Full opinion text
MEMORANDUM OPINION AND ORDER WILHOIT, District Judge. I. This matter is before the Court on the motion of L.K. Comstock & Company, Inc. (Comstock) to confirm Special Master’s Findings of Fact and Conclusions of Law. Becon Construction Company (Becon) opposes the motion. The Court referred Counts VII and VIII of the Complaint for trial by Special Master by Order of April 27, 1993. These counts relate to the parties’ dispute over the proper pricing of certain additional work performed by Comstock for Becon on the Toyota plant construction project. Both parties agree Sections 5.3 and 4.C of the Subcontract govern pricing, but each interpret these pricing provisions differently. Special Master conducted the trial of Counts VII and VIII and has issued his Findings of Fact and Conclusions of Law. Pursuant to the order of reference, Special Master’s factual determinations are conclusive and unreviewable by the Court. See also Fed.R.Civ.P. 53(e)(4). II. Special Master concludes that the Subcontract is ambiguous on its face, and therefore, he resorts to extrinsic evidence presented at trial to interpret the agreement. Special Master finds that the parties’ prior negotiations and contemporaneous conduct and declarations reveal their mutual understanding that the Subcontract requires pricing the additional work subject to Counts VII and VIII according to unit rates found in the MCAA Manual. Also, Special Master finds, based on the same evidence and the testimony of a representative of the MCAA, that page 17-2 of the MCAA Manual provides the applicable unit rate for pricing the additional work. In sum, Special Master agrees with Comstock’s construction of the Subcontract. In addition to finding Becon should pay Com-stock according to MCAA Manual unit rate, Special Master also finds Becon should be assessed pre-judgment interest. III. A. Becon has filed lengthy and exhaustive objections to Special Master’s report. In reply, Comstock argues that Becon’s objections go primarily to factual determinations, which are not reviewable by the Court. Comstock’s argument is critical to the present motion because only objections to Special Master’s legal rulings are reviewable by the Court. Special Master’s factual findings will not be disturbed. The central issue at trial was the proper interpretation of the pricing provisions of the Subcontract. Generally, construction of written contracts is a question of law reserved for the court to be answered solely by reference to the four corners of the written documents. However, the Court, in overruling Becon’s motion for summary judgment on Counts VII and VIII, found that the pricing provisions of the Subcontract were ambiguous and therefore extrinsic evidence would be necessary for their interpretation. Special Master’s trial of Counts VII and VII, in essence, was the taking of such extrinsic evidence, and, in turn, Special Master’s report represents his construction of the Subcontract in light of that evidence. When the effect of a written contract depends largely on extrinsic evidence, the construction of the contract is essentially a finding of fact, not law. See Cook United, Inc. v. Waits, Ky. 512 S.W.2d 493 (1974); Neel v. Wagner-Shuck Realty Co., Ky.App., 576 S.W.2d 246 (1978). In the present case, since the Special Master’s construction of the Subcontract’s pricing provisions is predominately influenced by extrinsic evidence, his conclusions are findings of fact that may not be reviewed by the Court. B. Becon’s objections to issues of law, which may be reviewed de novo by this Court, are three in number: 1) whether extrinsic evidence is admissible to interpret the Subcontract pricing provisions for additional work, 2) whether Special Master properly relied on certain rules of construction, and 3) whether Special Master’s award of prejudgment interest is within the scope of reference. Prior to referring Counts VII and VIII to Special Master, the Court ruled that extrinsic evidence would be necessary to interpret the pricing provisions of the Subcontract. Thus, the Special Master correctly admitted extrinsic evidence to aid in the construction of the Subcontract. In alternative to his reliance on extrinsic evidence, Special Master made reference to certain principles of contract construction set out in the Restatement (2d) of Contracts to bolster his conclusions. A careful reading of Special Master’s report indicates that these principles are not essential to the report’s conclusions. Thus, this Court will not review Special Master’s use of these principles of contract construction since such a review would have no bearing on the overall legitimacy of the report. Becon argues that the issue of pre-judgment interest is beyond the scope of reference because Comstock did not specifically pray for pre-judgment interest in Counts VII and VIII. This objection is primarily technical in nature. Comstock’s Complaint makes a general prayer for pre-judgment interest which implicitly relates back to all counts seeking monetary damages. Thus, it would appear that the issue of pre-judgment interest is within the scope of Counts VII and VIII. Logically, the issue of pre-judgment interest should be determined in relation to each count. The parties have exhaustively briefed the pre-judgment interest issue in their memoranda to Special Master, and the Court finds Special Master’s analysis of the pre-judgment interest to be a correct reading of the law. Thus, no purpose would be served in re-litigating the pre-judgment interest issue. Accordingly, the Court ORDERS, 1) that Comstock’s Motion to Confirm, (D.E. # 240), is SUSTAINED, 2) that Special Master’s report, (D.E. # 234), is CONFIRMED and adopted by and for the opinion of the Court. SPECIAL MASTER’S FINDINGS OF FACT AND CONCLUSIONS OF LAW THOMAS J. STIPANOWICH, Special Master. On February 16, 1989, Plaintiff L.K. Com-stock & Company, Inc. (“Comstock”) commenced this action against Defendant Becon Construction Company (“Becon”). Com-stock filed a seventeen-count complaint against Becon for certain claims for additional compensation arising from labor, material, and services provided by Comstock to Becon in connection with the Toyota Automotive Manufacturing Facility in Georgetown, Kentucky (the “Project”). The District Court severed Count 17 of Comstock’s Complaint concerning Comstock’s claims that the changes in the work to be performed by Comstock were so extensive as to constitute an abandonment of the contract or a “cardinal change.” The hearing on Count 17 was referred to Thomas J. Stipanowich, Professor of Law at the University of Kentucky College of Law, as Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. After lengthy hearings, the Special Master concluded that Comstock did not sustain the burden of proving an abandonment of the contract or a cardinal change. The Special Master’s findings of fact and conclusions of law were adopted in full by the District Court. Comstock moved for a trial of Counts 7 and 8 before a special master. On April 2, 1993, the Court sustained Comstock’s motion. Subsequently, the parties waived jury trial and stipulated to trial before Special Master Stipanowich pursuant to Fed.R.Civ.P. 53(e)(4). The Special Master presided at the trial of Counts 7 and 8, which began June 21, 1993 and finished June 24, 1993. Counsel submitted post-trial memoranda, and Counts 7 & 8 are ready for determination. The