                                                             COURT OFFNALS OW
                                                              STATE OF WASHINGTON
                                                             2010 JUL 23 AM 8: 10




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

ODYSSEY-GERONIMO JV,                            No. 77743-2-1

                          Appellant,

                V.
                                                UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF
TRANSPORTATION,

                          Respondent.           FILED: July 23, 2018

       SCHINDLER, J. — Odyssey-Geronimo Joint Venture (OGJV)entered into a

contract with the Washington State Department of Transportation(WSDOT)to clean

and paint part of the Lewis and Clark Bridge. After completing the project, OGJV filed a

lawsuit against WSDOT alleging breach of contract. The court dismissed the lawsuit on

summary judgment and awarded fees to WSDOT. We conclude the plain and

unambiguous language of the "Special Provisions" of the contract govern and define

"surface area" as the "structural steel to be painted" and the "Standard Specifications"

do not incorporate by reference the Painting and Decorating Contractors of America

(PDCA)"Estimating Guide" or its definition of "surface area." However, we reverse

summary judgment dismissal of the claim that OGJV is entitled to an equitable
No. 77743-2-1/2

adjustment and additional compensation and the award of fees and costs. Accordingly,

we affirm in part, reverse in part, and remand.

Lewis and Clark Bridge Painting Contract

       On February 1, 2010, the Washington State Department of Transportation

(WSDOT)issued a request for bids for the "SRO]433 Lewis and Clark Bridge

Superstructure Painter" contract, "Contract 7895." The contract required "cleaning and

painting" of the steel truss latticework bridge "between Piers 1 and 4 as well as a deck

truss section under the Washington approach." The contract included the WSDOT

2010 "Standard Specifications for Road, Bridge, and Municipal Construction"(Standard

Specifications) and "Special Provisions" for the project.

       The Standard Specifications "serve as a baseline for the work" and include

mandatory dispute resolution requirements. The Special Provisions identify the portions

of the bridge to be cleaned and painted and an estimate of 901,900 square feet for the

"surface area of structural steel to be painted." The Special Provisions state,"The

surface area of structural steel to be painted as specified above is approximate and is

intended for use as a guide in determining the amount of preparation and paint

involved."

       WSDOT held a prebid meeting with interested contractors in December 2009 to

conduct an inspection of the bridge and answer questions. Pennsylvania corporation

Odyssey Contracting did not attend the prebid meeting but asked WSDOT for the

information provided at the meeting. On February 24, 2010, WSDOT sent Odyssey




       1 State Route.


                                            2
No. 77743-2-1/3

Contracting minutes from the meeting, photographs of the bridge, and a set of "as built"

plans.

OGJV Bid

         Odyssey Contracting and Ohio corporation Geronimo Painting formed Odyssey-

Geronimo Joint Venture(OGJV)to bid on the contract. Neither Odyssey Contracting

nor Geronimo Painting had previously performed work in Washington.

         In March 2010, OGJV submitted a bid for $33,774,714 and identified lump sum

payments for the two major contract tasks: "Cleaning and Painting," bid item 3; and

"Containment of Abrasives," bid item 7. OGJV did not visit Washington, prepare its own

estimate of the square footage of the surface area of structural steel to be painted,

request any additional information, or seek clarification before submitting its bid.

WSDOT Awards OGJV the Contract

         On June 8, 2010, WSDOT executed a contract with OGJV for the Lewis and

Clark Bridge project. The contract states, in pertinent part:

             The Contractor shall do all work and furnish all tools, materials, and
             equipment for:

             cleaning and painting the metal surfaces and other work on SR 433,
             MP[2]0.58 to MP 0.45, LEWIS AND CLARK BRIDGE
             SUPERSTRUCTURE PAINTER,. . .

         . . . as described in the attached plans and specifications, and the
         standard specifications of the Washington State Department of
         Transportation which are by this reference incorporated herein and made
         part hereof and, shall perform any changes in the work in accord with the
         Contract Documents.

         After OGJV submitted a revised painting schedule, WSDOT and OGJV held a

"Pre-Painting Conference" meeting." The October 21, 2010 meeting minutes reflect


         2 Milepost.



                                              3
No. 77743-2-1/4

discussion about the schedule, surface preparation, and painting. The minutes do not

mention any questions or discussion related to square footage of the surface area of the

structural steel to be painted.

       After the winter break, OGJV resumed work on the project in March 2011. In

June 2011, OGJV used the as-built plans to calculate the square footage for the surface

area of the project. OGJV calculated 1,210,440 square feet, or 308,540 square feet

more than the approximate 901,900 square feet in the bid contract. The calculation

included the air space or "voids" between the steel members of the latticework bridge.

