____________________________________________________ MOTION FOR SUMMARY RELIEF DENIED: January 31, 1996 ____________________________________________________ GSBCA 13238 TWIGG CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. John E. Belt, Falls Church, VA, counsel for Appellant. Kathleen M. McCartney, Office of Regional Counsel, National Capital Region, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), BORWICK, and WILLIAMS. WILLIAMS, Board Judge. On May 10, 1995, appellant Twigg Corporation (Twigg) appealed a contracting officer's final decision denying its claim for $131,516 for additional work under contract number GS-11P92MKC-0041. This matter comes before the Board on respondent General Services Administration's (GSA's) motion for summary relief. GSA contends that it is entitled to judgment as a matter of law because there are no genuine issues of material fact, and the only issue is a purely legal question of contract interpretation. Appellant opposes the motion, contending that there are genuine issues of material fact germane to the interpretation of the contract. We agree with appellant. The issue in this appeal is whether Amendment 3 removed a requirement to relocate certain electrical panels, as appellant contends, or whether that amendment simply clarified that the new electrical panels would have the same names as the existing panels without changing the relocation requirement, as respondent contends. In its motion, respondent asks us to determine as a matter of law that appellant's interpretation is unreasonable, because its interpretation is inconsistent with the amendment language and the drawings and would render the requirements in a number of drawings meaningless. Appellant contends that respondent's interpretation would render Amendment 3 superfluous because the contract clearly indicated the nomenclature of the new panels in other provisions. On the basis of the record before us, we cannot ascertain the proper interpretation of Amendment 3. Thus, we deny the motion. Findings of Fact On April 7, 1992, GSA issued invitation for bids number IDC08037 (the solicitation). The solicitation designated work for interior renovations to the GSA Central Office Building located at 18th and F Streets, N.W., Washington, D.C. Appeal File, Exhibit 3. The work included, but was not limited to: selective demolition, removal, disposal, and new construction of concrete, masonry, architectural millwork, interior finishes, phone systems, and electrical systems. The solicitation included drawings, also referred to as sheets, depicting the changes and renovations to the building. The electrical/mechanical system drawings were part of the original bid package. Appeal File, Exhibits 1, 3. The electrical/mechanical drawings included demolition notes and contained electrical panel schedules. Id., Exhibit 1. Panel schedules identified the load and size of the circuitry to be installed, as well as the general location of the panels and the purpose the panels served. Id. Sheets 9-E-70 through 9-E-80 detailed the new electrical panel schedules. Appeal File, Exhibit 1. Sheets 9-E-81 through 9-E-86 detailed the existing electrical panel schedules. Id. On May 11, 1992, GSA issued Amendment 3 to the solicitation. Appeal File, Exhibit 2. The amendment postponed the bid opening date, renamed certain panel schedules, added and deleted specifications, and included additional panel drawings 9-E-A1.1 through 9-E-A1.22. Id. The paragraph in Amendment 3 in controversy here stated: 9. Sheet 9-E-81; all panel schedules on this plan sheet are existing panels to be replaced by new panels of the same name. Sheet 9-E-81, entitled "Existing Panel Schedules," depicted the following existing electrical panel schedules: 1) basement floor northeast electrical closet, named panel BNEC, 2) ground floor southeast electrical closet, named panel GSEC, 3) basement north central electrical closet, named panel BNCC, 4) basement floor northwest electrical closet, named panel BNWC, 5) basement south central electrical closet, named panel BSCC, 6) basement southwest electrical closet, named panel BSWC, 7) basement northeast electrical closet, named panel BNEL, 8) basement southeast electrical closet, named panel BSEL, 9) basement [north] central electrical closet, named panel BNCL, 10) basement northwest electrical closet, named panel BNWL, 11) basement south central electrical closet, named panel BSCL, 12) basement southwest electrical closet, named panel BSWL. Appeal File, Exhibit 1 at 9-E-81. There were three additional "A/C" panels which depicted the existing air conditioning in the seventh floor north central electrical closet. Id. The parties agree that Sheet 9-E-81 applied to approximately ninety similarly named panels, including panels on other drawings located elsewhere in the building. Conference Memorandum (Jan. 24, 1996).[foot #] 1 There were approximately 180 panels involved on this job. Id. Sheets 9-E-52 through 9-E-60 indicated the locations of the new electrical panels at the new risers, using the nomenclature of the existing panels on Sheet 9-E-81. Appeal File, Exhibit 1. For example, Sheet 9-E-52 indicated the new location of panels BSWC, BNWL, BSCL, BSWL, BSEL, BNEL, BSCC, BNWC, BNCC, and BNEC, and Sheet 9-E-53 indicated the new location of panel GSEC. Id. Sheet 9-E-1, the cover sheet for the electrical/mechanical package, included the key to the abbreviations and symbols used in the drawings and the general demolition notes for the electrical/mechanical package. Appeal File, Exhibit 1 at 9-E-1. General Demolition Note 10 stated in part: In all demolition work in which existing electrical equipment is to be replaced by a new one, work shall be scheduled such that the new equipment is first installed and activated, loads served by the old equipment transferred to the new one before the old equipment is removed. Id. Other demolition notes directed that before the existing panels were to be removed, all existing power should have been transferred to the new power panels. Appeal File, Exhibit 1 at 9-E-6. On June 16, 1992, appellant was awarded contract number GS-11P92MKC-0041 for interior renovations to the GSA Central Office Building. Appeal File, Exhibit 4. During the course of performance, questions arose regarding the interpretation of paragraph 9 in Amendment 3. On May 20, 1994, appellant submitted Request For Information (RFI) 120: ----------- FOOTNOTE BEGINS --------- [foot #] 1 On January 22, 1996, the Board convened a conference to hear oral argument on this motion and to clarify the parties' positions. A summary of the argument is contained in the conference memorandum of January 24, 