3720 - Board of Claims

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Disruption Damages and Additional Work Intercounty claimed $364,480 in added costs for loss of productivity on the Project caused by PennDOT's active interference. It claims this active interference caused it to work in an out-of-sequence, non-linear manner vastly different and less efficient than outlined in the Construction Sequence originally prescribed by PennDOT in the bid documents and Contract. Intercounty also claims that it incurred an additional cost of $56,800 for the re-handling of stockpiled fill material caused by the changes to the original Construction Sequence and an additional $278,965 for the undercutting work it did on the Project. It claims entitlement to this latter amount because it asserts that the quantity of undercutting was excessive and constituted an undisclosed site condition. It also claims it should be reimbursed for this undercutting at a higher rate than the $9 per cubic yard rate it quoted for Class 1 Excavation because it cost Intercounty considerably more to do undercutting than general excavation. Finally, it claims it incurred inefficiencies in doing this undercutting work since it was done out of sequence and in a non-linear fashion due to the utility pole relocation delay and resulting problems described at length in the liability section of this Opinion. The Board finds substantial merit to Intercounty's loss of productivity claim, no merit to its claim for re-handling stockpiled materials and mixed merit to its undercutting claim. Additionally the Board finds that some adjustment to Intercounty's damage calculations for these categories are needed to more accurately reflect the extra costs actually incurred on the Project due to PennDOT's active interference. We will address these claims together in this section. To begin with, the Board is fully satisfied that PennDOT's active interference with Intercounty's work on the SR 2001 Project, as enumerated above in this Opinion, caused substantial disruption and loss of productivity to Intercounty. PennDOT's representations 100
(through Mr. Pilosi and Mr. Sebastianelli) that Mr. Pilosi would act as go-between and facilitate utility pole relocation at the beginning of work on the Project, when, in fact, he did not; the design errors leading to inadequate space in the right-of-way for guy wire placement; PennDOT's decision to abandon the Construction Sequence originally mandated by it in favor of Mr. Sebastianelli's ad hoc weekly work plans rather than allowing Intercounty to demobilize until the utility poles were relocated; and PennDOT’s excessive delay in resolving the guy wire/design problem; all served to force Intercounty to work out-of-sequence and in multiple areas spread out across the Project simultaneously rather than in the more compact, linear fashion it reasonably anticipated. PennDOT's actions also forced Intercounty to work around the existing poles and wires, all of which caused Intercounty to experience a significant loss in productivity. Having determined that Intercounty suffered disruption and loss of productivity on this Project as a result of PennDOT's active interference, the Board must now seek to quantify Intercounty's loss of productivity. In doing so, we first acknowledge PennDOT's criticism that Intercounty's proposed methodology (i.e. its effort to directly measure extra days/costs spent on excavation due to the pole relocation problems) is somewhat unconventional. Intercounty does not present the standard "measured mile" or "modified total cost" methods we usually see proffered to quantify disruption costs. However, both "traditional" methods have their own weaknesses; the "measured mile" being unavailable where, as here, the work disruption was immediate and pervasive; the "modified total cost" method being less accurate, in general, because it may include factors other than the wrong sought to be remedied (depending, inter alia, on how broadly it is applied and how careful the modifications). Moreover, given the facts of this case, we agree with Intercounty that it is reasonable to estimate its lost productivity by 101
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COMMONWEALTH OF PENNSYLVANIA INTERC
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where PennDOT renamed it the “Con
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5) Grade areas behind shoulders. 6)
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38. In late 1999, two years before
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could properly schedule their crews
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egarding what PennDOT could do to m
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during the pre-Contract period, and
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timetable and order of operations w
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pole relocation delays were hinderi
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perform more clearing and grubbing
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160. Mr. Pilosi also testified he d
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177. On March 11, 2002, Intercounty
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when doing its excavations subgrade
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construction problems that arise. H
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214. PennDOT clearly misled Interco
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Delay Damages 225. Intercounty clai
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244. The Tilcon letter, Exhibit P-5
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265. With appropriate markup per Se
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281. The Board finds that the diffe
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started to work, it had to finish t
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315. Removal of the unsuitable mate
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desirable to complete the project.
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352. Since no required road testing
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8. To minimize erosion, the Conserv
Page 49 and 50: 21. By prescribing the character, d
Page 51 and 52: 30. Section 105.06(a) of the 408 Sp
Page 53 and 54: 36. Because Intercounty was instruc
Page 55 and 56: performance, the Contract’s excul
Page 57 and 58: Intercounty for the cost of general
Page 59 and 60: 71. Because the Contract (including
Page 61 and 62: 89. Although these provisions apply
Page 63 and 64: OPINION Plaintiff, Intercounty Pavi
Page 65 and 66: In addition to dividing work on the
Page 67 and 68: II. UTILITY POLE RELOCATION ISSUES
Page 69 and 70: the Project. Specifically, Intercou
Page 71 and 72: Moreover, we find PennDOT's defense
Page 73 and 74: were unprepared to do so. The Utili
Page 75 and 76: approximately five months. Actual p
Page 77 and 78: even though the as-planned sequence
Page 79 and 80: completed. Finally, Mr. Sebastianel
Page 81 and 82: can find no excuse for his complete
Page 83 and 84: To conclude, we find that, in subst
Page 85 and 86: Super. 1963); Angelo Iafrate Const.
Page 87 and 88: Construction Sequence could not be
Page 89 and 90: Paving undertook to negotiate the m
Page 91 and 92: adequate room for guy wires in its
Page 93 and 94: hoc weekly work schedules were addi
Page 95 and 96: For the Extended Field Conditions,
Page 97 and 98: PennDOT objected to admission of Ex
Page 99: y Chad Nansteel (Project Superinten
Page 103 and 104: days of original excavation and the
Page 105 and 106: had to finish that section before m
Page 107 and 108: e necessary in order to stabilize t
Page 109 and 110: men back and forth to do the underc
Page 111 and 112: utilities. A prevailing party in an
Page 113: ORDER AND NOW, this 23 rd day of Ap
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3720 - Board of Claims

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