OPINION ISSUED JUNE 29, 2001
NATIONAL ENGINEERING AND CONTRACTING COMPANY
DIVISION OF HIGHWAYS
Stephen A. Weber and Michael F. McKenna, Attorneys at Law, for
Jeff J. Miller, Attorney at Law, for respondent.
his claim was submitted to the Court for decision upon a
Stipulation entered into by claimant and respondent wherein certain
facts and circumstances of the claim were agreed to as follows:
1. Claimant National Engineering and Contracting Company
(hereinafter referred to as National) is an Ohio corporation with
its principal place of the bid of business in Strongsville, Ohio,
and is a pre-qualified construction contractor in the State of West
2. The respondent is a State agency delegated with the
responsibility of designing, planning, and administering public
highway projects in the State of West Virginia.
3. This claim consolidates two claims on highway construction
contracts. Both contracts were entered into in 1995 to perform
certain repair work on I-64 in Cabell County. The first project is
commonly referred to as the Mud River Bridge Project and is Project
No. S306-64-25.21, 26.45, and 27.10, and the second project,
commonly referred to as the Mud River/Indian Meadows Bridge
Project, is Project No. 27.110.
4. As part of the terms of the contract for Project No.
S306-64-25.21, 26.45, and 27.10, National was required to furnish
and erect about 13,300 lineal feet of temporary concrete median
barrier conforming to the bid proposal for the purposes of
maintaining two-way traffic through the project. The temporary
barriers called for in the contract utilized a "pin and loop"
positive connection system.
5. National made arrangements for concrete median barriers to
be supplied by a subcontractor, Swank Sign Erection, Inc., which
had furnished median barriers for other highway projects.
Specifically, the median barrier company had furnished barriers on
a project on Route 22 near Weirton, as well as for a project on
I-79, commonly referred to as the FBI Interchange project. The same
type barrier was also used on other projects performed by other
construction contractors for respondent.
6. On those other projects, the median barrier company had
furnished what is commonly referred to in the industry as a
Pennsylvania or PennDOT barrier, which is so named as it is a
commonly used median barrier that is made to special Pennsylvania
Department of Transportation standards. The PennDOT barrier has a "slot and plate" connection rather than a "pin and loop"
connection, and has other design features that may be distinguished
on the plan detail sheets for each respective type of barrier. On
the other projects, the median barrier company sought and received
permission from respondent to use the PennDOT barrier.
7. Although the PennDOT barrier did not meet project proposal
specifications for this project as bid, the median barrier company
sought approval from respondent to use the PennDOT barrier on this
8. On February 9, 1996, respondent informed National that the
PennDOT median barrier could be used long as respondent was
furnished with a certification that the barrier complied with NCHRP
350 criteria. This was the first time that respondent had ever
made this alternative condition a part of the approval process.
9. After calling the Pennsylvania Department of
Transportation to check on the standard of the PennDOT barrier, the
subcontractor to National certified to respondent that the PennDOT
median barrier met the NCHRP 350 standard. However, the median
barrier did not meet that standard. The parties do not believe
that the median barrier company intentionally misrepresented this
fact, but rather did so out of mistake.
10. At that time, no barrier in the world had been tested or
certified as meeting the NCHRP 350 standard since it was a newly
adopted standard. The contract did not require a contractor to use
median barrier that met the NCHRP 350 standard.
11. The PennDOT barrier did meet the NCHRP 230 standard which
was the NCHRP standard then in place.
12. The median barrier company began to deliver the median
barrier to the project prior to having received the required
approval of the use of the barrier by respondent.
13. On April 22, 1996, respondent informed National that it
would not approve the use of the PennDOT barrier because this
particular barrier met neither the original bid proposal
specifications nor the NCHRP 350 standard. National was given a
third alternative of imbedding the PennDOT barrier two inches into
a slot in the pavement to provide lateral support; however,
National determined that this requirement would make the PennDOT
barrier too costly to use on the project.
14. National ultimately replaced the PennDOT barriers with a
WVDOH type barrier, which also did not meet NCHRP 350 standards,
but which did conform to the original plan documents. The removal
and replacement of the PennDOT barriers cost $209,047.46 for which
National now makes this claim.
15. National also contracted with respondent in 1995 to
perform certain repair work on project no. S306-64-20.19 and
respondent rejected the use of the PennDOT barrier as the
temporary concrete barriers on this project as well which National
alleges the cost for the removal and replacement of the barrier at
16. The parties stipulate to the admission of the project proposal plans and contract documents, including all standard and
supplemental specifications, special provisions and detail sheets,
including the WVDOH Standard Detail, "Temporary Concrete Barrier",
Standard Sheet GR 10, Prepared 1-1-93; the admission of
photocopies of commonwealth of Pennsylvania DOT RC-57, "CONCRETE
MEDIAN BARRIER", recommended 3-30-92, comprising three sheets; and
the deposition of Charles Shaver, a construction engineer for
respondent at the time of these projects, with attached exhibits.
The Court, having reviewed the stipulation, memoranda of law
submitted by the parties, the exhibits, and the facts and
circumstances of this claim, finds that claimant, National
Engineering and Contracting Company, did not establish by a
preponderance of the evidence that the respondent breached any of
its contractual duties to National. The Court finds that National
made a unilateral mistake by relying upon the mistaken
misrepresentation of its subcontractor, Swank Sign Erection, Inc.,
that the PennDOT barrier met the contractual requirements.
The respondent did not allow the use of the PennDOT barrier
brought to the site by National due to the fact that it did not
meet the contractual requirements for concrete barrier on these two
projects. National had three alternatives under the contract.
First, it could have used the GR10 barrier (the "pin and loop"
barrier) which was available to it and which met all contractual
conditions for temporary barriers. Second, National had the
alternative of providing barriers which meet the NCHRP 350
standards. Third, National could have chosen to comply with
respondent's instructions to embed the delivered PennDOT barriers
to meet respondent's requirements. At the time that these projects
were let to bid, the NCHRP 350 standard was replacing the 230
standard for temporary barriers. National made the decision to
have the PennDOT barriers delivered to the project sites prior to
receiving the required approval from respondent. These temporary
barriers use the "slotted plate connection" instead of the "pin and
loop." The slotted plate connection barriers were required to meet
the NCHRP 350 standards. National relied upon the representation
of its subcontractor that the PennDOT barriers met the NCHRP 350
standards. Based upon this representation, National proceeded to
have the PennDOT barriers delivered to the project sites only to be
informed by respondent that these barriers did not meet the NCHRP
It is the opinion of the Court that National placed itself in
an unfortunate position by having the delivery of the PennDOT
barriers made to the project sites only to find out that the
barriers would not be used in light of its decision to reject
respondent's requirement that these be embedded. Any financial loss
on the part of National was due to its reliance on its own
subcontractor's representations that the barriers were in
compliance with the NCHRP 350 standard. Further, the Court is of
the opinion that respondent acted in a fair and reasonable manner
in its insistence upon a safe and secure barrier being used as the median barrier for traffic upon I-64.
Accordingly, the Court has determined that National has failed
to substantiate its claim against the respondent, and further, the
Court is of the opinion to and does hereby deny this claim.