________________________________________________ MOTION FOR SUMMARY RELIEF DENIED: May 20, 1996 ________________________________________________ GSBCA 13412 CARMON CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Carmon Smith, President, Carmon Construction, Inc., Albertville, AL, appearing for Appellant. A. R. Dattolo, Office of Regional Counsel, General Services Administration, Atlanta, GA, counsel for Respondent. Before Board Judges BORWICK, WILLIAMS, and GOODMAN. WILLIAMS, Board Judge. Carmon Construction, Inc. (Carmon) has appealed a contracting officer s decision denying its claim for an equitable adjustment in the amount of $29,890.94 under a contract for the partial renovation of a federal building in West Palm Beach, Florida. At issue is whether electrical drawings provided by the Government for use in bid submission contained ambiguities regarding the extent of the electrical work to be performed. The drawings contained a scale of 1/8" = 1' but respondent reduced the drawings to half-size without altering the scale. Carmon claims that the drawings were ambiguous because its electrical subcontractor interpreted the drawings as full size, following the scale given, while the Government interpreted the drawings as half-size, and thus required the contractor to double the scale shown. The Government has filed a motion for summary relief, arguing that there is no ambiguity and no genuine issue of material fact. The Government claims that the reduction of the drawings was obvious, given their smaller than normal physical size and white border, which indicates reduced drawings, and that such a reduction clearly indicates that bidders were to double the scale on the drawings when formulating their bids. Further, the Government points out that, of the thirty-five drawings issued, only nine electrical drawings were misinterpreted. Alternatively, the Government claims that, assuming an ambiguity existed, the ambiguity was patent, not latent, thereby creating an affirmative duty on the part of Carmon to clarify the drawings before submitting its bid. On the basis of the record before us, we cannot determine the proper interpretation of these drawings. We thus deny respondent s motion for summary relief. Findings of Fact On August 26, 1994, the General Services Administration (GSA) issued solicitation number RFL-93096 for the partial renovation of the second floor and full renovation of the third floor of the Paul G. Rogers Federal Building and Courthouse in West Palm Beach, Florida. Appeal File, Exhibit 2. This project included, but was not limited to, demolition, interior construction, and mechanical, electrical, and plumbing work. Id. The solicitation was accompanied by thirty-five drawings, including drawings numbered 11.00 through 11.06 depicting the electrical work required for the project. Respondent s Supplemental Exhibit 1.[foot #] 1 The scale on these drawings was stated to be "1/8" = 1'-0." Id. However, the drawings were reduced in size by half before they were issued to the bidders so that the actual scale was 1/16" = 1'-0; the scale was not changed, and the drawings were not marked as reduced. Id.; Appeal File, Exhibit 9 at 1. The size of the blue line drawings was 14" x 21", excluding the white border. Respondent's Supplemental Exhibit 1. Six bids were received. Appeal File, Exhibit 3. Bids ranged from approximately $1.7 million to approximately $6.2 million for the entire project. Id. The record does not contain a separate breakdown of the electrical work in the bids. Id. In formulating its bid to Carmon for work as a subcontractor, Imperial Electrical of Fort Lauderdale, Inc. (Imperial) used the 1/8" scale stated on the drawings. Appeal File, Exhibit 14 at 2. On October 31, 1994, GSA awarded Carmon contract number GS-04P-94-EX-C0057 for these renovations. Appeal File, Exhibit 4 at 1. The notice to proceed was issued on November 23, 1994. Id., Exhibit 5. Within the first week of performance, Carmon's electrical subcontractor, Imperial, was told, during a job site visit by GSA's contracting officer's representative, to install ----------- FOOTNOTE BEGINS --------- [foot #] 1 As a result of a telephone conference on November 29, 1995, respondent submitted the contract drawings as Respondent's Supplemental Exhibit 1 on December 5, 1995. ----------- FOOTNOTE ENDS ----------- the electrical work using a 1/16th inch to one foot scale, rather than the 1/8th inch scale that Imperial was using. The contracting officer's representative ordered the change because the drawings had been reduced to half-size. Id., Exhibit 7 at 6. According to Imperial, during this visit, the contracting officer s representative suggested that GSA might issue a change order for the extra costs that Imperial would incur in changing from 1/8th inch scale to 1/16th inch. Id., Exhibit 14 at 1. Imperial continued to perform the contract using the 1/16th inch scale and incurred extra costs due to the additional labor and materials required to complete the work not contemplated under its