{
  "id": 753813,
  "name": "Keller Construction, Inc., Claimant, v The State of Illinois, Respondent",
  "name_abbreviation": "Keller Construction, Inc. v. State",
  "decision_date": "1998-04-06",
  "docket_number": "No. 95-CC-0425",
  "first_page": "338",
  "last_page": "350",
  "citations": [
    {
      "type": "official",
      "cite": "50 Ill. Ct. Cl. 338"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. Ct. Cl.",
    "id": 8793,
    "name": "Illinois Court of Claims"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.779,
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  "last_updated": "2023-07-14T20:14:05.502293+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Keller Construction, Inc., Claimant, v The State of Illinois, Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nEpstein, J.\nIn this breach of contract claim against the Department of Transportation (\u201cIDOT\u201d), the Claimant contractor seeks $37,905 in additional compensation for installation of sheet piling that was required for \u201crailroad protection\u201d for the Clark Bridge construction project in Alton, Illinois. This \u201crailroad protection\u201d claim, which arises largely on the standard provisions of IDOT construction contracts, is before us for final decision following trial to our Commissioner, Patrick Hanley. This appears to be the first \u201crailroad protection\u201d construction contract claim to be decided by this Court.\nNature of the Claim\nThe dispute in this case is over labor and material charges for sheet-piling installation that was required for the protection of railroad traffic and structures adjacent (and under) the bridge construction project that was the subject of Claimants contract with IDOT. This temporary sheet piling for \u201crailroad protection\u201d was not set forth in the contract bid specifications, and was not computed as a cost element of the Claimant\u2019s winning contract bid to IDOT. The piling was required as excavation protection by the railroad\u2019s engineer \u2014 after the Claimant\u2019s work had commenced \u2014 under the railroad protection provisions of IDOT\u2019s standard specifications, which are incorporated into virtually all IDOT road and bridge construction contracts:\n\u201c\u00a7105.02 Authority of Railroad Engineer. Whenever the safety of railroad traffic during construction is concerned, the Railroad Engineer will have jurisdiction over safety measures to be taken and his/her decision as to methods, procedure and measures used shall be final, and any and all Contractors performing work near or about the railroad shall be governed by such decision. Instructions to the Contractor by the Railroad Engineer shall be given through the Engineer. Unless otherwise specified, all costs incurred in conforming to the requirements, specified herein, shall be considered as incidental to the contract and no additional compensation will be allowed.\u201d\nThe Claimant contends that this sheet pile installation, which was not called out in the contract specs, was a contract \u201cextra\u201d that requires additional compensation under the \u201cExtra Work\u201d provision of IDOT\u2019s Standard Provisions:\n\u201c\u00a7101.15 Extra Work. An item of work not provided for in the contract as awarded but found essential to the satisfactory completion of the contract within its intended scope as determined by the Engineer.\u201d\nClaimant also contends, alternatively, that IDOT, by its custom and practice of specifying the \u201crailroad protection\u201d work in its bid documents and of paying for such work (either as part of the bid price or as extra compensation) in cases where it failed to specify the particulars, has waived its rights under section 105.02. Claimant also asserts, alternatively, that IDOTs custom and practice of prior payment to this contractor, as well as its prior practice of specifying the railroad protection work, effects an estoppel against IDOTs invocation of section 105.02.\nThe Facts\nClaimant was awarded the Clark Bridge approach construction contract (IDOT Contract No. 96294) pursuant to its low bid on June 10, 1991. At the time of the bidding, adjacent railroad tracks were scheduled to be relocated at the bridge site, and the railroad relocation plans were included in the bid drawings, although the timing of the railroad relocation project was unspecified. As planned and as ultimately constructed, the new Clark Bridge spanned over the relocated railroad tracks and the approach that was constructed by the Claimant.\nAlthough the IDOT bid plans and specifications did show the specific plans for the railroad track relocation, IDOTs bid plans and specifications did not specifically call for the use of sheet piling (or any other method) to protect railroad property during the bridge/approach construction. When the Claimant\u2019s work commenced, the railroad construction had not yet progressed to where bridge construction would interfere with the railroad. The Claimant did not include sheet piling for railroad protection in its bid.\nAfter construction began, it became necessary for the Claimant to provide protection to the railroad relocation. After long negotiation with the engineer of the Norfolk & Southern Railroad, Claimant was directed to install temporary sheet piling to protect the railroad tracks (pursuant to the authority provided by section 105.02 and section 107.12 of the IDOT standard provisions). Claimant installed a sheet pile wall 95 feet long and 21 feet deep. After the contract was performed, the Claimant submitted its final billing, including $37,905 as an extra work item for the sheet piling (computed at $19/square foot, the contract pay item rate for such work) that was not included in the bid but was used on the project as mandated by the railroad. The Department refused to pay, based on its finding that the sheet piling was not an extra item but was an incidental item to be included in the bid price under section 105.02. This claim ensued.