issue raised by Counts 7 and 8 is one of contract interpretation—specifically, whether or not Comstock is entitled to be reimbursed for additional supplemental steel work at a rate determined by an industry manual referenced in the parties’ contract. For the reasons stated below, the Special Master concludes that Comstock’s interpretation is consistent with the express language of the agreement and surrounding circumstances including course of performance and usage of trade, and that Comstock is entitled to the relief requested under Counts 7 and 8 of the Complaint. I. BACKGROUND AND ISSUES A. The Characters and the Setting This dispute arose out of the construction of an automotive assembly plant in Georgetown, Kentucky for Toyota Motor Manufacturing, U.S.A., Inc. (“Toyota”). Toyota contracted with Ohbayashi Corporation (“Ohbayashi”) for construction management services on the Project. Beneath Ohbayashi were nine general contractors, and beneath them over 200 subcontractors and more than 400. sub-subcontractors. Giffels Associates, Inc. (“Giffels”) was the engineer for the Project. Becon was the general contractor for the plant’s utility area, which was designed to supply steam, electricity, and other essentials for plant operation. Becon subcontracted with Comstock to perform the electrical and mechanical work for the utility area. Most of Comstock’s work involved the utility building (Area 500), but Comstock also performed work on the trestle (Area 501), the waste water treatment building (Area 502), the water pump house building (Area 503), the electrical switch gear building (Area 504), the diesel fuel pump house building (Area 505), and the liquid tank farm area. B. The Controversy Section 5.3 of the subcontract between Be-con and Comstock contained a provision establishing a mechanism for pricing of changes to the work. P.E.1955. Under this provision, unit rates for installation of mechanical work—that is, the number of hours required to do a particular unit of work— were to be determined in accordance with the estimating guide published by the Mechanical Contractors Association of America, Inc. (that is, the MCAA Labor Estimating Manual, or “MCAA Manual”). During construction, a dispute arose regarding the application of the MCAA Manual to determine the amount of labor required to install additional steel for support of piping systems. Comstock argued that for the purpose of pricing changes labor units should be determined in accordance with the following provision on page 17-2 of the MCAA Manual (P.E. 1491): Light Iron Unload fabricate, distribute, erect, and fasten either by bolting or welding to building construction and based on a minimum weight of 10 lbs. for any configuration. -.825 man hours/lb- Beeon disagreed and some time later advanced the proposition that it could pay a “fair price” for additional supplemental steel work performed by Comstock. C. The Issues To determine whether Comstock is entitled to relief under Counts 7 and 8, two questions must be answered: (1) Whether the provision addressing installation of “light iron” on page 17-2 of the MCAA Manual is applicable to additional steel work of the type involved in Change Orders COR 122 and COR 177 which are the basis of Com-stock’s Counts 7 and 8? (2) Whether Becon retain the right to unilaterally determine or to negotiate a “fair price” for this work? II. FINDINGS OF FACT A. Contract Bidding and Negotiations; Establishment of Unit Price Structure Arm’s Length Negotiations. Becon and Comstock are large, sophisticated contractors. Becon is wholly owned by the Bechtel Company. Comstock’s annual revenue since 1984 ranged between $300,000,000 and $500,-000,000. R4 at 52. The evidence indicates that the parties dealt at arm’s length. Original Bid Form. In accordance with Beeon’s original solicitation, Comstock’s original bid included a schedule of unit prices. The bid form stated that Comstock would perform additional work “which incurs costs not contemplated by the UNIT PRICES, in accordance with the GENERAL and SUPPLEMENTARY CONDITIONS.” P.E. 3006, p. 1, para 1.02(a); 2R1 at 58. The unit prices were contained on a form supplied by Giffels, the project engineer, and transmitted to Comstock by Becon as a part of the bid package. 2R3 at 61-62. Exceptions by Becon to Unit Prices. Comstock and Becon conducted a series of meetings to evaluate the Comstock bid and negotiate a subcontract. P.E. 28, 32, 41, 43, 45. In a meeting held February 23, 1987, Becon informed Comstock that the unit prices contained in Comstock’s bid were too high. P.E. 41; 2R1 at 60, 62. The parties engaged in lengthy negotiations regarding unit prices for change orders. P.E. 1224; 2R3 at 81. At this time, the parties considered the use of industry manuals, including the Labor Estimating Manual published by the Mechanical Contractors Association of America, Inc. (MCAA), for pricing of additional work (hereafter “MCAA Manual”). P.E. 1491. Becon was furnished with copies of the MCAA Manual for review purposes. P.E. 1228, 2R3 at 82-84. Adoption of MCAA Manual as Basis for Unit Pricing of Additional Work. At the request of Becon, Larry Hafling of Comstock prepared a sample comparison between change orders priced in accordance with the MCAA Manual and those priced by Com-stock’s original unit prices. P.E. 1950; 2R1 at 62-66. This information was prepared based upon the unit price format developed by Giffels and furnished to Comstock by Becon with the original bid package. 2R3 at 69-71. By letter of March 20, 1987, Becon accepted Comstock’s proposal to base mechanical installation unit rates on the MCAA Labor Estimating Manual. P.E. 1956; 2R1 at 68-70; 2R3 at 72-74. The parties also agreed on wage rates to be employed in connection with the manual, since the manual set forth only man hour units, rather than actual labor prices, for the items covered. 2R1 at 63, 66-67; P.E. 1950, 1223; R3 at 98-100. Com-stock signed the letter of intent subject to scope clarifications made prior to the bid, in the bid, and in subsequent negotiations. Id. On March 23, 1987, Becon Project Manager Chuck Kinney notified Becon corporate management that the MCAA manual and a manual on electrical work published by NECA “will be used to determine the labor portion of changes to this Subcontract.” P.E. 1228; 2R3 at 82-87. Section 5.3 of the Subcontract subsequently signed by the Becon and Comstock (P.E. 1955) addressed the issue of unit prices for pricing additions or deletions to the work: The following unit prices are for use in pricing additions or deletions in the work: I. Wage Rate: Value of Change $0 to $5000 $5001. to $75,000. Above $75,001. Mechanical $35.91/hr. $34.15/hr. $32.29/hr. Elec. Journeymen $36.15/hr. $35.66/hr. $35.18/hr. Elec. Sub-Journeymen $35.32/hr. $34.05/hr. $31.99/hr. The wage rates include support labor, material handling, tools, consumables, testing and all construction equipment up to and including 18 ton hydraulic cranes. II. Installation Unit Rates—Mechanical The standard used will be the estimating guide published by the Mechanical Contractors Association, without any adjustments for height, wind chill factors, etc. III. Installation Unit Rates—Electrical The standard used will be the estimating guide published by the National Electrical Contractors Association, without any adjustments. IV. Markup (Overhead and Profit) 21% on Labor and Material 10% on Subcontractors V. Permanent Material Actual cost based on priced Purchase Order. The foregoing provision, drafted by Becon after lengthy negotiations, establishes a method for pricing changes. 