*1 purposes of determin- amount, CO., TURNER any, if CONSTRUCTION ing appropriate INC., Plaintiff-Appellant, through can restored restitution. We government, agree not with the howev- do er, difficulty, own, prevents that this on its STATES, recovering any Defendant-Appellee. Hansens from restitu- UNITED It inherent
tion. is the nature of No. 03-5055. merger transaction, alleged more than any mismanagement merger, after the of Appeals, United States Court impossible makes it for the Hansens Federal Circuit. “any in property return interest May 2004. [they] in exchange ha[ve] received in sub- stantially good condition as when it was ” by received Restatement [them]....
(Second) § of Contracts 384. If misman- established,
agement on their may any
Hansens be accountable for di-
minishment of character value of
property directly that can be traced However, mismanagement.
their we do think
not the Hansens’ restitution may proceed solely
claim based on
consequences merger of the transaction.
CONCLUSION above,
For the reasons forth hold set we
that the Court Federal of Claims erred
ruling on summary judgment gov- that the
ernment’s breach of was total so
toas entitle the Hansens to an award damages
restitution the amount $1
million. Accordingly, judgment fa-
vor Hansens is vacated. The case is
remanded to the Court Federal Claims. remand,
On the court will conduct further
proceedings to determine whether in this
breach case was total.
If the court determines that the breach total, it will proceedings conduct on
damages opinion. consistent this with
VACATEDAND REMANDED. *2 Braude, Margu-
Herman Braude M. & lies, DC, Washington, argued plain- tiff-appellant. him on the was With brief Lewis. Michael A. Chernigoff, Attorney, Trial
Glenn I. Branch, Litigation Divi- Commercial Civil Justice, sion, Department United States DC, Washington, argued for defendant- him Rob- appellee. With on the brief were McCallum, Jr., Attorney D. ert Associate General; Cohen, Director; M. David Snee, Bryant Of G. Assistant Director. Poirier, Attorney. counsel James W. MAYER, Judge, Before Chief LINN, Judges. NEWMAN and Circuit NEWMAN, Judge. PAULINE Circuit (Turner) ap- Turner Co. Construction peals judgment of the United States Claims,1 denying Court of Federal Tur- compensation for ner’s claim for additional in performance costs incurred of a con- with the struction contract United States (DVA). Department of Affairs Veterans judgment reverse the as to entitle- We ment, proceedings. and remand for further (2002). 1. Constr. v. United 54 Fed. Cl. 388 Co.
DISCUSSION
(Fed.Cir.1986) (a
807 F.2d
expected
contractor is
to recog
appeal
judgments
On
patent
nize
ambiguities and to inquire
Claims, plenary
Court of Federal
review is
*3
about the work to
performed).
be
The
conclusions,
given
legal
to the court’s
parties are charged with knowledge of law
findings
factual
are reviewed under the
and fact appropriate
subject matter,
to the
clearly erroneous standard. See Massa
professional
competence in
Bay
chusetts
Transp. Auth. v. United
reading and writing
presumed.
contracts is
States,
1367,
(Fed.Cir.2001);
254 F.3d
1372
See Lockheed Martin IR Imaging Sys.,
City
States,
El Centro v. United
922
of
West,
(Fed.Cir.
Inc.
319,
v.
108 F.3d
322
(Fed.Cir.1990).
816,
F.2d
819
The inter
1997).
pretation of contracts is reviewed as a
matter of law. See Seaboard Lumber Co.
The DYA and Turner entered into a
States,
(Fed.
1283,
v. United
308 F.3d
contract for construction of an addition to
Cir.2002).
govern
Contracts between the
the DVA Medical Center in Boston. While
ment
private
subject
contractors are
construction was proceeding, Turner disa-
to
general
law of contracts. See Mobil
greed with the DVA
engineer
resident
Exploration
Southeast,
Oil
Producing
&
about whether the contract required cer-
604,
Inc.
607,
v. United
530 U.S.
tain
electrical
panel-
fire-nated
2423,
(2000).
