3720 - Board of Claims

Intercounty would be paid $16,200.00 if the final road surface met certain conditions of
smoothness. (Ex. P-8 at p. 9). In order to qualify for the Ride Quality Incentive, the road
surface had to be machine tested for smoothness after final paving and an index number for
smoothness assigned thereto. Under the Contract's provisions, if the road was tested and the
index number was high enough the bonus would be awarded, but if the index was too low,
Intercounty could have faced a penalty. (408 Specifications, Change No. 2, Sec. 404; Ex. D-
19).
In this case, neither party wanted to go forward with any measurement of the road's
smoothness, so the road was never tested. The Board finds that since the conditions for the Ride
Quality Incentive were not met and since Intercounty agreed that no test would be conducted,
Intercounty is not entitled to the bonus and is also not liable for any penalty.
Claim for Pre-judgment Interest and Attorney Fees
Pennsylvania law recognizes that pre-judgment interest is to be awarded as a matter of
right to the prevailing party in an action to recover upon a contract.
See e.g. Widmer
Engineering Inc. v. Dafalia, 837 A.2d 459, 469 (Pa. Super. 2003); Pittsburgh Construction Co. v.
Griffith, 834 A.2d 572, 590 (Pa. Super. 2003). Interest shall run at the statutory rate from the
date this claim was filed with the contracting officer. 62 Pa.C.S.A. sec. 1751. The record does
not reflect the date on which Intercounty filed its claim with PennDOT, but the date of denial of
that claim was July 12, 2004. (N.T. 872). Insofar as July 12, 2004 is the closest date of record
to the claim filing date, the Board awards Intercounty pre-judgment interest from that date.
Intercounty also requests an award of attorney fees under Section 3935 of the
Procurement Code. (Complaint at p. 12). It alleges that PennDOT withheld payment in bad
faith and acted arbitrarily and vexatiously with respect to the relocation work performed by the
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