OGJV did not notify WSDOT about the calculation. OGJV continued to work on the

project through the 2011 and 2012 construction seasons.

Surface Area Dispute

       For the first time on December 10, 2012, OGJV informed WSDOT about its

calculation of the square feet for the project. OGJV states, "In our performance reviews

over the course of the project, we have seen that we have been expending significantly

more labor hours and materials on this project than anticipated, based on past projects."

The letter states,"pie performed a preliminary take-offt3]of the bridge and found a

significant discrepancy from that provided in the contract." OGJV asked WSDOT to

verify and provide documentation for the Special Provisions surface area square

footage calculation.

       On January 22, 2013, OGJV provided its calculation and requested a meeting to

discuss an equitable adjustment to the contract amount.




       3 A "take-off   is a surface area calculation.


                                                        4
No. 77743-2-1/5

       WSDOT disagreed with the OGJV surface area calculation:

       In review of the provided surface area calculations, it was noted that the
       areas of box members are considered to be a solid, flat, continuous
       surface along the entire length of the box member. This does not
       accurately calculate the exact surface area of the structure.

WSDOT states the Special Provisions of the contract do not make any reference to the

inclusion of voids in calculating the surface area of the structural steel to be painted:

       Page 56 of the Special Provisions refers to the surface area of structural
       steel to be painted, not surface area plus voids or any other reference that
       would indicate using a solid area to calculate area where there are voids.
       OGJV was informed by WSDOT in a meeting on June 4th, 2013 that in
       order to evaluate calculations of the surface area, OGJV would need to
       provide the calculations of the actual surface area.

       In response, OGJV claimed inclusion of voids in calculating surface area is

"widely if not universally accepted by other bridge painting contractors." The October 21

letter states the "surface area calculations are a reasonable and accurate basis to

evaluate its prior request for an equitable adjustment to the contract price." OGJV

"estimates that it has performed additional surface preparation and painting, as a result

of this error, for 339,980 SF"4; 38 percent more than the contract estimate of 901,900

square feet, resulting in additional costs of $10,896,359. OGJV renewed its "prior

request for a change order and/or equitable adjustment to the contract price." OGJV

completed the Lewis and Clark Bridge cleaning and painting project on May 29, 2014.

Change Order 8

       After several months of reviewing the calculations, WSDOT concluded the

surface area of the structural steel to be painted was 998,191 square feet and not the

estimated 901,900 square footage in the contract. On September 5, 2014, WSDOT



       4 Square feet.



                                              5
No. 77743-2-1/6

informed OGJV it would adjust and increase the amount paid for cleaning and painting

by 10.7 percent, or $1,483,448. WSDOT informed OGJV it needed additional

information to determine whether the same percentage applied to containment of

abrasives. OGJV disputed the accuracy of the WSDOT calculation.

       On November 13, 2014, WSDOT unilaterally issued "Change Order 8." Change

Order 8 states OGJV is entitled to an equitable adjustment payment of $1,562,198 for

cleaning and painting and containment of abrasives.

Disputes Review Board

       In accord with section 1-09.11(1) of the contract, OGJV and WSDOT agreed to

submit the dispute over the surface area of structural steel to be painted to a three-

member Disputes Review Board (DRB). OGJV and WSDOT each selected one

member and those two members selected the third member.

       The DRB held a hearing on January 6, 2015. OGJV "agree[d] that the contract

language is clear and unambiguous." OGJV argued the Standard Specifications

incorporate by reference the Painting and Decorating Contractors of America(PDCA)

"Estimating Guide" definition of "surface area" and lattice members of the bridge are

treated as "solid surfaces." OGJV asserted the contract "underrepresented the quantity

of work that[OGJV]completed" and asked to "be equitably compensated."

       WSDOT asserted that under the terms of the contract, the Special Provisions,

not the Standard Specifications, control. WSDOT argued the plain and unambiguous

language of the Special Provisions does not include empty spaces or voids in the

calculation of the square footage of "surface area of structural steel" to be painted




                                             6
No. 77743-2-1/7

       On February 9, 2015, the DRB issued findings and a recommendation. The

findings and recommendation identify the "Agreed Statement of Dispute" as follows:

       The Contract states,(Special Provision page 56):

      "The surface area of structural steel to be painted as specified above is
      approximate and is intended for use as a guide in determining the amount
      of preparation and paint involved".

            WSDOT proposes that this statement simply describes "The
      surface area of structural steel to be painted"(excluding voids.)

             OGJV believes this statement describes the surface area in terms
      of being an industry standard .. .["]guide in determining the amount of
      preparation and paint involved"(including voids.).15]

      The DRB found the Special Provisions, not the Standard Specifications, control.