2R1 at 72-75; 2R3 at 76-77, 81. Part I sets forth a graduated scale or “sliding scale” of wage rates which vary based upon the dollar value of the change. Part II provides that unit rates for installation of mechanical work—that is, the number of hours required to do a particular unit of work—will be determined in accordance with the MCAA Labor Estimating Manual. By multiplying a particular “installation unit rate” by the number of units installed, the total number of hours allocated to perform certain work could be derived for change order purposes. By multiplying this total hour figure by the appropriate wage rate set forth in Part I, a dollar value for the particular installation could be assigned. P.E. 1224 at 3; 2R3 at 76-77, 81. As Section 5.3 provides, the parties agreed to use installation unit rates established in the MCAA Labor Estimating Manual “without any adjustments for height, wind chill factors, etc.” 2R3 at 78-79. Such factors, set out in the first pages of the MCAA Manual under the heading of “Labor Correction Factors,” were designed to reflect various field and work conditions which actually affect labor productivity and installation cost of mechanical work performed. P.E. 1491 at 3.1ff. Most of the labor correction factors contemplate an upward adjustment of rates (reflecting a decrease in labor productivity). 2R4 at 117. At Becon’s insistence, Comstock waived application of these factors. 2R1 at 78. Becon’s intent was to provide straightforward pricing system without room for negotiation—an important goal on a project where numerous changes were contemplated. R8 at 157. At the same time, of course, each party assumed the risk that in a given case resultant pricing might or might not reflect the actual or reasonable cost or value of procurement and installation. According to John Mayne, Jr. of Com-stock, whose role required him to be involved in the change order process, where there was an applicable labor installation rate in the MCAA Manual, Comstock and Becon were required to price mechanical change order work based upon that rate pursuant to the terms of Section 5.3 of the Subcontract. 2R1 at 74-75; 2R2 at 107-10. Only in circumstances where no unit price had been established was Becon authorized to seek a separate “fair” price for extra work. 2R2 at 108. Contemporaneous written communications by the Becon organization strongly support Mr. Mayne’s interpretation. In an internal memorandum of March 23, 1987, Becon Project Manager Chuck Kinney notified Becon corporate management that the MCAA and NEC A manuals “will be used to determine the labor portion of changes to this Subcontract.” P.E. 1228, 2R3 at 82-87. Later correspondence by McKinney’s successor, Paul Sheridan, is also consistent with Mr. Mayne’s position. In his letter of November 17, 1987 to Becon’s Paul Sheridan regarding negotiations over CCN 70, Ron Gordon noted, “On November 16, you stated that we had to utilize the MCA rates and that they are not negotiable____” P.E. 1063.10. In response, Becon responded that “Ohbayashi and Becon have accepted the appropriate MCA rate for past change orders and will continue to do for the remain der of this contract. P.E. 1306; D.E. 18 (emphasis added). On January 20, 1988, during discussions regarding the use of the .825 “light iron” rate in the MCAA for pricing of supplemental steel, Sheridan stated: Becon has reviewed the MCA book and cannot find a rate that is truely [sic] applicable for this situation. In this case, Be-con and Comstock must negotiate an acceptable unit rate that is applicable for the work actually performed. D.E. 36 (emphasis added). In his letter of January 26, 1988 letter, Mr. Sheridan made the primacy of the unit rate structure even clearer: These [MCAA] rates are to be used when they are applicable. When they are not applicable, then Comstock, Becon and Ohbayashi need to agree to alternative means of pricing additional work. P.E. 1358 (emphasis added). Despite considerable discussion and negotiation between the parties in late 1987 and early 1988, no mention was apparently ever made of Be-con’s right to ignore the MCAA manual and seek a “fair price” under 4(c). 2R3 at 140-41. The following exchange from Mr. Sheridan’s deposition strongly reinforces the same interpretation: Q: What did you mean when you said that? [in Deposition Ex. 100, P.E. 1306] A: The letter stands on its own; we will accept the appropriate MCA rate, which we had done in the past. When they turned in piping changes, we added 100 feet of piping. We went to the MCA manual, we used the appropriate rate for the appropriate pipe sizes, appropriate valves, and we paid them that rate. So we will use the appropriate rates. We issued a number of change orders based on that issue. That’s what it says, the appropriate MCA rates. Q: Were you telling Mr. Gordon or Com-stock that you were not going to deviate by starting to negotiate unit rates generally other than what was set forth in the manual? ... A: We were saying in that letter that Comstock should use the appropriate unit rates on it. If there was not an appropriate unit rate, it was not a unit rate in that manual, then we would negotiate under the other terms of compensation on it. That type of action is consistent throughout Be-con’s and my previous experience with Bechtel and Becon and Lummus and Raymond International. It’s virtually impossible to put every unit rate, every appropriate unit rate in the contract. It’s not unusual during the course of the contract that changes are done on a unit rate basis to come up with some number that you negotiate during the course of the contract____ Q: What was inaccurate about the reasoning—the comments in the letter [Deposition Ex. 100, P.E. 1306] with respect to the reasoning Comstock originally used to price . the change order? A: The agreement we had with Comstock all along was to use the appropriate MCA rates. If there was no appropriate MCA rates, then the contract calls for negotiation on a rate. So we should have in this case, since it was iron worker structural steel, not pipe fitter supplemental steel, we should have negotiated rates. We were willing to negotiate a rate and we made an offer to them. Sheridan Depo. at 177-79 (emphasis added.) B. Comstock’s Installation of “Supplemental Steel” Requirements of Summary of Work. The Summary of Work incorporated in the Subcontract contains references to certain steel work. 2R1 at 81, P.E. 1955. Section 49 provides: STRUCTURAL STEEL In addition to the miscellaneous structural steel in this contract, the Subcontractor shall provide all engineering, detailing, material, equipment and labor necessary to fabricate, paint and install all the catwalks, ladders, platforms and stairways around the Boilers, Economizers, Fans and Breaching. Supplementary steel is included where required, but not to exceed the following: A) Trestle 0 lb. B) Indoor, steel 54,404 lb. Supplemental Steel. As Section 49 indicates, Comstock was required to install “supplementary steel,” also described as “supplemental steel,” and to price that installation as part of its mechanical work. 2R1 at 82. Contract General Conditions Section 3.3 (P.E. 1955) provides, “Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with recognized meanings.” Supplemental steel is distinguished from structural steel by the parties and by common usages in the construction industry. It is also consistently identified with the support of piping. Comstock’s John Mayne, Jr., when questioned regarding usage in the mechanical industry, described structural steel or “building steel” as being “the beams and columns that hold up the walls and roof, intermediate floors, stairs, [etc.].” 