December 23, 1994
Appeal of
HARRIS CONSTRUCTION CO., INC.
Under Contract No. 059984-92-B-0037
PSBCA No. 3527
APPEARANCE FOR APPELLANT:
Ron Krum
APPEARANCE FOR RESPONDENT:
Robert E. O'Connell, Esq.
OPINION OF THE BOARD
Appellant, Harris Construction Company, on behalf of its subcontractor, Tim Larson Glass, has appealed the Contracting Officer's decision denying its claim for additional work performed in connection with the construction of the Clinter Station, Fresno, California. Appellant's claim relates to the installation of exterior windows in the workroom and lunchroom areas of the building. Both entitlement and quantum are at issue.
FINDINGS OF FACT
1. On May 5, 1992, the parties entered into Contract No. 059984-92-B-0037 for the construction of the Clinter Station in Fresno, California. Appellant entered into a subcontract with Tim Larson Glass ("Larson") under which Larson was to perform the contract work relating to Aluminum Entrances and Storefronts, Glazing, and Tub and Shower Doors/Enclosures contained in sections 08400, 08800, and 10820 of the contract specifications and associated drawings. (Stipulation paragraphs (Stip.) 1, 2).
2. The contract contained the following provisions relevant to this dispute:
"C.6 SHOP DRAWINGS, COORDINATION DRAWINGS, AND SCHEDULES
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f. Except as otherwise provided in paragraph g below, approval of drawings and schedules will be general and may not be construed as--
1. Permitting any departure from the contract requirements;
2. Relieving the contractor of responsibility for any errors, including details, dimensions and materials; or
3. Approving departures from full-size details furnished by the contracting officer.
g. If drawings or schedules show variations from the contract requirements because of standard shop practice or for other reasons, the contractor must describe the variations in the letter of transmittal.... If the contractor fails to describe these variations, it will not be relieved of the responsibility for executing the work in accordance with the contract, even though the drawings or schedules have been approved. (Appeal File Tab (AF) 1).
3. The contract specifications contained the following relevant provisions related to shop drawings:
"Section 01040 - Submittals
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1.02 Shop Drawings and Related Data
The approval of the drawings by the contracting officer must not be construed as a complete check but indicates only that the general method of construction and detailing is satisfactory....
Section 01300 - Submittals
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1.06 I.2 The Contractor shall not be relieved of responsibility for any deviation from the requirements of the Contract Documents by the Architect's approval of Shop Drawings ... unless the Contractor has specifically informed the Achitect [sic] in writing of such deviation at the time of submission and the Architect has given written approval to the specific deviation. The Contractor shall not be relived [sic] from responsibility for errors or omissions in the Shop Drawings ... by the Architect's approval thereof." (Id.).
4. During contract performance, a dispute arose between Appellant and Respondent concerning the interpretation of the contract requirements for four-foot high windows installed by Larson in the workroom and lunchroom areas (Stip. 5). The dispute was whether the contract drawings required the installation of both horizontal mullions and burglar bars in those windows, as contended by Respondent, or just burglar bars, as contended by Appellant.[1] The dispute arose after Larson had already installed the windows with burglar bars only.
5. In developing his company's bid on this job for Appellant, Tim Larson referred primarily to the contract drawings and especially to the various notes and details on those drawings. He first referred to drawing A5-1, which contained exterior building elevations -- i.e., views of the four sides of the building as seen from the outside. On those elevations, double lines represented the window frames and vertical mullions. Also drawn on each window were three, equally-spaced, single horizontal lines -- breaking the window into four horizontal sections. Adjacent to one of the windows on the south side were references to two notes that read, "08410.G 2" x 4 1/2" ALUM/1/4" GLASS STOREFRONT SYSTEM:" and "08410.K 3/4" PREFINISHED ALUMINUM BARS". Arrows from the references to these two notes pointed to the window and appeared to end on two of the horizontal lines. Mr. Larson was unable to determine from the exterior elevations alone what the horizontal lines represented. (Tr. 26-32, 56; Board Exhibit (Bd. Exh.) 1).
6. The drawings of some of the questioned windows also referenced details 26 and 27 on drawing A8-1. In at least one instance, detail 27 was also referenced in connection with a window that was not in the workroom or lunchroom. That particular reference was labeled "SIM" and "TYP." (Bd. Exh. 1).
