Blinderman Construction Co., Inc. v. The United States
30 Cont. Cas. Fed. 70,619, 1982 U.S. App. LEXIS 12555, 695 F.2d 552 (1982)
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Rule of Law:
When a government contract requires a contractor to notify occupants of work but is silent on the responsibility for securing access, the government retains an implied duty to provide site access after the contractor has made reasonable notification efforts.
Facts:
- A contractor entered into a contract with the Department of the Navy (Navy) to install meters in 656 occupied apartments at the Great Lakes Naval Base.
- The contract required the contractor to notify occupants at least three days prior to commencing work in their housing unit.
- The contractor submitted a work schedule for the Navy's approval, indicating when access to specific buildings would be required.
- During performance, the contractor experienced significant delays in gaining access to approximately 60 apartments.
- Reasons for the lack of access included occupants refusing entry, being on military leave for extended periods, or not being home when work was scheduled.
- The contractor made multiple efforts to notify occupants, including personal visits at different times and leaving notification cards on doorknobs, a method suggested by the Navy's on-site project manager.
- When the contractor could not gain access, it notified the Navy's project manager, who would then assist by contacting the occupants or obtaining keys from the Housing Section to grant entry.
- The contractor contemporaneously informed the Navy's project manager that it would seek compensation for the increased costs incurred as a result of the access delays.
Procedural Posture:
- The contractor submitted a claim for costs resulting from access delays to the Navy's contracting officer.
- The contracting officer issued a final decision denying the claim.
- The contractor, as appellant, appealed the contracting officer's decision to the Armed Services Board of Contract Appeals (Board).
- The Board denied the contractor's appeal, ruling in favor of the Navy (appellee).
- The contractor, as appellant, appealed the Board's decision to the United States Court of Claims, where both parties filed cross-motions for summary judgment. The case was subsequently transferred to the U.S. Court of Appeals for the Federal Circuit for disposition.
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Issue:
Does a contract provision requiring a contractor to notify occupants before commencing work imply that the contractor bears the full responsibility and risk for gaining access, or does the government retain an implied duty to provide access when occupants are unavailable or refuse entry?
Opinions:
Majority - Cowen, Senior Circuit Judge
No. The contract does not place the sole responsibility for gaining access on the contractor; after the contractor makes reasonable efforts to notify occupants, the government has an implied obligation to provide access. The court's reasoning is based on several principles of contract interpretation. First, the plain language of the contract only requires the contractor to 'notify' the occupants, not to obtain an agreement or make a formal arrangement with each one. Second, applying the principle of contra proferentem, any ambiguity in a government-drafted contract is construed against the government; if the Navy intended to shift the entire risk of non-access to the contractor, it should have done so with clear and explicit language. Third, the contemporaneous conduct of the parties during performance, where the Navy's own project manager repeatedly assisted the contractor in gaining access, demonstrates that the Navy itself acted as if it had an obligation to provide access. Finally, the contractor's prior experience on a similar project at the same base, where the Navy had provided access when needed, created a reasonable expectation that it would do so again.
Analysis:
This decision clarifies the allocation of risk for site access in government construction contracts involving third-party controlled premises like military housing. It establishes that the government's implied duty to provide a worksite is not automatically shifted to the contractor by a clause merely requiring the contractor to notify occupants. This precedent protects contractors from bearing the financial burden of delays caused by uncooperative tenants or other access issues beyond their control. For future cases, it emphasizes the importance of clear contract drafting by the government if it wishes to transfer such risks and reinforces the evidentiary weight of the parties' conduct during contract performance.
