Daniel A Grabauskas
Commiss~nBr
Secretary
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To:
Secretary Daniel A. Grabauskas, EOT
Through:
Commissioner John Cogliano, MHO
From:
Stephen H. Clark, Administrative Law Judge
Date:
March 24, 2005
Re:
Report and Recommendation
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I am pleased to submit for your consideration and approval the attached report
and recommendation.
McCourt, a general contractor under MIlD contract #95284
engaged to construct City Square Park and associated
roadways in Charlestown, appealed the Department's refusal
to pay it 529,280.00 for the furnishing and instaUation of a
granite seat waD in ODe part of the park. The appeal has merit
and should be aUowed. The plan details ofthe contract
establish that the cODtract intended that payment for the
disputed section of granite seat wall should have been paid
under Item 719.12 ("Granite Seat Wall"), as McCourt
contends. The Department was not entitled to rely on what the
project designer subjectively intended when it drew up the
plan details. Accordingly, I recommend that the Department
pay McCourt for 97.6LF of granite seat wan instaned at the
bid price of S300ILF, or 529,280.00.
Massachusetts Highway Department· Ten Park PIIlZiJ, Boston, MA 02116·3973' (617) 973-7800
I)
INTRODUCTION
McCourt Construction Company, Inc. (McCourt) seeks payment of $29,280.00
under Massachusetts Highway Department (Department) contract #95284 (Contract) for
work of supplying, fabricating and installing 97.6 linear feet of curvilinear granite wall
functioning as a bench (“Granite Seat Wall”) at City Square Park in Charlestown. A 97.6
linear foot portion of the Granite Seat Wall, which faces inward toward a fountain in the
center of the park, abuts a granite and concrete retaining wall, thus forming a double wall
(“Granite Double Wall”).
McCourt appeals from the Department’s refusal to pay it the bid price of $300/ LF
for the 97.6 LF of installed Granite Seat Wall under payment item 719.12 (“Granite Seat
Wall”). The Department’s refusal was based on its contention that payment for
constructing the Granite Seat Wall where it abutted a 97.6 linear foot section of a Granite
Double Wall should be paid for under payment item 719.11 (“Granite Double Wall”).
McCourt’s appeal has merit. The Contract plans and specifications, construed as
a whole, support McCourt. The Contract’s plans and plan details, upon inspection, show
plainly that the Granite Seat Wall should have been paid under item 719.12 (“Granite
Seat Wall”). That structure is not included under pay item 719.11 (“Granite Double
Wall”) because the plan detail for the Granite Double Wall expressly incorporates by
reference the plan detail for Granite Seat Wall to be built in accordance with a separate
plan detail. Because the Contract’s special provisions contain a payment item for that
plan detail work—Item 719.12 (“Granite Seat Wall”)—McCourt correctly understood
that the Contract intended all such work was to be paid under the same payment item.
I conclude that the work of constructing 97.6 LF of Freestanding Granite Seat
Wall along the Granite Double Wall should be paid under item 719.12 (“Granite Seat
Wall”) at the bid price of $300/foot. I recommend that the Department pay McCourt
$29,280.00 ($300 X 97.6).
BACKGROUND
Statement of the Appeal
McCourt filed an appeal to the Board of Contract Appeals (Board) on April 28,
2003 following denial by the Department of its claim for compensation under pay item
719.12 for 97.6 LF of Granite Seat Wall. The Contract is governed by the Standard
Specifications for Highways and Bridges (1988 ed) (Standard Specifications), as well as
the Department’s 1977 Construction Standards.
A hearing was held on February 5, 2004 before Acting Chief Administrative Law
Judge John McDonnell. Present were
John McDonnell
Isaac Machado, Esq.
Stephen Frick
Acting Chief Administrative Law Judge
Deputy Chief Counsel, MHD
McCourt Construction, Project Manager
The following documents were admitted into evidence.
