Western States Construction Co. v. United States

38 Cont. Cas. Fed. 76,376, 26 Cl. Ct. 818, 1992 U.S. Claims LEXIS 345, 1992 WL 174105
CourtUnited States Court of Claims
DecidedJuly 24, 1992
DocketNo. 91-1257C
StatusPublished
Cited by9 cases

This text of 38 Cont. Cas. Fed. 76,376 (Western States Construction Co. 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
Western States Construction Co. v. United States, 38 Cont. Cas. Fed. 76,376, 26 Cl. Ct. 818, 1992 U.S. Claims LEXIS 345, 1992 WL 174105 (cc 1992).

Opinion

OPINION

BRUGGINK, Judge.

This action was brought pursuant to the Contract Disputes Act. 41 U.S.C. §§ 601-613 (1988). Pending is defendant’s motion for summary judgment. For the reasons that follow, the court concludes that defen[819]*819dant has not demonstrated an entitlement to entry of judgment in its favor.

FACTUAL BACKGROUND

On March 3, 1988, the Kansas City District, U.S. Army Corps of Engineers awarded Contract No. DACA45-88-G-0062 to the plaintiff, Western States Construction Company. The contract was for the construction of the B-2 Support Facilities, Package VII, Whiteman Air Force Base, Missouri. The work consisted of furnishing all plant, labor, materials, and equipment and performing all work for an Integrated Maintenance Shop, a Munitions Equipment Maintenance Shop, two igloos, two flammable liquids storage buildings, and other related site work.

Western contracted with Harold G. Butzer, Inc. (“Butzer”) to perform certain plumbing and mechanical work in connection with the project, including installation of underground cast iron soil pipe (“CISP”), per Section 15400 of the Specifications. Butzer asserts that it interpreted the contract specifications to provide that underground CISP was not to be wrapped with protective tape and that its bid, and therefore plaintiffs, did not include the additional costs associated with wrapping.

Section 15400 of the specifications is entitled, “Plumbing, General Purpose.” The following are the pertinent provisions:

-Subparagraph 5.1, “Pipe and Fitting Material,” reads in part:
Pipe material for various services shall be in accordance with Tables III and
IV, attached to this section____
-Table III of the specifications allows for four kinds of material for pipe and fittings used for underground building soil, waste, and storm drain:
1. Cast iron soil pipe and fittings, hub and spigot, ASTM A 74
2. Copper drainage tube, (DWV), ASTM B 306
3. Wrought copper and wrought copper alloy solder-joint drainage fittings. ANSI B16.29
4. Cast copper alloy solder-joint drainage fittings, DWV, ANSI B16.23.
-Subparagraph 19.7, “Corrosion Protection for Pipe and Fittings,” specifically provides:
Exterior surfaces of metallic pipe and fittings that are installed underground shall be thoroughly cleaned of foreign matter by wire brushing and solvent cleaning. Using tape conforming to AWWA (American Water Works Association) C203 and primer as recommended by the tape manufacturer, the pipe shall be primed and immediately wrapped with the tape, applied with a 50 percent overlap. Joints and fittings shall be covered with the same primer and tape. Fittings shall be coated and wrapped after piping has been tested. Pipe shall be coated and wrapped during installation. Coating must be 16 mil thick, (emphasis supplied)

As per subparagraph 5.1 and table III of the contract specifications, Butzer was permitted to choose from four kinds of material for the pipes and fittings to be used for the underground building soil, waste, and storm drain. Although Butzer could have chosen three different types of copper pipe, it elected to install CISP.

On August 22, 1988, Western, at the behest of Butzer, forwarded to the Government a request for clarification as to whether subparagraph 19.7 of the specifications required wrapping of underground CISP with protective tape. Attached to the request was a letter from Butzer to Western explaining why it interpreted the specifications not to call for wrapping of CISP. The letter warned that if wrapping of CISP was required by the Government, Butzer intended to file a claim for all additional costs associated with this extra requirement.

The Government forwarded its reply to the request the next day, stating that wrapping was required. Butzer then proceeded to wrap the pipes according to the Government’s directive. On November 28, 1989, Western forwarded to the Government its claim in the amount of $95,195.00 for the increased costs associated with the Government’s order to wrap the CISP. By letter dated December 7,1989, the Resident [820]*820Engineer, acting as the authorized representative of the Contracting Officer (“CO”), denied Western’s request. By letter dated April 27,1990, Western requested the CO’s final decision on its claim for an equitable adjustment concerning the wrapping of the underground CISP. In a decision received on July 10, 1990, the CO denied Western’s claim for an equitable adjustment. On July 2, 1991, Western filed its complaint here.

THE PARTIES’ CONTENTIONS

The Government contends that the contract specifications in subparagraph 19.7 are unambiguous. It reasons as follows. The express language of subparagraph 19.7 of the specifications requires that underground “metallic pipe” be wrapped with protective tape. In accordance with general principles of contract interpretation, this court must give to the term “metallic pipe” its plain and ordinary meaning. American Science & Eng’g, Inc. v. United States, 229 Ct.Cl. 47, 57, 663 F.2d 82, 88 (1981). In doing so, it is evident that “metallic pipe” encompasses CISP, and therefore, the contract required wrapping of the pipes at issue. Western cannot demonstrate that its interpretation of the contract is a reasonable one. According to the Government, were the court to accept Western’s contention that the contract did not require the wrapping of the CISP, such an interpretation would render meaningless the language of subparagraph 19.7. See United Pacific Ins. Co. v. United States, 204 Ct.Cl. 686, 692, 497 F.2d 1402, 1405 (1974). It points out that it has the right to insist upon performance in strict compliance with contract specifications, Transtechnology Corp. v. United States, 22 Cl.Ct. 349, 357 (1990), and that it is permitted to make its specifications more stringent than applicable industry standards so long as it does so clearly and unambiguously. H-D Dev. Co., VABCA No. 2453, 88-2 B.C.A. ¶ 20,676, 104, 516 (1988). Given the fact that the issue before the court is the interpretation of an unambiguous contract provision, summary judgment is appropriate.

To this, Western responds that the phrase “metallic pipes” in subparagraph 19.7 of the contract specifications means something different than what the Government says it means. According to plaintiff, in the context of subparagraph 19.7, the term “metallic pipes” does not include CISP. Western points to the affidavits of Mr. Harold G. Butzer, Mr. Rodney M. Schulte, and Mr. Keith E. Andrews. Schulte, who prepared the estimate for the subcontractor, Butzer, avers that “[wjhen I read paragraph 19.7 of section 15400 of the specifications prior to preparing the estimate, I interpreted it to apply to bare steel pipe when installed underground. To me, it did not apply to factory-coated cast iron soil pipe.” Harold Butzer, of the same firm, reads the provision in the same way. Andrews, who prepared an estimate for a competitor, recites that “not wrapping this pipe was consistent with our interpretation of the Contract____”

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38 Cont. Cas. Fed. 76,376, 26 Cl. Ct. 818, 1992 U.S. Claims LEXIS 345, 1992 WL 174105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-states-construction-co-v-united-states-cc-1992.