OPINION ISSUED JANUARY 18, 1988
S. J. GROVES & SONS COMPANY
DEPARTMENT OF HIGHWAYS
S. J. GROVES & SONS COMPANY, FOR THE BENEFIT
OF ATLAS MACHINE AND IRON WORKS, INC.
DEPARTMENT OF HIGHWAYS
Stanley E. Deutsch and William W. Lanigan, Attorneys at Law, for
Robert F. Bible, Attorney at Law, for respondent.
Claimant S. J. Groves and Sons Company (hereinafter referred to as
Groves), a Minnesota
based general contractor, entered into a contract with respondent
January 10, 1979, for the
construction of two bridges, designated Project Numbers APD-323
Groves also entered into a contract with respondent on March 29,
for the construction of
a third bridge, designated Project Number ID-77-2 (49/64). These
projects, known as the
Mingo County Bridge, the Kanawha County Bridge, and the Fayette
respectively, are the subject of these claims. On June 13, 1983,
A. Wolferd, Vice
President of Groves, executed an assignment of its rights to pursue
claims before this Court
to Atlas Machine and Iron Works, Inc. (hereinafter referred to as
Atlas), the structural steel
fabricator for these projects. The work on the projects was done in
Gainesville, Virginia. The
original amount of the claim was amended to $2,440,013.00 at the
The following documents were placed in evidence by written
of the parties:
Part 2 of the general Plans of Construction.
Standard West Virginia Department of Highways Standard
Specifications Roads and Bridges (1978).
Supplemental Specifications (January 1, 1979).
1973 publication of Steel Structures Painting Manual.
Atlas alleges that due to factors within the control of respondent,
experienced severe cost
overruns, substantial increase in the main hours expended on these
projects, and that it incurred
expenses in excess of the increased costs.
Werner H. Quasebarth, President of Atlas, testified that Atlas is
structural steel fabricator
which was founded by his father in 1930. In addition to
bridges in West
Virginia, it fabricated the steel for projects in Georgia, South
Carolina, North Carolina, Virginia,
District of Columbia, Maryland, Delaware, New Jersey, Pennsylvania,
Massachusetts and Ohio.
There were approximately 300 steel girders to be fabricated by
the three projects
which are the subject of these claims. The typical girder to be
fabricated for these projects
averaged 100 feet in length, 5 feet deep and weighed approximately
tons. One of the major
elements in fabricating steel girders involves surface preparation.
During the process of surface preparation, the fabricator removes
scale that has oxidized
on the girder when the steel was rolled into the girder form. To
the mill scale, the girder
is placed in a Wheel-a-brator which propels shot at the girder to
the mill scale uniformly.
The respondent's Standard Specifications Road and Bridges, Adopted
provides a "near
white" surface specification. Atlas was required to achieve a "near
white" surface on each girder.
Atlas considered the interpretation of "near white" by the
be too stringent. Atlas
attempted to achieve the results desired by the respondent by
preblasting and reblasting girders.
Quasebarth explained that the reblasting required caused production
problems of the Atlas
fabrication plant. There was a continual stoppage of steel members
attempt to satisfy the
requirements of respondent's inspectors assigned to these projects.
He stated further that it is normal practice to break the corners
flanges of the steel
girders, but Atlas was required by the inspectors on the project to
radius the edges on the
flanges. Hackles, which are small spurs of steel that penetrate the
coating of the paint, also
created a problem, according to Quasebarth. Other problems arose
interpretation by the
inspectors of overspray or dry spray. There were difficulties in
orderly inspection done.
All of these problems backed up not only the project that was being
completed, but it also
created a backlog of steel being stored at the Atlas foundry. The
at Atlas from January
1980 through August 1980 was related to fabricating steel for these
projects and comprised 50
percent of Atlas' work during this period of time.
Once the girder has completed the surface preparation process, the
girder is then spray painted
with an inorganic zinc paint. The girder is inspected at this point
proper thickness of the paint.
On this project, a 4 mil thickness of paint was required. Where the
inspectors determined that
overspray or dry spray occurred on the girder. Atlas was required to
either reblast or hand sand
the areas of overspray. This became a major problem for Atlas.