Ex. #1
Ex.#2
Ex. #3
McCourt Statement of Claim
Contract #95284
McCourt correspondence file1
1
The file consists of (1) June 20, 1995 letter of McCourt to MHD; (2) July 5, 1995 letter reply of designer
Halvorson Company to McCourt’s June 20th letter; (3) July 13, 1995 letter of DEM to Department project
coordinator enclosing Halvorson letter; (4) July 26, 1995 letter of MHD to McCourt refusing to agree with
McCourt’s proposed interpretation set forth in June 20th letter; (5) July 27, 1995 letter of McCourt asserting
claim under Subsection 7.16 of the Contract; (6) payment items 719.01 through 719.19 on page 87 of the
special provisions of the Contract and details on Contract plan sheet 5; (7) January 27, 1997 letter from
McCourt to Department filing claim under item 7.16; (8) December 4, 1997 letter from Department to
McCourt denying claim; (9) January 21, 1998 letter of the Engineer to McCourt setting forth position of
claims committee denying McCourt’s claim.
2
The matter was taken under advisement at the end of the hearing. On March 1,
2004 the undersigned was appointed Chief Administrative Law Judge. On July 21, 2004,
through St. 2004, c. 196, s. 5 (Act), the Legislature abolished the Board and, so far as is
pertinent here, conferred its prior functions on the Secretary of Transportation and the
Commissioner of the Department (Commissioner). See G.L. c.16, s. 1(b), as appearing in
the Act. This report and recommendation, decided with the participation of Mr.
McDonnell, is made through the Commissioner to the Secretary.
Findings of Fact
The record discloses the following facts, which I recommend be adopted.
The Contract required McCourt to construct a new park and associated roadways
at historic City Square in Charlestown. The Department awarded McCourt a Contract for
$1,984,713.00 for the project. The project was completed at a final cost of
$2,350,923.43, as shown on the Final Estimate dated February 19, 2003. The project was
substantially completed on September 30, 1997.
(1) The Contract
Department Contract #95284 was for the work of
constructing City Square Park, including earthwork, drainage, granite wall installation,
paving, fencing, a fountain, artwork, landscaping and related work. The specifications
called for bidders experienced in custom granite fabrication and installation, as well as
the installation a fountain and site-specific artwork. The Department supervised the
creation of the roadway design for the project; the Department of Environmental
Management (DEM)2 created the specifications and plans for the new park through its
2
DEM was consolidated with the Metropolitan District Commission in 2003 becoming the Department of
Conservation and Recreation (DCR) through St. 2003, c.26, s.63, amending G.L. c. 21, s. 1.
3
consultant, the landscape architect firm of The Halvorson Company (Halvorson). The
Department put the Contract out to bid and managed the construction.
(2) Location of The Granite Seat Wall The resolution of this appeal requires an
understanding of the locations where the Granite Seat Wall was constructed in the new
park. The general layout of the area of the park at issue is seen on the plan attached at
Exhibit A.3 Generally, that plan shows an elliptical paved area (Ellipse) surrounded by
two structures, one colored blue and one yellow. The colored structures are the Granite
Seat Wall (yellow) and the Granite Double Wall (blue). Pedestrians may enter the
Ellipse on four walkways that cut through those two granite structures. There is a granite
fountain at the center of the Ellipse. See Ex. A.
The park slopes from south to north. The Ellipse is level, with the result that the
Granite Double Wall functions in part as a retaining wall to hold back the earth on the
higher, southerly slope. The Granite Double Wall has two structural components. See
Ex. A (blue). One component is a retaining wall holding back the hill on the southerly
side; the second component is a granite bench, which is built along 97.6 LF of the
retaining wall and faces inward toward the center of the Ellipse. The plan detail of the
Double Granite Wall, detail 5 of sheet 12 (“5/12”), plainly shows the two structural
components. See Ex. B, attached.
By contrast, the granite structure on the downhill, northerly side of the Ellipse-and along two of the southerly pedestrian entrance paths--has only one component, the
Granite Seat Wall. See Ex. A (yellow). The Granite Seat Wall stands alone in these
3
Note: On Ex. A the top of the page is southeast, not north.
4
locations since no retaining wall is required. See Ex. A. A plan detail of the Granite Seat
Wall is shown on detail 3 of plan 12 (“3/12”). See Ex. C, attached.
