OPINION ISSUED NOVEMBER 25, 1987
E.P. FOGLEMAN CONSTRUCTION CO., INC.
BOARD OF REGENTS
Morton I. Taber and Robert Wolpert, Attorneys at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.
This claim arises out of construction of the Community Technical
College Building at West
Virginia Institute of Technology at Montgomery, West Virginia. The
contract for construction of
the building was dated April 15, 1970, the parties thereto being
Company and the West Virginia Board of Regents, the respondent.
was advised by
"Notice to Proceed" to commence construction on the project by June
1970. The original
completion date of October 6, 1971, was extended by agreement of
parties to January 6,
1972, by Final Change Order #6.
Edgar P. Fogleman, President of the E.P. Fogleman Construction
claimant was requested to perform work not specified in the
contract, specifications and
plans. Mr. Fogleman stated that the figures contained in Change
No. 1 do not correspond
to those he submitted to the architect, Henry Elden and Associates,
that his signature on
them was obtained without his knowledge that the figures did not
He also testified that
flaws in the original design required claimant to perform extra
contained on any of the
Change Orders which were submitted to the architect but for which no
approval was obtained.
The architect also made requests for other work which was performed
claimant but for which
claimant has not been paid. There were negotiations between the
on a list of several items
which the architect requested be completed but the parties were
to agree upon a price for
these items. Some of the items were completed by claimant and
Claimant also contends that respondent submitted a series of punch
lists of items to be
completed on the project. These lists were tendered to the claimant
November of 1971.
Claimant alleges that all, or substantially all, items covered by
contract or by Change Orders
Nos. 1-5 were fulfilled. Respondent, however, has retained
represents the balance due on the contract and Change Orders.
is seeking the amount
retained and compensation in the amount of $40,000.00 for extra
which claimant contends
was performed at the architect's request but for which claimant has
Respondent contends that a Correction and Completion Contract had
entered into with
another contractor for completion of the building to be constructed
claimant. The total
amount of this contract was $64,900.00. Several of the items
in the contract
pertained to correcting moisture problems from the outside which
damaging the interior
finishing and correcting problems of pooling water and blistering
roof. Claimant was
responsible for correcting any problems at cost under the terms of
Furthermore, claimant has not supplied the necessary unconditional
release of mechanics' liens
for the subcontractors and, therefore,
respondent is justified in suspending final payment under
the terms of the contract.
Respondent also contends that the prices for work provided for
Change Order Number
1 were agreed to by the contractor as evidenced by Mr. Fogleman's
signature on the document.
Furthermore, respondent alleges that the contractor was only
extra work which was approved under the procedures outlined in the
general terms and
conditions of the contract. The specifications under General
Number 17 state, "No
changes in the work covered by the approved Contract Documents
having prior written approval of the Owner... ." The specifications
under General Conditions
Number 18 provides, " ... and no claims for any extra work or
shall be allowed unless
the work is ordered in writing by the Owner or it's
acting officially for the
Owner, and the price is stated in such order."
Several specific itemized charges claimed by the claimant were
challenged by the respondent.
Among these were 6% interest on late payments for missing the
dates; interest charges of $2,375.73 on a judgment against the
by a subcontractor,
Dougherty Company; the amount of a judgment for $4,305.00 for extra
performed by the
subcontractor; interest of $3,311.25 on the $6,000.00 retained by
claimant from the
subcontractor; and $17,069.48 for insurance, utilities and overhead
during the period of the
contract extension from October 6, 1971 until January 6, 1972. The
original contract provided
that the contractor would incur these costs. Subsequent Change
allowing the extension
of time did not contain a provision that the respondent would be
responsible for these costs
during the extended period for the completion of the contract.
asserts it is due these
amounts under the provisions of General Conditions Number 17 of the
After examining all of the evidence, the Court is of the opinion
the claimant is not entitled
to any compensation for extra work performed beyond what was
the terms of the
contract. The terms are quite specific concerning the procedures to
followed for the execution
of agreements for the performance of extra work on the project. The
exhibits claimant submits,
as evidence that extra work was performed and compensation
that extra work,
are all dated substantially after the extended completion date of
The Court is of the opinion that the claimant is entitled to
retained as final payment
due claimant on the original contract and change orders reduce by
$10,000.00 which the Court
calculates as that portion of the Correction and Completion
damage due to moisture and repairing the blistering on the roof.
shall be no interest due
the claimant on the award of $30,000.00 as the respondent properly
suspended payment of the
retainage until all potential claims of the subcontractors against
claimant were paid,
discharged, or waived.
Award of $30,000.00.
Judge Hanlon did not participate in the hearing or decision of