2R1 at 44. Structural steel may consist of wide flanges, H columns, angle iron, channels, and other shapes which fill the foregoing purpose. 2R2 at 154. Supplemental steel, on the other hand, was “some type of structural type shape or member that would have to be installed because of the lack of building steel____ If there is no building steel where your [pipe] hanger needs to be, you have to add some supplemental steel.” 2R1 at 44. This'was also the usage on the present job. 2R1 at 82. Supplemental steel, like structural steel, may consist of wide flanges, angle iron, channels, and other shapes; the distinction is a functional one. 2R2 at 154-57; 2R4 at 131-32. Testifying for Becon, Paul Sheridan offered a similar description. He defined supplemental steel as something other than structural steel. As he interpreted the term, supplemental steel was that used for the support of piping. He confirmed that generally iron workers erect structural steel and pipefitters install supplemental steel. Sheridan depo. at 125, 172; 2R3 at 22. Beeon’s Dale Eichhorst also acknowledged that “[supplemental steel is the type of steel that we use ... in addition to the structure ... [;] something to hang the hanger from to go between the purlins or whatever are required that wasn’t existing in the building structure itself.” 2R4 at 89. These definitions are generally consistent with those promulgated by the American Institute of Steel Construction (AISC). Be-con’s Dale Eichhorst acknowledged that the AISC’s Manual of Steel Construction (AISC Manual) was used by “designers as well as constructors.” 2R4 at 33, 86-87. Ohbayashi’s project manager, Robert Jordan, testifying on behalf of Becon, was also familiar with the AISC Manual, which was introduced in part by Becon. 2R4 at 149-50; D.E. 54. The portion referenced by Becon contains no definition of structural steel. It does, however, reference another publication, the AISC’s Code of Standard Practice for Steel Buildings and Bridges (“AISC Code”) which defines structural steel: 2.1 “Structural steel,” as used to define the scope of work in the contract documents, consists of the steel elements of the structural steel frame essential to support the design loads. Unless otherwise specified in the contract documents, these elements consist of material as shown on the structural steel plans and described as: Beams, Girders, Purlins and Girts ... Columns, Posts, Connecting material for framing structural steel to structural steel ... Floor Plates (checkered or plain) attached to steel frame ... Hangers essential to the structural steel frame ... 2.2 The classification “Structural Steel,” does not include steel, iron, or other metal items not generally described in Paragraph 2.1, even when such items are shown on the structural steel plans or are attached to the structural frame. These items include but are not limited to: Items required for the assembly or erection of materials supplied by trades other than structural steel fabricators or erectors. AISC Code (effective September 1, 1986) (emphasis added). (P.E. 3010, submitted subsequent to conclusion of oral hearings). The AISC Manual, referenced by Becon, simply gives examples of structural steel. When the AISC seeks to define “structural steel” for the purpose of distinguishing the scope of work involved (the purpose for which it is referenced in the MCAA Manual), it adopts the same functional definition that the parfies recognized during- construction. The AISC’s definition of “structural steel” obviously excludes supplemental steel installed by pipefitters to support piping since it is an “[i]tem required for the ... erection of materials supplied by trades other than structural steel fabricators or erectors.” Allowance for Supplemental Steel. Due to the incomplete nature of the structural drawings furnished to Comstock, it was not possible for Comstock’s steel fabricator, NPS, to determine how much supplemental steel would ultimately be required on the Project. Therefore, it was agreed that the contract would contain an allowance of 54,404 lbs. for supplemental steel. 2R1 at 82-83; 2R3 at 118; 2R4 at 126. Exceeding of Supplemental Steel Allowance. In early September, 1987, NPS notified Comstock that it had fabricated more than the allowed 54,404 lbs. of supplemental steel, and requested from Comstock a change order for steel poundage in excess of the allowance. 2R1 at 85-86; P.E. 1254. On September 21, 1987, Comstock wrote to Be-con regarding the overrun of the supplemental steel allowance and requested a change order for reimbursement for “the additional labor and material involved with the extra supplemental steel required for our pipe supports/hangers.” 2R1 at 86-87; P.E. 1261. At Becon’s request, conveyed through Comstock, NPS furnished documentation regarding excess supplemental steel. 2R1 at 110; P.E. 1296. Becon never specifically challenged the actual poundage of supplemental steel furnished by NPS during the course of the job. 2R1 at 110; 2R3 at 118. C. Application of MCAA Manual to Supplemental Steel Pricing of CCN 70. The issues presently in dispute over the pricing for supplemental steel first came to light in connection with CCN 70. When Becon first issued that change notice, Comstock declined to quote the work. . R9 at 64. Becon appealed to Mr. Cleve Whitener, a member of Comstock’s upper management, and Comstock agreed to provide a quotation. R9 at 65-66. Com-stock’s John Mayne, Jr. asked Ron Gordon (who was sent to the Project to assist in pricing change orders in October, 1987) to review the proposed steel pricing in connection with CCN 70. 2R1 at 96, 99; R5 at 122. Mr. Gordon concluded that Comstock’s initial price for supplemental steel installation was too low, and he reviewed the MCAA Manual’s steel pricing. 2R1 at 99. He thus became aware of the contents of p. 17-2 of the MCAA Manual. See 2R1 at 99. Application of MCAA Manual p. 17-2, “Light Iron & Structural Shapes.” Page 17-2 of the MCAA Manual, entitled “Light Iron & Structural Shapes” (P.E. 1491), states: MISC. LABOR OPERATIONS LIGHT IRON & STRUCTURAL SHAPES The fabrication and erection of light iron and structural steel is a costly item. It can become a serious labor loss and must be approached by the estimator with extreme caution. Labor will vary just by the quantity or configurations involved (from a single bracket or support to many items and shapes of miscellaneous iron). Light iron is that material which is not considered structural steel such as angles or channels, etc. Structural steel is wide flange beams, H-columns, etc. The following items should be considered: Light Iron Unload fabricate, distribute, erect, and fasten either by bolting or welding to building construction and based on a minimum weight of 10 lbs for any configuration. -.825 man hours/lb- Structural Shapes Unload fabricate, distribute, erect, and fasten either by bolting or welding to building construction and based on a minimum weight of 500 lbs for any single piece. -.03 man hoursAb- This section identifies three categories of steel: light iron, structural steel, and structural shapes. Labor installation units are established steel falling within the first and last of these categories. According to page 17-2, the unit of .825 man hours per pound for “light iron” was established for steel members which (1) were not considered structural steel; (2) were unloaded, fabricated, erected and fastened either by bolting or welding to building construction; (3) were part of a configuration of members weighing at least 10 pounds. The unit of .03 man hours per pound for “structural shapes” was established for steel members which (1) were unloaded, fabricated, erected and fastened either by bolting or welding to building construction; and (2) weighed at least 500 pounds individually- Comstock initially quoted CCN 70 at the .825 man hour unit for light iron in the MCAA Manual. 