The parties agree that only one payment item applies to the Granite Seat Wall
constructed on the northerly side of the Ellipse, namely Item 719.12 (“Freestanding
Granite Seat Wall”).4 The parties agree that the Department has paid McCourt in full to
build the Granite Seat Wall at those locations colored yellow on Ex. A. The parties also
agree that the physical characteristics of the Granite Seat Wall on the northerly side of the
Ellipse are identical to the characteristics of the Granite Seat Wall on the southerly side,
where it has been installed in front of the retaining wall. The Granite Seat Wall
surrounds the plaza and fountain in the center save where the four pedestrian walks
provide access. See Ex. A (yellow and blue).
(3) The Special Provisions
The proposal the Department offered for bid contained 19 separate pay items relating to granite stonework. The 19 pay items were grouped together within special provisions “Items 719.01 Thru 719.19.” Among the 19 special provisions 3 bear directly on the outcome of this appeal, namely “ITEM 719.10
“ITEM 719.11
“ITEM 719.12
GRANITE WALL
GRANITE WALL WITH SEAT
GRANITE SEAT WALL
LINEAR FOOT
LINEAR FOOT”
LINEAR FOOT
The caption on the bid sheet for Item 719.10 is “Granite Retaining Wall”; for Item
719.11 “Granite Double Wall”; and for Item 719.12 “Freestanding Granite Seat Wall.”
Nowhere within the special provisions is there any language that directly or
indirectly describes which payment item should be used to pay for the work of building
4
Although labeled “Freestanding Granite Seat Wall” on the bid sheet, plan detail “3/12” does not depict a
freestanding structure. The structure drawn on “3/12” and referred to in special provision 719.12 are both
labeled “Granite Seat Wall.” I refer to that structure throughout this report as “Granite Seat Wall” for
clarity.
5
the 97.6 LF portion of Granite Seat Wall along the Granite Double Wall on the southerly
side of the Ellipse.
The text of the special provision for “Items 719.01 Thru 719.19” is found at pages
127-135 of the Contract. Those special provisions are devoid of any written specification
that describes the work to be done under Items 719.10, 719.11 or 719.12.5 The special
provisions are devoted to directives concerning materials, samples to be submitted for
approval, the material to be used, construction methods, finishes etc.
(4) The Plans and Plan Details
The layout plan for the park expressly references plan details (Plan Details). See
Ex. A. The plan keys to the plan details of both the Granite Seat Wall and the Granite
Double Wall. See Ex. A, referencing Plan Detail “5/12” captioned “Granite Double
Wall” [See Ex. B, attached] and Plan Detail “3/12” captioned “Granite Seat Wall” [See
Ex. C, attached].
Both Plan Details “5/12” and “3/12” employ the usual practice of indicating
materials by symbols incorporated into the plan drawing. See “5/12” and “3/12” showing
granite, concrete, gravel backfill, compacted subgrade, stainless steel dowel and brick
paving. Plan Detail “3/12,” captioned Granite Seat Wall, is fully drawn with all details
and components. See Ex. C. Thus, “3/12” contains every detail needed to build the
5
The only mention in the special provisions of the work to be done under 719.10, 719.11 or 719.12 is
under “Measurement,” where the disputed items are referenced as follows: “Quantities of [] Granite Wall,
Granite Wall With Seat, Granite Seat Wall [] shall be measured in place and along the centerline of the
Item by the Engineer.” Similarly, under the provision for “Payment” there is a reference by implication:
“Payment of work shall be paid for at the contract price per unit indicated under items 719.01 [] through
719.19 [] which includes full compensation for providing all materials (including reinforced concrete bases
and foundations) [] required to complete the work in accordance with the Drawings and as directed by the
engineer.” Other than under these two references there is nothing in the special provisions that bears on the
scope the pay items numbered 719.11 and 719.12.
6
Granite Seat Wall.6 The plan at Ex. A shows that “3/12” work is to be done on both the
downhill, northerly side of the Ellipse and on the uphill, southerly side. “3/12” makes no
cross reference to “5/12” or any other plan or detail. The estimated quantity for Item
719.12 (“Granite Seat Wall”) on the bid sheet is 140 feet.
