Fortec Constructors v. U.S., 84-1579
| Decision Date | 30 April 1985 |
| Docket Number | No. 84-1579,84-1579 |
| Citation | 760 F.2d 1288 |
| Parties | 32 Cont.Cas.Fed. (CCH) 73,474 FORTEC CONSTRUCTORS, Appellant, v. The UNITED STATES, Appellee. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
David W. Mockbee, Jones, Mockbee & Bass, Jackson, Miss., argued for appellant.
George M. Beasley, III, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Sandra P. Spooner and Stephen J. McHale, Washington, D.C.
David A. Tomlinson, Engineer Trial Atty., Dept. of the Army, of counsel.
Before BENNETT, SMITH, and BISSELL, Circuit Judges.
Fortec Constructors appeals from the decision of the Armed Services Board of Contract Appeals (ASBCA or Board) sustaining a contracting officer's final decision denying Fortec's claim for an equitable adjustment. We affirm.
Fortec was awarded contract DACA63-81-C-0041 by the United States Army Engineer District of Fort Worth on December 31, 1980. This contract called for the construction of a 32,000 square foot one-story medical clinic at Fort Sam Houston, San Antonio, Texas. The clinic structure rests on a concrete distribution rib slab foundation consisting of reinforced concrete beams, exterior grade beams and interior grade beams (distribution ribs).
The project commenced on February 3, 1981. After preparing the foundation area and placing the reinforcing steel (rebar) in the exterior grade and interior distribution rib trenches, Fortec began tying the rebar on June 3, 1981, for the first 25-foot concrete pour and continued to tie the rebar and pour the slab in 25-foot pours with the eighth and final pour on July 29, 1981. On July 28, 1981, a dispute arose about the manner of installing the rebar. Fortec had installed the rebar in the interior distribution ribs so that it butted up against the exterior grade beams without extending or lapping into them. The Corps area engineer informed Fortec that the rebar was improperly placed because the interior distribution rib rebar did not overlap the exterior grade beam rebar. On September 10, 1981, the Corps directed Fortec to immediately remove the concrete at the junction of the interior distribution ribs and exterior grade beams to determine if the rebar placement complied with contract documents. Thirty-five junctions were demolished-
; only two junctions met lapping requirements.
The contract drawings, sheet S-3, sequence number 55, sections 01 and 02 and details 19 and 20, see Fortec Constructors, 84-2 BCA p 17,328, at 86,345 (1984), schematically illustrate the rebar in the distribution ribs intersecting the rebar in the exterior grade beams. Drawing sheet S-6, sequence number 58, provides two instructions of importance under the "Reinforcing Steel Notes," specifically notes 3 and 4, which provide:
3. DETAILING OF CONCRETE REINFORCEMENT AND ACCESSORIES SHALL BE IN ACCORDANCE WITH ACI 315-74.
4. REINFORCING BARS MAY BE SPLICED ONLY AS SHOWN ON THE DRAWINGS EXCEPT THAT REINFORCING DESIGNATED AS 'CONTINUOUS' MAY BE CONTACT LAP SPLICED 36 BARS DIAMETERS. LAP SPLICES OF CONTINUOUS REINFORCING SHALL BE MADE OVER SUPPORTS FOR BOTTOM BARS AND FOR INTERMEDIATE BARS AND AT MIDSPAN FOR TOP BARS. AT EXTERIOR SUPPORTS, TOP BARS SHALL BE HOOKED DOWN AND BOTTOM BARS SHALL BE HOOKED UP.
American Concrete Institute (ACI) Standard 315-74, incorporated by reference in note 3, provides the details of concrete reinforcement. The schematic illustrating the reinforcement in ACI 315-74 is shown at figure 2-9 entitled "Typical Wall Details." Two alternative structures are shown for double curtain reinforcement.
The detail on the left shows the rebar from the interior distribution rib stopping at the exterior grade beam. The detail on the right depicts the rebar from the interior distribution rib running into the exterior beam. No instruction was provided which would have enabled Fortec to select either of these two alternative reinforcement schemes.
The Board's decision reported at 84-2 BCA p 17,328 found that the drawings, notes, and details were not a model of clarity. It held that a finding of ambiguity was not necessary in order to go outside the four corners of the contract to resolve the dispute as to whether Fortec complied with the terms of the contract. It found:
[T]hat a concrete distribution rib type of foundation is commonly found in the area to provide 'continuous reinforcement' in foundations which have a tendency to deflect due to either the absorption or loss of moisture at the perimeter of buildings (findings 7, 8). Experts from both sides agreed without exception that in distribution rib type of foundations Fortec, 84-2 BCA at 86,351 (emphasis in original).
seen and found in the area, the interior rebars always lap or tie into exterior support ( 9). We conclude from the foregoing that the Government has established a prima facie case that in the locality of the construction, there is a trade practice when installing a concrete distribution rib type of foundation to lap interior rebars from the distribution ribs into the exterior grade beams.
It also found that the hook configuration at the ends of the interior rebar should have indicated to an experienced contractor that the interior rebar was to be lapped over the exterior grade beam rebar. Fortec had installed the rebar in accordance with ACI 315-74 figure 2-9 details showing the interior distribution rib rebar stopping at the exterior grade beam. The Board held that Fortec was not entitled to an equitable adjustment for having been required to demolish and reconstruct the thirty-three non-complying intersections between the interior and exterior grade beams.
OPINIONThis court has jurisdiction under 28 U.S.C. Sec. 1295(a)(10) (1982) to hear an appeal pursuant to 41 U.S.C. Sec. 607(g)(1)(A) (1982). Our standard of review is...
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