The DRB concluded the disputed language in the Special Provisions is unambiguous

and clear and "does not include voids." The DRB rejected the OGJV argument that" '[i]f

the area is provided by the owner, it must conform to the model used by the painting

industry (which includes voids) or otherwise explicitly states that it does not.'" The DRB

unanimously recommended that "the WSDOT interpretation of the Special Provisions is

correct and that voids are excluded." The DRB recommended adhering to the 10.7

percent equitable adjustment for both cleaning and painting and containment of

abrasives.

Formal Claim

       On April 2, 2015, OGJV submitted a formal claim in accord with section 1-

09.11(2) of the contract. The "Formal Claim" states,"Both parties agree that the

Contract underrepresented the quantity of work that[OGJV]completed."




       5 Emphasis in   original.


                                            7
No. 77743-2-1/8

       OGJV claimed the contract incorporated by reference the PDCA "Estimating

Guide" definition of "surface area" that supported its calculation.

       Using the contract referenced definition of "surface area", it has since
       been determined by OGJV, and verified afterwards independently by a 3rd
       party professional, that the surface area of the Work completed is 38%
       greater than the original contract quantity provided by WSDOT.

       OGJV also claimed the recent WSDOT recalculation of the surface area to be

painted "contains omission and summation errors; the extent of which cannot be

determined due to the lack of information provided by WSDOT." OGJV asserted it was

entitled to "additional compensation" for the "two major lump sum items" for cleaning

and painting and containment of abrasives "in an amount proportional to the surface

area quantity omitted by WSDOT at bid time." OGJV requested an additional payment

of $11,412,433.43.

OGJV Lawsuit against WSDOT

       On July 16, 2015, OGJV filed a "Complaint for Money Damages and Declaratory

Relief" against WSDOT. OGJV asserted breach of contract and quantum meruit.

       The complaint alleged the contract incorporated by reference "certain industry

standards that governed the work" and defined "surface area."

       WSDOT, in its bid documents, incorporated certain industry standards that
       governed the work, including the definition of surface area that was critical
       to the bidders' calculation of lump sum costs for Items #3 and #7. These
       industry standards have been followed on literally every other bridge
       painting project in Odyssey's and Geronimo's decades of prior work on
       public improvement projects.

The complaint alleged WSDOT used industry standards in calculating the surface area

of structural steel to be painted:

       WSDOT's bid documents presented the surface area quantity of the
       bridge as 901,900 square feet (sf) and directed bidders to use it to prepare


                                             8
No. 77743-2-1/9

       their bid. WSDOT[]erred when it calculated the surface area of 901,900
       sf. Upon information and belief, WSDOT attempted to calculate the
       surface area using the industry standard definition incorporated into the
       bid and Contract.

       The complaint also alleged that the "actual calculation" of surface area "resulted

in the omission of significant portions of surface area" and WSDOT "did not disclose

their calculations or supporting documents at the time of bid." OGJV alleged,

"WSDOT's acts and/or omissions in miscalculating surface area and failing to provide

equitable adjustments to the Contract price constitute substantial and material breaches

of the Contract." OGJV sought judgment in "an amount exceeding $9,334,161."

Summary Judqment Dismissal of Lawsuit

       On August 25, 2016, WSDOT filed a motion for summary judgment dismissal of

the lawsuit. WSDOT noted the motion for hearing on September 23.

       WSDOT argued the plain and unambiguous language "surface area of structural

steel to be painted" does not include empty spaces or voids. WSDOT asserted the

PDCA Estimating Guide that OGJV relied on to claim surface area includes voids is not

clearly and unequivocally incorporated by reference into the contract. WSDOT

conceded the Standard Specifications incorporate by reference "Technology Update

No. 9" and Technology Update No. 9 refers to the PDCA Estimating Guide. But

WSDOT argued Technology Update No. 9 does not incorporate the PCDA standards

into the WSDOT contract.

       On September 9, OGJV filed a "Motion for Summary Judgment Re: Liability on

OGJV Contract Claim." OGJV noted the motion for hearing on October 7. OGJV

asserted the court should grant summary judgment on liability because WSDOT

acknowledged the estimated surface area to be painted in the contract was an


                                            9
No. 77743-2-1/10

inaccurate representation and the equitable adjustment was an incorrect calculation of

surface area. OGJV argued the "only issue left for trial should be what additional

surface area has not been calculated (knowing that WSDOT's CAD[6]calculation

omitted significant portions of steel), and the amount of OGJV's damages."

