Plote Construction, Inc., R.W. Dunteman, Joint Venture v. State of Illinois

OPINION

SPRAGUE, J. THIS MATTER is before the Court on a Complaint filed by Plote Construction, Inc. and R.W. Dunteman Co., the Joint Venture (the Joint Venture) against the Illinois Department of Transportation (IDOT). In December 2009, IDOT announced a roadwork project (the Project) to take place in DuPage County involving, among other things, milling, patching, paving, and striping of the road surface. The Joint Venture prepared and submitted a bid on the Project using the IDOT form, Notice to Bidders, Specifications, Proposal, Contract and Contract Bond. It was determined to be the lowest bid and, on February 16, 2010, IDOT entered into Contract No. 60G51 (the Contract) with the Joint Venture. The Project was successfully completed, but the Joint Venture disputed the price it was paid for certain temporary pavement markings. The Joint Venture submitted a claim for additional payment that was reviewed and denied by IDOT.

The parties presented Joint Stipulations which included stipulated facts, relevant portions of the Project documents, and stipulated testimony. Claimant filed its Brief on February 10, 2017; the State filed its Response on March 10, 2017; and Claimant filed its Reply on March 24, 2017. Claimant then determined that the original stipulations concerning the quantities of temporary pavement markings installed by the Joint Venture were incorrect. The parties submitted Supplemental Joint Stipulations on May 26, 2017, containing a reduced figure for the quantities of temporary pavement markings used on the Project, and Claimant provided a revised lower figure of additional payment sought from the State. The parties presented oral arguments on June 7, 2017.

The parties agreed and stipulated that the Joint Venture discharged its duties under the Contract to install temporary pavement markings. The Supplemental Stipulations present the agreement of the parties as to the quantity of temporary pavement markings installed. The only issue presented in this case is the unit price to be paid under the Contract for installation of certain of those pavement markings.

As part of its work, the Joint Venture was required to install temporary pavement markings to delineate driving lanes on the roadway during construction. The Contract specified the use of at least two kinds of temporary markings, Wet Reflective Temporary Tape, Type III (Temporary Tape) and Epoxy Pavement Marking (Epoxy). In some instances, the Joint Venture substituted Epoxy for Temporary Tape. The dispute concerns the price that the Joint Venture [*93] should be paid for Epoxy in those instances in which the Joint Venture substituted it for Temporary Tape. Claimant maintains that the substituted Epoxy should be paid at the unit price for Temporary Tape. The State’s position is that the Joint Venture was correctly paid the unit price for Epoxy.

The Contract contains a Schedule of Prices prepared by the Joint Venture that provides estimates of the units of materials needed to complete the project and quotes prices per unit of each material. The Schedule includes estimates and prices for three different sizes of both Temporary Tape and Epoxy. The price quoted for the different sizes of Temporary Tape is roughly twice that for the comparable size of Epoxy. Both parties understood that the amounts of materials listed in the Schedule of Prices were an approximation and that payment would be based on the actual amounts of materials used.

The Contract, by its terms, incorporates IDOT Standard Specifications for Road and Bridge Construction (Standard Specifications) adopted in 2007, and supplemented in 2010 with Supplemental Specifications and Recurring Special Provisions (Special Provisions). Several provisions of the Contract, Standard Specifications, and Special Provisions are implicated in this case.

The Contract provides: “Payment to the contractor awarded the contract will be made only for actual quantities of work performed and accepted or materials furnished according to the contract.” The Standard Specifications provides: “Payment to the Contractor will be made for the actual measured quantities performed and accepted or material furnished and accepted according to the contract, and the scheduled quantities may be increased, decreased, or omitted as herein provided.” The Standard Specifications further provides: “Whenever the quantity of any pay item as given in the proposal shall be increased or decreased, payment shall be made on the basis of the actual quantity completed at the unit price for such pay item named in the proposal, except as otherwise provided in Article 104.02, or in the detailed Specifications for each class of work.”

