U.S. Court of Appeals, Federal Circuit
January 22, 1999
HOFFMAN CONSTRUCTION COMPANY OF OREGON, PLAINTIFF-APPELLANT,
UNITED STATES, DEFENDANT-APPELLEE.
Before Newman, Lourie, and Clevenger, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Hoffman Construction Company, on behalf of its subcontractor W.A. Botting Company, filed suit on six claims arising from a contract between the government and Hoffman for the remodeling of the Old Bonneville Power Administration Building in Portland, Oregon. The Court of Federal Claims denied each claim. *fn1 The decision is affirmed-in-part and reversed-in-part.
Hoffman claims that the contract did not require it to remove certain concealed ductwork and surrounding insulation. *fn2 Hoffman removed the disputed ductwork at the direction of the agency, and now seeks adjustment. Hoffman argues that since the disputed ductwork was not shown and marked for removal on the "Contract Drawings," its removal was a "changed condition."
The Contract Drawings are described in the contract requirements clause as follows:
Requirements of the contract include the Contractor furnishing all labor and materials and performing all work for [BPA Building renovation] including all demolition, asbestos abatement, renovation changes, and Contract Drawings.
The contract then contains, under the heading "Contract Drawings," a list and description of over 150 drawings. The Contract Drawings are organized into subsections labeled "Architectural," "Structural," "Mechanical," "Electrical," etc. Contract Drawings are marked with an "X" to indicate items to be removed. Some ductwork is shown to be removed, and some is not.
Following the several pages listing the Contract Drawings is the heading "Information Drawings," as follows:
Information Drawings: A set of the original building construction drawings and a set of the major HVAC renovation drawings will be available for review during the bidding period. The drawings will be available at the BPA Federal Building, [address]. Please contact [name] to make an appointment for their review.
No specific drawings are listed, or referred to anywhere in the contract. This is the only mention in the contract of "Information Drawings."
Thus the Contract Drawings show certain ductwork marked for removal. The additional ductwork that Hoffman was ordered to remove is shown only in the Information Drawings. The contract does not state that all ductwork, whether or not shown in the Contract Drawings and whether or not marked for removal, is to be removed under the contract. The Information Drawings show not only the additional ductwork at issue, but also other structures not included in the project. This additional ductwork was nine-fold more ductwork than that marked for removal in the Contract Drawings.
Hoffman argues that the removal of additional ductwork is a "changed condition," pursuant to contract specification 01500-1, which provides:
Concealed mechanical or electrical work may be encountered in work being removed, the existence of which was not indicated in the drawings or could not have been anticipated by visual inspection or by the presence of installed appurtenances. Work of this nature requiring rerouting will be considered as changed conditions in accordance with clause 21 of the GSA Form 3506.
Hoffman asserts that "the drawings" in the above paragraph refers to the Contract Drawings.
The government argues that the terms of the contract are clear and that they required Hoffman to remove all the ductwork. Alternatively, if the contract does not so specify, the government argues that the terms of the contract regarding ductwork removal are patently ambiguous, and that Hoffman's failure to inquire into this alleged patent ambiguity dooms its claim for recovery on this item.
The government's "plain meaning" argument proceeds from '15050-7 of the contract:
DEMOLITION AND SALVAGE:
Remove or relocate all ductwork, piping, oil tanks, chiller, cooling tower, fans, appurtenances, etc., as may be encountered in removed or remodeled areas in the existing construction affected by this work. Disconnect service to equipment scheduled for removal. Cap and terminate all piping, ductwork, etc. to remain . . . .
The government points to the Information Drawings, which show all the ductwork existing in the building as Hoffman would find it. Since the Information Drawings form part of the contract, the government asserts that all the ductwork to be removed under the command of '15050-7 is not limited to that shown in the Contract Drawings.
We reject the government's reading of the contract. Hoffman's duty was to remove ductwork encountered in the existing structure that is affected by the contract. The Contract Drawings specify the ductwork to be removed, and Hoffman's duty was to cap and terminate the remaining ductwork. The fact that the Information Drawings show additional ductwork in the existing structure which could be removed is irrelevant to the measurement of Hoffman's removal obligations. Hoffman was obligated to remove only the ductwork as indicated in the Contract Drawings; such were the quantities of ductwork that were "affected by this work." The government's desire for the removal of vastly more ductwork is a service for which it must reimburse Hoffman.
Our interpretation of the contract's terms of course disposes of the government's contention that the contract is infected with a patent ambiguity. Also, since Hoffman correctly understood the ductwork removal terms of the contract, we also reject the government's contention that Hoffman should have inspected the premises before bidding to determine the ductwork that must be removed. Hoffman had no need to visit the site to decide which ducts must be removed, because the contract, as correctly read, identified the ductwork to be removed, and that which was to remain.
We conclude that the ductwork specifically marked for removal in the Contract Drawings was Hoffman's obligation, and the removal of additional ductwork was a compensable change. Hoffman shall recover on Claims 34 and 35, the claims relating to removal of the additional ductwork, in the amount of $81,550 plus interest in accordance with law.
For Hoffman's other claims, we have considered the trial court's determinations and the arguments presented on appeal. We have not been shown reversible error in the trial court's determinations, and affirm the decision on those claims.