       On September 12, OGJV filed its response to the WSDOT motion for summary

judgment. OGJV states the motion for partial summary judgment on liability is

incorporated by reference. OGJV argued there were material issues of fact "relating to

WSDOT's legal position." OGJV asserted the WSDOT contract incorporates by

reference the PDCA industry standard "to determine a fair approximation of the surface

area of steel" to be painted. Alternatively, OGJV submitted an expert declaration to

argue the court should use the" `ordinary' and `popular'"meaning of "surface area" and

industry standards. Pennsylvania professional engineer Michael Reina states the

PDCA guidelines refer to "two practices involving standards of measurement":

           • Closely fabricated items, such as chain link fence, open web joists,
             and grating should be measured as being solid.

           • When a small opening interrupts a continuous surface, the opening
             is disregarded and considered part of the continuous surface. All
             single openings 100 square feet or larger are deducted.

             From the first practice above it is clear the openings should be
      treated as being solid, and the second practice gives an indication of the
      size of openings that should be treated as solid.

Reina states that "[f]or built-up members with lattice bars or perforated plates, the

openings are disregarded and the area is calculated as being solid."




       6 Computer aided   design.


                                            10
No. 77743-2-1/11

        In reply, WSDOT argued OGJV waived the right to challenge the WSDOT

recalculation of the square footage. WSDOT asserted the certified claim addressed

only additional compensation based on a calculation that included voids.

        The court granted WSDOT's motion for summary judgment. The court ruled the

contract does not incorporate industry standards and the plain and unambiguous

language "surface area of structural steel to be painted" does not include voids. The

court ruled OGJV waived the right to assert breach of contract claims based on the

WSDOT recalculation of the surface area because OGJV did not comply with the

mandatory contract claim requirements.

              [WSDOT] has asserted that the entire case has been about voids
       and whether or not the surface area to be painted included the voids. To
       allow the plaintiff at this time to change the basis of their claim when they
       did not comply with the specific requirements under the contract for doing
       so is not appropriate; additionally, the contract itself does not allow for
       that.

       The court dismissed the lawsuit with prejudice. The order granting the motion for

summary judgment explicitly states that "[i]n ruling on WSDOT's motion for summary

judgment, the Court did not consider the separate motion for partial summary judgment

filed by" OGJV. The court entered a judgment against OGJV for attorney fees,

paralegal fees, expert fees, and costs in the amount of $374,689.04. OGJV appeals.

Standard of Review

        OGJV contends the court erred in dismissing the breach of contract claims on

summary judgment.7 We review an order of summary judgment dismissal de novo and


          7 OGJV also contends the court erred by not considering its motion for summary judgment on
liability. But the record establishes OGJV noted the motion to be heard after the scheduled hearing on
WSDOT's motion for summary judgment and as noted, although OGJV incorporated the motion in its
response, the court expressly did not address the motion. OGJV does not appeal summary judgment
dismissal of the quantum meruit claim.


                                                   11
No. 77743-2-1/12

engage in the same inquiry as the trial court. Kofmehl v. Baseline Lake, LLC, 177

Wn.2d 584, 594, 305 P.3d 230(2013). Summary judgment is appropriate when there is

no genuine issue as to any material fact and the moving party is entitled to judgment as

a matter of law. CR 56(c); Kofmehl, 177 Wn.2d at 594. We consider all facts and make

all reasonable factual inferences in the light most favorable to the nonmoving party.

Young v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d 182(1989). But "if

reasonable minds could reach only one conclusion from the evidence presented,"

summary judgment should be granted. Estate of Becker v. Avco Corp., 187 Wn.2d 615,

621, 387 P.3d 1066 (2017); Allen v. State, 118 Wn.2d 753, 760, 826 P.2d 200(1992).

Incorporation by Reference

      OGJV asserts the PDCA industry standard that includes voids in calculating the

surface area to be painted is incorporated by reference in the WSDOT contract.

WSDOT contends the Special Provisions govern and the plain and unambiguous

language of the Special Provisions defines the "surface area" to be painted as the

"structural steel" of the bridge. We conclude the Special Provisions govern and the

PDCA Estimating Guide is not clearly and unequivocally incorporated into the WSDOT

contract.