“5/12,” captioned “Granite Double Wall,” is not fully drawn. “5/12” shows that
the “Granite Double Wall” has two component parts: (1) a fully drawn plan detail of the
retaining wall portion to be built by capping a concrete footing with a shaped granite
piece tied by a stainless steel rod, and (2) an outline (not fully drawn) of the Granite Seat
Wall to be constructed in front of the retaining wall component. “5/12” depicts the
retaining wall component in full detail, but leaves the Granite Seat Wall component
blank. See Ex. B. The Granite Seat Wall component of “5/12” is cross-referenced to
plan detail “3/12”: an arrow captioned “Granite Seat Wall 3/12” points to the unshaded
component. The cross-reference in “5/12” to “3/12” is clear. See Ex. B.
“5/12” only shows only the information needed to build the retaining wall
component of the Double Granite Wall. The details needed to build the Granite Seat
Wall component, shown in outline on “5/12,” are found only on detail “3/12.”7
Nowhere in the Contract documents—specifically including the pages 87-101 of
the special provisions governing all specialty stone work---is there any writing directing
6
The shading within “3/12” shows a 1’ 4” wide “granite seat wall,” the front of which is beveled to
approximately quarter round. “3/12” also shows the brick paving of the Ellipse, the height above grade, the
stainless steel dowel which anchors the granite to the concrete footing, the “compacted gravel borrow”
underlying the footing and the “compacted” “subbase.” Where the back of the shaped granite or concrete
footing meets grade, the Plan Detail 3 “gravel backfill.” The “granite seat wall,” as drawn, shows a height
of ‘12” @ lawns,’ and ‘24” @ beds.’ “3/12” plainly shows that the granite seat wall is not be
“freestanding” at all places where it to be built.
7
“5/12” shows that both components of the Double Granite Wall rest on “compacted gravel borrow” on
top of a “compacted” “subbase.” “5/12” also shows that, where the back of the retaining wall component
meets grade, “gravel backfill” is to be supplied. The estimate quantity for Item 719.11(“Double Granite
Wall”) on the bid sheet is 103 feet.
7
the contractor to use a named payment item for the work of building the Granite Seat
Wall where it is installed in front of the Granite Double Wall.
(3) Estimated and Final Quantities
The Contract documents show that McCourt bid as follows on the pay items for
719.10 (“Granite Retaining Wall”); 719.11 (“Granite Double Wall”) and 719.12
(“Freestanding Granite Seat Wall”).
ITEM
ESTIMATED
QUANTITY
FINAL
QUANTITY
UNIT
PRICE
719.10
719.11
719.12
100.00
103 LF
140 LF
164.69
97.61
92.99
$250/LF
$400/LF
$300/LF
Halvorson admits that the estimated quantities of 719.10 and 719.12 were
incorrect. Its July 5, 1995 letter states “The total quantity of these two bid items is 240 lf,
although it appears that the quantities between the two are flipped (719.10 should be (+)
140 lf and 719.12 should (+) 100 lf.” The quantities estimates of provided by Halvorson
were substantially incorrect for many bid items.8
DISCUSSION
The Legal Standard
The familiar principles governing the construction of a written contract, including the interpretation of plans, drawings and plan details included in the contract documents, are well settled. The interpretation of an unambiguous contract is a question of law. See Robert Indus., Inc. v. Spence, 362 Mass. 751, 755 (1973); Freelander v. G. & K Realty 8
Item 390.1 3 Irrigation Sleeve: 40Lf (est), 140 Lf (actual); Item 506 Granite Curb VB Straight: 20 LF
(est), 220 LF (actual); Item 706.01 Brick Paving on Mortar Setting Bed: 1,316 SY (est), 500 SY (actual);
Item 719.055 Granite Fence Post Base: 30EA (est), 50EA (actual).
8
Corp., 357 Mass. 512, 516 (1970). Thus, where the contract at issue is found to be
unambiguous, a court will determine the meaning of the contract as a matter of law.
