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COMMONWEALTH PENNSYLVANIA v. BRACKEN CONSTRUCTION COMPANY (03/15/83)

decided: March 15, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
BRACKEN CONSTRUCTION COMPANY, RESPONDENT



Appeal from the Order of the Board of Claims in case of Bracken Construction Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 543.

COUNSEL

George D. Wenick, Assistant Counsel, with him, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Charles R. Alexander, Alexander, Garbarino, Kooman & Kifer, for respondent.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 72 Pa. Commw. Page 621]

The Pennsylvania Department of Transportation (DOT) appeals from an order of the Board of Claims awarding Bracken Construction Company (Bracken) $28,600.00 in a contract dispute.

In 1972, after a competitive bidding process, DOT and Bracken entered into a contract for the construction of a section of Interstate 79 in Allegheny County. The project plans included several small highway bridges and specified that slabs of reinforced concrete, known as bridge approach slabs, would provide the transition from the roadway to the bridge decks. DOT had supplied the bidders with project drawings, sheets of item summaries, and DOT contract form number 408. The bids contained unit prices; for example, Bracken bid $.22 per pound for steel reinforcement bars. When DOT awarded Bracken the contract, the schedule of prices in Bracken's bid became the contract prices.

Bracken completed the project, and there is no dispute that Bracken performed the work according to the specifications. Disagreement arose when DOT refused to pay Bracken's claim for the cost of the steel reinforcement bars (rebars) which Bracken had placed in the approach slabs. Before the board, Bracken argued that DOT should pay for the rebars by the pound at the unit price bid; DOT contended that the cost of the rebars was included in the price it had paid Bracken for the approach slabs ($35 per square yard).

After a hearing, the board found that the section of the contract concerning payment for the approach slabs was ambiguous, that Bracken did not err in calculating its approach slabs bid exclusive of rebars, and that Bracken reasonably believed DOT would pay for

[ 72 Pa. Commw. Page 622]

    the rebars by the pound. The board, therefore, concluded that DOT should pay Bracken $28,600.00, the cost of the approach slab rebars at the contract price of $.22 per pound.

DOT argues here that the contract clearly required the cost of the rebars to be included in the cost of the approach slabs, for which DOT has paid Bracken the contract price. DOT contends, in the alternative, that the contract was so glaringly ambiguous that Bracken had a duty to request clarification before submitting its bid; because Bracken failed to do that, DOT argues, it cannot recover the cost of the rebars.

Following our scope of review for this type of case,*fn1 we must reject DOT's positions and affirm the order of the board.

"The function of contract interpretation and construction is a question of law peculiarly within the province of the court."*fn2 We must first look to the documents themselves, and we must give contracts "a reasonable interpretation, according to the intention of the parties at the time of ...


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