3720 - Board of Claims

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B. Phase 2 – Once traffic is diverted onto the “right-side-widening,” construct new facilities for the left side of the roadway. Upon completion of the left side, all traffic will be shifted onto this area. Phase 2 of the work was also called “left-side widening” and included steps 6 through 11, as follows: 6) Clear and grub the area on the left side of the roadway. 7) Concurrent with Step 6, install silt barrier fence. 8) Construct the left side of the roadway including excavation, sub-base and B.C.B.C. 9) Permanently seed the left side cut and fill slopes on the left side of the roadway. 10) Install temporary pavement markings and tubular markers on the left side of the roadway. 11) End Phase 2 and begin Phase 3 by diverting traffic to the left side of the roadway. C. Phase 3 – Remove the temporary “right-side-widening” facilities and construct the permanent right-side of the roadway. Phase 3 of the work was also called “right side permanent’ and included steps 12 through 16, as follows: 12) Remove B.C.B.C. from the “right side widening.” 13) Construct the right side of the roadway, including excavation, sub-base and B.C.B.C. 14) Permanently seed the right side cut and fill slopes on the right side of the roadway. 15) Remove the temporary pavement markings and tubular markers from the left side of the roadway, and install temporary pavement markings for the full width of Section 1. 16) End Phase 3 by diverting traffic onto the full width of Section 1. (Exs. P-2A, P-8 at pp. 30-31). 20. When the contractor finished the three phases (and sixteen steps) in Section One (sta. 721+00 to sta. 788+00), then it was to move to Section Two (sta. 788+00 to sta. 857+00) and complete the same phases and steps. Then the contractor was to move to Section Three (sta. 857+00 to sta. 917+00) and complete the same phases and steps. (Exs. P-2A, P-8 at pp. 30-31, P-59). 21. When all three phases in all three sections had been completed, the contractor was to pave and complete the entire 3.625 miles of reconstructed roadway at one time in a linear and continuous manner using the 11 steps in the Final Phase, as follows: 1) Rebuild tops of inlets in paved areas. 2) Install bituminous binder course. 3) Install bituminous wearing course. 4) Install final pavement markings. 4
5) Grade areas behind shoulders. 6) After grading of any swale area is complete, immediately permanently seed, mulch and install the erosion control mat. 7) Install guide rail. 8) Remove bituminous material from “abandoned portions of roadway.” 9) Backfill “abandoned” areas with embankment material and grade to original contours. 10) After grading is complete, immediately permanently seed and mulch the area. 11) Remove silt fence when areas stabilize. (Exs. P-2A, P-8 at pp. 30-31). 22. Intercounty’s bid was based on the detailed work sequencing contained in the Construction Sequence. (N.T. 585-586; Exs. P-2B, P-5; Board Finding). 23. Because of the detailed Construction Sequence provided by PennDOT, the Contract time frames in which the Contract work was to be performed and the need to keep the road open to traffic while the contractor was working, it was critical that the utility poles and wires lining both sides of the roadway be relocated within the PennDOT right-of-way in a manner that did not interfere with the contractor’s work. (N.T. 142-143, 509; Ex. P-8; Board Finding). PRE-CONTRACT ACTIVITY 24. Pursuant to statute, regulation and practice (all of which were in effect at the times relevant to this Project), PennDOT provided utility companies with the ability to use PennDOT’s right-of-way to place their utility poles along state roads, and PennDOT had the accompanying right to have the utility companies relocate these poles as PennDOT directed at the utilities' expense when required by PennDOT’s construction projects. (N.T. 57-58, 86; 36 P.S. Sec. 670-411; 67 Pa. Code Sec. 459.1). 25. PennDOT designed and planned this Project and prepared the construction plans and drawings in-house. (Ex. P-59). 26. For several years before this Project was put out for bid and a contract awarded (the “pre-Contract” period of the Project), PennDOT performed planning and design work for the Project, and made efforts to coordinate arrangements with the relevant utility companies with respect to the relocation of the utility poles affecting the Project, including plan approvals and permitting. (N.T. 41-42, 57-59, 67-69, 499, 502-505, 509, 512; Exs. P-2B, P-3, P-4, P-59). 27. PennDOT used its Utility Relocation Unit in District 4-0 to make arrangements during the pre-Contract design phase of the Project with the affected utility companies about moving their facilities on this Project. (N.T. 38, 79-80, 500-505; Exs. P-1M, P-2B; Board Finding). 5
Page 1 and 2: COMMONWEALTH OF PENNSYLVANIA INTERC
Page 3: where PennDOT renamed it the “Con
Page 7 and 8: 38. In late 1999, two years before
Page 9 and 10: could properly schedule their crews
Page 11 and 12: egarding what PennDOT could do to m
Page 13 and 14: during the pre-Contract period, and
Page 15 and 16: timetable and order of operations w
Page 17 and 18: pole relocation delays were hinderi
Page 19 and 20: perform more clearing and grubbing
Page 21 and 22: 160. Mr. Pilosi also testified he d
Page 23 and 24: 177. On March 11, 2002, Intercounty
Page 25 and 26: when doing its excavations subgrade
Page 27 and 28: construction problems that arise. H
Page 29 and 30: 214. PennDOT clearly misled Interco
Page 31 and 32: Delay Damages 225. Intercounty clai
Page 33 and 34: 244. The Tilcon letter, Exhibit P-5
Page 35 and 36: 265. With appropriate markup per Se
Page 37 and 38: 281. The Board finds that the diffe
Page 39 and 40: started to work, it had to finish t
Page 41 and 42: 315. Removal of the unsuitable mate
Page 43 and 44: desirable to complete the project.
Page 45 and 46: 352. Since no required road testing
Page 47 and 48: 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
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Intercounty for the cost of general
Page 59 and 60:
71. Because the Contract (including
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89. Although these provisions apply
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OPINION Plaintiff, Intercounty Pavi
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In addition to dividing work on the
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II. UTILITY POLE RELOCATION ISSUES
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the Project. Specifically, Intercou
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Moreover, we find PennDOT's defense
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were unprepared to do so. The Utili
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approximately five months. Actual p
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even though the as-planned sequence
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completed. Finally, Mr. Sebastianel
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can find no excuse for his complete
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To conclude, we find that, in subst
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Super. 1963); Angelo Iafrate Const.
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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
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hoc weekly work schedules were addi
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For the Extended Field Conditions,
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PennDOT objected to admission of Ex
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y Chad Nansteel (Project Superinten
Page 101 and 102:
(through Mr. Pilosi and Mr. Sebasti
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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