       WSDOT argues the Standard Specifications do not incorporate by reference the

PDCA Estimating Guide. The Special Provisions for the project expressly "supersede

any conflicting provisions of the 2010 Standard Specifications for Road, Bridge and

Municipal Construction." Section 1-04.2 of the Standard Specifications states:

       1-04.2 Coordination of Contract Documents, Plans, Special
       Provisions, Specifications, and Addenda




                                           12
No. 77743-2-1/13

              Any inconsistency in the parts of the Contract shall be resolved by
       following this order of precedence (e.g., 1 presiding over 2, 3, 4, 5, 6, and
       7; 2 presiding over 3, 4, 5, 6, and 7; and so forth):
              I. Addenda,
              2. Proposal Form,
              3. Special Provisions,
              4. Contract Plans,
              5. Amendments to the Standard Specifications,
              6. Standard Specifications, and
              7. Standard Plans.[9]

       Where "the parties to a contract clearly and unequivocally incorporate by

reference into their contract some other document, that document becomes part of their

contract." Satomi Owners Ass'n v. Satomi, LLC, 167 Wn.2d 781, 801, 225 P.3d 213

(2009). It must be clear that the parties knew of and assented to the incorporated

terms. W. Wash. Corp. of Seventh-Day Adventists v. Ferrellqas, Inc., 102 Wn. App.

488,494-95, 7 P.3d 861 (2000).

             Incorporation by reference allows the parties to "incorporate
      contractual terms by reference to a separate. . . agreement to which they
      are not parties, and including a separate document which is unsigned."
      "But incorporation by reference is ineffective to accomplish its intended
      purpose where the provisions to which reference is made do not have a
      reasonably clear and ascertainable meaning." Incorporation by reference
      must be clear and unequivocal. "[I]t must be clear that the parties to the
      agreement had knowledge of and assented to the incorporated terms[.]"

Seventh Day Adventists, 102 Wn. App. at 494-959 (quoting 11 SAMUEL WILLISTON,THE

LAW OF CONTRACTS § 30:25, at 233-34 (Richard A. Lord ed., 4th ed. 1999)); see also

Northrop Grumman Information Tech., Inc. v. United States, 535 F.3d 1339, 1344 (Fed.

Cir. 2008)("[T]he incorporating contract must use language that is express and clear, so

as to leave no ambiguity about the identity of the document being referenced, nor any

reasonable doubt about the fact that the referenced document is being incorporated into


       8   Emphasis added.
       9 Alterations in original; citations omitted.


                                                       13
No. 77743-2-1/14

the contract.")10. "The burden of proving incorporation by reference lies upon the party

claiming it." Baarslag v. Hawkins, 12 Wn. App. 756, 760, 531 P.2d 1283(1975). The

provisions referenced must have a reasonably clear and ascertainable meaning.

Seventh-Day Adventists, 102 Wn. App. at 494.

        The Standard Specifications incorporate the definitions used in the Society for

Protective Coatings(SSPC)"Steel Structures Painting Manual," including Technology

Update No. 9, which recognizes the PDCA as an authority to measure surfaces to be

painted to include voids.

        OGJV argues the PDCA standards are incorporated by reference into the

WSDOT contract. The PDCA "Industry Standards" includes a list of definitions used in

the Estimating Guide, including the definition of "surface area" as Title measurement of

the area of surface to be finished determined in accordance with the methods,

procedures and standards as defined by the PDCA Standard P10." PDCA Standard

P10 refers to several standards. OGJV relied on section 5.7. PDCA Standard P10

section 5.7 states:

        Closely fabricated items, such as chain-link fence, open web joists and
        grating, should be measured as being solid. If both sides of a closely
        fabricated item are finished, double the surface area. When a closely
        fabricated item is attached to framework, measure the framework
        separately as described in 5.2.01]




        10 Emphasis in original.
        11 WSDOT notes OGJV ignores the PDCA standard that specifically applies to "structural steel"
and does not define "surface area" as solid and the standard for "closely fabricated items" that treats
surface area as solid. PDCA Standard P10 section 5.2 states:
        Pipes, rods, structural steel, lumber and other items to be finished whose circumference
        or perimeter is less than one foot is measured as one foot, otherwise the actual
        measurement is used.
(Emphasis added.)


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No. 77743-2-1/15

       Standard Specifications section 6-07, "Painting," describes the bridge painting

work as containment, surface preparation, and furnishing and applying paint. The

Standard Specifications incorporate by reference the SSPC Steel Structures Painting

Manual. Standard Specifications section 6-07.1 states, "Terminology used herein is in

accordance with the definitions used in Volume 2, Systems and Specifications, of the

SSPC Steel Structures Painting Manual." The portions of Volume 2 of the SSPC

manual designated as part of the record do not define "surface area of structural steel to

be painted." But the "Definitions" section of the SSPC Steel Structures Painting Manual

refers to technology updates:

              Technology Update: A consensus SSPC document prepared by
      a committee that describes and assesses a new material, procedure,
      concept, method, or other area of technology. Technology Updates are
      considered "fast track" documents and skip some steps in the standards
      approval process. A Technology Update is not suitable for referencing in
      a specification or procurement document because it does not contain
      mandatory language, although information from a Technology Update may
      be extracted and referenced in a contract. It differs from a technical article
      in a journal in that it represents a consensus of balanced interests, not a
      single author's viewpoint.