\nThe Trial; Evidentiary Rulings\nA hearing was held on November 26, 1995 and March 19, 1996 before Commissioner Hanley, who filed his report to the full Court.\nTestimony was presented by Richard Call, IDOT studies and plan senior squad leader; Bobby D. Martin, IDOT railroad technician; Larry Lipe, IDOT estimating technician; Alan Goodfield, IDOT engineering geologist in its bureau of bridges and structures; Jerry Wibbenmeyer, IDOT supervising field engineer; Dale Klohr, IDOT District 8 Engineer for District 8; Jerry Hamam, Claimants EEO officer, safety officer and corporate secretary; William Ulivi, IDOT supervisor in its department of planning.\nMuch of the testimony concerned contract interpretation and administration matters, but the IDOT witnesses did acknowledge that they had intended to include specific railroad protection material \u2014 warnings that it would be necessary in the Clark Bridge project at a minimum, if not actual work specs \u2014 and that their omission of such references was an unintentional mistake. The testimony also showed, without dispute, that during the approximate 28 days that the bidders had to formulate their bid submissions, it was virtually impossible to obtain a definitive \u201crailroad protection\u201d plan from this or any railroad involved.\nNumerous documents were also admitted into the record, including a memorandum written by Richard Call, a copy of the contract and plans for the Clark Bridge project, plans for other jobs, excerpts from the Stanford Specifications for Road and Bridge Construction, the preconstruction conference report letters from the railroad, and letters to and from the Claimant.\nEvidence of other IDOT construction contracts with this Claimant and with other contractors, and of the payment treatment accorded to various railroad protection work under those contracts, as well as testimony about IDOTs practices in this area, was admitted by the Commissioner over IDOTs objections on relevance grounds primarily. Although the evidence adduced by these documents and testimony fell short of what Claimant proffered as its justification \u2014 i.e., a consistent pattern of established custom and practice by IDOT \u2014 and although this Court does not agree with the threshold basis for admission of this parol evidence as bearing on the construction and application of section 105.02 and section 101.15 of the contract Standard Specifications \u2014 i.e., that those provisions are ambiguous in the classic sense \u2014 we will allow the evidence and affirm the Commissioners ruling as within his and our discretion.\nFirst, there is just enough lack of clarity as to the relationship and interaction between the two competing Standard Specification provisions (section 105.02 and section 101.15) to justify parol evidence of actual practice by IDOT, which wrote and administers these provisions; second, the proffered custom and practice evidence is germane to the Claimant\u2019s waiver and estoppel theories which were in the case; and finally, the evidence as proffered if not as delivered was potentially helpful to this Court in construing recurring Standard Specification of IDOT contracts. The evidence was properly admitted.\nAnalysis\nOn this record, neither party has covered itself with righteousness or reasonableness.\nFor its part, the Claimant plainly disregarded the prospective or possible need to supply railroad protection. Although the specifics were unstated, and although there was a chance that the sequencing of the railroad and bridge projects might moot the need for railroad protection, the Claimant was affirmatively put on notice of the proximity of the railroad and its imminent relocation to the bridge construction site by IDOT\u2019s bid documents. Thus the Claimant plainly determined \u2014 and presumably made a business decision \u2014 to take its chances on the railroad protection aspect of the project and not to include a contingency amount for this item in its bid.\nWe nevertheless accept Claimant\u2019s point that in the absence of specifications of any railroad protection in IDOT\u2019s bid documentation, and given the short time available before the bid deadline, Claimant could not timely obtain a definitive or authoritative answer \u2014 from the railroad engineer \u2014 as to the cost of railroad protection. Similarly, it is possible, although the record is less clear on this point, that the bidder could not ascertain from the railroad the likely schedule of the railroad relocation project (so as to determine the probability of actually needing railroad protection) during tire critical 28-day, pre-bid period.\nOn this analysis, the Court concurs with the Claimant that, to the extent of the railroad protection element of this project, IDOT sought and obtained blind bids: the bidder(s) could only guess and take some degree of chance on this aspect of the job. However, that applied equally to all bidders and does not uniquely prejudice the Claimant.\nClaimant maintains, however, that such was not the contractual intent and should not be the result imposed by this Courts interpretation of the contract provisions. Claimant further maintains that it relied on its understanding of IDOT practice, i.e., to reimburse contractors for unspecified railroad protection as a contract \u201cextra.\u201d\nFor its part, and although the evidence was not systemic, IDOT has been shown to have a strikingly inconsistent bidding practice in regard to railroad protection. The evidence in this record shows IDOT to be inconsistent in sometimes including detailed railroad protection specs, and sometimes \u2014 as in this case \u2014 not. Similarly, the pattern is imperfect as to paying for such work, although the handful of contracts introduced into this record makes us wary to draw definitive conclusions. But once this record was opened, below, to parol evidence of IDOT practices, neither side established a consistent IDOT practice with regard to paying for unspecified railroad protection or with regard to treating this element as a part of the original bid or as a separate \u201cextra.\u201d It is also provocative that IDOT witnesses could neither explain, nor justify as policy, the inconsistent contract administration practices as to railroad protection.\nIn the absence of a consistent pattern of practice that might rise to the level of an actual or constructive administrative interpretation of these Standard Specification terms, and in the face of an affirmative (if undesired) showing of inconsistent practice, the Court must reject Claimant\u2019s waiver and estoppel arguments and revert the analysis to the language of the governing contract provisions, which thus become the stopping point as well as the starting point of the analysis.\nIn rejecting Claimant\u2019s estoppel defense to the section 105.02 clause, we must also observe that the estoppel defense is predicated, in part, on the notion that Claimant reasonably relied on the contract specifications \u2014 i.e., on their omission of railroad protection specs. In light of the provisions of section 105.02 and the presence of the railroad relocation plans in the bid package, we are unprepared to find that Claimant\u2019s reliance on the omission of specific protection plans was reasonable or (equivalently) that Claimant had a right to rely on such omission for this purpose.\nTurning first to the terms of section 107.12 and section 105.02, which Respondent contends are the dispositive provisions, we find it impossible to agree with Claimant\u2019s contention that the language is ambiguous in any material respect \u2014 either on its face or as applied (standing alone) to railroad protection work that is not specified in the contract documents. The language is clear in two key respects at least: (1) that railroad protection work is to be specified/approved by the railroad engineer, not IDOT; and (2) that the cost of railroad protection is included in the bid price \u201cunless otherwise specified\u201d in the contract. That much, at least, is clear.\nTurning next to the terms of section 107.12, we find no ambiguity on the face of this language, nor in its application to unspecified work generally.\nNevertheless we must agree that there is an element of uncertainty \u2014 but not necessarily of \u201cambiguity\u201d in the classic multiple-meaning sense \u2014 in the interplay of section 105.02 (covering cost of railroad protection work) and section 107.12 (covering the cost of work \u201cnot provided for in the contract\u201d initially but later required). On their face, the two sections both appear to apply to the unspecified railroad protection work that is the crux of this claim.\nOn closer analysis of the section 107.12 language, it is not so clear that the section 101.15 \u201cExtra Pay\u201d provision applies to railroad protection work in the first instance. Claimant assumes that the unspecified railroad protection work is covered by the section 107.12 phrase \u201cwork not provided for in the contract as awarded.\u201d That turns on the meaning of \u201cprovided for,\u201d which the Claimant implicitly \u2014 but not explicitly \u2014 equates to detailed specification in the contract documents. That is a plausible but nonexclusive reading of the phrase.\nThe phrase \u201cprovided for\u201d is not identical to \u201cspecified\u201d or \u201cdetailed\u201d and has somewhat broader scope. As used in section 107.12, the arcane phrase \u201cprovided for\u201d is akin to \u201crequired,\u201d and does not obviously or readily connote any particular level of detail. In that sense of \u201crequired,\u201d the phrase \u201cprovided for\u201d appears to cover work that is then mandated (at the time of initial contracting) but is to be specified later in accordance with some mechanism or process contained (or \u201cprovided\u201d) in the contract. That, of course, is precisely what is \u201cprovided for\u201d by this contract in the case of \u201crailroad protection\u201d work, which is required by the contract at the time of bidding, but is delegated to the railroad engineer for later specification and approval. The narrow contract construction issue is whether \u201cprovided for\u201d covers only specified work or also covers work requirements that are expressly imposed but in a different manner. Although it should not be necessary to engage in such pedantic exercises to ascertain the meaning of a standard provision in a State construction contract, we are constrained to find that \u201crailroad protection\u201d work is \u201cprovided for\u201d in this contract within the plain, non-technical, meaning of the words involved.\nThis conclusion is buttressed by the Claimants acknowledgement at oral argument that the railroad protection work was required by the contract. We do not find any material difference in this context between \u201crequiring\u201d the work, \u201cmandating\u201d tire work and \u201cproviding for\u201d the work, just to take the most obvious equivalent phraseology.\nBut even if we were to assume (arguendo) that section 107.12 covered the \u201crailroad protection\u201d work because it was delegated rather than detailed in the original contract documents, and thus were confronted with the contract interpretation issue whereby both section 107.12 and section 105.02 applied on their face to the disputed \u201crailroad protection\u201d work, the outcome would be the same.\nIf both section 107.12 and section 105.02 applied, but called for different results \u2014 section 107.12 requires extra compensation for \u201cextra work\u201d and section 105.02 designates the cost of this work as \u201cincidental to the contract\u201d and bars extra compensation \u2014 then there is a simple, straightforward and ancient rule of construction that settles this issue: the specific provision prevails, every time, over the general provision. We do not bother with citations of authority for such a fundamental and settled principle. This principle is as applicable as between competing \u201cstandard\u201d contract provisions \u2014 as in this case \u2014 as it is between \u201cstandard\u201d and individualized contract provisions. Here, section 105.02 is specifically applicable to unspecified railroad protection work, whereas section 107.12 is applicable generally to all unspecified work that later becomes required. In this contest, section 105.02 wins as the governing provision, and section 107.12 must defer.\nBefore concluding the analysis, however, there is one dangling argument \u2014 that focuses on one dangling contract phrase \u2014 that must be addressed. Claimant focuses on the exception to the \u201cno additional compensation\u201d provision in section 105.02, which reads: \u201cUnless otherwise specified * * *.\u201d (The full sentence is set forth above, in the \u201cNature of the Claim\u201d section of this opinion.) Claimant argues, with considerable vehemence and some persuasion, that the reference to \u201cotherwise specified\u201d must or can refer to the \u201cExtra Work\u201d pay provisions of section 107.12 and its related pay provisions. Although this is a plausible reading, particularly in light of the convoluted language and inartful syntax and structure of IDOT draftsmanship, we are constrained to reject it for two reasons.\nFirst, the plain meaning of the term \u201cspecified\u201d requires something more than merely \u201cproviding for\u201d \u2014 the flip side of our analysis above. Hence the \u201cotherwise specified\u201d exception of section 105.02 is not triggered by the generic \u201cextra work\u201d provisions of section 107.12. It would require another provision specifying compensation for the railroad protection work in order to supersede the \u201cno extra compensation\u201d proviso of section 105.02. Second, the Claimants interpretation of these two \u201cstandard specifications\u201d would read into them a circularity that would render the \u201cno extra compensation\u201d provision of section 105.02 nugatory \u2014 which is a contract construction no-no. The Claimant\u2019s reading of these sections would subordinate section 105.02 to the \u201cextra work\u201d provisions of section 107.12 in every contract, and thus section 105.02 would never apply. That is clearly neither the intent nor the sense of these standard contract provisions.\nFor the foregoing reasons, therefore, we must and do hold that under the terms of this contract, the costs of the later-designated railroad protection work ordered pursuant to section 107.12 and/or section 105.02 is incidental to the contract and is not subject to the extra work provisions of section 107.12 and related provisions. Based on this conclusion, we must reject Claimants claim for additional compensation under this contract.\nConclusion and Order\nWe observe that there are some hints of unfairness in the result that we find to be mandated by the contract analysis. There are overtones of guilt and acknowledgments of error in some of the IDOT staff testimony in this case, which may well be attributable to the avoidability of the result here if the contract specifications on the Clark Bridge project had been done as intended. But we are not a Court of equity and can only apply the law and the contract language as we find it. The Respondent is entitled to the contract bargain it made, and the Claimant is bound by the contract it signed.\nThe disturbing aspect of this case is the inconsistency with which IDOT seemingly treats this technical aspect of construction contracts, and the resulting disparity in treatment of contractors that can and, according to the evidence in this case, sometimes does occur. If contracts continue to be bid in the blind on \u201crailroad protection,\u201d tiren that practice under the current Standard Specifications\u2014 coupled with our decision today \u2014 will prompt contractors to build in some contingency for \u201crailroad protection\u201d in every contract on every project near railroad tracks. In Illinois that covers a lot of projects. Whether such a practice is good or bad for Illinois and its taxpayers is not a question for this Court. But it is a question that might be addressed by IDOT sometime.\nFor the reasons set forth above, it is hereby ordered: This claim is denied on its merits and forever barred. Judgment is entered for Respondent and against the Claimant.",
        "type": "majority",
        "author": "Epstein, J."
      }
    ],
    "attorneys": [
      "Burroughs, Hepler, Broom, MacDonald & Hebrank (William J. Knapp, of counsel), for Claimant.",
      "James E. Ryan, Attorney General (Guy A. Studach, Assistant Attorney General, of counsel), for Respondent."
    ],
    "corrections": "",
    "head_matter": "(No. 95-CC-0425\nKeller Construction, Inc., Claimant, v The State of Illinois, Respondent.\nOpinion filed April 6, 1998.\nBurroughs, Hepler, Broom, MacDonald & Hebrank (William J. Knapp, of counsel), for Claimant.\nJames E. Ryan, Attorney General (Guy A. Studach, Assistant Attorney General, of counsel), for Respondent."
  },
  "file_name": "0338-01",
  "first_page_order": 576,
  "last_page_order": 588
}