MOTION FOR PARTIAL SUMMARY RELIEF 
AS TO CBCA 1088 GRANTED; CBCA 1566 DENIED:  September 23, 2009
 
CBCA 1088, 1566
 
HAMBONE CONSTRUCTION, INC.,
 
A p p e l l a n t , 
v. 
DEPARTMENT OF AGRICULTURE, 
Respondent. 
Joshua J. Divine of Reese, Smalley, Wiseman & Schweitzer, LLP, Redding, CA, 
counsel for Appellant. 
Marnie G. Ganotis, Office of the General Counsel, Department of Agriculture, San 
Francisco, CA, counsel for Respondent. 
Before Board Judges HYATT,  POLLACK , and STEEL. 
POLLACK, Board Judge. 
This appeal arises out of contract no. AG-9A28-C-06-0023, Goods Creek Bridge 
Construction, between Hambone Construction, Inc. (Hambone or appellant) and the 
Department of Agriculture, Forest Service (FS or Government), under which Hambone was 
to construct a bridge and perform other associated work.  A primary subject of dispute 
involved the furnishing and placement of diaphragms, as part of the bridge construction. 
For various reasons, Hambone has asserted that it was reasonable for it to bid the contract 

 
 
 
   
    
        
 
    
   
 
   
 
   
        
 
 
  
 
    
 
  
2 CBCA 1088, 1566 
without pricing diaphragms and that it should be compensated for the diaphragms it had to 
provide on the project.  The FS disagrees and has filed this motion for partial summary relief 
seeking dismissal of those portions of the appeals that relate to the diaphragms. The 
Government contends in its motion that the contract drawings included with its solicitation 
for offers made clear that the construction of the bridge required diaphragms, and thus the 
contract was unambiguous as to a diaphragm requirement.  Additionally, the Government 
maintains that appellant was not entitled to rely on representations, as to the diaphragm 
requirement, attributed by appellant to a FS official prior to bid. 
Hambone’s initial  appeal in this case was docketed as CBCA 1088.  The appeal was 
from a final decision of the contracting officer, which decision addressed a claim from 
Hambone for the cost of providing diaphragms and addressed a separate claim for additional 
landscape costs.  As part of the processing of the appeal, appellant filed a complaint and 
therein raised factual and legal contentions relating to the diaphragms that, according to the 
FS, had not been previously placed before the contracting officer.  The contentions related 
to claims as to government direction and representations, both pre-and post-bid.  On 
November 18, 2008, the FS filed a motion to dismiss what it characterized as the “new” 
allegations being submitted by appellant, asserting that the new allegations were outside the 
scope of the initial claim.  After discussion with the Board, and without prejudice to whether 
the contested allegations were new claims or not, appellant agreed to provide a separate 
claim to the contracting officer, where appellant would address the matters raised in the 
complaint.  The FS agreed to promptly respond to that claim with a final decision. The 
parties and Board further agreed that upon appeal by appellant, the matter would be assigned 
a new docket number and that case would be consolidated with the existing appeal for 
processing. That newly docketed appeal would address solely the matter of the diaphragms. 
On April 22, 2009, after receiving a decision from the contracting officer as to the “new” 
claim, appellant filed a second appeal as to the diaphragms.  It was docketed as CBCA 1566. 
Background 
The contract documents, provided with the solicitation, do not contain a separate 
specification sheet addressing diaphragm construction.  The first page of the contract 
drawings (under General Notes at the center of the sheet),however, incorporates by reference 
the Standard Specification for Highway Bridges and Standard Specification for Construction 
of Roads and Bridges on Federal Highway Projects (also known in the industry as the FP­
03). Appeal File, Exhibit 3 at 98; Respondent’s Memorandum in Support of Respondent’s 
Motion for Partial Summary Relief, Exhibit 5, ¶¶ 21-22.  According to the FS, such 
publication provides industry standard specifications for the components of a bridge. 
Respondent’s Memorandum in Support of Respondent’s Motion for Partial Summary Relief, 
Exhibit 5, ¶ 22.  

