Idaho Stage LLC v. United States

In the United States Court of Federal Claims
No. 16-548C
Filed: May 2, 2017
* * * * * * * * * * * * * * * * ** *
*
IDAHO STAGE LLC, *
Plaintiff, *
* Motion in Limine, Contract
v. * Interpretation; Request for Equitable
* Adjustment.
UNITED STATES, *
Defendant. *
*
* * * * * * * * * * * * * * * * ** *
John S. Stewart, Stewart, Sokol & Gray, Portland, Or., for plaintiff.
Vito Solitro, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With him was Allison
Kidd-Miller, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman,
Jr., Director, Commercial Litigation Branch, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, Department of Justice, Washington, D.C.
ORDER
HORN, J.
FINDINGS OF FACT
Before the court is defendant’s motion in limine seeking to bar plaintiff from
presenting certain evidence or argument at trial. Plaintiff, Idaho Stage, LLC, (Idaho Stage)
filed a complaint in the United States Court of Federal Claims alleging that defendant, the
United States, acting through the Department of the Navy, Naval Facilities Engineering
Command Northwest, changed the terms of the contract such that plaintiff is entitled to
an equitable adjustment. According to the complaint, the parties entered into a task order
contract, number N44255-14-D-9016, on February 26, 2015, for construction, renovation,
alteration, demolition, and repair work of facilities located on Naval Base Kitsap in the
State of Washington. The task order was awarded for a firm fixed price of $4,087,500.00.
Pertinent to the current motion in limine dispute between the parties, the contract
called for a project superintendent and a Site Safety and Health Officer (SSHO). Contract
section 1.6.2.1 describes the duties of the SSHO as follows:
The SSHO shall:
a. Conduct daily safety and health inspections and maintain a written log
which includes area/operation inspected, date of inspection, identified
hazards, recommended corrective actions, estimated and actual dates
of corrections. Attach safety inspection logs to the Contractors’ daily
production report.
b. Conduct mishap investigations and complete required reports. Maintain
the OSHA Form 300 and Daily Production reports for prime and sub-
contractors.
c. Maintain applicable safety reference material on the job site.
d. Attend the pre-construction conference, pre-work meetings including
preparatory inspection meeting, and periodic in-progress meetings.
e. Implement and enforce accepted APPs [Accident Prevention Plans] and
AHAs [Activity Hazard Analysis].
f. Maintain a safety and health deficiency tracking system that monitors
outstanding deficiencies until resolution. Post a list of unresolved safety
and health deficiencies on the safety bulletin board.
g. Ensure sub-contractor compliance with safety and health requirements.
h. Maintain a list of hazardous chemicals on site and their material safety
data sheets.
Failure to perform the above duties will result in dismissal of the
superintendent, QC [Quality Control] Manager, and/or SSHO, and a project
work stoppage.
Additional language concerning the SSHO is set forth in contract Section 01 35 26, which
explains the “GOVERNMENTAL SAFETY REQUIREMENTS” that apply to contract
performance. (capitalization in original). Contract Section 01 35 26 identifies publications
that were intended to “form a part of this specification to the extent referenced.” Section
1.5 of the contract specifications provides that, “[i]n addition to the detailed requirements
included in the provisions of this contract,” the contractor should “comply with the most
recent edition of USACE [United States Army Corps of Engineers] EM 385-1-1,” a manual
describing safety and health requirements. 1
1 The EM 385-1-1 Manual prescribes the safety and health requirements for all United
States Army Corps of Engineers activities and operations. Although the plaintiff
referenced the 2011 version of the EM 385-1-1 Manual in its Notice of Relevant
Documents submitted to the court, and plaintiff refers to the 2008 version of the EM 385-
1-1 Manual in its response to defendant’s motion in limine, the record before the court
indicates that the 2014 version of the EM 385-1-1 Manual applies to the contract at issue
in the above-captioned case. The 2014 version of the EM 385-1-1 Manual is dated “30
November 2014,” and both the solicitation and contract were issued after November 30,
2014. The solicitation was issued on December 8, 2014, and the contract was issued on
February 26, 2015. Accordingly, the court refers to the EM 385-1-1 Manual dated
November 30, 2014.
