DECISION This breach of contract claim arises out of a construction contract bearing Contract No. D262058, entered into on September 6, 2012 by claimant (Servidone), the general contractor, and the New York State Department of Transportation (the State), for the refurbishment and painting of structural steel on the Route 17 bridge over I-84 in the Town of Wallkill, New York. Servidone brings this claim on behalf of its subcontractor, Erie Painting and Maintenance Inc. (Erie), pursuant to a liquidating agreement between Servidone and Erie. The parties submitted a Statement of Stipulated Facts to the Court in an effort to resolve the matter prior to trial (Court Ex. 2). Despite extensive efforts, the matter did not resolve prior to trial and a unified trial was heard via video conferencing technology on September 19, 22, 23, 28, 2022 and January 11, 12, 2023 and February 14, 2023. The Parties’ Contentions The claim alleges damages resulting from a conceded error on the State’s Plan Sheet, which is part of the contract documents provided to the contract bidders on July 18, 2012.1 Specifically, Plan Sheet No. 782 contains Note 56 from the State’s Bridge Manual which states, “THERE ARE ____ SQUARE METERS OF PAINTED STRUCTURAL STEEL ON THIS BRIDGE. (Designer shall indicate area to the nearest 10 m2.)” (Court Ex. 2, 23 [i] [1]; Ex. 23, p 36). The State filled in the blank space with the number “2600″ (Ex. 22). As of November 22, 2010, more than a year and a half prior to the State’s advertisement for contract bids on July 18, 2012, the State knew that the 2,600 that it had inserted into Note 56 on the State’s Plan Sheet No. 782 was an error (T:276-279, 282-283, 336-337; Ex. 38).2 The correct quantity calculated by the State on November 22, 2010 was 7,635 square meters and was supposed to match the quantity indicated in Note 56 on the State’s Plan Sheet No. 782 (Court Ex. 2,
47, 54, 56). The quantity of 2,600 as indicated in Note 56 on the State’s Plan Sheet No. 782 does not match the quantity calculated by the State on November 22, 2010 and does not indicate the actual area of the bridge to the nearest 10 square meters as mandated by the State’s Bridge Manual (id. at 25). The State concedes that it did not correct its error on Plan Sheet No. 782 prior to releasing the contract documents to the contract bidders on July 18, 2012 (id. at 47). Based upon the aforenoted undisputed facts, claimant contends that the State’s error constitutes an affirmative misrepresentation for which the State must be held liable. Claimant also maintains that Erie had no choice but to rely upon the State’s representation of 2,600 square meters because the State did not provide sufficient information in the contract documents to enable a calculation of the total quantity of square meters. The State argues that Servidone and Erie did not satisfy the contractual duty to carefully examine the contract documents and the job site before submitting a lump sum bid. The State also contends that its conceded error as to the total quantity of square meters was, or should have been, apparent and that therefore any reliance upon the State’s representation was unreasonable. Additionally, the State argues that Erie took advantage of the State’s “apparent error” and that such conduct is specifically prohibited under the standard specifications set forth in the contract documents (Ex. Q, p 26). Therefore, the State maintains that Erie waived its right to plead a misunderstanding of the State’s representation of the total quantity of square meters. The State also argues that claimant cannot recover any damages because Erie failed to comply with the contract terms requiring the production of all bid documents and that the bid documents produced by Erie failed to establish Erie’s bidding methodology and Erie’s claim that it reasonably relied upon the State’s representation as to the total quantity of square meters. Finally, the State argues that claimant did not sustain any damages because Erie’s claimed extra costs were less than its lump sum bid and that claimant was paid in full (T:479-480). The Relevant Portions of the Statement of Stipulated Facts, the Exhibits and the Trial Testimony Pertaining to the State’s Plan Sheet Error and the Job Site Inspection Pete Toptsidis, Erie’s superintendent and job inspector, testified that he has nearly 40 years of experience in the bridge painting business as a bridge painter and then as a foreman (T:16). He provided testimony to aid the Court’s view of a demonstrative video which was presented to show a bridge painting operation with a containment and the necessary PPE (Personal Protective Equipment) (T:16, 19-22; Ex. 110). A photograph of the steel platform used in the project at issue by the workers to blast and paint the bridge was also received into evidence (Ex. 93). Toptsidis explained how the workers stand on the platform to blast and paint and how they lay on their backs, on top on the platform, to work on the underside of the bridge (T:23-24). The project called for the blasting and painting of every piece of steel on the bridge and to replace any damaged steel and then to paint it (T:39-40). Plan Sheet No. 782 lists Stuart Goodrich, P.E, as the State’s designer, job manager, and “check” for the Plan Sheet dimensions, including the total quantity of square meters (Ex. 22). Goodrich was responsible for developing the Plan Sheets and ensuring their accuracy (Court Ex. 2, 54). John Reilly is listed on the Plan Sheet as the State’s drafter and served as an additional check on Goodrich’s calculations (Ex. 22). Goodrich testified that he prepared the PS&E (plans, specifications and estimate) for the project (T:321-323, 325). He conceded that the standard notes on the Plan Sheet are an important element of the PS&E package because the notes provide necessary additional information that cannot be easily included in a detailed drawing (T:324-325). He stated that the bid package should also include the designer’s calculations (T:325). Goodrich chose Note 56 to insert into Plan Sheet No. 782, which provides for a definitive quantity of the total square meters, and mandates that the quantity be accurate within 10 square meters (T:330). The Court notes that Goodrich testified that a bidder could reasonably rely upon the number of square meters specified in Note 56 on the State’s Plan Sheet (T:328). Goodrich explained that he inserted the number 2,600 into Note 56 on Plan Sheet No. 782 and that his work should have been checked for accuracy (T:330-331). Reilly checked Goodrich’s work. The quantity work-up sheets were prepared by Reilly. On page two of the work-up sheets, Reilly had a calculation of 2,743.45 square meters, which Goodrich reviewed on November 22, 2010, and corrected to be 6,089.60 square meters (Ex. 38; T:332-334). On page three, Reilly calculated 3,555.37 square meters, which Goodrich corrected to be 6,937.45 square meters (T:335). Goodrich calculated the total quantity of square meters to be 7,635 square meters, which he conceded is substantially more than 2,600 square meters (T:336-337, 342). Before finalizing the plans, Reilly and Goodrich did a field measurement of the bridge to confirm that 7,635 square meters conformed to the record plans and the as-built plans (T:337-338). When Goodrich calculated the amount of painted structural steel to be 7,635 square meters on November 22, 2010, that amount was supposed to match the quantity shown in Note 56 on Plan Sheet No. 782 and it did not (Court Ex. 2,
