THE COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF TRANSPORTATION
DlvAL
L.
PATRI CK G OVERN OR TIMOTHY
P.
MURRAY
To: L IEUTENANT G OVER NOR
BERNA RD COHEN S ECRETARY Through:
Undersecretary/General Counsel Jeffrey Mullin, Esq., EOT Commissioner Luisa Paiewonsky, MHD
From:
Stephen H. Clark, Administrative Law Judge,
Date:
April 27,
Re:
Report and Recommendation
EOT~ .P
2007:-W
I am pleased to submit for your consideration the attached report and recommendation.
Tilcon Capaldi, Inc. (Tilcon), a general contractor under MHD
contract #31089 (Contract) engaged to perform road
construction on 1-195 in Seekonk and Rehoboth, appealed
from the Department's refusal to pay it more than $3,983.38
for work performed. Tilcon argues that, after the Federal
Highway Administration (FHWA) issued a new safety
standard, the work of building approach pads to the guardrail
treatments was extra.
The appeal is without merit. The work of building gravel
approach pads was in the original contract. The Contract
obligated Tilcon to build approach pads 3 feet beyond the first
post of each guardrail. Tileon did not complete that work in a
satisfactory manner and the Department ordered corrective
action. Before Tilcon acted to cure the defective work the
FHWA issued a new safety standard, which required approach
pads to extend 5 feet beyond the first guardrail post.
Extending the length of the incomplete approach pads
required a mere increase in the quantity of gravel used. There
'}'
I recommend that Tilcon's appeal be denied.
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• 1N\fIIIN.MASS . GOV/EOT INTRODUCTION
Tilcon Capaldi, Inc. (Tilcon), the Massachusetts Highway Department
(Department or MHD) general contractor on contract #31089 (Contract) for road/ramp
construction on I-195 in Seekonk and Rehoboth, appeals the determination by the Claims
Committee that denied Tilcon additional compensation in excess of $3,983.38 for the
work of installing approach pads to the end treatments of new guard rails.
The Contract was awarded to Tilcon on January 17, 2001; the Notice to Proceed
was issued on April 1, 2001. The Contract involved federal funds. During the
performance of the Contract, the Federal Highway Administration (FHWA) implemented
a revised federal highway standard that required the guardrail approach pads extend five
feet—not three feet—beyond the first guardrail end-post. See Fax from Ken Coelho,
FHA, to John Burns, Resident Engineer, Federal Highway Administration New Standard
1 (Oct. 29, 2002). Tilcon had not installed approach pads at the time the FHWA issued
its new safety standard. The Department requested Tilcon to install the approach pads to
comply with the new FHWA standard. Tilcon did so but then filed a claim for extra work.
Ltr. from Gregory Bowles, Construction Manager Tilcon, to Bernard McCourt, District
Highway Director, Claim Letter 1 (Nov. 21, 2002).
The Claims Committee reviewed Tilcon’s claim for $25,039.41 1 in additional
compensation for the work of upgrading the guardrail approach pads and recommended a
payment of $3,983.38 in full settlement. Ltr. from Thomas F. Broderick, Chief
1
Tilcon reduced its extra work claim on appeal by a letter to Acting Chief Administrative Law Judge, John
McDonnell. Tilcon wrote it “would amend the amount of [its] claim to $21,151.33 considering the payment
on Estimate # 034 of $3,888.08 for Item 150.” Ltr. from Gregory Bowles, Construction Manager Tilcon, to
John McDonnell, Acting Chief Administrative Law Judge, Additional Documentation for Claim on
Contract #31089 2 (Nov. 4, 2003). The Department’s offer of $3,983.38 and the subsequent payment of
$3,888.08 both related to the additional quantities of gravel borrow paid under Contract pay Item 150.
Engineer, to Gregory Bowles, Construction Manager Tilcon, Claims Committee
Determination 1 (Apr. 11, 2003).
Tilcon’s appeal should be denied. The work of extending the gravel approach
pads beyond the guardrail end posts was in the original Contract. The Contract required
Tilcon to construct the approach pads at the guardrail end treatments in a satisfactorily
manner but Tilcon did not do so. The Department then ordered Tilcon to take corrective
action. Tilcon was mobilized to perform corrective work when the FHWA issued its
revised safety standard.