bid. Id., Appeal File, Exhibit 7 at 4-5. In a January 3, 1995, letter, Carmon requested an equitable adjustment from GSA totaling $29,891 to cover its increased costs. On June 8, 1995, the contracting officer denied Carmon's claim, reasoning that reduced drawings in the construction industry denote reduced scales, a fact of which he felt Imperial should have been aware. Appeal File, Exhibit 10. The contracting officer further determined that if Imperial could not accurately identify the correct scale because it appeared ambiguous, then Imperial had the duty to inquire about the correct scale, and not to proceed while relying solely on its own interpretation. Id. On September 7, 1995, Carmon filed the instant appeal. Appeal File, Exhibit 11. On January 2, 1996, GSA filed its motion for summary relief, and on January 29, 1996, appellant submitted its opposition. Discussion A motion for summary relief can be granted only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). At issue here is whether an ambiguity existed in the bid drawings, and if so, whether that ambiguity was patent or latent. Where a provision of a contract is ambiguous and external evidence is admitted in support of a particular interpretation, a question of interpretation is no longer a question of law, but a question of fact, and if facts are in dispute, the matter is no longer amenable to summary relief. Beta Systems, Inc. v. United States, 838 F.2d 1179, 1183 (Fed. Cir. 1988); see also, Heritage Reporting Corp., GSBCA 10396, 91-1 BCA 23,379, at 117,291 (1990); Twigg Corp. v. General Services Administration, GSBCA 13238, 1996 WL 38,728. In Tera Advanced Services Corp., GSBCA 6713-NRC, 83-1 BCA 16,302, at 81,005, the Board noted the following: Under the scheme of interpretation we follow, once 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 parties agree that the drawings were reduced in size, but not marked as such. Carmon argues that the reduction in size created an ambiguity because the subcontractor could and did interpret these drawings to depict the scale displayed. GSA maintains that no ambiguity existed because the drawings were clear to other bidders, as well as to the subcontractors employed by Carmon to complete the other portions of the contract. Further, GSA contends that the drawings, which were 14" x 21" in size, had to be reduced by half since the normal industry standard for such drawings is 28" x 42" in size. However, the record does not contain probative evidence of the industry standard or evidence of the electrical work portion of the other bids. Finally, GSA argues that the graphic measures on the drawings should have put Imperial on notice that the drawings were half size. Respondent's Memorandum of Points and Authorities in Support of Motion for Summary Relief at 3. None of these arguments establishes the proper interpretation of the drawings. A factual inquiry is required to determine the reasonableness of each party's interpretation. We lack a sufficient record to determine, based upon industry practice and the conduct of other bidders, that appellant's subcontractor's interpretation was unreasonable. According to GSA, if an ambiguity exists here, it is patent, and the contractor had a duty to inquire with the Government before submitting its bid. The question of whether an ambiguity is patent or latent is a genuine issue of material fact, making summary judgment inappropriate if facts are disputed. A & K Plumbing & Mechanical, Inc. v. United States, 1 Cl. Ct. 716, 723- 24 (1983); see also, Murson Constructors, Inc., ASBCA 34538, 88-2 BCA 20,549, at 103,885 ("[the] defense of patent ambiguity involves a legal issue of contract interpretation, but that issue may not be decided in a factual vacuum; any determination must rely upon a factual predicate"). The factual inquiry into whether a patent ambiguity existed may include a determination of industry standards or the interpretation of other bidders to demonstrate what is considered reasonable. Stroh Corp. V. General Services Administration, 93-2 BCA 25,841, at 128,596, see also L. Rosenman Corp. v. United States, 390 F.2d 711, 713 (Ct. Cl. 1968) ("What constitutes a patent and glaring omission cannot, of course, be defined generally but only on an ad hoc basis by looking to what a reasonable man would find to be patent and glaring."). As this Board stated in Tera Advanced Services Corp., GSBCA 6713-NRC, 83-1 BCA 16,300, at 81,004, "[i]n an opinion on a motion for summary judgment, we do not have to get all the way to the bottom -- it is sufficient to acknowledge that on the present state of the record we cannot do so. . . . [i]f there are legitimate questions about what the contract means . . . we must make further inquiry before deciding that issue." The present case requires precisely such further inquiry. Decision Respondent's motion for summary relief is DENIED. __________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: __________________________ ________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge