Grand Enterprises, LLC v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) GRAND ENTERPRISES, LLC, ) ) Plaintiff, ) No. 21-1855C ) v. ) Filed: August 14, 2026 ) THE UNITED STATES, ) Re-issued: September 25, 2026 ∗ ) Defendant. ) ______________________________________ ) OPINION AND ORDER In this contract dispute, Plaintiff Grand Enterprises, LLC (“Grand”) asserts a claim for $6,827,242.09 in damages for its performance of a construction contract with the Department of Veterans Affairs (“VA”) to expand the parking garage at the Salt Lake City VA Medical Center in Salt Lake City, Utah. Grand seeks equitable adjustments for changes, suspensions of work, Type I differing site conditions, and breach of the covenant of good faith and fair dealing. After denial of its certified claim, Grand filed suit here under the Contract Disputes Act (“CDA”). Before the Court is the Government’s Motion for Partial Summary Judgment. The Government argues that Grand is not entitled to recover damages for work that was required by the contract and that Grand is barred from asserting claims that it released through bilateral contract modifications or that are not permitted by regulation. The Government further claims that Grand has failed to establish causation for and failed to substantiate the amount of the alleged damages. For the reasons outlined below, the Court GRANTS IN PART and DENIES IN PART the Government’s Motion. ∗ The Court issued this opinion under seal on August 14, 2026, and directed the parties to file any proposed redactions by August 21, 2026. As the parties did not propose any redactions, the Court reissues the opinion publicly in full.  I. BACKGROUND A. Statutory and Regulatory Background Before bringing a CDA action in this Court, a contractor with a contract dispute against the federal government must submit a certified claim to the contracting officer (“CO”) for decision. 41 U.S.C. §§ 7103(a)(1), 7104(b)(1). The CDA further requires “that the claim be in writing, and that the contractor certify claims over $100,000.” Northrop Grumman Computing Sys. v. United States, 709 F.3d 1107, 1112 (Fed. Cir. 2013) (citing 41 U.S.C. §§ 7103(a)–(b)). The Federal Acquisition Regulation (“FAR”) defines a claim as: “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract.” 1 FAR 2.101; see FAR 52.233-1(c). The United States Court of Appeals for the Federal Circuit has held that a CDA claim “must contain ‘a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim.’” M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (quoting Contr. Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1997)); see Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003). If the CO issues an adverse decision on the certified claim, the contractor may “bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.” 41 U.S.C. § 7104(b)(1). The contractor must file any such action within 12 months from the date it receives the CO’s decision. 1 Because a “claim” is not defined by the CDA, the Court looks to the definition supplied by the FAR. M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc)). 2 Id. § 7104(b)(3). CDA claims are reviewed de novo by the Court. Id. § 7104(b)(4); see Seaboard Lumber Co. v. United States, 903 F.2d 1560, 1562 (Fed. Cir. 1990). B. Factual Background The VA issued Solicitation No. VA259–16–R–0013 (“Solicitation”) on March 10, 2016, for the expansion of a VA Medical Center parking garage (“Project”). App. 1, ECF Nos. 31, 36, 41. 2 The Project was located at the George E. Wahlen VA Medical Center in Salt Lake City, Utah. Id. The purpose of the Project was to expand the Medical Center’s parking garage by adding one story, horizontally expanding the ground floor, and installing a new roof. App. 5. The VA awarded the contract to Grand, a small business co-owned by Todd Grandstaff and his wife, Tammy Grandstaff, on September 28, 2016. App. 2, 193 (Grandstaff Dep. Tr. at 11:15). The Statement of Work (“SOW”) sought a general contractor to “provide all labor, materials and equipment as necessary to construct a post-tension cast-in-place, concrete expansion of an existing open parking structure.” App. 5. The SOW noted the changes to be made through the expansion, such as expanding the footprint of the garage, building a new roof, and adding an additional floor to the top of the garage. Id. Contract Line Item Number (“CLIN”) 0001 of the contract indicated a firm-fixed price of $8,377,045.00. App. 6. CLIN 0001 stated that: Work will include all general construction, alterations, roads, curb, gutters, walks, grading, drainage, landscaping, mechanical, fire protection, technology and electrical work, extensions and alterations to utility systems, elevators, stairwells, rooftop equipment and, any and all necessary removal, modifications, demolition, alterations of existing structures and construction and certain other items to construct the complete project. Id. 2 For ease of reference, citations to the Appendix refer to the bates-labeled page numbers rather than the ECF page numbers. The Appendix spans two different filings: the Government’s amended appendix (pages 1–606), ECF No. 31 (sealed), and Grand’s appendix (607–1347), ECF No. 36 (sealed). The Government additionally filed a supplement to the amended appendix with its reply brief, ECF No. 41 (sealed). Citations to that supplement appear as “Suppl. App.” 3  Prior to contractors submitting bids, the VA held a site visit on March 17, 2016. See App. 143. Grand admits that its employees, Rusty Wadsworth and Brandon Wangsgaard, attended. App. 221 (Grandstaff Dep. Tr. at 39:17–19). The parties dispute whether Mr. Grandstaff personally attended. See App. 221 (Grandstaff Dep. Tr. at 39:20–22), 438 (Jimenez Dep. Tr. at 55:17–23). Michael Jimenez, who was the contracting officer’s representative (“COR”) for the VA at the time, hosted the site visit. See App. 435 (Jimenez Dep. Tr. at 12:15–20), 438 (Jimenez Dep. Tr. at 55:6–13). Mr. Jimenez testified that he invited the attendees to inspect and ride the elevator, and he offered for them to “go up on the roof in the open hatch” to “inspect” it. App. 441 (Jimenez Dep. Tr. at 58:10–11). At the site visit, contractors posed a couple of questions about extending elevator service to the new floor, and Mr. Jimenez suggested that potential bidders submit any questions online to the CO. App. 440 (Jimenez Dep. Tr. at 57:9–19). Mr. Jimenez emphasized that he did not instruct any contractor that the elevator was out of scope or already completed. App. 443 (Jimenez Dep. Tr. at 60:9–17). Upon being awarded the contract, Grand was to begin work within 10 calendar days of receiving the notice to proceed. See App. 1. The effective date of the notice to proceed—which triggered a 360-day deadline for Grand to complete the Project—was November 14, 2016. App. 224 (Grandstaff Dep. Tr. at 42:7–19). The contract thus contemplated that the construction would be complete about a year later—by November 9, 2017. Id. As described below, the Project was not substantially complete until January 17, 2020, almost two years beyond the original scheduled completion date. App. 858. Grand hired several subcontractors to complete the Project. Wadsworth Brothers completed the structural concrete work. App. 335 (Grandstaff Dep. Tr. at 153:14–17). Recon Structures completed the Project’s steel-related work. App. 335 (Grandstaff Dep. Tr. at 153:20– 4 21), 561 (Wangsgaard Dep. Tr. at 39:6–8). L&L Erection & Fabrication supported metal work in coordination with Recon Structures. App. 335 (Grandstaff Dep. Tr. at 153:20–21). Intermountain Inspectors and Bragg Crain also supported Recon’s work. App. 541, 585 (Wangsgaard Dep. Tr. at 128:3–12). BML Services, LLC worked as a plumbing subcontractor. App. 337 (Grandstaff Dep. Tr. at 155:15–16), 1169. Thyssenkrupp performed elevator work. Suppl. App. 78–79. CMT Engineering Laboratories conducted safety tests related to the soils, asphalt, concrete, masonry, grout, and structural steel. See App. 1342–43. Finally, Rodac completed roofing-related tasks including joint sealants. App. 336 (Grandstaff Dep. Tr. at 154:9–10). Grand and Rodac executed a release agreement for outstanding debts on December 22, 2020, see App. 599, but there is no evidence in the record of any other release agreements between Grand and its other subcontractors. After beginning work on the Project, Grand noticed discrepancies between the construction plans and the reality of the existing structure and began submitting Requests for Information (“RFI”) to receive guidance from the VA about how to handle these issues. App. 590–91 (Wadsworth Dep. Tr. at 12:22–13:12); see, e.g., App. 1207. Over the course of the Project, Grand submitted 239 RFIs. App. 263 (Grandstaff Dep. Tr. at 81:15–16) Grand also submitted change order requests for work that Grand believed the contract did not cover but that would be necessary to complete the Project. See App. 284 (Grandstaff Dep. Tr. at 101:6–10); see also, e.g., App. 89, 92, 95. Grand and its subcontractors submitted approximately 65 change order requests to the VA over the course of the Project. See App. 92. Several change order requests were incorporated into the contract through bilateral contract modifications, such as the adoption of Change Order Request 56 into Modification P00006 to resolve issues related to the “column bump-outs,” which are the supplemental structural supports for the garage. App. 96. Most relevant to the present dispute are Change Order Requests 32, 33, 52, and 56. The VA denied 5 Change Order Request 33, which related to the cost of lowering the roof. See App. 278–79 (Grandstaff Dep. Tr. at 96:24–97:24). Similarly, since the VA and Grand disagreed on whether extension of the elevator service was within the scope of the contract, there was no bilateral modification to resolve this issue, and Change Order Requests 32 and 52 were also denied. See App. 278–79 (Grandstaff Dep. Tr. at 96:24–97:6), 492. The Project included multiple phases. In an effort to compensate for delays in the first phase, Pour One, Grand began potholing for caissons and quickly found duct banks “directly or immediately adjacent.” App. 148. The duct banks represented, in Grand’s view, a differing site condition, and Grand submitted an RFI on March 29, 2017, for guidance on next steps. Id. During a meeting on April 5, 2017, the VA agreed to search for documentation related to any prior work on the existing duct banks. Id. Grand’s subcontractor, Wadsworth Brothers, and Guidon, the VA’s Architect of Record, went back and forth with proposed drawings in May 2017. Id. In mid-June 2017, Grand—in consultation with Wadsworth Brothers—decided to proceed with placing footings and columns at the location it had identified, as it had not heard from the VA. Id. Over the course of the Project, the issues that Grand experienced resulted in numerous delays as Grand and the VA corresponded through RFIs, change order requests, and, in some instances, contract modifications. For instance, when Grand commenced excavation to expand the parking structure during Phase Four, it discovered problems with the existing footings. App. 149. Grand submitted seven RFIs between June 22, 2017, and August 2, 2017, regarding the issues with the Phase Four footings. Id. Another source of delay and dispute was the extension of elevator service. The SOW instructed that the expansion of the parking garage would utilize the existing elevator. App. 5. Thus, to make the new top floor of the parking garage accessible, the existing elevator needed to 6 be extended. The parties dispute whether the scope of CLIN 0001 required Grand to deliver that elevator extension as part of the contract. Compare App. 151, with App. 851. The parties also dispute whether the pre-bid site visit on March 17, 2016, included access to the elevator area. Compare App. 151, with App. 438–39 (Jimenez Dep. Tr. at 55:14–56:7). Grand subsequently entered into a payment plan with Thyssenkrupp to pay the cost of the elevator work (approximately $281,000) over time. App. 404–05 (Grandstaff Dep. Tr. at 222:20–223:15); Suppl. App. 78–79. Additional delays occurred due to disagreements regarding the appropriate level of mechanical roughing required of the shear walls and who was responsible for that work. See App. 860. On November 6, 2017, the VA informed Grand via letter that Grand was “required to hire a structural engineer to design a remedy to account [f]or the structural support loss” caused by Grand’s failure to sufficiently roughen the footing of the shear wall. Id. Grand and its subcontractor, Wadsworth Brothers, responded to the letter denying the VA’s assertion and requesting proof that the work was not performed correctly. Id. Grand excavated the footing with the CO and COR present on December 5, 2018, which is when the CO and COR determined that the footing was not properly roughened. Id. Grand maintained its position that the work had been completed correctly. Id. Grand, however, completed the work per the VA’s direction under protest. Id. Over the course of the Project, the parties agreed to multiple bilateral contract modifications, four of which are at issue in this dispute: Modifications P00002, P00003, P00005, and P00006. App. 86–88, 89–91, 92–94, 95–101. Modification P00002 increased the total contract value by $11,229.37 to incorporate “column extensions and cable barrier” into the SOW to protect and support the vehicle ramp in the garage and protect vehicles driving on the ramp. App. 86–88. Grand first discovered that there was no connection point between the existing ramp 7 and the ramp above and submitted an RFI covering construction of that connection on January 23, 2017. App. 143. The modification became effective on November 13, 2017, and did not include an extension of the contract period. App. 86–88. Modification P00003 increased the total contract value by $37,990.85 and extended the contract period by 10 calendar days. App. 89. The modification incorporated Change Order Requests 4, 5, 6a, 10b, 11a, 11b, 12, 16, 18, 22, 23, 25, 36, 41, 44, and 49. Id. The incorporated requests related to unforeseen site conditions and design omissions, including removing and replacing cracked asphalt, extending conduits from the “S&C switch installation project,” switching to an alternative security camera, adding additional rebar layers, and cutting and connecting new footing through the retaining wall. App. 89–90. The modification became effective on August 7, 2018. App. 89. Modification P00005 increased the total contract value by $105,787.83 and extended the contract period by 37 calendar days. App. 92. The modification incorporated Change Order Requests 15a, 24, 29, 35, 53, 59, 60, 61, 62, 64, and 65. Id. These changes included expanding existing footings, adding additional roof drains, changing the pour sequence, and replacing forms in the elevator framework. App. 92–94. The modification was effective March 28, 2019. App. 92. The final modification at issue, Modification P00006, increased the total contract value by $308,979.97 and extended the contract period by 90 calendar days. App. 95. This modification primarily focused on repairs to the column bump-outs associated with Change Order Request 56. App. 95–96. Guidon, the VA’s project manager and engineer for the Project, issued final drawings addressing the bump-out fix. App. 97–101. Modification P00006 became effective June 5, 2019. App. 95. 8  Grand obtained loans and lines of credit to finance the additional costs that arose over the course of the Project. App. 174. Grand took out loans totaling $1,037,500 and incurred interest and fees amounting to $277,939.32. Id. This financing was used to fund work on the “elevator roof, lowering the roof, the extra two years [and] two months, roughly, of on-site supervision that wasn’t included, just general cost to the project.” App. 414 (Grandstaff Dep. Tr. at 232:17–19). In addition, Grand experienced fluctuations in its bonding capacity between 2016 and 2020. See App. 376–79 (Grandstaff Dep. Tr. at 194:4–197:6). Beyond the costs discussed above, Grand also allegedly incurred increased overhead costs due to the expanded scope of work and delays. See App. 172–73. Grand characterized these as “Other Direct Costs,” which included project management labor costs, field support, temporary facilities, and other items associated with the delays experienced on the Project. See App. 138, 141. Grand billed hourly rates of between $35 and $110 for its project management staff. App. 141. During the Project, Grand increased Mr. Grandstaff’s hourly rate from $85 to $110. App. 270 (Grandstaff Dep. Tr. at 88:7–10). Grand also claimed additional equipment costs, associated with its use of trucks on site, because of the Project delays. App. 140. As a result of the multiple bilateral contract modifications, including those discussed above, the modified completion date of the Project was extended to April 18, 2018. App. 95, 859. The substantial completion date of the Project did not ultimately occur until January 17, 2020. App. 858. On April 29, 2020, Grand filed a Request for Equitable Adjustment (“REA”) with the VA. See App. 104. In the REA, Grand detailed the timeline of events regarding the Solicitation, the first concrete pour, cracking and separation of column bump-outs, caissons, Phase Four footings, roof elevation, elevator, and mechanical roughing, and it requested an adjustment of $6,827,242.09 to compensate Grand for these additional costs. See App. 104–18, 138. Grand 9 attached a Change Proposal, with accompanying worksheets, to itemize its claimed costs. App. 138–42. In November 2020, the parties unsuccessfully attempted to mediate the REA with the Civilian Board of Contract Appeals. See App. 851. On December 20, 2020, Grand submitted a certified claim to the VA, requesting $6,763,423.55 because of “changes, suspensions of work, differing site conditions, breaches of the implied duty of good faith and fair dealing, and material breaches of contract.” App. 143. That claim was denied on March 24, 2021. App. 861. C. The Instant Litigation Grand filed suit in this Court on September 14, 2021. See Compl., ECF No. 1. Grand’s claim for relief, like its certified claim, includes four counts: changes, suspensions of work, differing site conditions, and breaches of the implied duty of good faith and fair dealing. Id. at 25–30. Grand seeks to recover $6,847,590.59 based on the damages calculation in its Change Proposal. 3 Id. at 25; see App. 138. Following fact and expert discovery, the Government filed a Motion for Partial Summary Judgment on October 23, 2024. See ECF No. 28. It amended the Motion with an updated appendix and updated citations to that appendix on October 25, 2024. See ECF Nos. 30, 30-1. The Government requests summary judgment on Grand’s claims related to the elevator extension work; any work covered under Modifications P00002, P00003, P00005, and P00006; direct 3 Although there was considerable dispute in the briefing about Grand’s damages calculation, Grand clarified at oral argument that its damages calculation in this case is, in fact, its Change Proposal attached to the REA. See Oral Arg. Tr. at 60:7–19, ECF No. 44. The Court notes two discrepancies, however. First, Grand’s Complaint requests damages in the amount of $6,847,590.59, whereas the amount listed in the Change Proposal is $6,827,242.09. Second, the amount Grand requested in its certified claim to the VA, $6,763,423.55, differs from the amounts Grand requested in the Complaint and the Change Proposal. It is unclear what accounts for these differences. In any event, the Court will treat the Change Proposal as the operative damages calculation. 10 subcontractor costs; financing, interest, and fees; profit; overhead costs; and certain Materials costs and Equipment costs. 4 See ECF No. 30-1 at 2–3. The Motion was fully briefed on January 24, 2025. See Pl.’s Resp., ECF No. 35; Def.’s Reply, ECF No. 40. The Court held oral argument on June 12, 2025, and the Motion is now ripe for decision. II. LEGAL STANDARD Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Rules of the United States Court of Federal Claims (“RCFC”). A fact is material when it “might affect the outcome of the suit,” and a dispute is genuine when a finder of fact may reasonably resolve factual issues in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248– 50 (1986). The moving party bears the burden of proving the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). It also “may discharge its burden by showing the court that there is an absence of evidence to support the nonmoving party’s case.” Dairyland Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994); see Celotex, 477 U.S. at 322 (holding that summary judgment against a party is appropriate where it “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). If the moving party meets its initial burden, the burden shifts to the nonmoving party to set out specific facts showing a genuine issue for trial. 4 During briefing and at oral argument, the parties made several changes to their positions. In its response brief, Grand withdrew its claim for lost profits. See Pl.’s Resp. at 40, ECF No. 35. At oral argument, Grand also withdrew its claim seeking unabsorbed office overhead, including expenses arising from its home office. See ECF No. 44 at 94:14–16. Also at oral argument, the Government withdrew its argument regarding concurrent delay, see id. at 4:18–19, and further conceded that bond insurance and contract administration costs were not appropriate for resolution on summary judgment, see id. at 28:1–6. 11 See Anderson, 477 U.S. at 250. The nonmoving party must do more than simply rely on the pleadings or make “conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). “When deciding a summary judgment motion, all of the nonmovant’s evidence is to be credited, and all justifiable inferences drawn in the nonmovant’s favor.” Ruiz v. A.B. Chance Co., 234 F.3d 654, 671 (Fed. Cir. 2000) (citing Anderson, 477 U.S. at 255); see Dairyland Power, 16 F.3d at 1202. The Court need not limit its review to materials only cited by the moving party when considering a summary judgment motion. See RCFC 56(c)(3). The Court “has discretion to consider other materials in the record when making its determination.” 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2721 (4th ed.). III. DISCUSSION The Government has demonstrated that Grand is not entitled as a matter of law to recover damages for the elevator extension work and any work covered under Modifications P00002, P00003, P00005, and P00006. However, Grand has provided sufficient argument and evidence to defeat the Government’s request for summary judgment on direct subcontractor costs; financing, interest, and fees; profit; overhead costs; and certain Materials costs and Equipment costs. A. The Scope of Elevator Work Is a Patent Ambiguity in the Contract and Thus Grand May Not Recover Damages Related to the Extension of Elevator Service. The parties dispute whether the contract required Grand to extend elevator service to the new top floor of the garage that Grand contracted to construct. Grand argues that the extension of elevator service was not a contract requirement because the terms of the Solicitation, which became the awarded contract, contained no drawing or specification associated with elevator work. See ECF No. 35 at 12–21. The Government, on the other hand, takes the position that CLIN 0001, as well as references in certain drawings in the contract, expressly required Grand to complete the 12 elevator work or, alternatively, that it was at least a patent ambiguity. See ECF No. 30-1 at 14– 19. The Court agrees with the Government’s alternative argument that the contract is patently ambiguous as to the scope of Grand’s responsibility for elevator-extension work. “Whether a contract provision is ambiguous is [] a question of law.” Premier Office Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed. Cir. 2019) (internal quotations and citations omitted). A patent ambiguity is “an obvious omission, inconsistency, or discrepancy in significance.” Beacon Constr. Co. of Mass. v. United States, 314 F.2d 501, 504 (1963). “If a contract contains a patent ambiguity, the contractor is under a duty to inquire and must seek clarification of the proper contract interpretation.” Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579–80 (Fed. Cir. 1993). The primary policy underlying the patent ambiguity doctrine is the need in government contracting to “avoid[] costly litigation after the fact.” Id. at 1580 (holding that contractor “acted at its own risk when it proceeded to perform on the contract” without clarifying a patent ambiguity). Only “glaring,” “substantial,” or “obvious” ambiguities trigger the doctrine. Id. at 1579 (citing Mountain Home Contractors v. United States, 425 F.2d 1260, 1264 (Ct. Cl. 1970)). In contrast, a latent ambiguity is not facially obvious and does not raise a duty to inquire. Eagle Hill Consulting, LLC v. United States, 171 Fed. Cl. 115, 136 (2024). If a contractor shows that the ambiguity was latent, the contractor’s interpretation will be adopted only if it is reasonable. Cmty. Heating & Plumbing, 987 F.2d at 1579 n.6 (citing Froeschle Sons, Inc. v. United States, 891 F.2d 270, 272 (Fed. Cir. 1989)). As with all questions of contract interpretation, the Court starts with the language of the contract itself. See Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993). Certain parts of the contract and project drawings provided that extension of the elevator service was within the scope of work that Grand was responsible for delivering. Most notably, 13 CLIN 0001 expressly stated that “[w]ork will include . . . extensions and alterations to utility systems, elevators, stairwells, [and] rooftop equipment.” App. 6 (emphases added). Additionally, Drawing AS402 included the following direction: “EXISTING ELEVATOR SHAFT TO REMAIN - SAME SERVICE AND FUNCTION. EXTEND SERVICE TO LEVEL 1.” App. 179 (emphasis added). This language specifically directed Grand to “extend” the elevator service to the new top floor, which is Level 1. The same drawing depicting the elevators included the following instruction: “DEMO WALL FOR NEW ELEVATOR DOORS.” Id. Similarly, the structural notes contained in Drawing SI002 stated that the contractor should coordinate work related to the elevator extension with the elevator supplier: CONTRACTOR SHALL COORDINATE ELEVATOR PITS, SHAFTS, SLAB OPENINGS, FRAMING LOCATIONS, GUIDE RAIL SUPPORTS, DIVIDER BEAMS, HOIST BEAMS AND SUMP PITS WITH ELEVATOR SUPPLIER PRIOR TO CONSTRUCTION AS REQUIRED FOR PROPER INSTALLATION AND OPERATION. COORDINATE ANY REQUIRED STRUCTURAL MODIFICATIONS WITH THE STRUCTURAL ENGINEER PRIOR TO FABRICATION AND/OR INSTALLATION OF ANY STRUCTURAL ELEMENTS. App. 181 (emphases added). This is further shown in Drawing GI101, which included the following construction note: “PROVIDE HOISTWAY BEAM AND REINFORCING AT TOP OF ELEVATOR SHAFT IF REQUIRED FOR INSTALLATION,” further indicating that Grand had a direct responsibility for carrying out the elevator extension. App. 608. Other aspects of the contract and project drawings, however, muddy the waters. Most notably, although several drawings mentioned the elevator, it is undisputed that there were no specific drawings or specifications in the contract as to the elevator extension work. See App. 783 (Paul Dep. Tr. at 83:22–84:20), 797–98. The drawings that did refer to the elevator either concerned other construction work—like Drawing AS402, which was entitled “STAIR 2 ENLARGED PLANS AND SECTIONS,” App. 178—or merely contained structural or general 14 notes, see App. 608. Moreover, the drawings contemplated that the elevator extension could not be completed without the elevator supplier, which in this case was Thyssenkrupp. Drawing SI002’s directive to the contractor to “coordinate . . . with [the] elevator supplier . . . as required for proper installation and operation,” App. 181, did not indicate which party (the VA or Grand) was responsible for contracting with Thyssenkrupp for the elevator installation and whether those costs should be included in Grand’s proposed contract price. As discussed below, coordinating with the elevator supplier could reasonably be interpreted as a requirement falling under Grand’s responsibility for delivering the elevator extension. After all, under “General Requirements,” the contract specified that “THE CONTRACTOR SHALL PROVIDE ALL MATERIALS, EQUIPMENT, LABOR, AND SERVICES NECESSARY TO COMPLETE THE WORK.” App. 608. It is also plausible, however, that Grand’s coordination role, as described in this contract specification, could be interpreted as being limited to working with or overseeing Thyssenkrupp’s work, including ensuring that the structural engineer approved any structural modifications prior to the elevator supplier fabricating and installing the elevators, but perhaps not as contracting with and paying for Thyssenkrupp’s work. The vagueness of the term “coordinate” in this context—especially considered in conjunction with CLIN 0001 indicating that Grand itself was responsible for elevator work—should have rung alarm bells for Grand to inquire about the scope of its responsibility for such work. At oral argument, Grand urged the Court to interpret the word “coordinate” as absolving Grand of responsibility for costs associated with elevator work. 5 Oral Arg. Tr. at 74:6–8, ECF No. 5 Merriam-Webster defines the verb “coordinate” as “to bring into a common action, movement, or condition,” supplying the example of “coordinate schedules” or “coordinating the 15 44 (arguing that “coordinate, in general terms and in construction, means cooperate with somebody who’s not part of your contractual [or] sub-contractual chain”). The problem with this argument is that it essentially proves the Government’s point: that the word “coordinate” had two plausible interpretations such that there was an ambiguity. Ambiguous contract provisions are those that are capable of more than one reasonable interpretation. McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996). As with almost any major construction project, Grand, as the prime contractor, was expected to work with subcontractors and other parties to complete the work. Thus, “coordinate” appeared in several other parts of the project drawings. For instance, the drawings directed the contractor to “COORDINATE THE LOCATIONS OF ALL EQUIPMENT WITH RESPECT TO THE ARCHITECTURAL AND STRUCTURAL DETAILING OF SHAFTS, CHASES, AND SUCH,” App. 608 (emphasis added); “COORDINATE FINISH PAINTING REQUIREMENTS WITH THE ARCHITECT,” App. 630 (emphasis added); and “COORDINATE FRAMED OPENING SIZES AND LOCATIONS WITH THE MECHANICAL AND PLUMBING CONTRACTORS, id. (emphasis added). In each instance, “coordinate” reasonably could indicate that Grand needed to harmonize its efforts with those of the subcontractors or other parties on the Project to ensure that Grand could deliver the complete scope of work under the contract. In short, the exact nature of Grand’s responsibility for extending the elevator was ambiguous. The question then is whether the ambiguity was patent. Contrary to Grand’s argument, the inconsistencies in the contract and project drawings were obvious. On the one hand, CLIN 0001 expressly included the extension of the elevator in Grand’s scope of work and provided relief effort.” Coordinate, Merriam-Webster, https://www.merriam-webster.com/dictionary/ coordinate. 16 project drawings, one of which directed Grand to extend the elevator to the new level being constructed. On the other hand, the contract included no specific elevator drawings or specifications and vaguely instructed Grand to coordinate with the elevator supplier regarding elevator-related construction prior to installation. The inconsistency in the contract documents is both glaring and substantial. See Beacon, 314 F.2d at 504. And it cannot be said that the need for extended elevator service was unknowable. Logically, the addition of a level to a VA hospital parking garage would necessarily require the extension of the existing elevator service so that hospital patients, some likely with mobility constraints, could feasibly access the hospital from the new level. Grand admits that it sent two representatives to attend the VA-hosted site visit before bidding on the project. See App. 221 (Grandstaff Dep. Tr. at 39:15–19). Thus, the Court can reasonably infer that Grand’s representatives observed the existence of the elevator tower at the time of bidding. Moreover, the existing elevator structure was documented in the contract drawings and specifications, as pictured below. EXISTING ELEVATOR TOWER App. 707 (caption in original); H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1346 (Fed. Cir. 17 1998) (citing Hardwick Bros. Co., II v. United States, 36 Fed. Cl. 347, 406 (1996) (“It is well settled that a contractor is charged with knowledge of the conditions that a pre-bid site visit would have revealed.”), aff’d, 168 F.3d 1322 (Fed. Cir. 1998)). After walking the site, a reasonable contractor bidding on the project would have inquired about the contractor’s scope of work regarding elevators, given that the contract addressed elevator extension work but did not contain specific elevator drawings or specifications. Indeed, the VA’s COR, Mr. Jimenez, testified at deposition that one or two questions about the extension of the elevator were asked at the site visit, although there is no evidence Grand’s representatives asked these questions. App. 440 (Jimenez Dep. Tr. at 57:3–20); see, e.g., Vista Scientific Corp. v. United States, 808 F.2d 50, 52 (Fed. Cir. 1986) (noting that the fact that a contractor actually inquired about an ambiguity can demonstrate that there was a patent ambiguity). Although Plaintiff generally challenges the reliability of Mr. Jimenez’s recollection, it acknowledges that the cited testimony establishes that at least one contractor asked questions about the elevator during the site visit. See ECF No. 35 at 20–21. Accordingly, there was nothing hidden about the ambiguity, either in the four corners of the contract or in the facts on the ground. See Eagle Hill Consulting, 171 Fed. Cl. at 136 (describing a latent ambiguity as being “hidden or concealed, not apparent on the face of the document” (citing Per Aarsleff A/S v. United States, 829 F.3d 1303, 1312 (Fed. Cir. 2016))). “[P]atent ambiguities are resolved against the contractor.” Baldi Bros, Inc. v. United States, 156 Fed. Cl. 372, 382 (2021) (citing Triax Pac., Inc. v. West, 130 F.3d 1469, 1474–75 (Fed. Cir. 1997)). As such, Grand is not entitled to damages for work related to extending the elevator service. Grand offers almost no legal argument as to why the ambiguity was hidden. Rather, its main contention in opposition to summary judgment is that the contract did not require elevator work at all because there was no elevator drawing or specification in the contract. See ECF No. 18 35 at 12; id. at 16–17 (arguing that without specifics about the elevator work no elevator work was required). Grand cites no case or regulation that requires every element of a construction contract to have an associated drawing 6 or that ascribes a contract requirement solely on the existence of an associated drawing. As a practical matter, at the time of bidding the elevator shaft was already fully constructed and elevator service was already operational to the existing parking garage floors. Thyssenkrupp, not Grand, would be responsible for installing the elevator for extended service, and it was Thyssenkrupp, not the VA, who ultimately provided the statement of work detailing the effort for the extension work. See App. 394 (Grandstaff Dep. Tr. at 212:9–15), 396–97 (Grandstaff Dep. Tr. at 214:20–215:2). The argument also completely ignores that CLIN 0001 expressly included “extensions and alterations to . . . elevators” in Grand’s scope of work. App. 6. The lack of an elevator drawing does not negate this express contract provision. To the contrary, as discussed above, the lack of such a drawing further underscores the contract’s patent ambiguity. If CLIN 0001 and other parts of the contract specifically required elevator-extension work, but there was no specific elevator drawing, then there was clearly an inconsistency about which Grand 6 The Government argues that