3720 - Board of Claims

177. On March 11, 2002, Intercounty wrote another letter notifying PennDOT of the
ongoing issues regarding utility poles, right-of-way disputes, out of sequence work and
additional/extra work, among other things, on the Project. Intercounty told PennDOT that if the
poles were not moved it would have to stop all work by April 1, 2002, and it would submit a
claim for its extra costs and losses. (Ex. P- 29).
178. Also in its March 11, 2001 letter, Intercounty included its litany of pole relocation
problems that were impacting Intercounty’s work and reaffirmed, that those problems included
the “ROW agreements that PennDOT did not have secure, which were needed before GPU could
start work ” in January 2002. (Emphasis added.) (Ex. P-29).
179. From January 2002 to March 2002, PennDOT and GPU discussed several
different solutions to resolve the right-of-way/guy wire design problem, but there was no
resolution and the new poles could not be placed. (N.T. 1061-1063).
180. Because all the new utility poles had to be placed in a section before the wires
could be transferred from old poles to new poles, and only then could the old poles be removed
from the roadway, the guy wire/right-of-way issue affecting the four or so poles in Section Two
had a major adverse impact on the Project because it prevented the removal of the old poles
throughout as substantial portion of the remaining two sections and impeded Intercounty’s work
until this issue was finally resolved. (N.T. 151, 229-230, 535, 1059-1064, 1126; Board Finding).
181. In late March 2002, PennDOT finally resolved the right-of-way issue by
redesigning the roadway. It shifted the centerline two feet around the problem poles in Section
Two, and this created room for the necessary guy wires within the right-of-way. (N.T. 150-152,
1059-1064, 1126; Exs. P-14, P-26).
182. On March 22, 2002, Mr. Chilek wrote to Intercounty, assuring it that “pole
relocation work would start in the latter part of March” and instructing Intercounty to keep
working. (Emphasis added.) Mr. Chilek stated that PennDOT would grant Intercounty an
extension of the contract duration for the “utility conflicts,” but PennDOT would not pay any
damages for utility delays because it was PennDOT’s position that such delays were not
compensable under Section 105.6(b) of the Specifications. (Ex. P-30).
183. By April 2002, Intercounty had completed clearing and grubbing in all sections of
the Project. The rock embankment work was extended in Section Two. All drainage work was
complete and the whole right side rock embankment was up to grade. There was no place for
Intercounty to effectively and efficiently perform any further work because approximately 60
utility poles still remained on the roadway and needed to be removed and relocated. Each of
them, along with their overhead wires, adversely impacted Intercounty’s ability to perform its
work in Sections One and Two. (N.T. 167-168, 178-179, 187, 190-191, 1073; Exs. P-61, P-71).
184. On April 5, 2002, the Utilities finally started to relocate the remaining 60 poles.
At the weekly partnering meeting, PennDOT told Intercounty that these utility relocations would
be completed by June 1, 2002. (Ex. P-31).
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