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COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS HIGHWAY DEPARTMENT
BOARD OF CONTRACT APPEALS
DATE:
June 2, 2004, Item #1
CLAIM:
Bardon Trimount, Inc., aggrieved by the Massachusetts
Highway Department's denial of its claim for extra work of
cleaning and painting bridge bearings in the amount of
$39,068.37 on Contract No. 97071 appealed to Board of
Contract Appeals.
RECOMMENDATION:
The claim of Bardon Trimount, Inc.·s claim under Contract
No. 97071 to in the amount of $39,068.37 should be
denied.
FOR DEPARTMENT SECRETARY
Item # __
Date
a___________________________________________________----------
__JUtUl.2.ZlQ! ______________________________________ _
Board of Commissioners accepted recommendation to deny.
Claim is DENIED.
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A TRUE COPY-AnEST
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SECRETARY, MASS. HIGHWAY COMM.
MASS, HIGHWAY DEPARTMENT
Commonwealth of Massachusetts
Bardon Trimount, Inc. (Bardon) appeals to the Board of Contract Appeals (Board)
from the denial of the Claims Committee of the Massachusetts Highway Department
(Department or MHD) for claimed extra work of $39,068.37 incurred by its subcontractor
Renz Painting, Inc. (Renz) for cleaning and painting two bridges (Subject Bridges) in
MHD contract # 97071(Contract). Bardon/Renz1 claims that the additional work was the
blast cleaning of bridge bearings on the Subject Bridges to a near white specification and
painting the same. Statement of Claim, Attachments D & E.
I find the Bardon/Renz appeal without merit. The claim for extra work rests on an
erroneous reading of the Contract specifications. Twenty-one pages of specifications
detail the cleaning and painting work to be done on the Subject Bridges. There is a
specification titled “Cleaning In The Bearings Areas,” which expressly requires the
contractor to clean by blasting to “near white.” With respect to painting, the contractor is
directed to paint the “metal surfaces in the areas of the bearings that were cleaned.”
Bardon/Renz contends that all the above-specified work is outside the work
required under the Contract. It contends that it is only required to clean and paint “the
steel bridge rails and stringers.”
I find that the special provisions of the Contract, when construed to give effect to
all its provisions, does not support the interpretation that Bardon/Renz proposes.
I recommend that the appeal be denied.
STATEMENT OF THE CASE
On November 28, 1997 Bardon notified Mr. McCourt, MHD’s District Highway
Director in District 5, of a “request” for an extra work order of $39,068.37, enclosing an
1
The report uses the term Bardon/Renz to identify the appellant as both general contractor Bardon and
subcontractor Renz argued at the district level. Bardon is technically the appellant.
October 25, 1997 letter from Renz to it for “additional costs generated by the near white
blasting of bearing areas” on two bridges on Rte. 27, S-9-7 and S-9-8.2 On December 17,
1997 Mr. McCourt denied the claim. On February 6, 1998 Bardon appealed to the
Claims Committee, which heard the matter on May 20, 1998. On May 22, 1998 the
Claims Committee denied the claim, noting “the cleaning requirements for bearing areas”
were described in the Contract special provisions.
On or about June 9, 1998 Bardon/Renz appealed to the Board and on July 10,
1998 filed its Statement of Claim. Administrative Law Judge Peter Milano heard the
appeal on September 10, 1998 and December 5, 2002.
Present at the hearings were
Peter Milano
Isaac Machado
David Mullen
Richard Bibby
Stephen Marsden
John Gendall
Ronald Ouellette
Gerald Bernard
Mark Welch
Greg MacKenzie
Bill Renz
Chief Administrative Law Judge
Deputy Chief Counsel, MHD
Counsel, MHD
MHD, District 5 (retired)
MHD, District Area Engineer
MHD Bridge Maintenance Engineer
MHD, District 5
MHD, District 5
Bardon
Bardon
Renz Painting, Inc.
The following exhibits were admitted into evidence.
Ex. 1
Ex. 2
Ex. 3
Contract #97071
Statement of Claim
Letter of Richard Bibby 11/17/02
In July 2003 Administrative Law Judge Milano resigned before making a report
or recommendation to the Board. On November 28, 2003 Anthony E. Battelle, Esq.
