OPINION ISSUED FEBRUARY 3, 1989
THE LANE CONSTRUCTION CORPORATION
DEPARTMENT OF HIGHWAYS
James R. Snyder and Thad Huffman, Attorney at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.
This claim arises out of a construction project in Kanawha County
designated as Project No.
I-IG-77-2(39)89, (320-77-82.20 C-I), dated June 1, 1978. The
the contract are
The Lane Construction Corporation, hereinafter referred to as Lane,
the Department of
Highways. The contract completion date was October 31, 1980. The
consisted of the
construction of approximately 4,730 linear feet of a four-lane,
paved, divided highway
(West Virginia Turnpike I-77), 4,300 linear feet of relocated U.S.
119, eight bridges, four
interchange ramps, and various other incidental items. Lane
that various delays were
incurred as a result of plan errors, changed site conditions, and
respondent's failure to timely
approve rock borrow sources as well as extra work necessitated by
various design changes.
Lane also included three additional claims for particular costs
incurred in the
construction of this project. The actual completion date for the
was in October 1981.
Lane alleges the following items of damages:
(1) Increased unclassified excavation $1,735,482.00
(2) Increased rock borrow excavation $154,413.00
(3) Increased Portland cement costs $26,269.00
(4) Increased concrete production costs $18,964.00
(5) Increased structures costs $148,396.00
(6) Increased traffic maintenance costs $65,853.00
(7) Increased indirect costs $187,922.00
(8) Increased project layout costs $23,868.00
(9) Increased property tax costs $17,974.00
(10) Increased home office overhead costs $73,278.00
TOTAL OF DELAY CLAIM $2,452,419.00
The extra work portion of the claim consists of the following
(1) Temporary concrete median barrier $16,278.00
(2) Relocation of waterline $1,200.00
(3) Rebuilding shoulder at toll plaza $6,349.00
TOTAL OF EXTRA WORK ITEMS $23,827.00
The first phase of the contract required Lane to fill a swamp area
the relocation of Route
119. The plans indicated that Lane would need approximately 94,989
yds. of select rock for
this swamp area. This item was critical as the contract required
the area be allowed to settle
for 450 days before completion of the area. Phase I also included
construction of two access
ramps and a portion of the northbound lane of the interstate. The
indicated that the cuts in
the area of relocated Route 119 would yield sufficient rock to
the fills and leave a
surplus of rock of 17,235 cu. yds. There were also supposed to be
approximately 152,000 cu.
yds. of rock available in the cuts adjacent to access road three.
portion of the rock would
be needed for the embankments for Route 61. According to the plans,
would need to
"borrow" 143,730 cu. yds. of select rock during the first phase of
Lane submitted requests for rock borrow in early July 1978 in
anticipation of the needed rock
for Phase I construction. The request to borrow rock from Rock Borrow
Areas 1 and 2 was
made July 5, 1978, and the request for Rock Borrow Area 3 was made
8, 1978. The
respondent denied permission to borrow rock in these areas but the
actual denial was not
forthcoming until mid-August 1978. Lane alleges that its failure to
offer a royalty for the rock in
these areas which were within the project limits was the reason
was not permitted to
borrow from these areas. In early August 1978 Lane submitted
borrow rock from
Rock Borrow Areas 4, 5, and 6. These requests were acted upon in a
timely manner by
respondent and Lane was permitted to borrow rock from Rock Borrow
when it was
approved in early September 1978. The requests for areas 5 and 6
requests for Areas 7 and 8 were made on August 31, 1978. Area No.
September 28, 1978. Rock was available almost immediately from Area
Lane was able to
develop the rock from Area 4 shortly thereafter.
By this point in the project, Lane recognized that the rock
in the original plans was
not present on the project. It was anticipated by both parties that
project would be a
"borrow" job. However, Lane needed a significantly greater amount
select embankment in the
swamp area than indicated in the plans. Lane alleges that
measured the swamp area
from the top of the water in the swamp rather than from the bottom
the swamp. This area
required 140,000 cu. yds. of select embankment. The plans indicated
94,000 cu. yds. would be
During this time Lane was completing excavation operations in the
that was to have
produced the major portion of rock and the rock was absent. In
areas Lane was
stockpiling unclassified material from the cuts where the plans
indicated rock would be found.