In construing an unambiguous contract the judge must consider “the particular
language used against the background of other indicia of the parties’ intention,” and must
“construe the contract with reference to the situation of the parties when they made it and
to the objects sought to be accomplished…. Not only must due weight be accorded to the
immediate context, but no part of the contract is to be disregarded.” Starr v. Fordham,
420 Mass. 178, 190 (1995) (internal citation omitted).
A contract “should be construed to give it effect as a rational business instrument
and in a manner which will carry out the intent of the parties.” Id. at 192, citing Shane v.
Winter Hill Fed. Sav. & Loan Ass’n., 397 Mass. 479, 483 (1986). Where a contract
consists of separate parts or sections, all of them must be considered together so as to
give reasonable effect to each. See S. D. Shaw & Sons, Inc. v. Ruggo, Inc., 343 Mass.
635, 640 (1962). The principal guide to contract interpretation is what appears within the
text of the document. See Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). There
is no dispute that these rules of construction apply to both words and to drawings, plans
and plan details.
Discussion
The question for decision is whether or not the Contract required separate
payment for the Granite Seat Wall at locations where it fronted on the Granite Double
Wall. McCourt contends that the two components of the Granite Double Wall shown on
Plan Detail “5/12” are paid by two separate payment items—viz. the retaining wall
component is paid through Item 719.11 (“Granite Double Wall”) while the granite bench
9
seat is paid through Item 719.12 (“Granite Seat Wall”). The Department contends that it
“intended” that all work shown on “5/12” should be paid under Item 719.11 (“Granite
Double Wall”). For the reasons set forth below, I find McCourt’s appeal has merit.
Although the parties disagree about what the Contract Plans and Plan Details
mean, they do not argue that the Plans or Plan Details at issue are in and of themselves
ambiguous. Thus, I accept that the Contract should be construed in accordance with its
plain meaning. I look to the contents of the Contract itself in order to determine the
intent of the specific Plans and Plan Details that govern the outcome of this appeal.
Two critical Plan Details in this Contract require scrutiny: Detail 5 of Plan 12
(“5/12”) and Detail 3 of Plan 12 (“3/12”). Together these two Details explicate the work
of constructing the Granite Double Wall on the southerly side of the Ellipse; standing
alone neither “3/12” or “5/12” accomplishes that purpose. There is no doubt that at that
the Granite Double Wall consists of two component parts: a retaining wall and a granite
bench seat as “5/12” clearly shows. See Ex. B.
The fact that the retaining wall component—but not the granite bench seat
component--is fully drawn on Detail “5/12” is of determinative significance: all
information needed to build the retaining wall component is present while none of the
information needed to build the granite bench seat appears. The express cross reference
in “5/12” to “3/12,” where the granite seat component is fully drawn, indicates that two
separate pay items apply. See Ex. B & C, attached.
That the Contract intends two separate pay items for the work of the Granite
Double Wall is confirmed by the plan details “5/12” and “3/12” read together, as “5/12”
indeed instructs. “5/12” requires the contractor to look to “3/12” to build the Granite Seat
10
Wall component of the Double Granite Wall. Nothing in plan detail “5/12,” the
specifications or special provisions contradicts the logical conclusion that payment for
constructing 97.6 linear feet of Granite Seat Wall in front of the retaining wall portion of
the Granite Double Wall should be made in the same manner that all identical work is be
paid. The arrow in “5/12” points directly to the unshaded portion of the Double Granite
Wall leading to detail “3/12”--“Granite Seat Wall”--and nothing else. Where there is no
contravening special provision or plan detail, a contractor reading “5/12” would
reasonably conclude that identical Granite Seat Wall work would be paid under the
identical item, Item 719.12 (“Granite Seat Wall”).