2
With regard to the SSHO, the contract states at Section 01 35 26:
The SSHO must meet the requirements of EM 385-1-1 section 1 and ensure
that the requirements of 29 CFR 1926.16 are met for the project. Provide a
Safety oversight team that includes a minimum of one (1) person at each
project site to function as the Site Safety and Health Officer (SSHO). The
SSHO or an equally-qualified Designated Representative/alternate shall be
at the work site at all times to implement and administer the Contractor’s
safety program and government-accepted Accident Prevention Plan. The
SSHO’s training, experience, and qualifications shall be as required by EM
385-1-1 paragraph 01.A.17, entitled SITE SAFETY AND HEALTH
OFFICER (SSHO), and all associated sub-paragraphs.
(capitalization in original).
The EM 385-1-1 Manual sets forth SSHO requirements at section 01.A.17.
According to section 01.A.17 of the EM 385-1-1 Manual, the contractor is required to
“employ a minimum of one CP [Competent Person] at each project site to function as the
SSHO (primary), depending on job complexity, size and any other pertinent factors.”
Additionally, section 01.A.17 states:
a. The SSHO shall:
(1) Be a full-time responsibility. The SSHO shall be present at the project
site, located so they have full mobility and reasonable access to all major
work operations during the shift.
(2) Be an employee other than the supervisor, unless specified differently
in the contract and coordinated with the local SOH Office, and
(3) Report to a senior project (or corporate) official.
(emphasis in original). Separate from section 01.A.17 of the EM 385-1-1 Manual,
Appendix Q of the EM 385-1-1 Manual sets forth “Definitions,” in which the SSHO is
defined as “the superintendent or other qualified or competent person who is responsible
for on-site safety and health.” Unlike for the SSHO position, neither the contract, nor the
EM 385-1-1 Manual, indicates whether the project superintendent position should be
considered a full-time responsibility. Moreover, the Appendix Q “Definitions” section of
the EM 385-1-1 Manual defines the SSHO as “the superintendent or other qualified or
competent person who is responsible for on-site safety and health,” suggesting the
possibility of dual roles.
According to plaintiff, Idaho Stage’s proposal, which was accepted by the
government, for the contract award, assumed that the project superintendent also could
serve as the SSHO. Only after the contract was awarded to plaintiff, and after a
preconstruction conference was held, plaintiff submitted a request for information to
defendant which indicated that “Idaho Stage planned for the Project Superintendent serve
[sic] as the SSHO.” Plaintiff explained to defendant that it understood that the contract
specifications did not preclude the project superintendent from serving as the SSHO nor,
according to plaintiff, did the contract specifications dictate that the SSHO could have no
3
other duties on the project. In its post-award request for information, plaintiff explained
that “[g]iven the project size and scope, it is very reasonable to have a Superintendent
that also serves as an SSHO.” In response to plaintiff’s request for information, defendant
explained that the project superintendent and the SSHO shall not be the same person
and that the SSHO should be an individual with no other responsibilities on the project.
After defendant ordered plaintiff to have two separate individuals fill the two
responsibilities, plaintiff submitted a certified claim for a request for equitable adjustment
seeking $155,713.00 in estimated costs that would be incurred during contract
performance as a result of “the Government’s direction to have a full time SSHO on the
project, with no other responsibilities.” According to plaintiff, defendant’s requirement that
the project superintendent and the SSHO should not be the same person constituted a
change under the changes clause of the contract. The contracting officer denied plaintiff’s
certified claim seeking an equitable adjustment in the amount of $155,713.00 in full.
Subsequently, plaintiff filed its complaint in this court seeking $155,713.42, as well as for
interest and costs.