2
Section 7.16 of the Standard Specifications provides that “all claims of the contractor for compensation
… must be made in writing to the Engineer within one week after the beginning of any work or the
sustaining of any damage on account of such act…..” The record does not reveal when the cleaning and
painting work was done on bridges S-9-7/8. Thus, it is impossible to determine whether Renz’s claim letter
was given to Bardon within “one week” after the work began.
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appeared for Renz through a letter to Acting Chief Administrative Law Judge John
McDonnell.
On March 1, 2004 the undersigned was appointed Chief Administrative Law
Judge. On April 8, 2004 I held a conference on the record. Present were Mr. Renz, Mr.
Battelle, Mr. MacKenzie, Mr. Machado and myself. I asked the parties whether, in light
of the fact that Mr. Milano had resigned before a report was made to the Board, they
desired to have the appeal reheard or a report and recommendation made on the existing
administrative record. The parties stated they were content to have the undersigned make
a report and recommendation to the Board.
FINDINGS OF FACT
Substantial evidence in the record, consisting of tape recorded testimony and the
three exhibits admitted by Judge Milano, supports the following findings of fact, which I
recommend the Board adopt.
1.
Bardon is the contractor on MHD Contract #97071 for resurfacing and
bridge repair and painting work on I-95 in Norwood, Sharon and Walpole.
Renz was a subcontractor to Bardon for bridge cleaning and painting
work.
2.
The Bardon/Renz appeal to the Board originates from a dispute about
which of two separate statements of “scope of work” in the special
provisions of the Contract governs the cleaning and painting work on two
bridges over I-95 in Sharon, known as S-9-7 & S-9-8 (Subject Bridges).
3.
With respect to the Subject Bridges the special provisions provide
[Payment] Item 106.317
S-9-7/8 LUMP SUM
3
CLEAN AND PAINT ST. BR.
4.
On June 20, 1996, 20 days prior to the submission of bids, the Department
inserted Addendum No. 4 into the Contract, which revised and restated the
special provisions governing cleaning and painting on the Subject Bridges.
5.
The special provisions in Addendum No. 4 consisted of two parts. The
first part consisted of special provisions that applied to seven bridges,
identified as [Payment] Items 106.313 – 106.319 and included the Subject
Bridges (First Part). The second part consisted of different special
provisions that applied to five different bridges, identified as [Payment]
Items 106.311 – 106.316, and did not include the Subject Bridges (Second
Part).
6.
The First Part applying to the Subject Bridges are divided into the
following sections: (1) Scope of Work [1 page]; (2) Requirements For
Protection of Workers and the Environment [12 pages]; (3) Cleaning [6
pages] ; and (4) Painting [6 pages].
7.
The “Scope of Work” in the First Part is set forth directly below pay Item
106.317 and states:
“Work under these [Payment] items [106.313 – 106.319]
includes cleaning and painting all structural steel, steel railings,
drainages systems, utility supports and steel lamp posts on the
above listed bridges with a three coat, non lead [] paint;…. The
existing structure and appurtenances are believed to be coated with
lead paint. []. (Emphasis supplied.)
8.
The special provisions in the First Part titled “Requirements For Protection
of Workers and the Environment” contain paragraphs detailing the
requirements of environmental regulations, the type of containment
system to be employed, the operational requirements for worker health
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and safety, the handing of hazardous waste, and the five written plans for
aspects of the work (paint removal, protection of air/soil, worker health,
disposal of waste and hygienist).
9.
The “Cleaning” special provisions in the First Part contains the following
paragraphs (1) general, (2) cleaning abutments and pier caps, (3) surface
preparation, (4) methods of cleaning, (5) steam cleaning SSPC-SP 1, (6)
Commercial Blast Cleaning SSPC-SP6 and (7) Cleaning in the Bearing
Areas.
10.
The paragraph referring to “steam cleaning” states that SP 1 is “required
for all areas that are to be painted unless otherwise directed by the
engineer” and that the use of SSPC SP6 “wet abrasive blasting” is strictly
regulated by the engineer.
11.