   
    
   
            
 
 
 
  
  
  
    
    
 
   
  
        
   
 
 
  
     
 
 
3 CBCA 1088, 1566 
Two contract depictions, each on sheet R-1576-03, address the incorporation of 
diaphragms into the design of the bridge.  The drawing section titled Superstructure Plan, 
Appeal File, Exhibit 3 at 100, contains a depiction which shows three diaphragm lines across 
the girders, with two diaphragms noted per line (3 x 2 = 6 diaphragms).  This depiction is 
shown in three locations on the referenced drawing section.  Diaphragms are also depicted 
on the drawing section titled Superstructure Elevations, id ., which shows a concrete 
diaphragm at span quarter points (middle left of sheet).  Both drawing sections referenced 
by the FS are scale drawings and lack detail as to the diaphragms. Appeal File, Exhibit 3 
at 100; Respondent’s Memorandum in Support of Respondent’s Motion for Partial Summary 
Relief, Exhibit 5, ¶¶ 8, 10.  
The Government’s design engineer, Mr. Christopher Shields, attests in his affidavit 
that the lack of detail is not significant in terms of defining the contract requirement for 
diaphragms.  He explains that a contractor could use a scale ruler to make a computation to 
come up with the necessary amount of material needed for construction.  Mr. Shields also 
states that the reason the FS did not detail the diaphragms beyond the two drawings was that 
the final configuration of the diaphragms needed to conform to the precast girders.  Those 
girders were to be designed and fabricated by Hambone’s girder supplier, Morse Bros. 
(Morse). Mr. Shields notes that the shop drawings developed by Morse provided the final 
details for the diaphragm geometry, reinforcing steel and embedded inserts in the girders to 
anchor the rebar.  Respondent’s Memorandum in Support of Respondent’s Motion for 
Partial Summary Relief, Exhibit 5, ¶¶ 7-12, 22-25. 39-40. 
Appellant acknowledges that the drawings with the solicitation included depictions 
of diaphragms.  Appellant’s Statement of Uncontested Facts, ¶ 36. Appellant did not 
include diaphragms in its bid pricing because, in its opinion, the diaphragms depicted on the 
drawings lacked sufficient detail as to construction.  Appellant further inquired of Morse, 
prior to bid, whether diaphragms noted on the drawings would be precast or not.  Morse told 
appellant that it did not know the answer to that question, pointing out that the design had 
not yet been approved by the FS.  Id. ¶¶ 37-38.  Still prior to submitting its bid,  Hambone 
contacted the FS and spoke to Mr. Gary Hemsted, another FS engineer, about its concerns 
over how to bid.  Appellant states it was told by Mr. Hemsted to bid what was on the plans, 
and was additionally told by him that it would be compensated for any diaphragms required. 
Relying on those representations, appellant did not include diaphragms in its pricing. 
Appellant’s Statement of Uncontested Facts, ¶¶ 36, 40-43.  
The only FS official with contracting officer authority on this contract was Ms. Lela 
Steweicki, the then-contracting officer.  There is no evidence establishing that any 
contracting authority was vested in Mr. Hemsted at the time of bid, nor any record of him 
occupying an administrative contracting role.  The contracting officer did not provide 

   
 
 
 
        
 
 
   
 
 
        
 
 
 
   
    
  
4 CBCA 1088, 1566 
Hambone with any clarification or direction concerning the diaphragms.  Respondent’s 
Memorandum in Support of Respondent’s Motion for Partial Summary Relief, Exhibit 1, 
¶¶ 6-10; Exhibit 6. 
Although the parties address in part the details surrounding the submission and 
approval of the design, the subject was not fully developed in the submissions on the 
motion.  Appellant, in a declaration attached to its response to the FS motion, in fact 
indicates that at least one submission from Morse was not fully approved.  Declaration of 
Jerry Cash (Aug. 30, 2009) ¶¶ 11-13. More to the point, according to appellant, without the 
details which Morse included in the shop drawings which Morse provided after award 
(ultimately approved by the FS), appellant considered it impossible for it or its 
subcontractors to include any bid price as to diaphragms. Appellant’s Statement of 
Uncontested Facts ¶ 40.  At the time of bid, appellant was uncertain whether the diaphragms 
would be precast or poured in place; and uncertain as well as to the  size of the diaphragms, 
the size of rebar, threading, and other construction details.  Id. ¶¶ 37-39. 
Finally, appellant points out that for two other FS projects, Pine Creek Bridge and 
West Branch Indian Creek Bridge, the FS provided detailed drawings of diaphragms, as 
contrasted to the bare bones depiction on the Cross Creek drawings.  Cash Declaration 
¶¶ 13, 14.  The FS has pointed out differences in those projects from the bridge being 
constructed in this case. Respondent’s Memorandum in Support of Respondent’s Motion 
for Partial Summary Relief, Exhibit 5, ¶¶ 13-20. 
Discussion 
In a decision involving a motion for summary relief, the law requires that we draw 
all reasonable factual inferences in favor of the non-moving party. It is not our role to weigh 
competing evidence.  As long as a party has provided some evidence which could sustain 
its factual contentions and those facts are material to the ultimate resolution of the appeal, 
we proceed as if those facts were established.  Anderson v. Liberty Lobby, Inc ., 477 U.S. 
242, 249 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).  We have applied 
the above in deciding the motion before us. 
There is no question that the contract drawings on this project identified diaphragms 
in several locations.  Although the drawing depictions of the diaphragms clearly lacked 
detail, that does not change the fact that diaphragms were identified as an element of the 
contract.  The record further shows that appellant evidently recognized that diaphragms were 
noted on the drawings and in fact sought clarification as to them.  Taking all inferences in 
favor of appellant, we accept for purposes of this motion that the drawings lacked detail and 
that the appellant had reason to be uncertain as to whether the diaphragms would be precast 