On February 15, 2017, defendant filed a motion in limine seeking to bar plaintiff
from presenting evidence or argument at trial that plaintiff was permitted to have its project
superintendent also serve as the SSHO because such evidence or argument is precluded
by the plain language of the contract and because plaintiff had failed to inquire about the
issue prior to the proposal deadline. Plaintiff opposes defendant’s motion and argues that
there is no basis to exclude either argument or evidence that “go directly to the heart of
this dispute” as to whether the project superintendent could serve in a dual role as the
SSHO. The parties agree that the contract incorporates by reference the EM 385-1-1
Manual. The parties dispute, however, whether, under the terms of the contract, plaintiff’s
project superintendent could serve in a dual role also as the SSHO. After defendant’s
motion in limine was fully briefed, the court directed the parties to submit the contract, in
its entirety, as well as plaintiff’s proposal in response to the solicitation for the task order
contract, for the court’s review.
DISCUSSION
Defendant’s motion argues that the plain language of the contract establishes that
the SSHO position could not be held by the same person who also served as the project
superintendent. According to defendant, section 01.A.17 of the EM 385-1-1 Manual
requires that the SSHO be a full-time responsibility, which prohibits one person from
performing the functions of the SSHO and another position, and prohibits the SSHO from
being a supervisor. Defendant tries to rely on the 2014 version of section 01.A.17 of the
EM 385-1-1 Manual, which states that the “[c]ontractor shall employ a minimum of one
CP [Competent Person] at each project site to function as the SSHO (primary), depending
on job complexity, size and any other pertinent factors.” Defendant also offers additional
language from the 2014 version of the EM 385-1-1 Manual section 01.A.17, which states
that the SSHO shall “(1) Be a full-time responsibility. . . . (2) Be an employee other than
the supervisor, unless specified differently in the contract . . . and (3) Report to a senior
project (or corporate) official.” (emphasis in original).
4
Additionally, defendant points to sections 1.6.1.1 and 1.7 of the contract
specifications to support its position that the project superintendent could not serve as the
SSHO under the terms of the contract. With regard to section 1.6.1.1 of the contract,
defendant asserts that “section 1.6.1.1 requires that Idaho Stage ‘[p]rovide a Safety
oversight team that includes a minimum of one (1) person at each project site to function
as the Site Safety and Health Officer (SSHO).’” Defendant asserts that “a ‘minimum of
one’ SSHO does not permit one-half or a part-time SSHO because of a combined role
performed by one person.” Defendant finds further support for its position in section 1.7
of the contract specifications, which describes the Accident Prevention Plans (APP) and
states, “[o]nce work begins, changes to the accepted APP shall be made with the
knowledge and concurrence of the Contracting Officer, project superintendent, SSHO and
quality control manager.”
Defendant acknowledges that “APPENDIX Q” to the EM 385-1-1 Manual, titled
“Definitions,” defines SSHO as “the superintendent or other qualified competent Person
who is responsible for on-site safety and health.” (capitalization in original). Defendant
concedes that the EM 385-1-1 Appendix Q definition of SSHO “appears to permit the
parties the freedom to contract and agree to an arrangement where the superintendent
would also serve as SSHO if that is the intent of the parties.” Defendant argues, however,
“that is not what the parties to this contract agreed upon.” Defendant asserts that “the
contract specifications explicitly reference section 1 of the EM 385-1-1 manual,” but the
“contract specifications do not . . . reference the glossary [Appendix Q] definition of
SSHO” in the EM 385-1-1 Manual. According to defendant, the court should apply the EM
385-1-1 provision specifically referenced in the contract specifications, including section
01.A.17, and not the definition in Appendix Q. Defendant further asserts that, if the
Appendix Q definition of SSHO conflicts with the plain language of the contract
specification and section 01.A.17 of the EM 385-1-1 Manual, then the ambiguity was
patent and plaintiff was required to inquire about the dual roles before submitting its offer,
but failed to do so.
