3720 - Board of Claims

section at a time contemplated by the Contract’s Construction Sequence. These actions by
PennDOT were material changes to the Contract which actively interfered with Intercounty’s
work and resulted in delay and lost productivity on the Project.
Delayed Response to Design Problem
Although PennDOT's active interference with Intercounty's work by way of: A) its
misrepresentation that it would coordinate pole relocation at the start of the Project and its abject
failure even to attempt to do so for the first six months of the Project and B) Mr. Sebastianelli’s
unilateral dictates to Intercounty to abandon the Construction Sequence and work less productively
due to the pole relocation problem rather than demobilize, were both material causes of the delay
and disruption experienced by Intercounty on the Project, we find that PennDOT's initial design
mistake (i.e. its failure to properly coordinate with the Utilities in the pre-Contract design phase
and allow enough space in the right-of-way for the guy wires for certain of the utility poles in
Section Two) and the nearly seven month delay in resolving this problem were even more
significant causes of delay in relocating the utility poles and, in turn, the fundamental cause of
delay and disruption to Intercounty’s work on the Project. (N.T. 64-68). To begin with, we note
that the guy wire problem itself was one of PennDOT’s own making. That is to say, even if it was
the Utilities’ initial failure to identify guy wires for those certain poles at issue, it was PennDOT’s
ultimate responsibility to authorize and approve the locations of the new poles and to properly
situate them within its roadway design to allow the Project to be built as set forth in its plans and
damages. (N.T. 58-69). 408 Specifications § 104.01; United States v. Spearin, 248 U.S. 132, 137,
39 S. Ct. 59, 61 (1918); Canuso v. City of Philadelphia, 192 A. 133, 136 (Pa. 1937); A.G. Cullen
Construction, 898 A.2d at 1160; Department of Transportation v. W.P. Dickerson & Son, Inc., 400
A.2d 930, 932 (Pa. Cmwlth. 1979); Allentown Supply Corp. v. Stryer, 195 A.2d 274, 279 (Pa.
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