The paragraph referring to “Cleaning in the Bearing Areas” states, in part
All steel within the width of the pier caps and abutments
and a length from the end of the stringer to five (5) feet
beyond the centerline of the bearing from the top of the pier
caps and abutments to the bottom of the bridge deck, with
the exception of the intermediate pier supporting the
continuous members[,] shall receive an SSPC SP 11 Power
Tool Cleaning to Bare Metal or SSPC SP10 Near White
Blast Cleaning using wet abrasive blasting or closed
abrasive blasting with recyclables. [Emphasis added.]
12.
The “Painting” section of the First Part contain the following paragraphs
(1) general, (2) Paint System, (3) Requirements for Structural Paints, (4)
Progress Photographs and (5) Compensation.
13.
The paragraph titled “Paint System” provides in part
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The metal surfaces in the areas of the bearings that were
cleaned to an SSPC SP 120 or SPP 11 level shall first
receive a full coast of Inorganic Zinc Rich primer [].
14.
The Compensation special provision at the end of the First Part of
Addendum No. 4 provides
Compensation for this work will be at the Contract Lump
Sum price under the [Payment] Items for “Clean and Paint
Steel Bridge,” which price shall included full compensation
for all labor, equipment, [] containment and disposal ….
15.
The Second Part of Addendum No. 4 contains special provisions
governing the cleaning and painting of five other bridges (namely S-9-16;
S-9-14; S-9-14; S-9-11; S-9-9/10).
16.
Pages 2 to 6 of the Contract consist of introductory paragraphs to the 112
pages of special provisions that follow. Each of the 12 bridges in the
Contract is identified in a separate introductory paragraph titled “scope of
work.” The introductory scope of work for each of the 12 bridges consists
of numbered “bullet” phrases or sentences generally summarizing the
work.
17.
There are six numbered “bullet” sentences generally describing the work
on the Subject Bridges. Number 6 states: “Clean and paint steel bridge
rail and stringers.”
18.
The introductory “scope of work” summaries in the special provisions
contains the following “bullet” sentences with respect to bridges other
than the Subject Bridges: “Clean and paint steel bridge [S-9-9 & S-9-10]”;
“Clean and paint steel bridge[s] [S-9-11 & N-25-28 & S-9-15]”; “Clean
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and paint steel bridges [S-9-12 & S-9-13]”; “Clean and paint steel bridge
and bridge rail [S-9-14 & S-9-16 & W-3-33].”
19.
Bardon was the successful bidder on the Contract with a bid price of
$10,115,354.00. The Contract was entered into on July 23, 1996 with a
completion date of November 20, 1998.
20.
Bardon bid a lump sum $112,000 for Item 106.317: “Clean and Paint Steel
Bridge S-9-7/8,” the Subject Bridges.
DISCUSSION
The question to be decided is whether claimed extra work of $39,068.37 for
cleaning and painting the bridge bearings on the Subject Bridges was within the scope of
work specified in the contract documents or beyond the written scope of work.3
Bardon/Renz argues that the scope of work was “clean and paint steel bridge rail and
stringers” and so did not include bearings. The Department contends that the applicable
scope of work was “cleaning and painting all structural steel” which included bridge
bearings. Therefore, the Department says, the special provision titled “Cleaning In the
Bearing Areas” applied to Baron/Renz. That provision expressly required the bridge
bearings on the Subject Bridges to be cleaned to “bare metal” or “near white” before
painting because “all structural steel” was included in the applicable scope of work.
The sections of the Contract should be construed to give reasonable effect to each.
S.D. Shaw & Sons, Inc. v. Joseph Rugo, Inc., 343 Mass. 635, 640 (1962). Where the
plans and specifications show the precise material to be furnished and installed, and there
is no error or omission in the awarding authority’s specifications, the bidder is required to
3
Subcontractor Renz details costs of $35,516.70 to which general contractor Bardon adds mark ups to
yield the claimed amount of $39,068.37.
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complete the work as detailed. John F. Miller Co., Incl. v. George Fichera Construction
Corp., 7 Mass. App. Ct. 494, 498 (1979). The sub bidder is bound to perform “the exact
work described in the plans and specifications.” J. F. White Contracting v. Department
of Public works, 24 Mass. App. C. 932, 933 (1987).
I find the written specifications relating to cleaning and painting the Subject
Bridges are plain and unambiguous. They appear in detailed specifications set forth in
Addendum No. 4 and consist of twenty-one (21) pages of special provisions setting forth
a detailed scope of work, the requirements for de-leading and the protection of workers
and the environment, and detailed specifications for cleaning and painting.