2R1 at 90. Since CCN 70 consisted of items that both parties considered to be structural steel, however, the .825 “light iron” unit was not appropriate. Com-stock acceded to Becon’s objections and proposed another basis for pricing. P.E. 1305; 2R3 at 35; R9 at 65-66. Becon ultimately decided to withdraw the CCN and award the structural work to another subcontractor. P.E. 1305. At this time, however, Becon’s Paul Sheridan assured Comstock that “Ohbayashi and Becon ha[d] accepted the appropriate MCA rate for past change orders and will continue to do so for the remainder of this contract.” P.E. 1306. The Table of Contents for the Section of the MCAA Manual entitled “Miscellaneous Labor Operations” does not distinguish the category of Light Iron & Structural Shapes from other categories of labor installation units in the manual. P.E. 1491. Moreover, although the format is not tabular like many-other pages of the manual and is somewhat less specific in categorization than certain other portions of the manual, the page is similar in one essential: it does identify a specific number of man hours per unit for certain mechanical work. 2R3 at 20. In his deposition, despite coaching by counsel for Becon, Mr. Sheridan made several references to the .825 figure expressed on page 17-2 of the MCAA Manual as a “rate.” Sheridan Depo. at 136, 137, 138, 141, 144 (counsel’s objections to “rate” characterization); 142,143,158,172, 202. His usage echoes some very straightforward statements by Becon during the Project regarding the nature of the .825 “light iron” figure as a rate. P.E. 1344 (“There is some doubt if this is the proper labor rate for the Supplemental Steel installed by Com-stock or is another rate more appropriate.” (Emphasis added.)); P.E. 1353 (referring to “0.825 Manhour/lb. Labor Rate”); P.E. 1358 (“the MCA Rates are not applicable to the Supplemental Steel”). In sworn testimony, Barney Winger, the mechanical contractor who served as Chairman of the MCAA Labor Estimating Manual Committee, described the .825 figure as “a man hour unit which has been calculated to be applied under the circumstances, which it [sic] is defined here as light iron.” Winger Depo. at 40. Mr. Winger proceeded to explain how this unit could be applied to calculate the number of hours allocated to installation of a light iron configuration weighing up to 499 pounds. Winger Depo. at 44-45. He indicated that such an application of the MCAA Manual was appropriate as part of a “total estimated system.” Winger Depo. at 45. He also indicated that the labor units set forth in the manual could be described as “rates.” Winger Depo. at 81-82. No portion of 17-2 was specifically excluded for use in unit pricing, unlike the labor correction factors in the Manual. 2R3 at 115. Neither party, however, specifically discussed the applicability of the MCAA to supplemental steel during the negotiations and bid evaluation meetings. 2R3 at 27-28. Applying the MCAA Manual to Pricing of Change Orders for Supplemental Steel. On November 27, 1987, Comstock submitted its first quotation for supplemental steel in areas 502 and 503; on December 9, 1987, it submitted a revised quotation that included areas 502, 503, and 504. P.E. 1310, 1319. Each quote used the .825 man hour unit for “light iron” on p. 17-2 of the MCAA Manual. P.E. 1491. Comstock installed a total of 38,816 pounds of supplemental steel not covered by the allowance in the Subcontract. Multiplying this poundage by .825, Comstock derived a total of 32,023.2 man hours. Using the wage pricing formula agreed upon by the parties, (2R1 at 112-14), Comstock derived a total labor cost of $1,148,581.32. With material, overhead and profit factored in, the total change request for supplemental steel in areas 502, 503 and 504 was $1,428,766.33. 2R1 at 115; P.E. 1319. Becon took no action on Comstock’s initial request until December 21, 1987. 2R1 at 117-20. On that day, Comstock ultimately submitted three different payment applications. The first, rejected by Becon, requested payment for 90 percent of the previously submitted supplemental steel quotation. P.E. 1321. The next request contained no prices for additional supplemental steel. P.E. 1322. The third request, developed in response to Becon’s request and ultimately approved by Becon, sought immediate payment of 10 percent of the supplemental steel proposal pending final resolution of the steel issue. P.E. 1323. According to Becon’s Paul Sheridan, the 10 percent payment figure developed by Becon was not generated through any detailed analysis, but was a “nice, round number”—a “perfunctory” number. Sheridan Depo. at 111-12. On January 13, 1988, Comstock submitted another request for supplemental steel, this time for areas 500 and 501 (COR 177). P.E. 935.1. In these areas Comstock installed a total of 41,749 pounds of supplemental steel in excess of the 54,404 pound allowance set forth in the Subcontract. Comstock again used the unit multiplier of .825 man hours per pound, which resulted in a total of 34,443 man hours. Using the wage pricing formula agreed by the parties, Comstock derived a total labor cost of $1,232,804.58. With material, overhead and profit factored in, the total change request for supplemental steel in areas 500 and 501 was $1,515,954.98. P.E. 935.1. On January 15, Becon responded to Com-stock’s COR 177 in writing. Becon now noted that Comstock was requesting almost $3,000,000 for supplemental steel. According to Becon, “[t]he main issue that Becon and Ohbayashi are attempting to resolve is if Comstock has properly applied the .825 man hour/pound labor rate from the MCA Manual.” Becon authorized Comstock to invoice for 10 percent of the amount claimed in COR 177, just as it had with respect to the proposal for supplemental steel for areas 502, 503, and 504 (COR 122). P.E. 1344. However, Becon noted that its “acceptance of a 10% billing against Comstock’s proposal for these two CORs ... [did] not mean that Ohbayashi and Becon ... ha[d] accepted or rejected the dollar value of either proposal.” P.E. 1344. In addition to denying for the moment full payment of the full steel proposals, Becon withheld 5 percent retainage on the 10 percent paid on each proposal. D. Initial Communications with MCAA. To resolve the dispute regarding applicability of the .825 man hour/pound labor rate from the MCAA Manual, both Comstock and Becon made telephone inquiries to the MCAA, the organization which published the Manual. See, e.g., P.E. 1337, 1340, 1348; 2R1 at 121-23; 2R4 at 3-4; R12 at 100-01. The parties then disagreed as to whether their oral inquiries resulted in the MCAA confirming or rejecting the applicability of the rate. P.E. 1348,1358,1359. Both Mr. Eichhorst and Mr. Sheridan acknowledged that the MCAA would reasonably be expected to know how to interpret its own manual. 