120 S.Ct.
its the drawings, nor the specify fire-rating codes for panels and electrical feed- (c) Wiring Requirements. ers. (1) Other Separation from Circuits. contrast, In drawings explicitly show safety
The life branch critical the operating room walls are fire- system shall branch However, rated. panels kept entirely independent of all feeding “PP,” designated those rooms are wiring other equipment shall designation power panels. standard boxes, raceways, not enter the same Although government argues or cabinets with each other or other designations these placed were on wiring. drawings “only wiring to show size and location, not protection requirements,” fire points out the NEC and *5 no supports argument. evidence this To provisions do not which ar- specify MSEC contrary, the drawings the same explicitly emergency system, eas are included the fire-rating show where required, is and and drawings specifica- while the panels other feeders and are designated specific emergency sys- tions are as to the (critical (emergency EP power), CP pow- tem, including which electrical circuits (life er), safety power). contrast, or LS In fire-rated, must as as the be well nature of panels feeding operating the the rooms are fireproofing to employed. the be designated (ordinary PP power panels). out points hospital also the while a Drawing As further example, 1-E37 re- require a separate emergency sys- codes to fers the feeders for the elevator control essential tem for circuits when “the normal and panels states: “PENTHOUSE interrupted electrical service is for any EMERGENCY FEEDERS SHALL reason,” require the codes do not fire- CABLE CHANGE TO MI PRIOR TO rating separate for the system. Turner THE THIRD PENETRATING FLOOR provisions states that these code relate to EMERGENCY ELECTRICAL CLOSET back-up, emergency electrical not fire-rat- 2 HR RATED WALL. PROVIDE MI CA- ing, stresses that the and neither NEC nor BLE,” desig- panels and the are elevator specifies operating the MSEC the rooms nated “Critical Power.” system as emergency or as requiring fire-rated electrical installations. designations There are numerous of fire- rating throughout drawings. the Several
The contract indeed for provides an shafts, rooms, partitions, electrical panels, emergency system, spec- and the and electrical are the closets shown on ifications/drawings show the details of the drawings operating as fire-rated. The emergency system, including portions panel room require feeders are shown the draw- fire-rated installation. The ings by requirement required and the contract to be emergen- NEC of a separate raceways cy system installed in nonflexible metal does not use of wiring system. through partitions. fire-rated for this While non-fire-rated drawings diagrams op- and for wiring MSEC fire-rated, system leg- be not place erating power panels, including it does room 1324 specified operating are not for the drawings, on the and cross-references
ends drawings fire- and designated panels, not as room indeed show these feeders legend, contain rated. transition ordi- show the from letters, room capital nary contract spec- electrical feeders. The have FIRE partitions “E” room “NO type ifications, prevail are over stated contrast, In RATING.” RESISTANCE drawings, require fire-rating do not and rooms panels elevator control panels, and disputed electrical feeders are they are housed in which do not render the applicable codes fire-rated, including specified use of MI specifications non-compliant. The Court Federal Claims found cable. reading of the contract in con- Turner’s drawings, 1 on that Note the electrical junction that of rea- with the codes was a cir- “All critical branch which states: O.R. prudent contractor. sonable See panels dedicated to cuitry should be from Co. v. 987 Blake Constr. United O.R.,” means that all (Fed.Cir.1993) 743, (determining F.2d circuitry emergency system, understanding a However, it is must be fire-rated. contractor); Firestone Tire & prudent place oper- Note 1 clear that does 195 Ct.Cl. Rubber Co. United sys- circuitry in the ating room (1971) (the court must F.2d circuitry fire- designate tem “into the of a place itself shoes ‘reasonable rated. contractor”). If prudent’ construction government states that it is error, governmental it there indeed were *6 “immaterial” that and the NEC the MSEC apparent is not from the relevant docu- require fire-ratings for operat do not ments. However, nei ing panels. room electrical that reading We conclude Turner’s specifications the contract or its ther does specifica- and on the contract reliance drawings or such materials. reasonable, drawings tions government’s position litigation government’s requirement place in drawings are error does systems fire-rated be installed additional contractor, for burden of error on change. was a material entitled no hint of error the con there is such costs recover additional incurred. Burke,
tract.