For example, one cut on the plans indicated 38,000 cu. yds. of
rock, but the cut
contained no rock borrow. In another cut, the plans indicated
cu. yds. of rock, but
contained only 150 cu. yds. This set of circumstances placed Lane
position of stockpiling
unclassified material which was not contemplated by the original
At the same time, Lane
was in the construction phase in which select embankment
were increased. As a
result, Lane was thirteen weeks behind schedule by the end of the
Lane alleges the delay was due to respondent's delay in approving
disapproving borrow site
The problem of lack of select rock on the project continued into
1979 construction season.
An extension for borrow from Rock Borrow Area 9 was requested on
27, 1979, and
approved May 17, 1979. The respondent authorized the borrowing of
cu. yds. of rock
as it believed that sufficient rock was still present in the other
to be developed within the
project limits. As the project progressed, lane actually ended up
borrowing another 46,000 cu.
yds. of rock. At each juncture of the project when rock was
Lane's progress was
delayed by a lack of rock. In fact, during Phase I, Lane actually
140,000 cubic yards of
rock. During Phase I, it was necessary for Lane to borrow 49,952
yds. more rock than the
contract quantity of borrow indicated for the project.
Respondent contends that it does not approve borrow sites within
project right of ways.
According to respondent, Lane was well aware of the normal policies
regarding rock borrow
areas and knew prior to the construction of this interchange that
areas would have to be
found off the project site. Respondent also indicated its position
regard to the rejection of
the borrow areas. The reason for rejecting borrow from areas 1, 2,
and 6 was that these
were located within the State's right of way of the project limits.
Areas 2 and 3 were rejected as
respondent was of the opinion that these areas had unstable soil
conditions. There was no
explanation for the immediate answer provided to Lane for areas 5
respondent asserts that the delays in the approval, if any, were
unreasonable given their
potential impact on the design of the project. Respondent also
that there were a
number of delays which were solely attributable to Lane.
A project which was calculated to be a borrow job, in that the
respondent had estimated that
the project limits contained approximately 160,000 yards of select
sandstone borrow, and that
the job would require approximately 48,000 yards of common borrow
up being a waste
job. Robert J. Richards, formerly with Lane as a district manager,
stated that "... the job ended
up not being a borrow job, but a waste job ... ." Timothy M. Rush,
District Manager with Lane,
confirmed Mr. Richards' opinion that what was termed a borrow job
into a waste job.
The contractor's progress reports for the months of July, August, and
reflected the fact that work was delayed due to a lack of
of rock borrow. The total
deficit of rock on the project was approximately 140,000 cu. yds.
In terms of a borrow job, the speed with which the contractor is
to obtain the borrow,
and the amount of borrow which can be obtained, are of obvious
importance. The ratio of
select rock to common material was likewise important in order to
expedite the project's
construction and to meet the contract requirements. The amount of
material in the cuts
was considerably more than that specified on the contract drawings.
Should the amount of select
embankment required to make this embankment increase, then an
select sandstone is
also needed and must be obtained from some other source. This
may be obtained from
the prescribed cuts or from rock borrow. It was impossible for the
contractor to complete this
job within the time period provided unless rock was borrowed early
the construction phase. If
the material in the amount needed for the embankments could not be
obtained from the cuts, the
only to obtain it was to stockpile all the unclassified excavation
the select rock could be
removed from the cuts.
Due to the large quantity of borrow listed in the plans, it
that there would be a
minimal stockpiling of material necessary during the construction
project. Lane planned to
gradually work the earth work back on top of the rock fills as the
were constructed. Instead
of a cut-stockpile-fill operation, Lane was in a position of
much more unclassified
material. Stockpiling doubles the cost of unclassified excavation as the
contractor is loading,
hauling, and placing the material twice; however, the contractor is
being paid only once.
