3720 - Board of Claims

perform more clearing and grubbing in Sections Two and One to keep working as best it could
even though the revised E and S Plan had not yet been approved. (N.T. 225-228, 1071-1072;
Exs. P-21, P-22, P-61; Board Finding).
144. Starting in November 2001, and continuing thereafter, PennDOT directed
Intercounty to work the Project in a substantially different order of work than set forth in the
Construction Sequence that had been incorporated into the bid documents and the Contract,
causing further disruption and inefficiencies to Intercounty’s work. (N.T. 225-228, 1071-1072;
Exs. P-2A, P-8, P-59; F.O.F. 132-143; Board Finding).
145. By December 7, 2001, the pole relocation delays and unresolved right–of–way
problems for the guy wires had caused Intercounty out-of-sequence and non-productive work.
The revised E and S Plan had still not been approved, so Intercounty could not proceed to do any
type of excavation or earthwork in Sections Two or One. In the minutes of the December 7,
2001 meeting between Intercounty and PennDOT, PennDOT acknowledged that Intercounty was
delayed and was performing its work “out of sequence due to utility relocation and right-of-way
claim settlements.” (N.T. 227-229; Exs. P-23, P-61; Board Finding).
146. As early as September 27, 2001, Intercounty had written PennDOT a letter stating
that the failure to remove poles from the roadway was impacting Intercounty’s performance and
making it impossible for Intercounty to construct the road in the specified, as-planned
Construction Sequence. (N.T. 1102-1105; Ex. P-18).
147. PennDOT sent no response to Intercounty’s letter. Instead, Mr. Sebastianelli
wrote on the bottom of the letter, “per Joe Chilek, no response necessary…Contractor
[Intercounty] can file a claim if warranted.” Mr. Chilek later testified that this note accurately
reflected his comment to Mr. Sebastianelli to take no action and ignore Intercounty’s complaints
about the pole relocation delays. (N.T. 84-85, 1103-1104; Ex. P-18).
148. Mr. Nansteel testified, “When the utilities were not showing up to move the poles,
my understanding was, and the way the entire project went, is I went to Sam Sebastianelli, which
was my resident engineer for PennDOT on the project. I would talk to him, which (sic) he was
on the project every day and he knew they weren’t there. He would call his office and speak to
either Joe Pilosi or Joe Chilek, and he would get back to me and say that, you know, they’ve
contacted the utilities, they’re coming out there next week or in two weeks. And every time he
would make the phone calls, but they just…the utilities never showed up.” (N.T. 142).
149. As instructed at the pre-job meeting of June 11, 2001 Intercounty used and relied
upon PennDOT personnel on the Project (i.e. Sam Sebastianelli, PennDOT’s inspector in charge
and primary contact person on the Project day-to-day) and through him, Mr. Pilosi, for its
attempted communications to the utility companies and its efforts to bring the utility companies
to the Project. (N.T. 122, 142, 231; Board Finding).
150. Mr. Sebastianelli was on site daily and was well aware of the problems created for
Intercounty by the initial seven week starting delay and the slower than expected pace of the pole
relocations. (N.T. 142, 152, 350-351, 420, 465; Ex. P-18; F.O.F. 11, 106-107, 124-149).
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