I think that a “competent mechanic or contractor”9 reading “5/12” would at his
peril assume that “3/12” work would be paid under “5/12.” Nothing in the special
provisions clarifies that “5/12” “intends” for a contractor to bid the Granite Double Wall
as if the explicit reference to “3/12” did not exist. A blank, unshaded area on “5/12” to
which an arrow labeled “3/12” points indicates Item 719.12 work, and could not be
ignored. To the contrary, a competent contractor would justifiably assume that identical
structures to be built in various locations within a project are to be paid by a single
payment item expressly designated for all such work. Here, where the identical granite
seat wall surrounds the Ellipse on both its northerly and southerly sides, and where no
construction detail for the Granite Seat Wall is shown in “5/12,” McCourt correctly
understood that the Contract intended it to build (and the Department to pay for) the
Granite Seat Wall wherever the plans expressly indicated that work. Accordingly, all
granite seat wall work must be paid under Item 719.12 (“Granite Seat Wall”).
9
The Standard Specifications (1988 ed.) provide in subsection 2.03: “The Department will prepare plans
and specifications giving directions which will enable any competent mechanic or contractor to carry them
out.”
11
The Department’s Position
The Department adopted the position of the designer Halvorson in its entirety. It
first argues that the language of the caption “Granite Double Wall” must be construed to
mean that bid Item 719.11 (“Granite Double Wall”) includes payment for both
components of the wall shown in “5/12” because the words of the caption infer that the
retaining wall and the granite seat wall are both parts of the “double” wall. That
argument fails because it ignores what is plainly shown in Plan Details “5/12” and
“3/12.” The Contract provides in Subsection 5.04 of the Standard Specifications (1988
ed.) that “In the event of any discrepancy between the plans and the specifications, the
plans are to govern.” Here the specifications and special provisions are silent with the
result that the plan details read together control. “5/12” and “3/12” construed together
show that the Granite Seat Wall, constructed at various locations, is to be paid under its
own item.10
Second, the Department argues that Halvorson “intended” that pay item 719.11
(“Granite Double Wall”) include both the retaining wall component and the granite bench
component within it. As proof of Halvorson’s “intent” the Department relies on (1)
Halvorson’s own statement to that effect and (2) the fact that Halvorson stated that its
own internal design cost estimates made before bidding corroborate that intent. But what
10
The argument that the caption “Granite Double Wall” should control the outcome of this appeal is
particularly troublesome in the context of the ways in which the captions in this Contract were written.
Written Spec
Bid Sheet
Plan Sheets
719.10
Granite Wall
Granite Retaining Wall
[None]
719.11
Granite Wall w Seat
Granite Double Wall
Granite Double Wall
719.12
Granite Seat Wall
Freestanding Granite Seat Wall
12
Granite Seat Wall
Consultant Interpretation
“Granite Seat Wall (with earth)”
“Double Wall (3/12 & 5/12)”
“Granite Seat Wall (w/o earth)”
Halvorson subjectively believed about the plans it drew at the time it drew them does not
control. “[T]he crucial question is ‘what [the claimant] would have understood as a
reasonable construction contractor,’ not what a drafter of the contract terms subjectively
intended.” Corbetta Constr. Co. v. U. S., 461 F.2d 1330, 1336 (Ct. Cl. 1972).
Halvorson’s unshared, private cost estimates said to prove Halvorson’s intent that
the Granite Double Wall was an item that included the separately referenced work of the
Granite Seat Wall was not apparent in the Contract and was never disclosed to bidders.
The Department introduced no evidence of Halvorson’s internal cost estimates at the
hearing. 11 Accordingly, Halvorson’s arguments—and the Department’s--must fail.
CONCLUSION
McCourt correctly construed the Contract Plan Details to require all payment for
the work of constructing the Freestanding Granite Seat Wall to be made under payment
item 719.12.
RECOMMENDATION
McCourt is entitled to be paid $29,280 under payment item 719.12 for the 97.6
LF of Freestanding Granite Seat Wall it built as part of the Double Granite Wall at the
bid price of $300/ LF (300 X 97.6 = $29, 280).
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
11
The Department therefore failed to explain how comparing the cost of item 719.11 (Granite Double
Wall”) and item 719.10 (“Granite Retaining Wall”) “substantiates [the] intent” that the Contract requires
that the Granite Seat Wall be paid under Item 719.11.
13