James R. Watson, Attorney at Law,
Harry P. Waddell, Attorney at Law, and
Charles A. Rea, Attorney at Law, for claimants.
S. Reed Waters, Jr., Attorney at Law, for respondent.


These claims arise out of construction of a new bridge crossing the
Ohio River, between West
Virginia and Ohio, at St. Marys, in Pleasants County. The contract for
construction of the bridge
was dated November 1, 1974, the parties thereto being United States
Steel Corporation and the
West Virginia Department of Highways, the respondent. The required
completion date was
November 1, 1976. As a part of the contract, the contractor, United
States Steel Corporation,
was required to paint the structural steel at the shop upon fabrication
and in the field upon
erection. The contractor awarded a subcontract, for the field painting,
to John B. Conomos, Inc.

The contract documents were placed in evidence as joint exhibits,
including: (as la) the West
Virginia Department of Highways Standard Specifications -Roads and
Bridges - Adopted
1972; (as 1b) the Contractor's Proposal in which special provisions and
the signed contract are
embodied; (as 1c) the West Virginia Department of, Highways Supplemental
dated July 1, 1974 (To Accompany Standard Specifications Adopted 1972);
and (as 1d) the
Plans for Construction of the bridge.

Applicable paragraph items on page 2 of the Plans for Construction, so
far as painting is
concerned, include:

Governing Specifications
The West Virginia Department of Highways Standard Specifications,
Roads and Bridges Adopted 1972 as Amended By The Supplemental
Specifications Of The
West Virginia Department of Highways,
Adopted July 1, 1974, The Contract Documents And The Contract

Shop And Field Painting Shall Be Done In Accordance With Section 615 Of
The Standard
Specifications, The Special Provisions And
Supplemental SpecificAtions.

Shop Painting
Surfaces To Be In Contact With Concrete Shall Not Be Painted.
All Structural Steel, Except Concrete Surfaces, Shall Be Painted With
Four (4) Mils Of An
Inorganic Zinc Shop Primer. All Contact Surfaces Will Receive A Maximum
Thickness Of 1/2
Mils Of Inorganic Zinc Coating. Areas Damaged During Shipping And
Erection Shall Be Repaired With The Shop Primer In The Field.

Field Painting
Field Coat Shall Meet Requirements Of Section 711.16 Vinyl Top Coat, 3
Mils (Dry). The
Total Paint Thickness Shall Be Seven (7) Mils.

John B. Conomos, of John B. Conomos, Inc., an industrial painting
contractor, testified that he
had been contacted by several steel fabricators, including the American
Bridge Division of
United States Steel Corporation, shortly after the bridge project was
advertised for bids. After
reviewing the plans and drawings he had his assistant and bookkeeper,
Reta, make some calls to
find out what the current prices were for materials. The memo of her
telephone contact with
Carboline, a paint manufacturer, listed three paints, Vinyl 711.15 and
711.16 and Zinc-Carbo
Zinc 11. He said that he did not know why a price had been given on
Vinyl 711.15 and
conceded that he had not inquired. After making up his estimates of
labor, materials, etc., he
had, on the night before bid opening, provided his subcontract bid to
various bidders and
obtained a verbal commitment from American Bridge. The subcontract
between them is dated
June 20, 1975. Generally, under this field painting subcontract, the
subcontractor was required
to accomplish the field painting required in the prime contract
including (1) clean and prepare all
bolts, welds and abraded surfaces as necessary and apply touch-up paint
which is inorganic zinc
primer and (2) apply three (3) mils dry thickness of vinyl finish paint

In its Notice of Claim, the claimant alleges that the specification,
with reference to painting,
was defective; that the two types of paint, inorganic zinc as a primer
and vinyl. 711.16 as a top
coat, are incompatible; that the respondent then knew or had reason to
know of such
incompatibility and failed to so inform the claimant; that it became
necessary for the
subcontractor to apply an intermediate "tie coat", at the instance of
the respondent, which
constituted a "constructive change order" or "extra work"; that the
claimant was not granted an
appropriate extension of time for
completion of the contract. As a result, claimant demands: (1)
an award of $145,000 in compensation for its own additional costs for
labor, material,
equipment, overhead and other incidental costs, (2) an award of $93,600
in reimbursement of a
liquidated damages delay in completion penalty of $300 per day for 312
days paid by the
claimant to the respondent, and (3) an award of $350,000 on behalf of
its subcontractor, John
B. Conomos, Inc., for its additional costs for labor, material,
equipment, overhead and other
incidental costs.

In the late 1960's, paint system technology was undergoing change.
Earlier, a red lead prime
coat was used with an aluminum top coat. Then, a three layer vinyl
system was used. And, in the
early 1970's, the inorganic zinc primer with vinyl. top coat was being

Conomos had little or no experience in using the vinyl over inorganic
zinc paint system on a job
of this magnitude. From his review of the plans and drawings, he had
regarded it as a simple
two-coat system, a shop coat of inorganic zinc and a field coat of
711.16 vinyl. He was unaware
that an intermediate tie coat (wash coat, barrier coat) might be
required to accomplish adhesion
and to prevent bubbling and blistering. He attached no importance to the
fact that Carboline had
quoted him a price on vinyl 711.15, an intermediate vinyl paint. These
numbers refer to
numbered sections in the Standard Specifications. Section 711 provides
the standard
specifications for Paints and oils. Each of its subsections deals with a
particular subject. Section
711.16 spells out the requirements of a particular vinyl top coat.
Section 711.20 deals with the
"Zinc-Rich System" and sets out requirements with reference to the
primer, a wash coat if
recommended by the paint manufacturer, and the top coat. Inorganic zinc
was required as the
shop coat, the primer. This subcontractor would be applying some 900
gallons of inorganic zinc
in the field painting and would be applying the vinyl top coat, to meet
the requirements of Section
711.16, over all. In the Special Provision appears:

"Prepainted Surfaces: All prepainted metal surfaces shall be painted
with one coat of a suitable
barrier coat (as recommended by the selected 2-coat paint system
manufacturer), and one
topcoat of the selected 2-coat system."

All of these specifications and provisions were there to be read.
Surely a study of them would
have forewarned the contractor and subcontractor that the intermediate
coat would be
necessary. The claimant's parade of expert witnesses testified that an
inorganic zinc primer and a
vinyl top coat meeting Section 711.16 requirements, without the
intermediate coat, were
incompatible, but apparently no such expert was contacted about this
paint system

before bidding. It was incumbent upon the contractor and the
subcontractor to be fully
informed before bidding.

The bridge was not completed on November 1, 1976. It was completed on
July 27, 1978. It
was opened for use by the traveling public on November 18, 1977, and no
liquidated damages
for delays were assessed beyond that date. The delay in completion, the
Court concludes from
the evidence, was caused by claimant's delays in fabrication and shop
painting of the structural
steel. From time to time, as the contractor updated its expected work
schedule, extending its
expected date of completion, these were the reasons stated, no reference
being made to
problems in field painting.

At the conclusion of the claimant's presentation of evidence, the
respondent moved to dismiss
the claims. That motion is sustained.

Claim disallowed.