The special provisions contain all specifications for seven bridges, each identified
by a “lump sum” payment item number. With respect to the two Subject Bridges,4 the
relevant payment item states: “ITEM 106.317 CLEAN AND PAINT ST. BR. S-9-7/8
LUMP SUM.”
The “Scope of Work” specifically relating to the Subject Bridges appears next
below Payment Item 106.317 and provides in relevant part
“Work under these [above payment] items5 includes cleaning and
painting all structural steel, steel railings, drainages systems, utility
supports and steel lamp posts on the above listed bridges with a
three coat, non lead [] paint;…. The existing structure and
appurtenances are believed to be coated with lead paint. [].
(Emphasis supplied.)
Bridge bearings fall within this scope of work as structural steel. The cleaning
specifications are detailed in six pages. Steam cleaning is first “required for all areas that
4
Payment Item 106.117 refers to the bridges “S-9-7/8,” which are the Subject Bridges referred to in
Bardon/Renz’s Statement of Claim.
5
The payment items referenced are 106.313 (1 bridge); 106.314 (2 bridges); 106.317 (the 2 Subject
Bridges); 106.318 (1 bridge); and 106.319 (1 bridge). In all, seven bridges are subject to the scope of work
set forth under “these [payment] items.” The other 5 bridges within the Contract are under separate
payment items and subject to different cleaning and painting special provisions.
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are to be painted” and” shall precede all other phases of cleaning.” (Emphasis in
original.) Cleaning methods are particularly specified with reference to engineering
standards, namely SSPC –SP 1 SSPC – SP 6, SSPC SP 10, and SSPC PS 11. Particular
cleaning methods and standards are required for particular areas.
A detailed specification governing “Cleaning In the Bearing Areas” provides:
All steel within the width of the pier caps and abutments and a
length from the end of the stringer to five (5) feet beyond the
centerline of the bearing from the top of the pier caps and
abutments to the bottom of the bridge deck, with the exception of
the intermediate piers supporting continuous members shall
receive an SSPC-SP 11 Power Tool Cleaning To Bare Metal or
SSPC SP 10 Near White Blast Cleaning using wet abrasive
blasting or closed abrasive blasting with recyclables.
I find that the Contract specifications plainly and unambiguously require cleaning
and painting of the bridge bearings of the Subject Bridges. Bridge bearings are within the
meaning of “all steel” in the specification. My conclusion is supported by a fair reading
of all twenty-one pages of special provisions relating to Payment Item 106.317, giving a
reasonable effect to each.
The detailed scope of work set forth next below payment item 106.317 includes
within its meaning bridge bearings. Thus, with respect to the Subject Bridges the lump
sum bid for “clean and paint St. Br.” includes (1) “all structural steel, steel railings,
drainage system, utility supports and steel lamp posts” (2) the removal of lead paint; and
(3) the application of non lead paint. Construing the Contract to include bridge bearings
within the scope of work is consistent with the special provision requiring the cleaning of
“all steel within the pier caps and abutments,” as set forth in the specification titled
“Cleaning In The Bearing Areas.”
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The finding that work under Payment Item 106.317 unambiguously includes
cleaning and painting bridge bearings is mutually consistent with a finding that the
introductory scope of work and the more detailed scope of work are not inconsistent
when read together. The introductory scope of work is not inconsistent with the
subsequent, more detailed scope of work because cleaning and painting “steel bridge rails
and stringers” falls within the more detailed work later described. The fact that the more
detailed scope of work includes other work and by its own terms applies directly to “all
structural steel” does not make it inconsistent with the more general provision. Specific
language generally governs more general language, which is the case here. See Lembo v.
Waters, 1 Mass. App. Ct. 227 (1973).
Bardon/Renz argues, however, that the introductory scope of work of the special
provisions relating to the Subject Bridges “specifically calls for only the bridge rail and
stringers of [the Subject Bridges] to be painted with no mention of bearings.” Statement
of Claim, Attachment D. According to the contractor, where bridge bearings are to be
painted, the introductory scope of work states, “[c]lean and paint steel bridges,” a
“description that incorporates the entire bridge.” Id.