The problem of having sufficient rock on the project continued
May 1980 when the
parties agreed that Lane could borrow another 10,000 cu. yds. of
and respondent deleted
20,000 cu. yds. of select embankment which eliminated the need for
additional borrow. Lane
was able to maintain anticipated level of production for the
the project. Lane
completed the project approximately one year after the original
The delays occasioned by the rock borrow problems impacted and
the entire project.
The cost of items contemplated to be purchased within the time
the contract increased.
These increases are alleged to have been incurred by Lane as
costs for which Lane
has not received adequate compensation.
The respondent's position is that Lane was paid for all rock
a price agreed to in a
change order and that delays were occasioned by Lane's actions
Respondent takes the position that the borrow areas were approved
considering the impact the areas had on the project as a whole.
Lane contends that it is entitled to an equitable adjustment of
contract in accordance with
Section 104.2 of the Standard Specifications. Lane also contends
respondent breached its
duty not to delay or hinder Lane's performance of the contract. The
hindered Lane by refusing to approve early borrow requests and by
failing to timely reject or
accept requested borrow areas.
A complete discussion of changed conditions on a project may be
in the claim of A.J.
Baltes, Inc. vs. Dept. of Highways, 13 Ct.Cl. 1 (1979). The
circumstances herein constitute a
changed condition. The plans indicated that the contractor would
sufficient rock within the
project limits to complete the major portion of select embankments.
contractor was faced
with site conditions which not only delayed construction of the
but created extra costs
which could not have been contemplated at the time the contract was
Therefore, the Court
finds that the changed condition on the project caused Lane to
costs for which it should be
The Court, having examined the record in this claim, is of the
that Lane is entitled to an
award for the delays which resulted from the lack of rock borrow on
established that payment for the rock borrow at the contract bid
did not fully compensate
Lane for the problem with the common material which had to be moved
within the project limits.
In attempting to satisfy the respondent as to the availability of
within the project cuts, Lane
expended time and effort in removing common material from the cuts.
rock was not there.
In addition, Lane stockpiled wet, unsuitable embankment for later
the project. However,
the project ended up as a waste job. Lane had bid the job as a
job and the
circumstances which occurred doubled the cost of unclassified excavation.
The Court agrees with the respondent that Lane has been paid for
rock borrow at the
contract bid price. Lane could have negotiated for an increase at
time of the change order
entered into by the parties. Therefore, the Court is of opinion to
the claim for increased
rock borrow excavation costs.
The bid item for unclassified excavation was $5.50 per cu. yd.,
Lane claims that the
actual cost was $7.13 per cu. yd. when the handling of the material
considered. The Court is
of the opinion that Lane did in fact incur costs which were
to the extra handling of
the unclassified excavation. It is the opinion of the Court that
respondent's failure to timely
approve borrow areas in light of this item's critical import on the
progress of the construction
did, in fact, delay Lane. While the time period for the delay is
difficult to ascertain, it is clear that
Lane is entitled to an award. However, the costs for indirect
property taxes, and home
office overhead are denied as being too speculative in nature.
A review of the three additional claims which are a part of this
follows. The first claim
involves extra cost for concrete median barriers which resulted
change in the plans which
required an additional amount of barrier at a later date and the
had increased during the
interim. The difference in price of the barrier and overhead costs
$16,228.00. The Court is
of the opinion that Lane is entitled to recover $16,228.00.
The second additional claim consists of the cost for a water line
Lane was required to
lay twice due to an error in the plans. The claim represents the
difference in the contract bid
price and the actual cost of the water line at the time of the
installation in the amount of
$1,200.00. The claimant is entitled to recover $1,200.00 for this
The third claim in the amount of $6,349.00 represents the cost to
for rebuilding a
shoulder area at a toll plaza which was constructed by another
contractor. The respondent
contends that Lane did not coordinate the construction of this area
the second contractor as
required by the contract, specifically Section 105.7 of the
Specifications. The Court
agrees with this contention of the respondent and denies this
The Court makes an award in the amount of $517,478.00, which
the $16,228.00 and
$1,200.00 discussed herein.
Award of $517,478.00.