7. Drawing A8-1, detail 26, titled "MULLION @ BURGLAR BARS," represented a horizontal "cut" of the windows in question and showed that the burglar bars were to pass through holes drilled in the vertical mullions. The detail also contained a note pointing to a burglar bar, which note read, " 3/4"Ø ALUM. BAR BETWEEN HORIZONTALS" (Id.; Tr. 26-32).
8. Detail 27, the primary detail relied on by Mr. Larson, was entitled " HORIZONTAL MULLIONS ABOVE 8' " and represented a vertical "cut" of a portion of one of the windows. Detail 27 showed the complete cross section of one horizontal mullion and a partial cross section of another above it, with an indication that they were to be installed at the 9-, 10-, and 11-foot levels. Approximately mid-way between the upper and lower mullion cross sections was the cross section of a burglar bar. A note on the drawing pointed to the burglar bar and read, " 3/4"Ø ALUM. BAR @ WORK ROOM & LUNCH ROOM." Two other notes on the drawing pointed to the complete mullion cross section. One note read, " 'SIM' CONDIT. w/OUT BURGLAR BARS." The other note read, "HORIZ. MULLIONS @ 1'-0" O.C. @ ALL GLASS ABOVE 8' ." Mr. Larson interpreted the combination of these notes to mean that mullions were to be installed at the 9-, 10-, and 11-foot levels for all windows with glass above the 8-foot level, except in the workroom and lunchroom, where burglar bars were to be substituted for the mullions. (Id.; Tr. 62).
9. Also on the drawings, but not referred to by Mr. Larson when he prepared his bid (AF-9), was an interior elevation showing two of the windows in question as viewed from the inside of the building. The elevation, "Building Section A" on drawing A6, showed a complete cross section of one of the windows in question on the east side of the building and an interior elevation of part of one of the windows on the north side. Both views showed the presence of both horizontal mullions and burglar bars in the windows. (Bd. Exh. 1; Tr. 118-121).
10. In August 1992 Larson submitted shop drawings for approval. The drawings were reviewed and approved by Respondent's Architect/Engineer (A/E), who used a stamp reading, in part:
"Fabrication, manufacture and/or construction may proceed providing the work is in compliance with the Contract Documents."
The shop drawings contained exterior elevations of all the windows, including those at issue here. In all cases, the four-foot high windows were shown with three single horizontal lines dividing them evenly. For each of the windows in the workroom and lunchroom, a note referring to one of the horizontal lines read, " 3/4 D. PRE FIN. ALUM BAR TYP. " For the windows not in the lunchroom or workroom, a note on one of the horizontal lines in each window referred to a detail that, in turn, showed the cross section of a horizontal mullion, approximately 2 inches by 4 inches. In no case did the shop drawings indicate that both mullions and 3/4-inch aluminum bars were to be installed in the same windows. (Tr. 34, 44, 45; Respondent's Exhibit 2).
11. On February 11, 1993, after the dispute arose, Respondent's A/E prepared a sketch of revised work to be performed on the workroom and lunchroom windows. The sketch did not require Appellant to remove and replace the windows that Respondent contended were improperly constructed. Instead, it required Appellant to add "mock" horizontal mullions to the inside of the windows and black stripes to the exterior of the windows in order to approximate the appearance of joints in the glass. On February 17, 1993, Respondent's A/E directed Appellant to perform the work depicted in the sketch. (Tr. 78, 148-149; Stip. 5).
12. On February 19, 1993, Appellant directed Larson to perform the work as directed by Respondent's A/E. Larson advised that it would perform the work under protest and stated its contention that it was entitled to additional compensation for the work. (Stip. 6).
13. By letter dated March 24, 1993, to Appellant, Larson requested payment in the amount of $3,813 for the installation of the extra horizontal mullions in the workroom and lunchroom. By letter dated August 17, 1993, Appellant filed a claim on behalf of Larson and requested a contracting officer's decision. The Contracting Officer denied the claim in its entirety in a decision dated October 12, 1993, and Appellant filed a timely appeal. (AF 1, 9, 14).
