3720 - Board of Claims

work schedules created by PennDOT instead of pursuant to the Construction Sequence
mandated by the Contract;
E. PennDOT’s failure to act in an essential matter necessary to prosecution of work on
the Project by reason of its long delay in resolving the pole relocation right-of-way problem
(from August 2001 to March 2002);
and because we have also found that these same acts/omissions caused the Project to be delayed
for the full 223 days claimed, and disrupted Intercounty’s work throughout the Project, we find
PennDOT liable to Intercounty for delay and disruption damages set forth below. See Conclusion
of Law 25-27, 38-48.
50. Although proof of damages cannot be mere guess or speculation, the exact amount
of damages need not be calculated with mathematical precision. Where an amount of damages
may be fairly estimated from the evidence, a recovery will be sustained even though such amount
cannot be determined with entire accuracy. See e.g., Spang & Co. v. U.S. Steel Corp., 545 A.2d
861, 866-67 (Pa. 1988).
51. Evidence of damages may consist of probabilities and inferences as long as the
amount is shown with reasonable certainty. A.G. Cullen, 898 A.2d at 1161; C. Ernst, Inc. v.
Koppers Co., Inc., 626 F.2d 324 (3 rd Cir. 1980).
52. Sections 110.03(d)(4) and (7) of the 408 Specifications prescribe markups for Extra
Work that are frequently and fairly used to determine appropriate markup for additional cost
claims in PennDOT contract actions. These markups are 40% for labor; 25% for materials; 5% for
equipment; and an additional 8% for subcontract work. 408 Specifications § 110.03(d)(4) and (7).
53. The markups in Sec. 110.03 (d)(4) and (7) to cost are intended to compensate the
contractor, inter alia, for administration, general and project superintendence, bond costs, overhead
and profit. Id.
54. Because we have found that PennDOT caused the 223 days of delay on the Project
and that Intercounty incurred additional costs on the Project in that extended period (the 223 days
of delay) in the amount of $11,530.27 for Extended Field Conditions, PennDOT is liable to
Intercounty for these costs, plus appropriate markup pursuant to Section 110.03(d)(4) and (7) in
the total amount of $12,470.02 for Extended Field Conditions. Id.
55. Because we have found that Intercounty also incurred extra costs for the
Maintenance and Protection of Traffic in the extended period of the Project (the 223 days of delay)
caused by PennDOT in the amount of $10,578.16, PennDOT is liable to Intercounty for these costs
plus appropriate markup pursuant to Section 110.03(d)(4) and (7) in the total amount of
$14,225.79 for this damage item. Id.
56. Because we have already applied the markups prescribed by Section 110.03(d)(4)
and (7) to Intercounty’s other costs and because these markups are intended to compensate
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