3720 - Board of Claims

71. Because the Contract (including the 408 Specifications) contained no warranty that
unsuitable material would not be encountered in the subgrade, and no representations regarding the
quantity of unsuitable material it would be required to excavate and replace due to instability in
this subgrade, but, in fact, contemplated the possibility of such work and provided for a unit
method of payment for same based on the classification of such excavation; and because
Intercounty failed to establish the extent of the unsuitable material encountered on the Project was
so excessive in volume or so unusual in nature as to constitute a differing site condition;
Intercounty is not entitled to recover additional compensation for this work over and above the
specified bid rate on grounds that this work or the amount of undercut constituted an undisclosed
or differing site condition pursuant to Section 110.02 of the 408 Specifications. Ex. P-8; 408
Specifications §§ 110.02, 203, 210.3, 210.4; Angelo Iafrate Construction Co., Inc. v. Pennsylvania
Tpk. Commission, No. 3654, 2006 WL 2585020 at *50-52 (Pa. Bd. Claims, July 27, 2006).
72. Class 1 Excavation is defined by Section 203.1(a) of the 408 Specifications as, inter
alia, “[e}xcavation, as indicated or directed, for the removal of unsuitable material having a bottom
width of 2.5 m (8 feet) or more.” 408 Specifications § 203.1(a).
73. The bulk of the excavation of unsuitable material in the subgrade on the Project (i.e.
the “undercut”) was Class 1 Excavation and was properly paid for by PennDOT at the bid rate of
$9 per cubic yard. Ex. P-5, P-8; 408 Specifications § 203.
74. However, because 470 cubic yards of the “undercut” had a bottom width of less
than 8 feet, it is most appropriately defined as Class 1A Excavation under Section 203.1(b) of the
408 Specifications and constitutes “extra work” that is defined by Section 110.03(c) of the 408
Specifications as “work having no quantity and/or price included in the contract, which is
determined by the District Engineer to be necessary and desirable to complete the Project.” Ex. P-
8; 408 Specifications §§ 110.03(c), 203.1(b).
75. Because Intercounty adequately established that its actual cost for undercuts of less
than 8 feet bottom width was fairly estimated at $34 per cubic yard, and because Intercounty has
already been paid $4,230 for this work, Intercounty is entitled to be paid an additional $11,750 for
the undercutting performed on the Project. 408 Specifications §§ 110.03(c), 203.1(b).
76. With appropriate markup, PennDOT is liable for $13,571.25 as a further payment to
Intercounty for undercut work outside the Class 1 Excavation category performed on the Project.
Ex. P-5, P-8; 408 Specifications §§ 110.03(c), 203.
77. Although Intercounty makes a claim for additional disruption damages for the
undercut due to the extra movement of men and equipment up and down the roadway because the
Project had to be worked in a non-linear sequence, we cannot estimate the additional cost of this
undercutting work with any reasonable degree of certainty because Intercounty has failed to
provide us with a calculation, methodology or evidence from which to calculate this particular loss
of productivity. Spang & Co. v. U.S. Steel Corp., 545 A.2d at 866-867; Angelo Iafrate
Construction Co., Inc. v. Pennsylvania Tpk. Commission, No. 3654, 2006 WL 2585020 at *59-63
(Pa. Bd. Claims, July 27, 2006).
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