P.R.
“Contracts are viewed given meaning imputed a rea- specifications acquainted sonably intelligent clear that contractor electrical are fire-rated circumstances, regard with the involved within 10 seconds of interruption.” As design, configured, of whether perform less labelled room panel- ance, or both.” Blake Constr. Co. v. Unit potential boards had two power, sources of 743, (Fed.Cir.1993) normal commercial electricity ed 987 F.2d and an omitted). (citations emergency generator. The “An feeders at is- interpretation sue were the alternate emergency source gives meaning which to all power to the panel- room parts of a contract is preferred to one boards. The panelboards part insignificant renders of it part were Branch,” of the “Critical as de- useless.” Id. at 746-47. As we have also 517-3, fined NEC article in that they noted, interpreted contract should be “[a] were subsystem “[a] of the emergency sys- way in such a that all parts make sense” tem consisting of ... supplying Hughes interpreted when as a whole. energy to ... receptacles selected serving Galaxy Communications v. United areas and functions patient related to (Fed.Cir.1993). 998 F.2d ” Additionally, care.... the feeders and main issue boils down to whether panelboards were also of the NEC the operating panelboards and feed- definition, of System” “Essential Electrical ers were part they because system were ... “[a] system upon based specification, designed to continuity ensure of electrical drawings, incorporated FAR provi- power areas, to designated and functions sions, and the National Electrical Code aof health care facility during disruption (“NEC”). ” so, If unambigu- the contract of normal power sources.... Finally, ously required two-hour protec- 3.2.B, Section paragraph panelboards tion for the feeders and sup- that the “Essential (Emergency) raceway plying emergency power to the operating systems ... shall be either in a rated and agree room. I ruling with the trial court’s (2) approved two hour enclosure or the ” fully the contract defined the emer- (2) raceway shall be two hour rated.... gency system op- to include the definitions, The NEC set forth as mini- *7 erating panelboards and feeders. standards, mum installation combined with specification requirements make clear together, plain language When read that the panelboards feeders and at issue 1.22, of section paragraph incorpo- were “emergency system” rating “Emergency the NEC definition of was required to be fire-rated. System,” and of section 16111 mandate panelboards receive two- upon negative The court relies infer- hour protection. Section ences deduced from the contract drawings paragraph por- 1.22.C that “all to to contrary. drawing find Because tions of emergency system ... shall 1 E37 explicit makes the statements that ... be enclosed within two hour fire rated change elevator feeders “shall to MI 517-3, enclosures.” NEC article defines prior floor,” penetrating cable the third as, “Emergency System” “A system of and that “provide Turner was to 2 HR feeders and branch circuits ... intended to feeders, rated MI cable” for the elevator supply power alternate to a num- limited negative the court draws the inference of prescribed ber functions vital to the separate feeders are not protection of life and patient safety, with systems requiring electric two- automatic power restoration of electrical protection. Examining hour fire-rated contract, however, to a broad
entire leads
er, interpretation. plausible more wiring through transition
penthouse a simply third-floor was
operating room and the conduit-and-
“special condition” size, not wiring indicated designations
wire Also, Turner protection requirements.
fire fact that been alerted
should have of MI ca drawings’ references use preclude locations did not
ble for certain because section protection
two-hour fire either MI cable explicitly stated a fire-rated enclosure would two-hour Thus, if requirement. even
satisfy the inference correct — negative were
Turner’s 1E1 and 1E37 option of the conduit-and-wire
installation two-hour fire-rated not MI cable—the
protection could still have been satisfied a installation of two-hour fire-
through the
rated enclosure. COMPANY,
E.T. HORN
Plaintiff-Appellant, *8 STATES, Defendant-Appellee.
UNITED No.
Docket 03-1363. of Appeals, Court
United States
Federal Circuit.
May 2004.