In response to defendant’s motion in limine, plaintiff argues that there is no
language in the contract “which in plain terms clearly and specifically states that the
Superintendent shall not serve as SSHO for the Project.” According to plaintiff, the
definition of the SSHO, as set forth in the 2011 version of Appendix Q of the EM 385-1-1
Manual, describes the SSHO as the “superintendent or other qualified or competent
person who is responsible for on-site safety and health.”2 Plaintiff relies on this definition
of the SSHO to support its position that the project superintendent could function as the
SSHO under the terms of the contract. Plaintiff asserts that the contract required the
SSHO to be a person physically present on the project site on a full time basis, however,
the contract did not prohibit that individual from also serving as the project superintendent.
Additionally, with regard to the requirement in section 01.A.17 that the SSHO be “an
employee other than the supervisor,” plaintiff asserts that a “supervisor” is distinguishable
from a project superintendent and functions at a much lower level of management than
the project superintendent. (emphasis in original).
2The definition of the SSHO is the same in the 2011 and 2014 versions of the EM 385-
1-1 Manual.
5
The dispute between the parties in this case revolves around an issue of contract
interpretation, specifically whether or not the contract permitted the project superintendent
to serve in a dual role also as the SSHO. Contract interpretation is a question of law. See
UPI Semiconductor Corp. v. Int’l Trade Comm’n, 767 F.3d 1372, 1377 (Fed. Cir. 2014)
(stating that contract interpretation is a question of law); see also First Annapolis Bancorp,
Inc. v. United States, 644 F.3d 1367, 1373 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 2102
(2012); Holland v. United States, 621 F.3d 1366, 1374 (Fed. Cir. 2010), cert. denied, 132
S. Ct. 365 (2011); H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)
(stating that matters of contract interpretation are questions of law); Dalton v. Cessna
Aircraft Co., 98 F.3d 1298, 1305 (Fed. Cir.), reh’g denied and en banc suggestion declined
(Fed. Cir. 1996); Eden Isle Marina, Inc. v. United States, 113 Fed. Cl. 372, 483 (2013)
(quoting Varilease Tech. Group, Inc. v. United States, 289 F.3d 795, 798 (Fed. Cir. 2002));
C.W. Over & Sons, Inc. v. United States, 54 Fed. Cl. 514, 520 (2002).
Contract interpretation starts with an analysis of the language of the written
agreement. See Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 824 (Fed.
Cir. 2010), cert. denied, 131 S. Ct. 997 (2011); LAI Servs., Inc. v. Gates, 573 F.3d 1306,
1314 (Fed. Cir.), reh’g denied (Fed. Cir. 2009); Barron Bancshares, Inc. v. United States,
366 F.3d 1360, 1375 (Fed. Cir. 2004); Foley Co. v. United States, 11 F.3d 1032, 1034
(Fed. Cir. 1993); Eden Isle Marina, Inc. v. United States, 113 Fed. Cl. at 483–84;
Bell/Heery v. United States, 106 Fed. Cl. 300, 309 (2012), aff’d, 739 F.3d 1324 (Fed. Cir.
2014), reh’g and reh’g en banc denied (Fed. Cir. 2014); Sterling, Winchester & Long,
L.L.C. v. United States, 83 Fed. Cl. 179, 183 (2008), aff’d, 326 F. App’x 568 (Fed. Cir.
2009). The United States Court of Appeals for the Federal Circuit stated in Massie v.
United States:
In interpreting a contract, “[w]e begin with the plain language.” “We give the
words of the agreement their ordinary meaning unless the parties mutually
intended and agreed to an alternative meaning.” In addition, “[w]e must
interpret the contract in a manner that gives meaning to all of its provisions
and makes sense.’”
Massie v. United States, 166 F.3d 1184, 1189 (Fed. Cir. 1999) (quoting McAbee Constr.,
Inc. v. United States, 97 F.3d 1431, 1435, reh’g denied and en banc suggestion declined
(Fed. Cir. 1996); Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998)
(internal citations omitted)); Jowett, Inc. v. United States, 234 F.3d 1365, 1368 (Fed. Cir.