DECISION
Appellant's contention that it should be compensated for the additional work it performed in connection with the workroom and lunchroom windows has two main parts. First, Appellant contends that it reasonably interpreted the contract drawings and, in particular, the "'SIM' CONDIT." note on detail 27 in Drawing A8-1 (see Finding 8), to mean that either horizontal mullions or burglar bars, but not both, would be required in windows above the 8-foot level. Second, Appellant contends that it accurately reflected that interpretation in the shop drawings that it submitted and that were approved by the same Architect/Engineer who drew the original drawings.
Respondent's contention is that the contract drawings cannot be reasonably interpreted as Appellant read them. Further, Respondent relies on the contract language with respect to shop drawings (see Findings 2 and 3) to contend that Appellant was not excused by the A/E's approval from complying with the contract drawings.
Having considered the evidence and examined the contract drawings, we conclude that Appellant's interpretation of the drawings as requiring either mullions or burglar bars at the workroom and lunchroom windows was not reasonable. The dispute in this area is concentrated on detail 27 on drawing A8-1. The detail, a partial cross section, showed two mullions with a burglar bar mid-way between them. A note pointing to the burglar bar clearly stated that burglar bars were restricted to those windows located in the workroom and lunchroom. The question before us is whether the note pointing to the mullion and reading " 'SIM' CONDIT. w/OUT BURGLAR BARS" can be reasonably interpreted as argued by Appellant -- i.e., as a statement that the mullions were not required in those windows where burglar bars were to be installed. We conclude that it cannot. Appellant interprets the note to mean that the mullions were to be installed at "similar conditions without burglar bars" -- i.e., that they were to be installed only at those locations that did not have burglar bars. We consider this a strained reading of the language of the note, especially in the context of the rest of the information in the drawings. Appellant's reading is inconsistent with the wording of the other note in detail 27 that also pointed to the mullion and stated that mullions were required at 1-foot intervals in all glass above 8 feet. More importantly, Appellant's interpretation is inconsistent with drawing A6 (see Finding 9) which clearly showed that both burglar bars and mullions were required in the two workroom windows pictured. We conclude that the drawings cannot reasonably be interpreted as argued by Appellant.
Further, at the very least the information in drawing A6 should have put Mr. Larson on notice of the possibility of an inconsistency in the drawings and would, therefore, have imposed on him (and Appellant) a duty to inquire about what was actually intended. See, e.g., S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 546 F.2d 367 (1977); Ashbach Construction Co., PSBCA No. 2718, 91‑2 BCA ¶ 23,787, aff'd 960 F.2d 155 (Fed. Cir. 1992); Mark A. Carroll and Son, Inc., PSBCA No. 252, 77‑2 BCA ¶ 12,601.
The second question to be decided is the effect of the A/E's approval of the shop drawings that clearly showed Appellant intended to install only burglar bars at the windows in question. As noted in Findings 2 and 3, above, the contract contained several provisions stating that approval of shop drawings would not authorize departure from the contract requirements unless those departures had been specifically described by the contractor. In this case, there is no evidence that Appellant or its subcontractor advised Respondent of the deviations from the contract drawings or that Respondent was otherwise aware that the shop drawings contained such deviations. Under these circumstances, approval of the shop drawings may not be used by Appellant as a basis for recovery. C Construction Co., Inc., ASBCA No. 41706, 94-1 BCA ¶ 26,263; The Joseph Company, Inc., ENG BCA No. 5887, 92-3 BCA ¶ 25,075; Bick-Com Corporation, ASBCA Nos. 27258, 33615, 89-2 BCA ¶ 21,623 and cases cited therein.
The appeal is denied.
David I. Brochstein
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman
[1] The horizontal mullions were aluminum pieces, with a rectangular cross section of approximately 2 inches by 4 inches, extending the full width of the windows. A thin lip or flange on each horizontal mullion extended through the plane of the window, thereby creating a narrow horizontal joint in the glass (Tr. 67). As a result, in those window sections with three mullions installed, the four-foot high window was comprised of four separate pieces of glass.
Burglar bars were aluminum bars, 3/4-inch in diameter, also extending the full width of the windows. The burglar bars were mounted completely behind the window and, therefore, did not create any joints in the glass. As a result, in those window sections in which Larson installed only burglar bars, the four-foot high window was made up of a single piece of glass (Tr. 142). (Board Exhibit 1).