The Standard Specifications has a provision addressing the installation of short term and temporary pavement marking in work zones:

Basis of Payment. This work will be paid for at the contract price per foot (meter) for SHORT TERM PAVEMENT MARKING or for TEMPORARY PAVEMENT MARKING of the line width specified, and at the contract unit price per square foot (square meter) for TEMPORARY PAVEMENT MARKING LETTERS AND SYMBOLS. Removal will be paid for at the contract price per square foot (square meter) for WORK ZONE PAVEMENT MARKING REMOVAL.

When temporary pavement marking is shown on the Standard, the cost of temporary pavement marking will be included in the cost of the Standard.

When Pavement Marking Tape, Type III is specified in the contract other than on a Standard, the work will be paid for at the contract unit price per foot (meter) for PAVEMENT MARKING TAPE, TYPE III of the line width specified and at the [*94] contract unit price per square feet (square meter) for PAVEMENT MARKING TAPE, TYPE III - LETTERS AND SYMBOLS.

The Special Provisions contains a provision concerning the installation of Temporary Tape:

TYPE III TEMPORARY TAPE FOR WET CONDITIONS Description: This work shall consist of furnishing, installing, maintaining, and removing Type III Temporary Pavement Marking Tape for Wet Conditions.

Type III Temporary Tape shall meet requirements of Article 1095.06 of the

Standard Specifications…

The Contractor may use Epoxy Pavement Marking in place of Type III Temporary Tape for Wet conditions at no additional cost to the contract. Epoxy Pavement Marking shall meet the requirements of Article 780.09 of the Standard Specifications. When substituted for Type III Temporary Tape for Wet Conditions, removal of Epoxy Pavement Marking shall be included in the cost of the item. Grinding the final roadway or bridge will not be permitted. Removing Epoxy Pavement Marking on the final roadway or bridge surface shall be as specified in Article 783.02 and Article 1101.12 of the Supplemental Specifications.

Basis of Payment: This work will be paid at the contract unit price per foot (meter) for WET REFLECTIVE TEMPORARY TAPE, TYPE III of the line width specified, and at the contract unit price per square foot (square meter) for WET REFLECTIVE TEMPORARY LETTERS AND SYMBOLS.

There was stipulated testimony for four witnesses. Jeffery Lamont Washington worked on the Project as a resident engineer for IDOT. According to Washington, the correct understanding of the Special Provisions is that Epoxy would be paid for at the price for Temporary Tape only if the contract did not contain a unit price for Epoxy.

Chad Patrick Murphy worked on the Project as an assistant resident engineer for HNTB, a consultant for IDOT. Murphy testified that the Joint Venture was permitted to substitute Epoxy for Temporary Tape under the terms of the Contract. According to Murphy, the parties discussed the amount the Joint Venture should be paid for substituted Epoxy throughout the duration of the Project without coming to an agreement. Murphy stated that the Special Provisions failed to specify the price that would be paid for Epoxy when substituted for Temporary Tape, but the other parts of the agreement made it clear that the substituted markings would be paid for at the lower price for Epoxy.

Russell D. Ginn worked on the Project as the Senior Construction Manager for Plote.

Ginn explained that, approximately one week before the contract was awarded, IDOT issued an addendum that gave the contractor the option of shifting traffic onto the shoulders of the [*95] roadway while it worked on the road resurfacing. By exercising this option, the Joint Venture needed less temporary pavement markings than originally estimated in the Contract, and was able to substitute Epoxy in some places where it had proposed using Temporary Tape. According to Ginn, the Special Provisions required IDOT to pay for substituted pavement markings at the higher price for Temporary Tape. Ginn stated that the changes saved IDOT money on the Contract even after paying the Joint Venture the higher unit price for the substituted markings.

Bill Stukel worked on the Project as an Estimator for Roadsafe, a subcontractor for the Joint Venture that provided the labor and materials for temporary roadway markings. Stukel testified that, under the language of the Special Provisions, IDOT owed the Joint Venture the unit price for Temporary Tape in those instances in which it substituted Epoxy.

Claimant seeks $377,961.98 (the revised number) from the State. This represents the difference in price between Wet Reflective Temporary Tape and Epoxy Pavement Marking in those areas in which the Joint Venture substituted the Epoxy for the Temporary Tape. Claimant highlights the following two sentences of the Special Provisions concerning Type III Temporary Tape for Wet Conditions:

The Contractor may use Epoxy Pavement Marking in place of Type III Temporary Tape for Wet conditions at no additional cost to the contract.

