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Jim Psenak Construction v. State11/16/2005
relied on Psenak's misrepresentations when it overpaid Psenak. Thus, Psenak's misrepresentations clearly were material and relied upon by the State.
VI. Conclusion
This court, having fully considered the arguments and record on appeal, hereby orders that the decision of the Commissioner is AFFIRMED.
Psenak makes the following arguments to this court on appeal. Our response to each follows the statement of each argument.
"A. The Hearing Officer Committed Reversible Error When He Failed To onsider the Conduct of the Parties in Interpreting the Meaning of Special Provision 203-3.02 Entitled 'Embankment Construction.' "
Response: The question of the meaning of Special Provision 203-3.02 is discussed in Part IV.a of the opinion of the superior court. We agree with that discussion and add the following observations. The premise of Psenak's argument is that the hearing officer refused to consider evidence of the conduct of the parties that is relevant to the meaning of the contract. This premise is erroneous. The hearing officer considered in detail the evidence of performance that was said to be relevant to what the contract meant and concluded that this evidence did not justify the nonliteral interpretation of the contract that Psenak advocated. The analytical method used by the hearing officer is consistent with our case law. We conclude therefore that this argument has no merit.
"B. ADNR Terminated JPC for Default Improperly As ADNR Was the Cause for JPC's Inability To Fulfill Its Contractual Obligations."
Response: Parts IV.a and b and Part V of the superior court's opinion answer this argument.
"C. The Hearing Officer's Misrepresentation Findings Were Contrary to the Contract, Not Supported by Credible Evidence, in Derogation of Change Order No. 1, and Contradicted by JPC's Post-Hearing Reprocurement Survey Data."
Response: Part V of the opinion of the superior court adequately answers this argument.
"D. The Superior Court Abused Its Discretion by Denying JPC's Motion To Supplement the Record as to the ADNR's Excessive Reprocurement Costs and In Awarding Excessive Reprocurement Costs."
Response: The hearing officer allowed as reasonable reprocurement costs $206,886. Psenak claims that the reprocurement contract was materially different from the contract that he was to perform. The notice of intent to award the reprocurement contract was dated October 25, 2001. The administrative hearing took place in November and early December 2001. Although the reprocurement contract was not performed until after the administrative hearing, the terms and specifications of the contract were known at the administrative hearing. Whether the reprocurement contract was materially different from the contract Psenak was to perform was an issue at the administrative hearing. Psenak's counsel stated in his opening statement:
But I have to acknowledge that if they rightfully terminated him and had to go out and finish the job, then they're entitled to substantial additional compensation, even though I think you would have to take into consideration that there are modifications in the approach that they used which may cause those numbers to be discounted.
At the administrative hearing the State presented the reprocurement contract documents and testimony that the volumes involved in the reprocured work were essentially the same as those left unfinished by Psenak. Psenak in final argument did not contend that the reprocurement contract was materially different from its contract with the State.
In its motion to supplement the record, Psenak did not dist
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