2R4 at 3, R12 at 100-01. E. Arguments Raised by Becon. On January 20, 1988, in a letter drafted by Paul Sheridan, Becon set forth several reasons why it considered the .825 “light iron” rate inappropriate for application to supplemental steel. P.E. 3000. Alleged Unfair Allocation Under Allowance. Mr. Sheridan first suggested that Comstock had acted unfairly in determining what steel was within the 54,404-pound allowance and what was additional. His argument appeared to be that Comstock allocated heavier weights of steel (which might be subject to a lower installation multiplier under the MCAA Manual) to the allowance, and tended to treat lighter weights of steel— subject to the “light iron” rate—as additional. However, there is no convincing evidence supporting his concerns. Comstock logically applied the allowance to Area 501, the area with the greatest amount of supplemental steel and where the installation was likely to be the most difficult. 2R1 at 131-32; 2R2 at 163; 2R4 at 101-13. “Savings” Due to Shop Fabrication. Sheridan next argued that the “light iron” installation rate was based on field assembly, and therefore any savings resulting from shop fabrication would have to be reflected in applying labor correction factors. P.E. 3000. Since much of the supplemental steel was shop fabricated, he concluded, a labor correction factor had to be applied to the .825 rate. In performing work on the Project, Com-stock did “unload, fabricate, distribute, erect, and fasten” the supplemental steel members as the light iron rate presupposes. 2R1 at 142-46. To the extent that “fabricate” is used in the sense of “field assembly,” Com-stock did fabricate all the configurations because the supplemental steel arrived at the job site in pieces. 2R2 at 141-43; 2R1 at 142-46. Assuming arguendo that the reference to “fabrication” refers to the process of cutting and drilling and that the reference is to each single piece of steel, rather than the configuration, two items are noteworthy. First, Comstock did perform some cutting and drilling and, due to the lack of information on the drawings, there was more of this type of fabrication than would have occurred on a well-engineered job. 2R1 at 135-37. Second, even if the Manual’s Basic Assumptions do call for application of a negative labor correction factor, the parties agreed to exclude it. 2R1 at 137; 2R3 at 134-35. Significantly, Comstock’s written inquiry to the MCAA regarding application of the .825 rate on the Project indicated that the supplemental steel components were “shipped per cut finished piece only, not assembled.” P.E. 1365 (emphasis added). The MCAA responded that Comstock’s interpretation applying the .825 rate was “consistent with the intent of the [MCAA] Labor Estimating Manual.” P.E. 1369. Alleged Limitations of MCAA Manual Categorizations. Sheridan’s final argument, while not clearly articulated, was to the effect that the supplemental steel installed by Com-stock was in whole or in part not “light iron” as defined by the MCAA Manual. P.E. 3000. In his view, apparently, the light iron and structural shapes categories for which labor rates were supplied covered only a limited range of steel shapes and sizes. Reading between the lines, one takes his meaning to be that “light iron” involved channels and angles weighing more than 10 pounds and less than 100 pounds, but not wide flange sections and other shapes in the same weight category. For the latter, apparently, the MCAA provides no rate. Comstock’s John Mayne testified that the MCAA’s definition of “light iron,” like the term “supplemental steel,” refers to angles, channels and other steel items which were not functioning as structural steel and which were used for support of piping—including wide flange shapes and other shapes not specifically mentioned in the definition. 2R2 at 28, 31, 154-158. The reference to “angles, channels, etc.” indicates that the listing was illustrative and not exclusive. He indicated that because a separate rate (for “structural shapes”) covered individual steel members of 500 pounds or more, the maximum weight of any single steel member in the “light iron” category would be 499 pounds. 2R1 at 146. Pipe supports may consist of several different kinds of shapes, configured in similar ways. 2R2 at 56; 154-163, 164-65; P.E. 3010. Supplemental steel members of different shapes may serve the same purpose, in the same location, have the same weight, and require similar amounts of labor to install (such as a wide flange and two channels placed back to back). R3 at 149-50. The same shapes and sections which are classified as “light iron” when ancillary to the primary building steel and installed for the purpose of pipe support may be considered structural steel when used for primary building steel and for certain other purposes. The distinction, as John Mayne testified, is a functional one. 2R2 at 154-57. Significantly, the work covered by CCN 70, which both parties identified as involving “structural steel,” includes a wealth of angles. See R9 at 64-65; 2R3 at 31; R7 at 92, 2R4 at 31; 2R1 at 88, 99; D.E. 15.' There were also numerous structural steel subcontract amendments in which the parties priced angles and channels at a rate other than .825 man hours per pound. 2R1 at 165-70; 2R2 at 158; P.E. 3007—CCN 001 (tank farm steel); 2R1 at 175-77; P.E. 3007—CCN 159/ COR 1047. “Structural shapes,” Mayne indicated, was a generic classification which could refer to either light iron or structural steel. 2R2 at 26, 31. As defined on page 17-2, however, it appears to be limited to single pieces weighing at least 500 pounds. See P.E. 1491; 2R2 at 57. The Real Issue Was the Rate. In his deposition, Becon’s Paul Sheridan admitted that the essential issue was the proper labor installation rate. See Sheridan Depo. at 142-143, 196-197, 202. This is consistent with statements in Sheridan’s letter of January 15,1988. P.E. 1344. While negotiating several other change orders containing supplemental steel elements in January, 1988, Mr. Sheridan proposed wholesale application of a supplemental steel labor rate based on an average of three other industry guides—a substantially lower rate than the “light iron” unit in the MCAA Manual. P.E. 1353; Sheridan Depo. at 107-09, 126,130-38. Sheridan admitted that he tried to develop a rate which would be slightly higher than what it would cost to do the work. Sheridan Depo. at 138. He considered the MCAA rate of .825 man hours per pound for light iron to be a “ludicrous rate.” Sheridan Depo. at 147. Becon’s Dale Eichhorst also admitted at one point that the “basic disagreement” involved the proper rate—the number of man hours per pound—to be applied to the additional supplemental steel. 2R3 at 123-24. He admitted that Becon probably would have paid for the supplemental steel as “light iron” if the rate had been .046 man hours per pound instead of .825. 