge shaft approximately 285 feet deep, an inclined transition tunnel, a twenty foot diameter pump chamber, twelve pump intake shafts with five-foot diameters, a pumping plant, and installation of Government furnished equipment.

The complaint contains, as amended, seventeen counts. Counts II, IX, X, XI, and XII of the complaint were dismissed with prejudice by joint stipulation of the parties on November 28, 1987. Counts III, XIII, and XIV are currently before this court on cross motions for partial summary judgment.

DISCUSSION

RUSCC 56 generally requires that the moving party show that there is no genuine issue as to any material fact and that it is therefore entitled to judgment as a matter of law. In this connection, the court must [62] resolve all ambiguities and draw all reasonable inferences in favor of the nonmovant. Avia Group International, Inc. v. L.A. Gear California, 853 F.2d 1557,1560 (Fed.Cir.1988) (citing United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Interpart Corp. v. Italia, 777 F.2d 678, 681 (Fed.Cir.1985); Petersen Mfg. Co. v. Central Purchasing, Inc., 740 F.2d 1541, 1546 (Fed.Cir.1984)). Here each party asserts that there are no material facts in dispute as to these claims and that it is entitled to judgment as a matter of law. However, the fact that both parties are movants does not release either from its burden of “demonstrating the absence of all genuine issues of material fact.” Id. at 1560 (citing Cooper v. Ford Motor Co., 748 F.2d 677, 679 (Fed.Cir.1984)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)). Only upon determination by the court that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits” show no material fact is in dispute will summary judgment on the counts in question be appropriate. RUSCC 56(c).

1. Count III — Ladder and Hoist

In order to move water from the San Luis Reservoir to the Pacheco pumping plant, the pumping chamber had to be connected to the existing Reach 1 tunnel. This required dewatering of the Reach 1 tunnel and removal of the bulkhead (a steel plug). This was performed at the gate shaft located on an island in the Reservoir.

At issue in Count III is drawing No. 805-D-3382, entitled “Pacheco Inlet Channel and Tunnel to Sta. 199 + 17.00, Gate Shaft Plan and Sections.” Above this title, the drawing is labeled “FOR INFORMATION ONLY.” The drawing shows various sections of the gate shaft. In addition to giving dimensions, the drawing illustrates various details regarding construction and notes the location within the gate shaft of related items, such as a vent pipe. Three such notations concern a hoist and ladder. Section A-A of the drawing contains the notations “[h]oist not shown” and “[ljadder not shown.” Each notation is followed by a dashed line and an arrow pointing to a specific location on the interi- or of the gate shaft. Section B-B contains the notation “[l]adder” and is similarly followed by a dashed line and an arrow that points to a dimension line designating a location on the interior wall of the gate shaft. Plaintiff's affidavits show that it relied on the drawing and notations exclusively in making its estimate on this portion of the contract.1

Plaintiff assumed that the ladder noted as “not shown” would be available for access to the interior of the gate shaft and that the hoist “not shown” would be available to lift a section of grating and assist in the installation of dewatering equipment required for the job. Upon commencing the work in November 1984, however, Underground discovered that neither the ladder nor the hoist was mounted in the gate shaft.

Plaintiff requested, by letter dated November 7, 1984, that defendant install the hoist and ladder. This request was denied, as was a subsequent request for reimbursement for the costs of installation of a ladder and the rental of a crane to replace the hoist. Plaintiff subsequently requested a final decision of the Contracting Officer (“CO”) by letter of August 1, 1985. The CO denied Underground’s request on October 7, 1985.

Plaintiff contends that it reasonably interpreted the contract drawings to indicate the hoist and ladder would be available for use in performing the contract. The Government contends that the correct interpretation of the contract drawing is that [63] neither of the items would be found in the gate shaft.

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Underground Construction Co. v. United States, 35 Cont. Cas. Fed. 75,604, 16 Cl. Ct. 60, 1988 U.S. Claims LEXIS 202, 1988 WL 131563 (cc 1988).

35 Cont. Cas. Fed. 75,604 (Underground Construction Co. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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