Kohler, Stover & Ivey v. City of Tulsa
| Decision Date | 19 July 1954 |
| Docket Number | No. 4788.,4788. |
| Citation | 214 F.2d 946 |
| Parties | KOHLER, STOVER & IVEY v. CITY OF TULSA et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ralph Elliott, Sherman, Tex. (Joe A. Moore, Odessa, Tex., J. S. Freels, Sherman, Tex., Everett S. Collins & Joe A. Moore, Sapulpa, Okl., and Freels, Elliott & Nall, Sherman, Tex., on the brief), for appellant.
R. L. Davidson, Jr. and H. M. Crowe, Jr., Tulsa, Okl., for appellees.
Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.
Kohler, Stover and Ivey, a partnership,1 brought this action against the City of Tulsa, Oklahoma,2 and certain officials of the City, seeking by a declaratory judgment, an interpretation of a "lump sum" construction contract entered into by the City and the Contractor. From an adverse judgment the Contractor has appealed.
The primary question presented is whether, under the contract, the Contractor was entitled to compensation for the excavating, hauling, placing and compacting of borrow material in addition to the "lump sum" contract price.
On December 30, 1952, the Contractor submitted to the City a proposal and bid for the construction of portions of the Turkey Mountain Sewage Treatment Plant near the junction of Mooser Creek and the Arkansas River, in accordance with plans and specifications prepared and adopted by the City and pursuant to a written notice to contractors and instructions to bidders issued by the City.
The instructions advised each prospective bidder if he had doubt as to the true meaning of any part of the plans, specifications, or other proposed contract documents he might obtain an interpretation thereof in the form of a written addendum by filing a request therefor with the City Engineer. Prior to submitting its bid, the Contractor did not make a request for such interpretation by the City Engineer of any part of the plans, specifications, or other proposed contract documents.
In its proposal, which became an integral part of the contract, the Contractor stated that it had examined the plans, specifications, general and special conditions, and other contract documents and all addenda thereto, the topography and condition of the sites of the work, and that it was acquainted with and fully understood:
"* * * (a) the extent and character of the work covered by this proposal; (b) the location, arrangement, and specified requirements of and for the proposed new structures, equipment, accessories, piping, and other miscellaneous items of work appurtenant thereto; (c) the nature and extent of the excavations to be made and the type, character, and general condition of the materials to be excavated; (d) the necessary handling and rehandling of excavated materials including the separation and replacement of top soil and the construction of fills and embankments and the consolidation thereof; * * * (f) existing and probable construction difficulties and hazards; (g) local conditions relative to labor, transportation, hauling, * * * and; (h) all other factors and conditions affecting or which may be affected by the specified work."
The Contractor, by its bid, offered:
"* * * to furnish all required materials, supplies, equipment, tools and plant; to perform all necessary labor; and to construct, erect, equip, and complete all work stipulated in, required by, and in accordance with, the contract documents hereto attached and the plans and specifications referred to therein (as altered, changed or modified by any and all addenda thereto), for * * * The Sum of $831,672."
The proposed bid was accepted by the City and the contract was entered into on January 27, 1953.
The plans showed the original land contours and final contours of the embankments and clearly and accurately reflected the quantity of fill material required to construct the embankments and the work to be done.
The contract provided that the contractor should "do all excavation work. backfilling, grading and enbankment work indicated on the drawings" or stipulated in the contract and that "this work shall include * * * the handling, storage, transportation and disposal of all excavated material; * * * any and all borrow necessary to the work and final grading and dressing of the site to the grades and elevations shown on the drawings or specified to be done." (Italics ours.)
The contract provided that the Contractor should furnish all equipment, material and labor, and, in accordance with the provisions of the contract and in conformity with the contract plans and specifications, execute, construct and complete all work included in and covered by the Contractor's proposal.
Thus, it will be seen that by the explicit terms of the proposal, which became an integral part of the contract, and the provisions of the formal contract, the work to be performed included the excavating, hauling, placing and compacting of borrow material and that the Contractor obligated himself to furnish all equipment, material and labor necessary to do such work at the "lump sum" contract price.
However, the Contractor contends other provisions of the contract require a different interpretation thereof.
The contract contained a provision with respect to unit adjustment prices, the material portion of which read:
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