This work will be paid at the contract unit price per foot (meter) for WET REFLECTIVE TEMPORARY TAPE, TYPE III of the line width specified, and at the contract unit price per square foot (square meter) for WET REFLECTIVE TEMPORARY LETTERS AND SYMBOLS.

Claimant asserts that this language authorized the Joint Venture to substitute Epoxy as long as it would not increase the cost of the work, and provided for payment of the substituted markings at the unit price for Temporary Tape. According to Claimant, even after paying the higher price, IDOT saves $50,233.66 from the changes that the Joint Venture made to the original plan for configuring traffic during construction because the changes reduced the overall need for temporary pavement markings. Claimant argues that if there is any ambiguity in the agreement, it should be resolved against IDOT as author of the Contract. Finally, Claimant reasons that provisions giving contractors an incentive to save on materials make sense and should be encouraged because the State generally benefits from the savings as well as the contractor.

The State looks to the sections of the Contract stating that the contractor shall be paid for the actual measured quantities of materials furnished. In other words, the State contends, it is a unit price contract and nothing in the Special Provisions changes that. The phrase “at no additional cost to the contract” where there is no set cost to the contract, according to the State, can only mean at no additional cost to the contract unit price for Epoxy Pavement Marking. “The work” that will be paid at the price for Temporary Tape, the State asserts, is defined in the first sentence of the provision; it consists of “furnishing, installing, maintaining and removing Type III Temporary Pavement Marking Tape for Wet Conditions” and, thus, does not include the installation of Epoxy Pavement Marking. The State concludes that there is no ambiguity in the [*96] Contract regarding the price to be paid for Epoxy Pavement Marking, and Claimant is owed no additional money.

The language of the Special Provisions is clear:

1. It states the work shall consist of furnishing, installing, maintaining, and removing Type III Temporary Pavement Marking for Wet Conditions.

2. It states Epoxy Pavement Marking may be used in place of Type III Temporary Tape for Wet Conditions at no additional cost to the contract.

3. It states the basis of payment. The work will be paid at contract unit price per foot of Wet Reflective Temporary Tape Type III of the line width specified, at the contract unit price per square foot (square meter) for Wet Reflective Temporary Letters and Symbols.

The Joint Venture is not seeking to be paid the Wet Reflective Tape unit price for all Epoxy Pavement Markings it provided on the Project; rather, the Joint Venture only seeks to be compensated at the unit price for Wet Reflective Temporary Tape for the installation of Epoxy Pavement Markings in areas where the Joint Venture was allowed to substitute pursuant to an Addendum issued by IDOT just prior to the bid. The contract is clear that in this situation the Joint Venture shall be paid the unit price for Wet Reflective Tape for the installation of Epoxy Pavement Markings where the Joint Venture was allowed to substitute Epoxy Pavement Markings.

Basic rules of contract construction state that specific provisions rule over general ones, and any ambiguities in the agreement are to be construed against the party that drafted the contract. Derenski v. State, 45 Ill. Ct. Cl. 297, 301 (1992). Thus, the Special Provisions prevail over the general unit price nature of the agreement. Moreover, any uncertainties will be resolved in favor of the Joint Venture and against IDOT which prepared the Contract, the Standard Specifications and the Special Provisions. Accordingly, we find that Claimant is entitled to be paid $377,961.98 in final disposition of this claim.

However, the question of entering an award is before the Court. This Court cannot enter an award unless sufficient funds remain unexpended in the appropriation made to fund the contract. See Loewenburg/Fitch Partnership v. State, 38 Ill. Ct. Cl. 22 (1986). It is this Court’s policy in breach of contract claims to limit awards so as not to exceed the amount of funds, appropriated and lapsed, with which payment could have been made. James Cape & Sons Co. v.

State, 53 Ill. Ct. Cl. 322, 266 (2000). To do otherwise would be the same as granting a deficiency appropriation.

IT IS HEREBY ORDERED that Respondent shall file, within 21 days, a report authored by IDOT which includes fiscal information regarding the amount of funds that lapsed in the appropriation designated to pay for the underlying services related to this claim, so the Court can determine the amount to be awarded.