The work Tilcon did to assure that the guardrail end treatments complied with the
new FHWA standards was not “extra work.” Complying with the new FHWA standard
merely required laying an increased quantity of ordinary borrow. The FHWA directive
did not alter the original Contract work; it merely increased the quantity of ordinary
borrow needed. Tilcon was only entitled to compensation for the ordinary borrow used
to extend the end pads. Tilcon’s claim for extra work is without merit.
I recommend that Tilcon’s amended appeal for $21,151.33 be denied.
BACKGROUND
The Contract
Tilcon was awarded Department Contract #31089 for resurfacing and other
related ramp work on Interstate 195 in Seekonk and Rehoboth at the bid price of
$4,316,863.00. The Contract’s original completion date was November 30, 2002.
The pay item for ordinary borrow in the Contract was Item 150 (“Ordinary
Borrow”). Ordinary borrow was the material used to construct the gravel approach pads
at the end treatments of guardrails. The original quantity estimated for Item 150 at the
2
time of bid was 545 CY, for which Tilcon bid $ 7.00/CY. After the promulgation of the
FHWA standard, the quantity of borrow needed to meet the new safety standard
increased to 732.24 CY. The Department paid Tilcon for all ordinary borrow used to
complete the approach pads at the Contract price. See supra page 1, n. 1.
The Contract is governed by the Standard Specifications for Highways and
Bridges (1988 Metric Ed.) and incorporates the Supplemental Specifications promulgated
on December 23, 1998. The Contract provisions governing this appeal are subsections
1.20, 4.03, and 4.05 of the Standard Specifications (all relating to extra work), subsection
5.10 (“Removal of Defective or Unauthorized Work”) and subsection 4.06 (“Increased or
Decreased Contract Quantities”).
Statement of the Appeal
Tilcon timely filed a claim at MHD District 5, where it was denied and forwarded
to the Claims Committee. The Engineer offered Tilcon $3,983.38, the price of the
increased quantity of ordinary borrow used. Tilcon rejected the offer and filed a timely
notice of appeal in this office. On May 30, 2003 it filed a statement of claim for “extra
work” in the amount of $25,039.41. 2 Tilcon’s statement of claim asserted that it had
completed all the original contract work before it was requested to lay additional gravel
to complete the guardrail end treatments in the manner required by the newly
promulgated FHA safety standard. See Statement of Claim, at 1-2 (May 30, 2003). In
essence, Tilcon’s extra work claim is for mobilization costs. John McDonnell, the Acting
2
Tilcon reduced its claim on appeal to $21,151.33 after receiving a payment of $3,888.08. See supra page
1, n.1.
3
Administrative Law Judge when Tilcon filed its appeal, held a hearing on October 23,
2003. 3
Present at the Hearing were:
John McDonnell……………...
Gregory Bowles………………
Gerald Bernard……………….
Isaac Machado, Esq.………..
John Burns……………………
Acting Chief Administrative Law Judge
Constr. Mgr. Tilcon Capaldi, Inc.
MHD
Counsel, MHD
MHD
At the Hearing, the following documents were admitted into evidence:
Ex. #1………………………...
Ex. #2………………………...
Statement of Claim
Contract #31089
At the close of the Hearing, Judge McDonnell asked the parties to provide
documents that showed (1) the quantity of Item 150 borrow installed and the dates MHD
measured and paid for such borrow, (2) the daily project diaries MHD kept on and after
August 2002, and (3) any record that demonstrated when the guardrail end treatments
were completed.
FINDINGS
Based on the testimony at the hearing, the exhibits in evidence and the documents
produced after the hearing, I find the facts recited above and following.
During performance of the Contract, John Burns, the Department’s resident
engineer (RE), received a fax from Ken Coelho, an administrator in the FHWA,
Massachusetts Division, which described a new federal highway safety standard
requiring all the approach pads for guardrail end treatments to extend 5 feet beyond the
first guardrail post. The previous pad length was 3 feet. The new FHWA safety standard
3
On March 1, 2004 the Governor appointed the undersigned Administrative Law Judge pursuant to G.L.
16, s.1. Because Acting Judge McDonnell had not submitted a report and recommendation, I reviewed the
record and tape recorded testimony of the hearing. I make this report and recommendation based on the
record as a whole.