 
     
  
  
 
  
 
 
    
   
  
 
     
  
             
 
 
 
   
 
 
 
5 CBCA 1088, 1566 
or poured in place. The drawings also provide insufficient information to determine 
definitively the size of the diaphragms, size of rebar, threading, and other construction 
details. Making all inferences in favor of appellant, we conclude that the design concerns 
addressed by appellant were items that could not be determined with any precision at the 
time of bid and had to wait for design finalization, after award.  We also accept that on some 
other FS bridge projects requiring diaphragms, the FS provided significantly more 
information than on this project.  Additionally, we find that to some extent, appellant, in 
order to bid a price, would have had to “fill in the blanks” as to aspects of the design, such 
as size, configuration and other similar elements.  Coming up with a price may well have 
been difficult, and accordingly, imprecise.  There may well have been areas of speculation 
in arriving at the dollars to be attributed to the diaphragms.  Even accepting Hambone’s 
statements as true, however, we cannot find that the lack of detail in the drawings justifies 
appellant’s decision not to include pricing for the diaphragms, thus effectively deleting the 
requirement from the contract.  The diaphragms depicted in the drawings must be given 
meaning and can not simply be read out of the contract absent a contractually valid direction 
to disregard them.  Fortec Constructors v. United States , 760 F.2d 1288, 1292 (Fed. Cir. 
1985). 
When dealing with the Government and relying upon an official’s advice, one must 
go to the right individual. Where advice is provided by one who does not have contracting 
authority, his actions cannot legally bind the Government. When seeking  pre-bid guidance 
and commitment from the Government, one must make sure that the person relied on had 
the authority to make the commitment.  Federal Crop Insurance Corp. v. Merrill, 332 U.S. 
380 (1947); Europa Bakery, Inc., PSBCA 4994, et al., 06-2 BCA ¶ 33,400; Rich Macauley, 
AGBCA 2000-155-3, 01-1 BCA ¶ 31,350, at 154,811.  That simply did not happen here. 
Thus, accepting as a fact that Hambone was told by Mr. Hemsted that it would be 
compensated separately for diaphragms, there still can be no relief.  There is no evidence 
that prior to Hambone submitting its bid, the contracting officer on this project had approved 
or was aware of the claimed directions from Mr. Hemsted.  There is further no evidence that 
Mr. Hemsted had contracting authority of any nature.  As to Hambone’s legal argument that 
Mr. Hemsted can be found to have implied authority, we find that unpersuasive and contrary 
to well-established case law.  Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339 (Fed. 
Cir. 2007).  Mr. Hemsted was not a contract administrator at the time of bidding, but rather 
was a FS engineer.  He was simply not cloaked with any contracting authority, either 
apparent or implied.  Accordingly, any guidance that may have been provided does not 
excuse appellant from bidding and providing diaphragms as part of its contract obligation. 
We do not address, in this ruling, any further issues or  disputes  which might remain 
as to the scope of the contract requirement for diaphragms or as to the effect of the 
Government post-award actions.  To the extent there may be issues, such as to the difference 

 
  
     
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6 CBCA 1088, 1566 
between diaphragms provided and those required by the contract, such issues would need 
to be addressed in a separate claim and decision.  Finally, the matters surrounding the 
landscape issues remain before the Board as part of CBCA 1088. 
Decision 
We GRANT respondent’s MOTION FOR PARTIAL SUMMARY RELIEF in 
part as to CBCA 1088, finding that appellant was required to provide diaphragms as part of 
its bid.  We DENY CBCA 1566 in its entirety. 
HOWARD A. POLLACK 
Board Judge 
We concur: 
CATHERINE B. HYATT CANDIDA S. STEEL 
Board Judge Board Judge