      OGJV relies on Technology Update No. 9 to argue the PDCA definition of

"surface area" is incorporated by reference into the WSDOT contract. Technology

Update No. 9 provides information on costs for protective coatings projects and includes

models and guidelines to estimate and analyze the cost for protective coatings projects.

Technology Update No. 9 does not define "surface area." The update provides

information about different methods for estimating costs for protective coatings projects.

Section 6 of Technology Update No. 9,"Models and Data Sources," refers to the PDCA

Estimating Guide. Technology Update No. 9 cites the PDCA for "guidelines on




                                            15
No. 77743-2-1/16

measuring surfaces to be painted," including charts to determine surface areas for

standard structural steel shapes.

       6. Models and Data Sources

               6.1 SOURCES OF APPLICATION/INSTALLATION COST DATA:
       Over the last several years, various government and private groups have
       developed models to estimate and analyze the cost for protective coatings
       projects. This section summarizes the major features of several of these
       efforts. Several of these models are derived from common practices and
       data sources.



             6.1.2 PDCA Estimating Guide: This text provides guidelines on
      measuring surfaces to be painted and in estimating production rates in
      square feet per hour for various industrial protective coatings activities.
      Rates are given for application of one, two or three coats to pipe, duct
      work, light, medium and heavy structural steel, hangers, fasteners,
      exterior shells and roofs of tanks and spheres, and machinery and
      equipment. Production rates are also given for surface preparation for
      four degrees of abrasive blast cleaning, hand scraping and wire brushing,
      power tool cleaning, pressure washing, steam cleaning, and water
      blasting. Charts are provided for determining surface areas for cylindrical
      tanks and standard structural steel shapes.

But the SSPC Steel Structures Painting Manual unequivocally states Technology

Update No. 9 is "not suitable for referencing in a specification or procurement

document." Technology Update No. 9 also states, "This technology update is for

information purposes only. It is neither a standard nor a recommended practice." The

contract does not incorporate by reference the SSPC manual and Technology Update

No. 9's reference to the PDCA Estimating Guide. We conclude the WSDOT contract

does not incorporate the PDCA definition or methodology to determine the surface area

of structural steel to be painted.




                                           16
No. 77743-2-1/17

Extrinsic Evidence

        For the first time on appeal, OGJV contends because the language of the

contract is ambiguous, the trial court erred in not considering the PDCA Estimating

Guide as extrinsic evidence to determine the intent of the parties and the industry

standard for calculating "surface area."12 OGJV did not make this argument below. On

review of an order of summary judgment, we "will consider only evidence and issues

called to the attention of the trial court." RAP 9.12. OGJV did not argue that the

contract language was ambiguous. OGJV claimed the contract incorporated by

reference the PDCA guidelines defining "surface area." In the alternative, OGJV argued

the court should use the ordinary meaning of "surface area" and there were material

issues of fact as to industry standards.

Waiver

        OGJV contends the court erred in concluding the only claim OGJV asserted was

whether the definition of "surface area" included voids and OGJV waived its breach of

contract claims based on the WSDOT miscalculation of the surface area to be painted.

OGJV contends the formal claim asserted that "even accepting WSDOT's method of

calculating surface area, WSDOT's calculation 'contains omission and summation

errors'"and the change order does not accurately reflect the amount owed.

        Preliminarily, OGJV asserts WSDOT raised this argument for the first time in its

reply brief. We agree. The moving party in its motion for summary judgment must raise


         12 We note extrinsic evidence is to be used only to "illuminate what was written, not what was
intended to be written." Hollis v. Garwall, Inc., 137 Wn.2d 683, 697, 974 P.2d 836 (1999). Extrinsic
evidence is not admissible to show "a party's unilateral or subjective intent as to the meaning of a contract
word or term"; to show an intent "independent of the instrument"; or to "vary, contradict or modify the
written word." Hollis, 137 Wn.2d at 695. Where contractual language is unambiguous, we will not read
ambiguity into the contract. Jacoby v. Grays Harbor Chair & Mfq. Co., 77 Wn.2d 911, 917, 468 P.2d 666
(1970).


                                                     17
No. 77743-2-1/18

"all of the issues on which it believes it is entitled to summary judgment." White v. Kent

Med. Ctr., Inc., P.S., 61 Wn. App. 163, 168, 810 P.2d 4(1991). "Allowing the moving

party to raise new issues in its rebuttal materials is improper because the nonmoving

party has no opportunity to respond." White, 61 Wn. App. at 168. The moving party

cannot prevail on the original motion based on issues first raised in rebuttal materials.