4
went into effect November 1, 2002 as an amendment to the NCHRP Report 350
Standards. On November 15, 2002 Tilcon had not completed the guardrail end
treatments in a satisfactory manner and was subject to a Department order for corrective
action under Subsection 5.10 of the Standard Specifications (“Removal of Defective or
Unauthorized Work”).
DISCUSSION
Extra Work Claim
Tilcon asserts a claim for increased costs due to extra work performed under the
Contract. It is Tilcon’s burden to prove by substantial evidence that it is entitled to
additional compensation.
Subsection § 1.20 of Standard Specifications defines extra work.
Extra Work [is] Work which: (1.) was not originally
anticipated and/or contained in the contract: and therefore
(2.) is determined by the Engineer to be necessary for the
proper completion of the project: and (3.) bears a
reasonable subsidiary relation to the full execution of the
work originally described in the Contract. (Emphasis
added.)
Tilcon’s “extra work” claim is principally a factual dispute about when Tilcon
satisfactorily completed the guardrail work and whether it had completed all work and
demobilized when the FHWA issued its new safety standard.
Tilcon contends that it completed the work required under the Contract prior to
the passage of the new FHWA safety standard. In support, it offered the testimony of its
general manager, Mr. Gregory Bowles. Mr. Bowles testified that he did not “think there
was anything left to be done, other than punch list work.”
Gregory Bowles, hearing
testimony, Oct. 23, 2003. Mr. Bowles testified that “to [his] knowledge” the Contract
5
requirements regarding “shoulder work, fill, approach pads, 3 ft. length of guardrail end
treatments, etc… were completed between June and July of 2002 prior to the resurfacing
work.” Id. Tilcon did not introduce in evidence any written record to corroborate Mr.
Bowles’s sworn testimony. On cross-examination Mr. Bowles stated he had no personal
knowledge “that the shoulder work had not been completed”; nor had he received any
information from “any individual stating that the subject guardrail work was not finished
correctly.” Id.
The Department contends that the guardrail work was not completed when the
FHWA standard was implemented and that Tilcon did not satisfactorily complete the end
treatment work until December 15, 2002. The Department relies on the testimony of Mr.
John Burns, its resident engineer on the project, and contemporaneous records. Mr.
Burns testified that the original contract work was not completed prior to the release of
the new FHWA safety standard and that Tilcon was then subject to a Department order to
install approach pads and cure defective road shoulder work. 4 Mr. Burns testified that he
spoke with Mr. Frank Gammino, Tilcon’s project superintendent, about the need to
comply with the new FHWA standard. According to Mr. Burns, Mr. Gammino asked
Mr. Burns if the guardrail end treatments could be added to the project punch list but Mr.
Burns told him it could not because “this is a safety issue.”
Mr. Burns testified that when Mr. Coelho of the FHWA told the Department that
the new safety standard had to be complied with on the Contract work Tilcon had not yet
4
If the Department finds original work unsatisfactory or incomplete the Contract allows it to order
corrective action. See Subsection § 5.10 of the 1988 Standard Specifications (“Removal of Defective or
Unauthorized Work”). It is the government, not the contractor, that determines if the work has attained
satisfactory, substantial completion. But see G.L. c. 39, § 39G (failure of the “awarding authority” to
respond to a contactor’s written declaration of substantial completion within twenty-one days is equivalent
to acceptance and work is deemed substantially complete).
6
completed the original approach pad guardrail end treatments. Mr. Coelho told Mr.
Burns that “instead of doing [the end treatments] to extend to three feet, they need to now
extend five feet.” Hearing, Oct. 23, 2003. To corroborate Mr. Burns’s testimony the
Department produced the project diary and the Contract payment records for Item 150
(“Ordinary Borrow”) 5 both of which were contemporaneous records. 6
Tilcon’s evidence is insufficient to prove that the approach pad work was
complete prior to the issuance of the new FHWA safety regulation. Mr. Bowles’s
testimony does not constitute substantial evidence to prove its claim. At best, Tilcon’s
evidence merely shows that to “the best of his knowledge” Mr. Bowles himself did not
know anything that informed him that the work was not complete “in June or July.” The
absence of evidence, however, does not equate to evidence. See New Boston Garden
Corp. v. Bd. of Assessors of Boston, 383 Mass. 456, 472 (1981). Mr. Bowles’
incomplete knowledge—without more—is not evidence of much probative force. The
lack of any documentary evidence to corroborate Mr. Bowles’s version of events detracts
from the probative force his testimony may have. 7
5
The Standard Specifications III.3 § M1.01.0 indicates that “Ordinary Borrow shall consist of a material
satisfactory to the Engineer and not specified as gravel borrow, sand borrow, special borrow material or
other particular kind of borrow. This material shall have the physical characteristics of soils . . . [and] shall
have properties such that it may be readily spread and compacted for the formation of embankments.”