2000) (quoting McAbee Constr., Inc. v. United States, 97 F.3d at 1435; Harris v. Dep’t of
Veterans Affairs, 142 F.3d at 1467); see also Shell Oil Co. v. United States, 751 F.3d
1282, 1305 (Fed. Cir. 2014) (noting that a contract must be interpreted in context, giving
meaning to the document as a whole) (citing NVT Techs., Inc. v. United States, 370 F.3d
1153, 1159 (Fed. Cir. 2004); Metric Constructors, Inc. v. Nat’l Aeronautics & Space
Admin., 169 F.3d 747, 752 (Fed. Cir. 1999)); McHugh v. DLT Solutions, Inc., 618 F.3d
1375, 1380 (Fed. Cir. 2010); Giove v. Dep’t of Transp., 230 F.3d 1333, 1340–41 (Fed.
Cir. 2000) (“In addition, we must interpret the contract in a manner that gives meaning to
all of its provisions and makes sense. Further, business contracts must be construed with
business sense, as they naturally would be understood by intelligent men of affairs.”)
6
(citations omitted); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)
(indicating that a preferable interpretation of a contract is one that gives meaning to all
parts of the contract rather than one that leaves a portion of the contract “useless,
inexplicable, void, or superfluous”); Marquardt Co. v. United States, 101 Fed. Cl. 265, 269
(2011) (“In interpreting contractual language, the court must give reasonable meaning to
all parts of the contract and avoid rendering portions of the contract meaningless.”
(citation omitted)); Enron Fed. Solutions, Inc. v. United States, 80 Fed. Cl. 382, 393 (2008)
(“[C]ontext defines a contract and the issues deriving thereof.”); Hol-Gar Mfg. Corp. v.
United States, 169 Ct. Cl. 384, 388, 351 F.2d 972, 975 (1965) (The language of the
“contract must be given that meaning that would be derived from the contract by a
reasonable intelligent person acquainted with the contemporaneous circumstances.”).
“‘“In contract interpretation, the plain and unambiguous meaning of a written agreement
controls.” The contract must be construed to effectuate its spirit and purpose giving
reasonable meaning to all parts of the contract.’” Arko Exec. Servs., Inc. v. United States,
553 F.3d 1375, 1379 (Fed. Cir. 2009) (quoting Hercules Inc. v. United States, 292 F.3d
1378, 1380–81 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2002) (quoting Craft
Mach. Works, Inc. v. United States, 926 F.2d 1110, 1113 (Fed. Cir. 1991))); see also LAI
Servs., Inc. v. Gates, 573 F.3d at 1314; Gardiner, Kamya & Assocs., P.C. v. Jackson,
467 F.3d 1348, 1353 (Fed. Cir. 2006) (citations omitted); Medlin Constr. Grp., Ltd. v.
Harvey, 449 F.3d 1195, 1200 (Fed. Cir. 2006) (reviewing the contract as a whole to
determine the meaning of relevant provisions); Hunt Constr. Grp., Inc. v. United States,
281 F.3d 1369, 1372 (Fed. Cir. 2002) (“We begin with the plain language when
interpreting a contract . . . . The contract must be considered as a whole and interpreted
to effectuate its spirit and purpose, giving reasonable meaning to all parts.” (citations
omitted)). “‘[I]t has been a fundamental precept of common law that the intention of the
parties to a contract control[s] its interpretation.’” Beta Sys., Inc. v. United States, 838
F.2d 1179, 1185 (Fed. Cir. 1988) (quoting Firestone Tire & Rubber Co. v. United States,
444 F.2d 547, 551 (Ct. Cl. 1971)); Alvin, Ltd. v. United States Postal Serv., 816 F.2d 1562,
1565 (Fed. Cir. 1987) (“In the case of contracts, the avowed purpose and primary function
of the court is the ascertainment of the intent of the parties.”); see also Flexfab, LLC v.
