STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABCO BUILDERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1943BID

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane E. Tremor, Hearing Officer with the Division of Administrative Hearings, on June 29, 1977, commencing at 11:00 A.M. in Room 103 of the Collins Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: William L. Gary

Pennington, Wilkinson and Sauls Post Office Box 3985 Tallahassee, Florida 32303

For Respondent: Kenneth F. Hoffman

Rogers, Towers, Bailey, Jones and Gay

Post Office Box 1872 Tallahassee, Florida 32302

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. By a Form of Agreement dated August 20, 1974, between petitioner as the contractor and respondent as the owner, petitioner agreed to perform all work required by the Contract Documents for the construction of the R.A. Gray Archives, Library and Museum in Tallahassee, Florida. The Contract Documents consisted of the Form of Agreement, Conditions of the Contract, Drawings, Specifications and all Addenda and Modifications thereof. These were the documents upon which petitioner's bid was based. A portion of the Specifications and Drawings were received into evidence as petitioner's exhibits

   1 and 2.

   
   

2. Section 15C of the Specifications, Volume 2, Set No. 41, contains the provisions relating to plumbing. Paragraph 3 of Section 15C pertains to soil, waste and vent piping. Paragraph 5 concerns rain water leaders and states "Insulate as specified." Paragraph 19(d) states that:

   Rain water leaders interior to building construction shall be isolated with 1" thick glass fiber sectional rigid pipe covering with integral vapor barrier (Exhibit

   No. 2, page 15C-6)

   
   

   The specifications do not appear to call for any particular type of insulation for soil or waste pipes.

   
   

3. The legend for the plumbing drawings is contained on drawing P-1 of Exhibit No. 1. This legend illustrates that rain leaders are indicated by a symbol showing straight lines with the initials R.L. in between the lines. Soil or waste pipes are symbolized by a solid straight line.

   
   

4. The drawing relevant to the issue in this case is drawing P-17. That drawing utilizes uninitialed, solid straight lines to indicate the type of piping required. No piping is denoted, according to the legend, as rain leader piping.

   
   

5. Smith Insulation Company was petitioner's sub-subcontractor to perform the thermal insulation for the project's heating, ventilating and plumbing system. The bid price submitted by Smith was based upon the plans, specifications and drawings supplied by respondent.

   
   

6. Frank D. Smith, president of Smith Insulation Company, testified that in interpreting the drawings concerning the plumbing for the project, he relied upon the plumbing legend contained on drawing P-1 of Exhibit 1. Inasmuch as drawing P-17 had no denotation for rain leader piping, Smith interpreted the drawing to require soil and waste pipes for which no insulation was specified. Smith testified that had the items on drawing P-17 been labeled rain leader, his initial bid would have been higher. If he had included the insulation required for rain water leaders, his actual costs would have amounted to an additional

   $5,000.00 and, with overhead and profit, the amount due petitioner from respondent would be $6,199.68.

   
   

7. As a result of the mistake of Smith's superintendent, the piping in dispute on drawing P-17 was in fact initially insulated with "flexible blanket." On October 15, 1975, a site visit of the project was made and among the conditions noted on the respondent's project evaluation report was

   
   

   The contractor has insulated the storm water with flexible blanket. The specs called for rigid pipe covering. (Exhibit A)

   
   

   On October 22, 1975, Mr. Terry N. Thompson conducted a job site visit and reported in part as follows:

   
   

   3. Insulation on the rain water leaders is not in accordance with the specifications and is not acceptable. Mechanical Contractor has been advised to have the insulation removed and the specified insulation installed. (Exhibit B)

   
   

8. Smith Insulation Company removed the flexible insulation from the pipes in questions and replaced it with he specified insulation. Petitioner thereafter requested an increase in the contract price for the insulation by its

   sub-subcontractor in the amount of $6,199.68. The supervising architects for the project denied this request.

   
   

9. Among those who prepared the specifications and the drawings were Fletcher and Valenti, architects and Healy, Hargan, and Matten, consulting engineers. Mr. Terry Thompson with the Healy firm was the project coordinator. He admitted that a difference in interpretation of drawing P-17 was a possibility. Mr. Charles Robert Scott with the Fletcher and Valenti firm admitted that the failure to denote certain piping on P-17 as rain water leaders could have been an error. It was Mr. Scott's opinion, however, that it was obvious from the drawings in question that the function of the pipes in question was to receive rain water. Mr. Nathan Nadler in respondent's Bureau of Construction agreed with Mr. Scott. He felt that the obvious function of the piping system in question was to drain rain water from the plaza decks.

   
   

10. Regardless of the "obvious function" of the piping in question, the piping denoted in the drawing were soil and waste pipes. If respondent intended said piping to act as a rain water drain, drawing P-17, when interpreted in conjunction with the plumbing legend contained on P-1, is clearly erroneous.

    
    

    CONCLUSIONS OF LAW

    
    

11. It is the petitioner's contention that an ambiguity exists between the specifications and the drawings, that said ambiguity was created and caused by respondent, and that petitioner is therefore entitled to further compensation for the additional work required. Respondent contends that there is no inconsistency or ambiguity between the specifications and the drawing, as evidenced by the fact that petitioner's sub-subcontractor originally insulated the piping in dispute, albeit with the wrong material. In the alternative, respondent argues that even if there were an inconsistency or discrepancy between the specifications and the drawings, petitioner should have brought such conflict to the attention of the architect/engineer for clarification.

    
    

12. The undersigned has carefully considered the arguments of counsel as they relate to the oral and documentary evidence adduced at the hearing.

    Section 15C of the specifications clearly required a rigid-type insulation for rain water leaders. However, rain water leader piping is not denoted on drawing P-17. According to the legend on drawing P-1, the type of piping required in drawing P-17 is soil and waste pipe. Thus, it appears that the conflict herein results from a clear error in the drawings, rather than from an inconsistency or abiguity between the drawings and the specifications. The drawings and specifications were prepared for and on behalf of the respondent, and petitioner should not suffer the burden of additional expenses incurred as a result of such error. Even if the language contained in the specifications and the drawing legend, as contrasted to the symbols used in the drawing, could be said to be doubtful or ambiguous, it is a general rule of construction that such is to be construed against the party who drew the contract or chose the language used. 7 Fla. Jur., "Contracts," Section 87; Florida State Turnpike Authority v.

    Industrial Construction Company, 133 So. 2d 115 (Fla. App. 2nd, 1961).

    
    

13. The fact that Smith Insulation Company initially insulated the piping with a flexible material is not positively indicative of Smith's knowledge concerning the intention of respondent to denote rain leader piping on drawing P-17. It is equally indicative of petitioner's interpretation that the drawing called for some type of piping other than rain water leader. Petitioner was entitled to rely upon the legend provided by respondent when interpreting the

drawings and basing its bid to hereon. Having failed to denot the type of piping which required a specific type of insulation, respondent is liable to petitioner for the extra expenes involved for the additional insulation and work required. There being no evidence contrary to the amount submitted by petitioner as due, it is concluded that petitioner is entitled to further compensation in the amount of $6,199.68.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for reimbursement in the amount of

$6,199.68 be GRANTED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of August, 1977.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

William L. Gary

Pennington, Wilkinson and Sauls Post Office Box 3985 Tallahassee, Florida 32303

Kenneth F. Hoffman

Rogers, Towers, Bailey, Jones and Gay

Post Office Box 1872 Tallahassee, Florida 32302

John Barley General Counsel

Department of General Services Room 113, Larson Building Tallahassee, Florida 32304

Docket for Case No: 76-001943

Orders for Case No: 76-001943