2R3 at 132. F. Interpretation by the MCAA Labor Estimating Manual Committee Written Inquiry by Comstock. On February 2, 1988, Comstock (through Brock & Blevins) submitted a written inquiry to the MCAA to confirm the applicability of the .825 “light iron” rate to supplemental steel supporting piping systems. P.E. 1365; 2R1 at 159-63. Comstock’s submission contained a cover memo which generally described various aspects of the installation at the Project, a photocopy of page 17-2 of the MCAA Manual, and examples of construction drawings detailing supplemental steel configurations for the Project. Response by the MCAA Labor Estimatiny Manual Committee. The letter was submitted for discussion at a regular meeting of the MCAA’s Labor Estimating Manual Committee. After discussing the question, the MCAA Committee issued a letter stating that Comstock’s interpretation “is consistent with the intent of the Labor Estimating Manual.” P.E. 1369; 2R1 at 163. Barney Winger, the experienced mechanical contractor who has served as Chairman of the MCAA’s Labor Estimating Manual Committee, testified that the MCAA Committee deliberated in response to Comstock’s letter. Winger Depo. at 34, 55, 61. The Committee rendered its own collective interpretation of the import of the provisions of page 17-2. Winger Depo. at 50, 61, 66. A letter endorsing Comstock’s interpretation was drafted by the Committee and its communication to Brock and Blevins was authorized. Winger Depo. at 91, 94. Under intensive questioning by counsel for Becon, Winger explained that the .825 figure on page 17-2 of the Manual “is the man hour unit which has been calculated to be applied under the circumstances, which it [sic] is defined here under light iron.” Winger Depo. at 40. He refused to characterize the contents of page 17-2 as “fundamentally different” in form from page 4-1, nor would he agree that page 17-2 could be reasonably-interpreted in such a manner that .825 man hours per pound is “only” an “item to be considered” as opposed to a controlling labor installation unit. Winger Depo. at 41, 59. He indicated that the “light iron” unit could properly be applied to configurations weighing as much as 499 pounds. Winger Depo. at 44-45. No Further Inquiry by Becon. Dale Eichhorst admitted that Becon received a copy of Comstock’s written inquiry to the MCAA. 2R3 at 103. Becon also received a copy of the MCAA’s response to Comstock’s inquiry. 2R4 at 4-5; 2R3 at 104; P.E. 1427. Eichhorst acknowledged that Becon could have sent a similar inquiry to the MCAA to verify its own interpretation, but did not. 2R3 at 104-105. G. Pricing of Later Changes. Generally speaking, changes involving work not clearly within the category of “light iron” in 17-2 were differently priced. P.E. 3007. In CCN 001, involving work on the tank farm, Comstock took the trouble to distinguish the steel work in that proposal from the “hanger supplemental steel proposals.” 2R1 at 165-68; P.E. 3007-001. Similar qualifying language was added to a proposal involving relocation of roof penetration steel which Comstock considered structural steel. 2R1 at 174-75; P.E. 3007, CCN 150-COR 1027. In several eases (e.g. CCN 150-COR 1121, CCN 150-COR 1142, and CCN 159-COR 1105) change orders included prices for ladders, stairs, landings and other steel items which the parties agreed were not supplemental steel. 2R1 at 171-72; P.E. 3007. Similarly, the supplemental steel rate was not applied to Unistrut items. 2R1 at 172-73; P.E. 3007, CCN 095. In two cases involving truss supports for pipe, CCN 198-COR 1024, and CCN 198-COR 1107, Mayne agreed to less than the .825. 2R1 at 182-85; 2R4 at 15; P.E. 3007. In at least six other cases, the .825 factor was applied in change orders. P.E. 1500. According to Becon’s Dale Eichhorst, however, Comstock understood at the time that there was still a controversy over payment of the two main supplemental steel change orders at the .825 rate. 2R3 at 56-57; 2R4 at 18-24. This was corroborated by Comstock’s John Mayne. 2R2 at 125-27. H. Becon Raises Issue of Section 4(c) of the General Conditions In January 1989, long after Comstock completed the Project and litigation appeared imminent, Becon first drew attention to Section 4(c) of the Becon General Conditions. P.E. 3009. That section provides: 4. CHANGES IN THE WORK C. Compensation for changes in the work or for extra work as described in Section 5, shall be determined by one of the following methods as selected by contractor: 1) agreed lump sum price or 2) use of unit price(s) established within the subcontract; or 3) by contractor’s determination of its fair value. P.E. 1955. There was no testimony that this provision, contained in the contract materials furnished by Becon to Comstock and other bidders, was ever the subject of negotiations or discussions between the parties either prior to or during performance of the supplemental steel installation here at issue. To the contrary, neither Becon nor Comstock could recall Becon ever insisting during this period that it could unilaterally elect “fair value” instead of the applicable unit fate for steel, or indeed for any other changed work covered by the MCAA Manual. Sheridan Depo. at 62; 2R1 at 201; 2R3 at 141; 2R4 at 83. This is particularly significant since during this same period in late 1987 and early 1988 when Becon became aware of Comstock’s claim of nearly $3,000,000 for supplemental steel, the parties continued to negotiate over the precise language of Article 5.3 of the Subcontract, with its language that the “standard used [for labor installation units] will be the [MCAA] estimating guide.” The Subcontract was finally signed on February 26, 1988. R3 at 119-20. Moreover, all previous communications had emphasized that where applicable unit prices could be identified in the MCAA. manual, those prices controlled. See supra Part II.A for a discussion. Under direct examination regarding the contents of Section 4 of the Becon General Conditions, Becon’s Dale Eichhorst did not at first recall the “fair value” option set forth in 4(c). 2R3 at 28-29. When first shown the language of that section, Eichhorst stated that “the MCAA was the instrument to be used to price certain change orders. If a unit, a unit price was not in the MCAA manual, you had to use other options in pricing.” 2R3 at 29 (emphasis added). At the time Becon made reference to its “fair value” option under 4(c), it instructed Comstock for the first time to account for the supplemental steel on essentially a time and material basis. P.E. 3009. However, no one ever anticipated that Comstock would track supplemental steel on any basis other than poundage; 2R3 at 120; and Becon never directed Comstock to maintain records of actual costs of supplemental steel installation. 