United States, 424 F.3d 1254, 1262 (Fed. Cir. 2005) (“[I]ntent is determined by looking to
the contract and, if necessary, other objective evidence. In the absence of clear guidance
from the contract language, the requisite intent on the part of the government can be
inferred from the actions of the contracting officer. . . .”).
In the contract at issue, neither the contract specifications nor the 2014 version of
the EM 385-1-1 Manual, which was incorporated by reference into the contract, explicitly
disallow the project superintendent from functioning as the SSHO. 3 As stated above,
Appendix Q of the EM 385-1-1 Manual defines the “Site Safety and Health Officer
3 The court reviewed the contract between the parties, as well as plaintiff’s proposal in
response to the solicitation, in order to determine whether the agreement between the
parties contained any additional references to the SSHO and the superintendent, other
than the references in the contract specifications and in the EM 385-1-1 Manual cited by
the parties. After reviewing these documents, the court confirmed that plaintiff and
defendant had identified the only relevant references to the SSHO and superintendent
positions.
7
(SSHO)” as “the superintendent or other qualified or competent person who is responsible
for on-site safety and health.” Pursuant to this definition, it appears that the
superintendent may function as the SSHO. Section 1.5 of the contract requires the
contractor to comply with the EM 385-1-1 Manual as one of several publications that “form
a part of this specification to the extent referenced.” Notwithstanding defendant’s
argument that the contract specifications do not specifically reference the definition of the
SSHO contained in Appendix Q of the EM 385-1-1 Manual, the EM 385-1-1 Manual
definitions in Appendix Q are integral to and a defining part of the provisions in the EM
385-1-1 Manual. In order to understand the duties and responsibilities of the SSHO, it
would not make sense for the court to disregard the definitions section of the EM 385-1-
1 Manual when reading and interpreting the directions in the EM 385-1-1 Manual.
As noted above, the contract specifications and the EM 385-1-1 Manual describe
the obligations and responsibilities of the SSHO, and there is no language in these
provisions stating that the person functioning as the SSHO cannot have any other duties
or responsibilities for the project. The contract specifications explain that the contractor
must provide a minimum of one person at each project site to function as the SSHO, and
that the SSHO will have multiple, daily obligations to fulfill. According to defendant,
because the EM 385-1-1 Manual provides that the SSHO shall be a “full-time
responsibility” and shall be “an employee other than the supervisor,” this precludes
another employee, including the superintendent, from spending only part of his or her
time as the SSHO. The contract, however, does not limit the functions of the SSHO to
only the specific duties set forth in the contract, and the contract specifications do not
establish that the superintendent position is a full-time responsibility. Thus, under the
terms of the contract, an individual should be allowed to serve full-time as the SSHO and
also perform additional functions as the project superintendent.
The EM 385-1-1 Manual also states pursuant to section 01.A.17, “[t]he Contractor
shall employ a minimum of one CP [Competent Person] at each project site to function
as the SSHO (primary), depending on job complexity, size, and any other pertinent
factors.” The contract does not further define the use of the term “primary.” By stating that
a person must serve in a “primary” role as the SSHO, this language appears to indicate
that the person may be permitted to perform additional functions as a secondary role. The
court also notes that, for at least one other personnel position, the contract at issue
specifically limited the individual’s ability to perform other functions. In contract Section
1.5.1, the contract specifications required the contractor to provide a Quality Control
Manager and directed that “[t]he only duties and responsibilities of the Quality Control
Manager are to manage and implement the Quality Control program on this Contract.”
This language prohibits the Quality Control Manager from performing tasks under the
contract other than those of the Quality Control Manager. This specific, limiting language
suggests that, had defendant, as the drafter of the solicitation and contract, wanted to use
similar language to disallow the SSHO from performing other duties under the contract,
defendant could have done so, but chose not to do so. That the contract uses such limiting
language with regard to one position, but not with regard to the position of the SSHO, is
evidence that the SSHO should have been permitted to perform additional functions.
