(CC-83-207 and CC-83-208)

Cordell M. Parvin and Jim H. Guynn, Jr., Attorneys at Law, for claimant.
Robert F. Bible, Attorney at Law, for respondent.


These claims arise out of two separate projects on Interstate 79
designated as Project No.
1-79-1(16)29 and Project No. 1-79-1(15)25. The projects will hereinafter
be referred to as
Projects (16)29 and (15)25, respectively. These projects entailed the
construction of three
bridges, excavation and grading, and providing drainage for Interstate
79. The two projects are
adjacent to each other with Project 15(25) as the southerly project.
Claimant contends that there
were differing site conditions and that errors in the plans caused
claimant to incur extra costs in
construction of the projects in the amount of $5,994,353.74.

Claimant also alleges that it is entitled to recover $9,000.00 in
liquidated damages assessed by
respondent on project (15)25 for 90 days at $300 per day as claimant did
not complete the
project in accordance with the contract completion date. Claimant
asserts that the Court
previously determined this issue in J. F. Allen Co. vs. Dept. of
Highways, 12 Ct.Cl. 364
(1981). In that claim, the Court made an award for liquidated damages
based upon the
application of the liquidated damage clause in the contract as being
unjustifiable. The Court
indicated that "Irrespective of Governor Moore's oral
proclamation...granting a ninety-day
extension to the various contractors, the Court...is of the opinion that
enforcement of the
liquidated damage clause in the contract was unjustifiable." Claimant
herein asserts that the
proclamation applies to it also and should substantiate an award for the
liquidated damages
assessed. The Court will treat the issue of liquidated damages in this
claim de novo.

Claimant bid on the northern project designated (16)29 in March 1970
and was awarded the
project. In May 1970, claimant bid on the southern project designated
(15)25. Claimant desired
to construct both projects as the projects were adjacent to each other.
Prior to bidding the
projects, representatives of the claimant walked the job sites to
examine the terrain and
conditions then and there existing. Claimant reviewed the mass diagram
and grading summary
prepared by respondent which accompanied the plans in order to determine
the excavation and
fills which constituted the major portion of the work. The plans
indicated that these projects
were waste projects meaning that there would be sufficient material in
the cuts to provide the
embankment material for the fills. In particular, claimant noted that
the mass diagrams for the
projects indicated that the projects were balanced i.e. waste equalled
fill. The plans also
indicated the shrink/swell factors for the material to be excavated.
Claimant used these factors in
calculating the amount of material necessary for the fills to be

The northern project provided for the construction of two bridges with
a major cut of one
million cubic yards between the bridges. There was also a major fill
north of the bridges and the
remainder of the construction involved channel changes to the northern
end of the project.

The southern project provided for the construction of a major
interchange known as the
Amma Interchange. There was a large cut which contained one million
cubic yards of material
which appeared to be an amount which would be wasted. North of this
interchange, claimant
was to relocate local service route 29 and relocate a creek which
involved several channel
changes. The plans contained a note that the topsoil was unsuitable
material which meant it
would be wasted. Claimant's representatives determined that the topsoil
was suitable and could
be used as embankment material. When claimant bid the projects, the bids
were base upon the
premise that claimant would not have a borrow item as there would not be
a necessity for

On the northern project, claimant proceeded with the construction of
the two bridges which
were in close proximity to one another but separated by a large cut. The
material in the cut
between Bridge 2681 and Bridge 2682 had to be transported north to an
area known as the
"million yard fill." Temporary access areas were constructed to
facilitate the moving from the
excavation between the bridges. North of the million yard fill was an
area known as the
cemetery fill. It was impossible to haul material up into that fill due
to the high elevation of the
rock. Therefore, the approximately 15,000 cubic years at that location
was wasted.

The projects progressed without major problems until spring of 1972. At
that time, claimant
began to suspect that there would not be sufficient material to complete
the embankments on
either project with the material that remained to be removed in the
cuts. Claimant instructed its
employees to calculate the amount of fill needed as compared with
material in the cuts by taking
cross sections of the project. In June 1982, claimant informed
respondent that it would need to
borrow material to complete the projects. Respondent allowed the
borrowing of material, but
informed claimant that respondent would not pay for this item.

The southern project was started at the Amma Interchange as claimant
determined that the
area was accessible and claimant could work through the winter on
excavation which could be
wasted. At the pre-construction conference for this job. respondent's
representative noted that
claimant needed to submit waste areas for approval in order to claimant
to waste material. This
was done and claimant proceeded to waste both suitable and unsuitable
material in a large waste
site north of the bridge being constructed at the Amma Interchange.
Claimant was able to use
approximately 250,000 cubic yards of the cut for the construction of the

Claimant continued with the projects and did, in fact, borrow material
to complete the
embankments. Claimant excavated approximately 300,000 cubic yards of
material at the
common cut which claimant used on project (15)25 although the material
came from project
(16)29. This action was permitted by respondent, but claimant was not
paid for the borrow on
project (15)25. There was also material borrowed at the site of the
office. However, claimant
had wasted material at this site, and then found it necessary to remove
the wasted material to
another location in order to excavate borrow material. The work entailed
additional blasting and
excavation. The claimant also borrowed material at the northern end of
project (16)29 where
there was a shortage of material.