Atlas also alleged problems occurred during the process of breaking
edges on the flanges of
the steel girders. Normal practice in the industry is to brake the
edges. Atlas contends that it
was required to grind the edges so that the edges were radiused.
hand work required many
man hours of time. The respondent contends that the inspectors on
problems never required
Atlas to radius the edges. The respondent did expect the edges to
broken and the burr or
sharp edge removed.
Another area which caused considerable concern on the part of Atlas
the requirement to
remove mill scale in the snipes. Snipes are areas on the inside
of the flanges. Atlas
contends that it was required to hand blast each snipe area in a
in order to remove the mill
scale. The inspectors were using flashlights, dental mirrors, and
magnification glasses to
determine if the snipes contained mill scale. It was then necessary
hand blast every snipe area
in a girder to achieve the surface preparation being required by
respondent's inspectors. As a
result of this problem, there was a meeting held on March 19, 1980.
At that meeting, Bill Shuler, a chemist with respondent, agreed
snipe mill scale was not
detrimental and did not have to be removed. However, personnel at
were not notified until
May 1, 1980, that a decision had been made regarding this problem.
During the interim period,
however, claimant was required to expend extra labor for the
the mill scale in all of
the snipe areas on the girders.
In order to attempt to maintain a work schedule to meet the
requirements for steel
fabrication, Atlas started working weekends, and then a third
Atlas paid for the extra
work. Men were idle waiting for decisions to be made on inspected
This resulted in extra
costs to Atlas.
Dr. Felix Konstandt, President and Technical Director of Konstandt
testified that his firm is engaged in the testing, evaluation and
development of coatings and
paints. He stated that he uses the Swedish standard in terms of
evaluation and painting and that
the Steel Structure Painting Counsel is the American equivalent of
Swedish Academy. Dr.
Konstandt explained that there are three separate standards of
cleanliness imposed by the
Swedish standards. Sa 3 is a white metal blast. Sa 2 1/2 is a
blast and Sa 2 is a
commercial blast. He stated that a near-white blast permits five
of impurities to be
present on the overall surface of the steel.
He further explained that it is necessary to clean the steel as the
paint has to be applied to clean
surfaces. Paint is applied to the steel to prevent corrosion of the
steel. His definition of "a near
white blast" permits 5 percent of impurities to be present on the
all surface. He described
hackles or slivers as impurities that are formed on the steel or
been formed on the steel
during fabrication and stated that it is practically impossible to
achieve 100 percent removal of all
mill scale on standard job sites. He testified that he read the
Virginia Specifications. In his
opinion the provisions in these Specifications are more stringent
the specifications normally
required in the industry.
Common problems which occur during the painting operations include
pinholes, sags and
overspray or dry spray. Dr. Konstandt indicated that there is no
made of dry overspray
in any painting specification on structural steel. In his opinion
reblasting which results from the
removal of the overspray does some injury to the surface of the
He also testified that the
industry did not consider overspray to be a defect or a flaw in the
fabrication of steel girders.
Charles F. Jarrard, Jr., consultant to the fabrication industry,
testified as an expert for Atlas. He
has been involved with the fabrication of approximately 50,000 tons
steel for the State of
West Virginia. He stated that surface preparation of the steel is
generally outlined in the State
Specifications and that the majority of states today reference the
Council. This Council references the Swedish Standard. He testified
if there was a
disagreement over what was being produced, hopefully, there would
meeting of the minds
within the plant and the problem would be resolved. He mentioned
generally, the fabricator
gives up because he needs the cash flow.
His experience with West Virginia goes back to 1959 or 1960. He
"In plain words,
cleaning and painting was a bigger problem in West Virginia, than
probably any other state that I
have worked in,". Jarrard testified that he does not know of any
requirement imposed by the
specification to remove overspray. "I believe that removal of all
overspray is unrealistic and
impractical." He also said that regarding hackles, West Virginia
the position that you had to
get the profile back. This did not occur in any other state. A girder is
placed back in the blasting
unit to create the profile. Then, it is reblasted. A girder could
blasted as many as seven times.
In the industry, it is normal and customary to break edges,
In discussing the Standard Specifications of West Virginia in
with other states, he
stated, "I guess because I've done so much West Virginia work, I
really feel they're that
much more stringent than anybody else."