8
With regard to defendant’s assertion that the project superintendent cannot serve
in a dual role as the SSHO because the EM 385-1-1 Manual states that the SSHO shall
“[b]e an employee other than the supervisor, unless specified differently in the contract,”
the court refers to the glossary definition of the SSHO in Appendix Q of the EM 385-1-1
Manual. Defendant, however, points to a Merriam-Webster definition of “superintendent”
and asserts that “supervisor” is a synonym for the term “superintendent.” 4 According to
defendant, the term “supervisor” in the EM 385-1-1 Manual is not capitalized or otherwise
treated as a defined term, which should indicate that “the contract broadly proscribed
using persons on the contract otherwise performing supervisory roles as SSHO.”
Notwithstanding defendant’s argument, the definition of SSHO as provided in the EM 385-
1-1 Manual specifically states that the SSHO may be the superintendent: “the
superintendent or other qualified or competent person who is responsible for on-site
safety and health.” That defendant relies on secondary sources for a definition regarding
the term “superintendent” is not persuasive, given that the contract between the parties
provides the pertinent definition for the SSHO.
The court recognizes that the contract specifications and the EM 385-1-1 Manual
refer, in some instances, to the superintendent and to the SSHO in the same section. For
instance, Section 1.6.2.1 of the contract states that the “[f]ailure to perform the above
duties will result in dismissal of the superintendent, QC [Quality Control] manager, and/or
SSHO, and a project work stoppage.” In describing who would be required to attend the
preconstruction conference, Section 1.6.3.1 of the contract identifies “the project
superintendent, site safety and health officer, [and] quality control supervisor.” Similarly,
in describing who must sign the Accident Prevention Plan, Section 1.7 of the contract lists
the contractor, “the on-site superintendent,” and “the designated site safety and health
officer.” Additionally, Section 1.7 of the contract requires that changes to the Accident
Prevention Plan “be made with the knowledge and concurrence of the Contracting Officer,
project superintendent, SSHO and quality control manager.” These references, however,
do not establish that the project superintendent could not serve in a dual role as the
SSHO. The contract requires that each of these positions be filled and that the obligations
and responsibilities of these positions be performed, but does not address or prohibit one
individual from fulfilling more than one of the required responsibilities. It appears that the
only limitation in the contract on performing dual functions pertains to the Quality Control
Manager.
Based on a review of the contract specifications and the EM 385-1-1 Manual, and
giving meaning to all of the relevant provisions in the contract and the EM 385-1-1 Manual,
the court finds that the plain language of the contract does not prohibit the project
superintendent from serving as the SSHO. Moreover, even if the court had concluded
that the contract was ambiguous with regard to the project superintendent’s ability to
serve as the SSHO, such an ambiguity would have been considered latent and plaintiff’s
contract interpretation was reasonable, especially given defendant’s role as the drafter of
the contract. See HPI/GSA 3C, LLC v. United States, 364 F.3d 1327, 1334 (Fed. Cir.
4Defendant cites to the “Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/superintendent (2017).”
9
2004) (“The general rule is contra proferentem, which requires ambiguities in a document
to be resolved against the drafter.”). The court finds that, in this case, any possible
ambiguity would have been found not so “obvious, gross, [or] glaring” that plaintiff was
obligated to inquire about it prior to submitting its proposal for the contract. See West Bay
Builders, Inc. v. United States, 85 Fed. Cl. 1, 15 (2008) (“A patent ambiguity is one that
is obvious, gross, glaring, so that [the] plaintiff contractor had a duty to inquire about it at
the start.”). In this case, no ambiguity was apparent on the face of the contract.
CONCLUSION
For the reasons stated above, defendant’s motion in limine is DENIED. The court
will schedule a status conference to discuss further proceedings in the above-captioned
case by separate Order.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
10