6
The Project Diary indicates on November 25 & 26, 2002: “Tilcon—Item 150 Ordinary Borrow placed for
approach pads for guardrail ends Rte I-195 E[astbound] and W[estbound] various locations—
Superintendent Gammino ‘OK to pay ordinary borrow’ since corrective action was required prior to new
specification.” John Burns, Project Diary for Contract #31089 at 74 (Nov. 25-26, 2002) (emphasis added).
7
Mr. Bowles did not refer to any document that corroborated his testimony or independently
substantiated that Tilcon’s work was substantially and satisfactorily completed before the FHWA issued its
new safety standard. Tilcon did not call Mr. Gammino as a witness at the hearing. It was Mr. Gammino,
not Mr. Bowles, who spoke with the resident engineer, Mr. Burns; and it was Mr. Gammino who offered on
behalf of Tilcon to perform the pad work called for by the FHWA requirement at the cost of the increased
quantity of ordinary borrow. Mr. Gammino was knowledgeable about the project and the details of the
work. He spoke directly with Mr. Burns about the FHWA requirement. Mr. Burn’s testimony concerning
his conversations with Mr. Gammino, which is both credible and corroborated by documents, stands
7
By contrast, Mr. Burns’s testimony, together with MHD’s project diaries and
records, provide a “rational articulable basis in the evidence” to support a finding that
Tilcon was mobilized and performing corrective work when the new FHWA standard
came into effect. See New Boston Garden, 383 Mass. at 473. I think the record as a
whole, including “whatever in the record fairly detracts from [the] weight” of the
Department’s evidence, proves the Department’s factual contentions. Id. at 466.
Complying with the new FHWA standard required laying additional quantities of
ordinary borrow to extend the approach pads 2 additional feet beyond the first end post.
The Department compensated Tilcon for constructing the gravel pad end treatments at the
Contract price Tilcon bid for Item 150 (“Ordinary Borrow”) under subsection 4.06
(“Increased or Decreased Contract Quantities”). 8 In ruling on a cognate provision in
another public contract, the Supreme Judicial Court in M. De Matteo Constr. Co. v.
Commonwealth, 338 Mass. 568, 588 n.2 (1959) construed an increased quantities
provision:
“An increase in quantities of work to be performed . . . will be paid for at the
contract unit prices for the actual work done, in the same manner as if such work
had been included in the original estimated quantities. No allowance will be made
for anticipated profits or underruns in quantities.”
.
uncontradicted and unrebutted on this record. I credit Mr. Burns’s testimony that Mr. Gammino agreed that
it would be “OK [with Tilcon for the Department] to pay Ordinary Borrow” for the pad work. Tilcon
introduced no credible evidence to show that the end treatment work was satisfactorily completed before
the FHWA issued the new safety standard. There was no written declaration here.
8
In pertinent part that subsection provides: “The Department reserves the right to increase or decrease the
quantity of any particular item of work. [] In this regard, no allowance will be made for loss of anticipated
profits suffered or claimed by the contractor resulting directly or indirectly from such increased or
decreased quantities or from unbalanced allocation among the contract items from any other cause.”
8
CONCLUSION
I conclude that the approach pad end treatment work Tilcon performed was work
originally anticipated in the contract. Tilcon was still mobilized and had not completed
work on approach pad end treatments to the guardrails before the FHWA standard was
implemented. Laying additional quantities of ordinary borrow to extend gravel pads 2
feet to comply with the new FHWA regulation was not extra work. It was work within
the original Contract specification that required additional quantities of ordinary borrow
to complete. The Department paid Tilcon the compensation the Contract required.
RECOMMENDATION
I recommend that Tilcon’s claim of $21,151.33 for extra work to upgrade the
approach pads be denied.
Respectfully Submitted,
____________________
Stephen H. Clark
Administrative Law Judge
Dated: __/__/2007
9