High Steel Structures, Inc.
Cardi Corporation et al.
State of Rhode Island and Providence Plantations, Department of Administration, Division of Purchases.
County PC 09-5310 Superior Court Luis M. Matos Associate
Plaintiffs: Stacey P. Nakasian. Esq. Stephen D. Nelson, Esq.
Defendant: Adam S. Sholes Department of Attorney General
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
Gilbert V. Indeglia Associate Justice.
matter comes before the Court on appeal from the Superior
Court's grant of summary judgment in favor of the State
of Rhode Island (the state) in a third-party action for
breach of contract brought by Cardi Corporation (Cardi) in
response to a suit by High Steel Structures, Inc. (High
Steel). At issue was Cardi's contract with the state to
construct a portion of a prodigious highway construction
project dealing with Interstate 195 in Rhode Island (I-Way
Project). Specifically, this case arises from Cardi's
subcontract with High Steel to supply steel for this project
and High Steel's assertion that it was never paid for
182, 873 pounds of temporary steel bracing. For the reasons set forth in this opinion,
we affirm the judgment of the Superior Court.
I-Way Project is a multiyear, multi-faceted highway
construction endeavor for various parts of Interstate 195. In
2004, the state released details regarding Contract 6, one of
fifteen I-Way Project contracts, which provided for "the
construction of a series of new tub-girder bridges and ramps,
along with associated public way and utility relocations and
improvements." In this regard, the state retained
Maguire Group, Inc. (Maguire) as the project's managing
consultant and engineer of record. Contract 6, the contract from which this
dispute emanates, detailed plans to construct I-Way ramps
labeled "NE, WS, WES and SE." Completion of
Contract 6 required the use of various materials, including
temporary cross braces. The temporary bracing in question,
Grade 36 steel, was used for work identified as Item No. 312,
Item Code 824.9921, in the
"Distribution of Quantities." Item No. 312 was the item for Grade 50
structural steel. There was no separate line item listing the
weight for the Grade 36 temporary bracing steel.
bid-submission deadline was set for July 30,
2004. Prior to the bid deadline, on
June 29, 2004, the state held a conference to address
potential bidders' questions or concerns relative to
22, 2004, the state received a question from a prospective
bidder concerning payment for temporary cross braces.
Specifically, the contractor inquired, "What is the pay
item for the temporary A36 steel braces between the tub
beams?" In light of this question, on July 27, 2004, the
state, in collaboration with Maguire, prepared and released
Addendum No. 7 to Contract 6. This addendum issued a
"Clarification, " which provided:
"[T]emporary bracing between girders on Bridges NE, WS
and SE is not measured separately for payment. All costs
associated with the temporary braces, filler bolts and field
touch up are considered as incidental and shall be included
in the structural steel items of work. For further
clarification see changes to notes on sheets NE 45, WS 51, SE
21 found elsewhere in this Contract Addendum."
the state modified the field notes associated with each
Contract 6 ramp to track the language of Addendum No.
conclusion of bidding, the state selected Cardi as the
general contractor for Contract 6. Cardi was the lowest
bidder, with a contract price of $63, 991, 186.42, nearly
$900, 000 less than the next lowest bidder. On September 10,
2004, Cardi subcontracted with High Steel for the latter to
provide-among other items-temporary cross frames. High Steel
bid $2.343 per pound on Item No. 312; and, using this bid
price, Cardi bid $2.58 per pound for that item. High
Steel's contract with Cardi specifically excluded certain
items, namely "field measurements or surveys, stud shear
connectors, scuppers or any other bridge drainage, scupper
supports, bearings, bearing pads, anchor bolts, field touch
up paint, stenciling or painting." High Steel's
contract, however, included temporary cross frames. The state
entered into a written contract with Cardi on October 29,
preparing its subcontract bid with Cardi, High Steel
confirmed "receipt of Addenda #1 through #7" and
acknowledged that the state issued Addendum No. 7 to Contract
6 before it subcontracted with Cardi. Further, High Steel
indicated that it reviewed Addendum No. 7 and understood it
as conforming to the manner in which it prepared its bid.
Neither Cardi nor High Steel changed its bid as a result of
Addendum No. 7, nor did they request further clarification.
31, 2008, in a letter addressed to the state, High Steel, by
way of Cardi, claimed that it had not been paid for the
temporary cross frames. The state consulted Maguire, which
agreed that the temporary cross frames weighed 182, 873
pounds, but nevertheless recommended against payment. It did
so citing Addendum No. 7, the Distribution of Quantities, and
the Rhode Island Department of Transportation Standard
Specifications for Road and Bridge Construction (Blue
Book). As a result, the state did not
pay Cardi (or High Steel) any additional amount.
September 11, 2009, seeking payment for the temporary
bracing, High Steel filed suit against Cardi and its surety,
Safeco Insurance Company of America. On October 28, 2009,
Cardi filed a third-party complaint seeking declaratory
relief and indemnification from the state for any payment
that High Steel might receive from Cardi. Cardi's
complaint against the state further alleged breach of
contract and quantum meruit/unjust enrichment.
the state and High Steel filed separate motions for summary
judgment against Cardi. High Steel argued that its "bid and
invoices [were] consistent with Contract 6 and Addendum No.
7, " and that "[t]he [s]tate [was] not being asked
to pay more than High Steel's original bid amount."
High Steel also averred that its contract interpretation was
corroborated by its significant industry experience and
general industry practice. In support of its motion for
summary judgment, the state argued that High Steel's
interpretation as to how it bid other projects and general
industry practice were not relevant in reviewing this
contract. The state submitted that the specific and clear
language of Contract 6, and the documents it incorporated by
reference, supported its reading of the contract. After
hearings on January 8 and April ...