3720 - Board of Claims

78. Intercounty is not awarded any separate amount for its claim for disruption damages
caused by its performance of the undercut. 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).
79. The Contract provided for a Bituminous Pavement Ride Quality Incentive payment
in Item 0404-001 of $16,200 that Intercounty would be paid if the final road surface met certain
conditions of smoothness. Ex. P-8; Ex. D-19.
80. The conditions of smoothness that Intercounty had to meet to receive the Item
0404-001 payment are contained in Section 404, Change No. 2 of the 408 Specifications. 408
Specifications, Change No. 2 § 404 incorporated into Change No. 4.
81. Under Section 404, Change No. 2 of the 408 Specifications, if the conditions of
road smoothness are measured by a prescribed method and the prescribed standards for
smoothness are met, Intercounty qualifies for a bonus; but if they are not met, Intercounty is
subject to a penalty. Id.
82. The 408 Specifications provide that the roadway must be tested for smoothness using
a prescribed method in order to qualify for the Bituminous Pavement Ride Quality Incentive
provided in the Contract. Id.
83. Because neither party requested testing but instead agreed to waive same, and no
testing of the roadway was performed as required by Section 404, Change No. 2 of the 408
Specifications, the conditions for payment of the Bituminous Pavement Ride Quality Incentive
were not met. Intercounty is not entitled to any payment and is also not liable for any penalty
pursuant to the Project’s ride quality incentive provision. Id.
84. PennDOT is liable to Intercounty for $171,640.81 in total delay-related damages for
the Project. Conclusions of Law 50-62.
85. PennDOT is liable to Intercounty for $405,671.00 in disruption-related damages for
the Project. Conclusions of Law 50-53, 63-64.
86. PennDOT is liable to Intercounty for $13,571.25 for the additional cost of
undercutting done as Class 1A Excavation. Conclusions of Law 50-53, 74-76.
87. PennDOT is liable to Intercounty for total damages in the amount of $590,883.06.
88. The Board’s authority to award penalty and/or attorney fees in a contract claim
derives from the Procurement Code, Part I, Chapter 39, Subchapter D (§§ 3931-3939). These
provisions provide that a party may recover penalty and/or attorney fees in any action “to recover
any payment under this subchapter” if it shows that PennDOT “acted in bad faith” in withholding
such payment. 62 Pa.C.S. §§ 3931-3939.
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