1996. ----------- FOOTNOTE ENDS ----------- 1. Item #9 - sheet 9-E-81 - all panel schedules on this plan are EXISTING PANELS to be replaced by new panels of same name. Do we remove and replace old panel at same location with new [panel] of same name as this statement states? GSA's Project Manager answered RFI 120 as follows: No. Amendment 3, sheet 9-E-81 are [sic] schedules for existing panels to be removed and replaced by new panels. Sheet 9-E-52 through 9-E-60 show new panel locations. Appeal File, Exhibit 7. On October 2, 1994, appellant disputed the project manager's response to RFI 120 and submitted an equitable adjustment claim in the amount of $131,516 for additional work for relocating the panels shown on Sheet 9-E-81. Appeal File, Exhibit 8. The claim for extra work included a letter from the electrical subcontractor which stated: I don't agree with your response in RFI 120 . . . This Amendment does change the blue prints (sheet 9-E-52 through 9-E-60) and takes precedence over them . . . Sheet 9-E-81 gives you the location of the existing panel. This Amendment does not refer you to other sections on blue prints for location. It simply states existing panel to be replaced by new one. Id. On January 17, 1995, appellant was directed to perform the work at issue at no additional cost. Appeal File, Exhibit 10. Appellant interpreted this to be a denial of its claim, and requested a final decision of the contracting officer. Id., Exhibit 11. On April 10, 1995, appellant filed the instant appeal, contending that the contracting officer's failure to reply within sixty days constituted a deemed denial of its claim pursuant to FAR 33.211(C)(2). Complaint at 9. On May 1, 1995, the contracting officer issued a final decision and denied the claim, stating in part: In reviewing the contract documents as a whole, I have concluded that [electrical subcontractor's] above statements are incorrect. The wording of the Amendment does not change the contract drawings. Nowhere in Amendment No. 3 does it reference panel "location". The location[s] of the new panels are clearly shown on contract drawings 9-E-52 through 9-E-60 in the various contract details. These details clearly locate the new location of the new panels. Note 9, Amendment No. 3, only describes how the electrical subcontractor is to label the new panels. Appeal File, Exhibit 12. Discussion Summary relief is appropriate "so long as there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law." Storage Technology Corp. v. Department of the Army, GSBCA 12626-P, 94-1 BCA 26,548, 1993 BPD 322. However, as this Board recognized in Heritage Reporting Co., GSBCA 10396, 91-1 BCA 23,379 (1990), interpretation of an ambiguous contract may require resolution of issues of fact. There, the Board cited a decision of the United States Claims Court, as follows: Although the interpretation of an unambiguous contract provision is a matter of law, where the provision of a contract is ambiguous, and parol evidence is advanced as an aid in interpretation of said provision, then the matter, a question of interpretation and conduct, becomes a question of fact, not a question of law, and summary judgment may be inappropriate. Beta Systems v. United States, 16 Cl. Ct. 219, 221 (1989). 91-1 BCA at 117,291; see also, Tera Advanced Services Corp., GSBCA 6713-NRC, 83-1 BCA 16,301, at 81,005 ("[O]nce the meaning of a given contractual provision is properly brought into dispute, we must ascertain the meaning each party intended to convey by its assent to the language of the contract. While this search for meaning need not invariably lead to a factual inquiry, it obviously tends in that direction, and as a general matter the need for a factual inquiry increases in proportion to the obscurity of the contractual scheme."). In the instant case, the meaning of Amendment 3 is squarely in dispute. The parties disagree as to whether, under Amendment 3, the electrical panels identified on Sheet 9-E-81 had to be relocated or merely replaced at the same location as the existing panels. Amendment 3 itself is silent as to the location of the panels to be replaced. Respondent seeks summary relief on the ground that appellant's interpretation that the panels merely had to be replaced at the same location as existing panels is unreasonable. We cannot so conclude on the basis of the record before us. There are genuine issues of material fact regarding the interpretation of Amendment 3. First, respondent contends that if the panels were merely replaced in existing locations and not relocated it would render other drawings and contractual provisions meaningless because they depict the new locations. Appellant admits this but contends that Amendment 3 superseded those drawings and that remaining portions of those drawings were still meaningful because they also depicted other panels (not shown on Sheet 9-E-81) which appellant acknowledges had to be relocated. Second, respondent contends that because the contract required that the new panels be in working order before the old ones were removed, it would be impossible to replace them in the exact same locations. Appellant replies that in the industry it is typical to place an existing panel in operating status on a "rack" while the new one is being installed in the existing location. Conference Memorandum (Jan. 24, 1996). Third, respondent argues that the new panels were different in size than the old panels and that under appellant's interpretation the wiring would not be long enough to fit in the new panel in the existing location in some instances. Appellant replies that it could extend the wires or install a junction box to accommodate such a problem, while respondent contends that this would be costly and constitute another change. Appellant further contends that respondent's interpretation of Amendment 3 -- that it merely clarified that the existing and new panels would have the same name -- would render Amendment 3 itself meaningless and superfluous because other portions of the contract clearly address that nomenclature. Respondent's position is that it issued this clarification in response to a bidder's question. Finally, appellant contends that its bid documents support its interpretation by showing that appellant changed its bid after Amendment 3 because it believed that the amendment removed the requirement for relocation of the panels identified on Sheet 9-E-81. Given these issues of fact surrounding the meaning of Amendment 3, summary relief is not appropriate. Decision Respondent's motion for summary relief is DENIED. ____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ STEPHEN M. DANIELS ANTHONY S. BORWICK Board Judge Board Judge