The position of Atlas in this claim is that the inspectors for the
respondent, who were assigned
to inspect the steel being fabricated for these three projects,
standards upon Atlas
which were not a part of the Standard Specifications. The standards
imposed upon Atlas were
alleged to be beyond what custom and usage would normally dictate
were outside the
scope of the specifications in the contract.
The consensus of the opinion of respondent's employees was that all
scale had to be
removed from the surface of the steel. This was the standard
The respondent's Standard Specifications provides for surface
preparation as follows:
§615.6.4 - Surface Preparation: All structural steel surfaces
receive a very thorough blast
(near white) cleaning prior to painting. Mill scale, rust, weld
and foreign matter shall be
removed to the extent that the only traces remaining are slight
in the form of spots or
stripes. The appearance of the steel surface after very thorough
cleaning shall correspond
with the following pictorial standards: A Sa 1 1/2, B Sa 2 1/2, C
1/2, or D Sa 2 1/2 of
SSPC-Vis 1 ... .
Blast cleaning operations shall be done in such a matter that no
is done to partially or
entirely completed portions of the work. After blast cleaning, any
which are repaired by
welding shall be blast cleaned. Areas repaired by grinding or other
means shall have the anchor
pattern restored by blast cleaning, or as directed by the
The interpretation of this specification created the problems as to
surface preparation of the
steel girders. The respondent employed Pennsylvania Testing
inspectors on the project. The inspectors followed the directions
respondent's employees in
requiring the removal of all mill scale on the girders.
The respondent contends that its inspectors applied the
in the same manner as
they would have applied them in any fabrication of steel project.
required a "near white blast." According to the position of Atlas
"near white blast" does not
mean the removal of all "mill scale". The respondent's position is
the interpretation of "near
white" means the removal of "all mill scale". The specification
that "Mill scale...shall be
removed to the extent that the only traces remaining are slight
in the form of spots or
It is the opinion of the Court that the inspectors were following
dictates of the respondent's
Specifications in requiring Atlas to remove all mill scale from the
surface of the fabricated steel.
Therefore, Atlas is not entitled to the extra costs for work which
resulted from this requirement
by the respondent's inspectors.
As to the second problem which caused considerable concern on the
of Atlas involving the
application of inorganic zinc paint to the fabricated steel, the
has determined that there is
merit to Atlas' contention that the inspectors were unreasonable in
interpretation of the project
specifications for dry spray or overspray of the paint. The paint
furnished by Mobile in
accordance with the respondent's specifications. The specifications
required a 4 mil coat. It was
necessary for Atlas to reblast steel girders in an attempt to
the inspectors. Atlas also
resorted to using manual labor in removing the overspray which
in many hours of extra
labor costs. The respondent contends that excessive paint overspray
be removed in order
to avoid problems with the application of field paint.
While bridge inspectors from West Virginia appear to be more strict
their inspections on
projects, the Court considers this adherence to quality standards
reasonable in light of the
failure of the Silver Bridge at Point Pleasant, West Virginia,
occurred in December 1967,
and, in finding some liability in this claim, we are in no way
criticism of the respondent or
its inspection in this regard.
It is the opinion of the Court that respondent's inspectors were
conscientious in their
interpretation of the Specifications applying to overspray or dry
of the paint. Accordingly,
Atlas was required to perform some extra work for this item. It is the
opinion of the Court,
however, that Atlas is not entitled compensation for this work.
As to the problem of the radius on the edges versus broken edges on
flanges of the steel
girders, the Court is of the opinion to disallow this item. The
is clear that Atlas
performed this extra work on the edges of the flanges on its own
rather than at the
insistence of respondent's inspectors.
The problem with the removal of mill sale in the snipes of the
girders did cause Atlas to
incur costs for extra work performed in an attempt to satisfy the
standards being applied by the
respondent's inspectors. The Court is of the opinion that the
respondent's employees failed to
adequately and timely advise Atlas of its decision regarding the
of mill scale in the snipes
on the steel girders. This failure caused extra labor costs for
claimant. Therefore, the Court
makes an award in the amount of
$217,259.56 for labor costs for the extra work performed
during the specific time period as indicated heretofore in the
to S. J. Groves and Sons
Company, for the benefit of Atlas Machine and Iron Works, Inc.
Award of $217,259.56.