dissenting.
I respectfully dissent.
As the majority acknowledges, the Nutting Report was referred to in the specifications and drawing note cited, as well as being included in the project manual. The Report indicates both (1) a possible 34 foot "estimated tip elevation" with a plug forming, which would be at an estimated 51 foot pile length; and (2) a "-5" estimated tip elevation, with "the pile ... driven significantly deeper to achieve capacity" and an estimated 91 foot pile length. (App.38). The specifications then required that piling (1) be "driven to batter and location shown and to the minimum bearing capacity as noted in the plans," referencing the Nutting Report; and (2) "be driven to a minimum tip elev. of 34.0 ft. and pile bearing capacity of 70 tons." (App.80, 86).
The contract called for the installation of 44 pilings. On the drawing note, the estimated quantity of 12x58 steel piling to be installed was 4,096 linear feet. Thus, the estimated average piling length was 93 feet.
As argued by Milestone, it "and other bidding contractors" faced the "predicament" of being required to submit a lump sum bid for either the "worst-case" scenario-using a bid based upon the maximum estimated length-or the risk of guessing what "the actual total piling depth quantity might end up being." Milestone's Br. at 6. Therefore; Milestone "prepared an initial bid utilizing the worst-case number given in the estimated quantities table"-4,096 LF. Id. |
It was at this point that the City issued Addendum 2, providing
In the event that the specified pile tip elevation is reached and the adequate soil bearing capacity is not yet achieved ... the contractor shall be paid for additional HP 12x53 bearing pile required at a rate of $60 per lineal foot.
(App.80). In the context of the factual see-nario that preceded the issuance of this provision, I believe that Addendum 2 addressed the "predicament" that Milestone described, namely that it was unknown what "the actual piling depth quantity might end up being." Id.
That being said, I turn to the law of contracts. It is a court's duty to interpret a contract so as to ascertain the intent of the parties. First Fed. Sav. Bank of Ind. v. Key Markets, 559 N.E.2d 600, 608 (Ind. 1990). We must accept an interpretation of the contract which harmonizes its provisions as opposed to one which causes the provisions to be conflicting. Id. In interpreting a written contract, the court will attempt to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties. Id. When a contract is clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made. Id. at 604.
I would find that consistent with the intent of the parties, Addendum 2 provided that in the event the successful bidder had to install more than 4,096 LF of pilings in order to meet the required load bearing *887capacity, then the additional <- quantity would be paid for at the rate of $60 per lineal foot. Therefore, I would reverse the trial court and order that summary judgment be granted to the City.