White, 61 Wn. App. at 168-69.

       In any event, we conclude the court erred in dismissing the breach of contract

claims for additional compensation using the WSDOT methodology for calculating the

surface area of the structural steel to be painted and the amount owed.

       The WSDOT contract requires OGJV to file a claim in writing after all contractual

means to resolve a dispute for additional payment have been exhausted. Standard

Specifications section 1-09.11(2) states the claim must include specific details, including

a factual statement, the specific provisions of the contract supporting the claim, and

"sufficient detail to enable the Engineer to ascertain the basis and amount of the claim."

Section 1-09.11(2) states, "The Contractor agrees to waive any claim for additional

payment... if a claim is not filed as provided in this section."

       Washington law requires contractors to follow contractual notice provisions

unless waived. Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d 375, 386, 78

P.3d 161 (2003); Absher Constr. Co. v. Kent Sch. Dist. No. 415, 77 Wn. App. 137, 142,

890 P.2d 1071 (1995). "A party to a contract may waive a contract provision, which is

meant for its benefit, and may imply waiver through its conduct." Mike M. Johnson, 150

Wn.2d at 375. Waiver by conduct"'requires unequivocal acts of conduct evidencing an




                                             18
No. 77743-2-1/19

intent to waive.'" Mike M. Johnson, 150 Wn.2d at 386 (quoting Absher, 77 Wn. App. at

143).

        Viewing the facts in the light most favorable to OGJV,the record shows that

OGJV did not waive the right to claim additional compensation for omissions and errors

in the WSDOT calculation. Contrary to the assertion of WSDOT,the record shows that

without regard to inclusion of voids and using the WSDOT methodology, OGJV

asserted the WSDOT calculation of the surface area of structural steel to be painted

contained significant errors and omissions and the change order did not accurately

reflect the amount owed.

        On October 21, 2013, OGJV asked WSDOT to equitably adjust the contract. On

May 2, 2014, WSDOT admitted there was a 12 percent discrepancy between the actual

square footage and the estimate in the contract but denied the request. The May 2

letter states:

        WSDOT has completed our in depth evaluation of the surface area of
        structural steel painted on Contract 7895, by generating a set of CAD
        drawings that was then used to determine the surface area. Based upon
        this evaluation, there was a 12% discrepancy with the number supplied to
        the Contractor as a guide in the special provisions.

        We consider this to be within the threshold of approximation, based on the
        contract language, and do not agree with any claims for additional
        compensation. In accordance with Standard Specification Section 1-04.5,
        this protest is deemed invalid.

        OGJV requested additional information about the WSDOT calculations. On May

21, 2014, WSDOT provided OGJV a summary spreadsheet of surface area

calculations. On May 29, OGJV again requested additional information:

        b.       As stated in your email, the WSDOT Excel file/spreadsheet we
                 received only contained a single Summary Sheet/Tab and OGJV is
                 therefore unable to utilize this information alone to prepare for


                                             19
No. 77743-2-1/20

              further effective discussions with WSDOT. OGJV requests the
              subsequent detail Tabs/Sheets of the WSDOT Excel Workbook be
              provided to us for review.
      c.      During our telephone conversation, you stated that the take-off
              information was hundreds of pages and would be too large to email
              (also confirmed in your email). The link included in your email
              connecting us to your take-off data was only 7MBE131 and contained
              only 143 pages of new drawings recently drafted by WSDOT.
              Please provide the additional take-off detail calculations referred to
              that were not included with this link. Alternatively, please confirm to
              us that WSDOT has no further pertinent information.041

      WSDOT claimed,"The sheets summarize the totals. For example, the portals

are summarized on page 37 and then the sheets that follow that are the takeoffs for

each portal.. .. I don't believe there are any more sheets than these." Nonetheless, a

WSDOT employee agreed to "check with HQ[15] Bridge on whether there are further

spreadsheets to share, such as how the summaries from the drawings were grouped on

the excel spreadsheet."

      On June 24, 2014, OGJV submitted a protest letter in accord with section 1-04.5

of the contract. OGJV disputed the exclusion of voids. OGJV also disputed the initial

calculation of surface area in the bid documents and the WSDOT recent recalculation

and change order. OGJV asserted the published bid documents understated the

surface area calculation. "[P]rior to bid WSDOT had estimated the approximate bridge

surface area to be painted as 1,177,022 SF." OGJV stated:

               It seems the[WS]DOT simply tallied the sums of the parts of their
               original take-off incorrectly in the published bid documents.




       13 Megabytes.
       14 Emphasis in original.
       15 Headquarters.



                                            20
No. 77743-2-1/21

                ...[W]e find WSDOT's latest calculations seem to be missing
                members and portions of members, which would accumulate to a
                significant quantity of area. . . .

