3720 - Board of Claims

315. Removal of the unsuitable material, as directed, was within the definition of Class
1 Excavation set forth in Section 203 of the 408 Specifications if performed at a minimum
bottom width of 8 feet or more. (Ex. P-60 at pp. 203-1 to 203-3).
316. The evidence supports PennDOT’s contention that both Intercounty and
PennDOT understood (or should have understood) that once the excavation to widen the
roadway began that some undercutting would be necessary in order to stabilize the road base.
(Exs. P-8, P-60, P-70; F.O.F. 311, 314-315; Board Finding).
317. Intercounty claims an additional $278,965 for the undercutting work it did on the
Project because it asserts that the quantity of the undercutting was excessive and constituted an
undisclosed site condition. (Plaintiff’s Proposed Findings of Fact, Conclusions of Law and
Legal Brief 132-146; Plaintiff’s Response to Defendant’s Post-Hearing Brief, Appendix 1 at
pp. 4, 10-11, 14-15; N.T. 1211; Ex. P-1J).
318. The Contract (including 408 Specifications) contained no warranty that unsuitable
material would not be encountered in the subgrade but, in fact, contemplated that some amount
of unsuitable material would be encountered and provided a payment rate mechanism for same.
(Ex. P-8, P-60, P-70; F.O.F. 311, 314-316; Board Finding).
319. The Contract (including 408 Specifications) contained no representations
regarding the quantity of undercut that would be required. (Ex. P-8, P-60, P-70; Board Finding).
320. According to PennDOT’s records, the total quantity of undercutting excavation
amounted to 11,115 cubic yards. Both parties agree on this quantity. (N.T. 334-337, 789, 1211;
Ex. D-24).
321. The need for undercutting to stabilize roadway subgrade on the Project appeared
to generate from the presence of clayey material encountered at the subgrade level along the
roadway that had absorbed some moisture and caused an unacceptable degree of softness to the
subgrade. (N.T. 1073-1074).
322. Intercounty failed to identify any representations made by PennDOT in the
Contract or bid documents provided as to the type or nature of the soils or subsurface conditions
to be encountered on the Project. (Ex. P-8; Board Finding).
323. The bulk of the undercut work performed on the Project involved the removal of
unsuitable material by cuts into the roadway of 8 feet in width or greater to an average depth of 2
feet or so. (N.T. 336-337, 1073-1079).
324. Section 203.1(a) of the 408 Specifications defines Class 1 Excavation to include:
“[e]xcavation, as indicated or directed, for the removal of unsuitable material having a bottom
width of 2.5m (8 feet) or more.” (Ex. P-60 at p. 203-1).
325. Intercounty has failed to establish by a preponderance of evidence that the
“undercutting” it did to rectify the unstable roadway subgrade encountered on this Project, the
41