There is no merit in the Bardon/Renz contention. The introductory scope
of work, on which Bardon/Renz relies, need not specifically mention bridge bearings in
that particular place in order for that item to fall within the Contract. The critical
requirement is that the Contract provisions be read together in a consistent manner so that
reasonable effect is given to each. See Corbin On Contracts, Revised Edition Vol. 5, Sec.
24.21. As explained above, the words “clean and paint steel bridge rail and stringers”
falls within the meaning of the more detailed scope of work that plainly includes cleaning
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“all structural steel, steel railings, drainages systems, utility supports and steel lamp posts
on the above listed bridges” and painting with a “three coat, non lead [] paint….”
The principal flaw in the Bardon/Renz argument is that it construes the Contract
in a way that renders meaningless entire sections of specifications contained in the
special provisions. For example, Bardon/Renz offers no legal justification for a proposed
interpretation that reads out of the Contract the unambiguous provision titled “Cleaning
In The Bearing Areas.”6 That provision must be given some meaning—it cannot simply
be put aside. That provision is entirely consistent with the special provision “Paint
System,” which provides, in part “The metal surfaces in the areas of the bearings that
were cleaned to an SSPC 10 or SP 11 level shall first receive a full coat of [zinc primer]
[etc.]….” In short, in contradiction to the Bardon/Renz theory, the Contract construed as
a whole supports the conclusion that bridge bearings were intended to be within the scope
of work.
As a matter of law, the Bardon/Renz interpretation fails. The Contract is to be
interpreted giving effect is to be given to all its provisions. Corbin On Contracts, supra.
Judicial construction is made upon the entire contract and not on “merely disjointed parts
of it.” Id. A particular clause is not entitled to “special emphasis.” Lembo v. Waters,
supra.
The scope of a party’s obligations cannot “be delineated by isolating words and
interpreting them as though they stood alone.” Commissioner of Corporations &
Taxation v. Chilton Club, 318 Mass. 285, 288 (1945). “Words matter; but the words are
6
That special provision states, in pertinent part: “All steel within the width of the pier caps and abutments
and a length from the end of the stringer to five (5) feet beyond the centerline of the bearing from the top of
pier caps and abutment to the bottom of the bridge deck [with certain exceptions], shall receive an SSP SP
11 Power Tool Cleaning To Bare Metal or SSPC SP 10 Near White Blast Cleaning….”
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to be read as elements in a practical working document and not as a crossword puzzle.”
Fleet Nat’l Bank v. H&D Entertainment, Inc., 96 F.3d 532, 538 (1st Cir. 1996).
Bardon/Renz isolates the words “clean and paint steel bridge rails and stringers” and
interprets them to create a discrepancy where none exists.7 Its interpretation cannot be
correct since its effect is to read out of the Contract specific special provisions plainly
intended to be included.
FINDINGS
I find that a one sentence general summary of the cleaning and painting work to
be done on the two bridges does not control the interpretation of the Contract’s special
provisions. I find that cleaning and painting bridge bearings in accordance with the
special provisions is within the scope of work for the Subject Bridges.
RECOMMENDATION
The Board should adopt the findings of fact set forth.
The Board should deny the appeal of Bardon/Renz.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
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The Bardon/Renz proposed interpretation creates such a glaring inconsistency within the special
provisions that, if correct, it would qualify as the kind of obvious error that legally obligates a bidder to
seek clarification before it submits a bid. See and compare John F. Miller Co., Inc. v. George Fichera
Construction Corp., 7 Mass. App. Ct. 494, 499 (1979) with Richardson Electrical Co. v. Peter Francese &
Son, Inc.: Lenox, 21 Mass. App. Ct. 47, 52 (1985). Indeed, the Contract itself obligated Bardon to bring
supposed discrepancies to the Department’s attention. See Standard Specifications for Highways and
Bridges, 1988 ed., Subsection 5.04 (Contractor shall take no advantage of any apparent error or omission in
the plans or specifications and upon discovery shall immediately notify the engineer). Bardon’s failure to
do so binds Renz in the circumstances of this case. See Richardson Electrical Co. v. Peter Francese & Son,
Inc.: Lenox, 21 Mass. App. Ct. at page 52.
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