2R1 at 199-200. III. WHERE IT APPLIES, THE MCAA MANUAL CONTROLS PRICING OF CHANGES UNDER THE PARTIES’ CONTRACT A. Applicable Legal Principles 1. The Intent of the Parties Controls An elemental principle of contract law is that a contract is to be interpreted or construed in accordance with the intention of the parties. The court must seek to ascertain how the parties intended their agreement to operate at the time they entered into it. See e.g., Wilcox v. Wilcox, 406 S.W.2d 152, 153 (Ky.App.1966); Communications Workers of America v. General Tel. Co., 236 F.Supp. 588, 589 (E.D.Ky.1965). “Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.” Restatement (Second) of Contracts 201(1) (1979). When the express terms of the agreement leave no doubt as to the intent of the parties, the contract should be enforced in accordance with those terms in the absence of other defenses. Veech v. Deposit Bank of Shelbyville, 128 S.W.2d 907, 911 (Ky.1939). In most litigated cases, however, it is necessary or appropriate for courts to resort to extrinsic evidence or familiar rules of construction to determine the intent of the parties and the legal effect of an agreement. This case is no exception. B. The Instant Contract Section 5.3 of the Subcontract seems clear and straightforward. On its face, it mandates the use of certain pricing manuals to establish unit rates for installation of mechanical and electrical work, including the MCAA Labor Estimating Manual. A question of meaning is raised, however, by a separate provision in one of the many pages incorporated by reference in the Subcontract. Section 4(e) of the General Conditions indicates that the General Contractor (Becon) has certain alternatives for pricing of extra work. Being obligated to read the parts of the contract as a whole, we must seek interpretations which promote harmony between such provisions. Cook United, Inc. v. Waits, 512 S.W.2d 493, 495 (1974); Citizens Fidelity Bank & Trust Co. v. U.S., 209 F.Supp. 254, 256 (W.D.Ky.1962). Without looking beyond the face of the agreement, there are two ways to read this provision more or less harmoniously with Section 5.3. One approach, urged by Com-stock, is to view the terms of 5.3 as an establishment of a rate structure for pricing of change orders which will be used to price change orders under 4(c)(2) of the General Conditions. In Comstock’s view, where a labor installation unit rate has been established by the MCAA Manual, Becon is bound by this pricing mechanism for pertinent change orders and Becon may not unilaterally price on another basis. Comstock Reply Brief at 13. Put another way, by agreeing to the unit pricing system at the beginning of the job Beeon elected that approach to the exclusion of other choices under 4(e) for situations where unit prices were provided. Becon urges a different interpretation, namely that Becon is free to elect at any time any of the 4(e) mechanisms despite the presence of a unit pricing system in the Subcontract. At the time certain extra work is performed it may either agree to apply the unit price figure established under 5.3 of the Subcontract, agree to a separate lump sum, or determine a fair price for the change. In order to ascertain the intentions of the parties and to resolve the ambiguity resulting from the interplay of these provisions, it is appropriate to consider all of the circumstances surrounding the transaction, including the acts and declarations of the parties and their underlying purposes. Other rules of construction may be drawn upon if appropriate. All of these considerations support Comstock’s interpretation. C. All of the Surrounding Circumstances, Including the Acts, Conduct, and Declarations of the Parties, Indicate a Mutual Intent to Make the MCAA Manual Controlling Where It Contains an Appropriate Rate Under Kentucky law, courts construing contracts which are facially reasonably susceptible to more than one interpretation are required to give great weight to contemporaneous acts, conducts, or declarations of the parties which indicate a mutual intent and understanding. A.L. Pickens Co. v. Youngstown Sheet & Tube Co., 650 F.2d 118, 120 (6th Cir.1981). The available extrinsic evidence strongly supports the interpretation urged by Comstock. 1. The Negotiations Leading Up to the Contract Support This Interpretation In ascertaining the intent of the parties it is appropriate to consider the situation of the parties, the object or purpose of the agreement, the conditions under which the agreement was made, and the circumstances surrounding the execution of the agreement. McHargue v. Conrad, 312 Ky. 434, 227 S.W.2d 977, 979 (1950); Taylor v. Rosenthal, 308 Ky. 4, 213 S.W.2d 435, 437 (1948). Comstock’s original bid form indicated that it would perform additional work “which incurs costs not contemplated by the UNIT PRICES, in accordance with the GENERAL and SUPPLEMENTARY CONDITIONS.” This offer by Comstock conveyed an initial understanding that' unit prices, where established,- would control; only where changes were not covered by the unit prices would the parties resort to the General and Supplementary Conditions—including, presumably, the Changes provision, Section 4(c). What followed was an intensive round of negotiations focussed on the unit price issue and the need for mutually agreeable standards for unit pricing in light of the myriad of changes expected to follow. After much review, two industry estimating manuals were agreed upon as the basis for labor installation rates. Significantly, a contemporaneous memo from Becon’s Project Manager notifying Becon corporate management of this development stated without qualification that the MCAA Manual “will be used to determine the labor portion of changes to this Subcontract.” P.E. 1228. The final language of the Subcontract (“The following unit prices are for use in pricing additions or deletions in the work____ The standard used will be the estimating guide ...) emphasized the mandatory nature of the rates. At no point prior to the signing, of a letter of intent in the spring of 1987 or the execution of the formal subcontract document almost one year later did the parties discuss nor did Beeon draw attention to any residual unilateral authority to negotiate or price changes otherwise covered by contractual unit prices at a .“fair” price. This was true even after the issue of the applicability of the MCAA Manual to supplemental steel became a critical issue on the Project. 2. The Parties’ Course of Performance Evinces Mutual Intent That Unit Prices Control In Black Star Coal Corp. v. Napier, 303 Ky. 778, 199 S.W.2d 449, 451 (1947), the court stated, “A reasonable construction by the parties of an ambiguous contract, although not conclusive, will be given great weight by the court, and such construction is best evidenced by the voluntary and positive acts of the parties in executing the contract.” See Giem v. Searles, 470 S.W.2d 327, 329 (Ky.1971-); Colorado Mill & Elevator Co. v. Glenn, 118 F.Supp. 943, 948 (W-D.Ky.1954). Similarly, “[w]here an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.” Restatement (Second) of Contracts 202(4) (1979). Having devoted substantial effort to the negotiation of a unit pricing structure that would accommodate the wealth of changes anticipated on the Project, the parties áppear to have adhered to the mechanism throughout performance. Even when issues arose regarding the proper pricing of supplemental steel, Becon couched the discussion in terms of the applicability of the .825 rate for “light iron.” Mr. Sheridan had cause to note in late November, “Becon and Ohbayashi have accepted appropriate MCA rates for past changes orders and will continue to do so.... ” Repeated Becon missives during early 1988 continued to focus on whether Comstock properly applied the “light iron” rate. No mention was ever made of Becon’s “right” to seek a fair price under 4(c) of the General Conditions. There is no evidence that the parties ever knowingly used other methods for pricing change orders when the pricing mechanisms in Article 5.3 applied. Beeon’s repeated assent to change orders involving minor amounts of structural steel priced at the .825 rate, while not dispos