                 Notwithstanding our rejection of WSDOT's methodology outlined in
                 the above notes, from the summary spreadsheet and PDF[16]
                 drawings provided to us by WSDOT via email on 5/21/14, there
                 also is not enough information to perform a complete and reliable
                 review of WSDOT's latest surface area calculations for any
                 member of the bridge.

OGJV states that despite repeated requests, WSDOT did not provide additional

information about the recalculation.

       On April 2, 2015, OGJV filed a formal statement of claim in compliance with

section 1-09.11(2). OGJV claimed the contract underrepresented the surface area and

sought additional compensation. OGJV asserted surface area to be painted included

voids. Further, without regard to the inclusion of voids, OGJV challenged the accuracy

of the contract bid estimate:

               It is clear that WSDOT had multiple surface area quantities in their
               Pre-Bid Takeoff, and they chose to provide the lowest value to OGJV
               and other bidders.

      •        The WSDOT Pre-Bid Takeoff, which was later provided to OGJV
               upon request, omitted many bridge members and contained
               arbitrarily assigned perimeters for built-up members without any
               defined basis.
      •        Within the same excel file containing WSDOT's Pre-Bid Takeoff, we
               discovered multiple estimates of the main truss members. In their
               summary sheet, WSDOT ignored the surface area calculated on the
               sheet labeled "Main Truss" and instead used substantially lower
               values from 4 other worksheets.

       OGJV also challenged WSDOT's recalculation of the surface area. OGJV

asserted,"WSDOT's recalculation also contains omission and summation errors, the

extent of which cannot be determined due to the lack of information provided by


       16   Portable document format


                                             21
No. 77743-2-1/22

WSDOT." OGJV claimed that Change Order 8 did not equitably compensate OGJV.

OGJV asserted it was compensated 10.1 percent for lump sum item 3, cleaning and

painting; and only 1.0 percent for lump sum item 7, containment of abrasives. OGJV

contended lump sum item 7 was not increased proportionally to account for the 10.7

percent increase in surface area, contrary to how OGJV and WSDOT estimated the

cost of the lump sum item. OGJV provided calculations for an adjustment based on the

inclusion of voids but did not provide a calculation using the WSDOT methodology.

       Viewing the evidence in the light most favorable to OGJV, the record shows

OGJV requested additional information about the WSDOT calculation of the surface

area, stating it could not estimate the cost of these errors and omissions without the

requested information. Here, as in Weber Construction, Inc. v. Spokane County, 124

Wn. App. 29, 98 P.3d 60(2004), WSDOT waived strict compliance with the notice

requirements.

      In Weber, the County argued the contractor did not comply with the mandatory

contractual notice provisions because the standard specifications required "'[t]he

estimated dollar cost, if any, of the protested work and how that estimate was

determined.'" Weber, 124 Wn. App. at 31, 34.17 The County did not provide the

requested information so the contractor "could not have stated in good faith how any

such estimate was determined." Weber, 124 Wn. App. at 34. We held the County

waived strict compliance with the notice requirement through its conduct. Weber, 124

Wn. App. at 35.

               The County knew that[the contractor] was required to provide a
       dollar cost estimate. It knew [the contractor] was aware of this
       requirement and was attempting to meet it. [The contractor] requested

       17 Alteration   in original.


                                            22
No. 77743-2-1/23

       needed information in order to provide that estimate, but the County failed
       to give it. . . .[The contractor] offered substantial evidence that the
       County, by its conduct, waived strict compliance with the contract terms.

Weber, 124 Wn. App. at 35; see also Realm, Inc. v. City of Olympia, 168 Wn. App. 1,

11-12, 277 P.3d 679(2012)(where a contractor makes a "good faith effort" to comply

with the notice provisions of the standard specifications, the contractor is not barred

from seeking judicial relief). The court erred in dismissing OGJV's breach of contract

claims alleging WSDOT erred in calculating the square foot surface area of structural

steel to be painted.18

       We affirm summary judgment dismissal of the claim that the WSDOT contract

incorporates by reference PDCA industry standards for calculating the surface area of

structural steel to be painted. We reverse dismissal of the breach of contract claims

alleging that using the WSDOT methodology and without regard to voids, the WSDOT

calculation of the square foot surface area of structural steel to be painted contained

errors and omissions. We affirm in part and reverse in part the order on summary

judgment, reverse the award of fees and costs, and remand.




                                                            ,„,,,Q„,, y
WE CONCUR:




       18 We  decline to address OGJV's motion for partial summary judgment because the record
establishes the court did not rule on the motion. On remand, OGJV can renote the motion.


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