Claimant contends that the shortage of materials was the direct result
of an error in the plans
which indicated the shrink-swell factors. It is claimant's position
there were errors in the
shrink/swell factor of more than 10% on project (15)25 and 5% or more on
project (16)29.
Although permission was granted by respondent to use material excavated
from the cut common
with the adjoining project at stations 1510 - 1517 as borrow material to
complete this project,
the fills were still short, and claimant required additional borrow.
Borrow material was drilled
and blasted, then excavated and hauled to the construction area to
satisfy the embankment

Claimant relied upon these factors in calculating the amount of
material needed for the
embankments. Claimant also contends that the channel change material
which was indicated as
suitable material on the plans could not be used as it was too wet. This
material was wasted.
Claimant asserts that borrow would not have been needed if the plans had
been correct. As a
result, claimant alleges that respondent breached an implied warranty.

Respondent contends that claimant elected to waste material
unnecessarily on these projects.
Respondent referred to Section of the Contract Specifications
which provides: "If the
contractor elects to waste rather than dry suitable replacement
material, if needed to complete
embankments or otherwise fulfill the intent of the plans, shall be
furnished and placed by the
contractor at his expense... ." Respondent alleges that sufficient
material existed within the
project limits to fulfill the necessary embankment quantities without
requiring borrowing material
from some other site. Respondent contends that claimant's overwasting,
rather than an error in
the shrink/swell factor, resulted in the need for borrow.

The instant case falls squarely within the reasoning of Ideker, Inc.
vs. Missouri State
Highway Comm'n., 654 S.W.2d 617 (1963). In Ideker, the Missouri State
Commission prepared plans and specifications which indicated a
particular project would be a
balanced job and the contractor made his bid in reliance on their
representations. After the
project began, the plans shrinkage factor proved incorrect and the
project became a waste job.

The Court, after reviewing the cased on the subject of claims against
governmental bodies
involving contracts, concluded that a contractor should recover against
the government entity on
a cause of action ex contractu in the nature of a breach of warranty
when these six elements are

(1) A positive representation by a governmental entity,

(2) Of a material fact,

(3) Which is false or incorrect,

(4) Lack of knowledge by a contractor that the positive representation
of the material fact is
false or incorrect,

(5) Reliance by a contractor on the positive representation of a
material fact made by the
governmental entity, and

(6) Damages sustained by a contractor as a direct result of the positive
representation of a
material fact made by the governmental entity.

The Court, on page 621, reasoned as follows:

Courts subscribing to the theory of a cause of action ex contractu in
the nature of a breach of
warranty apparently were motivated by concepts of fundamental fairness.
To avoid an unjust
result, they refused to be circumscribed by the harshness of the
doctrine of sovereign immunity
and the principle of contract law that if performance is possible one is
not entitled to extra
compensation for unforeseen difficulties encountered. Syllogistically,
where a governmental entity
makes a positive representation of a material fact relied upon by a
contractor in calculating its
bid, which turns out to be false or incorrect after work is commenced
and occasions additional
expense, the contractor finds himself in the position of one who
undertakes one contract but is
confronted with performance of another. The governmental entity
pragmatically speaking, gets
the benefit of another contract. If performance thereof by the
contractor entails more expense
than was calculated in submitting its bid, the governmental entity
should bear the added cost
rather than the contractor because the former is the beneficiary of
necessary but unbargained for
work resulting from its positive representation of a material fact which
turned out to be false or

The claimant herein relied upon the mass diagram and the grading
summary provided by the
respondent as part of the bid documents. The time frame for letting bids
on these particular
contracts was such that a contractor would necessarily rely upon the
information provided. This
is certainly realistic. More importantly, the claimant relief upon the
shrink-swell factors stated in
the plans and these factors were inaccurate. The Court is of the opinion
that the claimant has
established that it is entitled to recover damages for certain of the
borrow material which it
placed in the construction of these projects.

Claimant borrowed material originally wasted on project (16)29 for
project (15)25 in the
areas of the channel changes. The material was needed as claimant had
wasted the material
from the creek in the channel changes. These projects were to be
completed in a two year time
frame. Claimant used that portion of the channel change material which
was suitable. However,
claimant would have had to dry the material from the channel changes and
then determine its
suitability for the embankments. The Court is of the opinion that the
claimant chose the most
expeditious method, both for itself and respondent of completing the
embankments. Therefore,
claimant should be paid for this material as borrow on project (15)25.
Claimant is also entitled
to recover for the borrow placed on (16)29 at the north end where
channel changes occurred
from station 1645 to the end of the project.

There was a slide on project (15)25 which claimant contends was caused
by an overload of
material on an unstable area. The Court denies any recovery for work
performed on the slide as
the claimant also had the same knowledge concerning the instability of
the area.

The Court has also determined that claimant is entitled to recover the
$9,000.00 in liquidated
damages assessed on project (15)25. The respondent did not establish
that the failure to
complete this project within the contract period damaged respondent. The
amount of $9,000.00
shall be included by the parties in the documentation of damages.

This claim was bifurcated upon the issues of liability and damages. The
Court directs the
parties to submit documentation and a stipulation for damages incurred
by the claimant in
accordance with the provisions of this opinion.