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COMMONWEALTH OF MASSACHUSETTS
MASSACHUSETTS HIGHWAY DEPARTMENT
BOARD OF CONTRACT APPEALS
DATE:
April 28, 2004, Item #1
CLAIM:
B & E Construction Corporation, aggrieved by the
Massachusetts Highway Department's denial of its cla;m
for rental of a temporary bridge over the Nashua River on
Route 119 on the GrotonIPepperellline while curative work
took place on the permanent bridge under Contract No.
98442 appealed to Board of Contract Appeals.
RECOMMENDATION:
The claim of B & E Construction Corporation under
Contract No. 98442 for the rental of a temporary bridge in
the amount of$41,640.00 should be denied.
FOR DEPARTMENT SECRETARY
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The Board accepted the recommendation to deny. Claim Denied.
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B&E Construction, Inc. (Contractor or B& E), aggrieved by the denial of its claim
before the claims committee of the Massachusetts Highway Department (Department or
MHD) for the cost of rental of a temporary bridge for $41,640.00 under MHD contract
#98442 (Contract) appealed to the Board of Contract Appeals (Board) on February 9,
2001.
I find that B&E’s appeal has no merit. B&E’s rental of a temporary bridge for 1.5
months was part and parcel of its contractually mandated expense to correct its own
admittedly defective work. I therefore recommend the Board deny B&E’s appeal.
STATEMENT OF THE CASE
The Contractor’s appeal was heard June 12, 2001. A tape recording was made of
the hearing. Present were
Peter Milano
Isaac Machado
Cameron Smith
Wayne Eng
Chief Administrative Law Judge
Deputy Chief Counsel
MHD, District #3
President, B&E
The following exhibits were admitted into evidence.
Ex. #1
Ex. #2
Ex. #3
Ex. #4
MHD Contract # 98442; B&E Statement of Claim, 2/14/01, and 8 attachments; Memorandum of John Blundo, 2/20/01, to Judge Milano, with 3 attachments; and
Memorandum of Thomas Waruzila, District #3 Highway
Director, 3/5/01, to Judge Milano.
Renewed hearings were scheduled for June 18, 2002, and then July 9, 2002. No
renewed hearing was ever held.
In July 2003 Chief Administrative Law Judge Peter Milano resigned. On March
1, 2004 the undersigned was appointed Chief Administrative Law Judge.
On March 16, 2004 I conducted a conference on the record. Present were Mr.
Wayne Eng, Mr. Isaac Machado, and Ms. Mary L. Bearse, Fiscal Management, MHD. I
informed the parties that, in light of the resignation of Judge Milano, the appeal could
either be reheard or decided on the existing record, if the parties so agreed. B&E and
MHD stated they were content to have the appeal so decided. B&E and MHD argued
their respective positions at the conference, but the administrative record was not
reopened to take evidence.
FINDINGS OF FACT
Substantial evidence in the record, which consisted of tape recorded testimony and
the four exhibits admitted by Judge Milano, supports the following findings of fact,
which I recommend the Board adopt.
1.
The Department awarded Contract # 98442 to the B&E Construction
(Contractor or B&E) on July 22, 1998. The work was to reconstruct a bridge
(by continuous steel stringer) over the Nashua River on the Groton/Pepperell
line on Routes 111/119. B&E bid $1,996,747.22 for the work.
2.
Item 993.3 of the Contract was for the rental of a temporary bridge needed to
carry traffic over the Nashua River during the work. The bid documents
required the Contractor to state a unit price per month for an estimated time of
15 months. B&E bid a unit price of $27,760/month for a total bid of
$416,400.00 (15 X $27,760.00) on Item 993.3. The Department testified that
15 months was a “a conservative estimate intended to envelope [sic]
reasonable temporary bridge use scenarios.”
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3.
The work under the Contract was to be in conformance with the Department’s
Standard Specifications For Highways and Bridges (1988 ed.) (Standard
Specifications) and the Supplemental Specifications (November 30, 1994) as
amended by the Standard Special Provisions (February 19, 1998), and other
standards set forth, including without limitation the Contract Plans and
Special Provisions.
4.
The Notice To Proceed was given on October 14,1998 with an original
completion date of July 17, 1999. B&E made three requests for extension of
time, all of which were duly granted by the Department. The time for
completion was ultimately extended to December 15, 2000.
5.
B&E entered into a contract with Acrow Corporation of America (Acrow) to
supply the temporary bridge. The contract was not offered into evidence.
6.
The Contract specifications called for a lightweight, steel reinforced concrete
deck on the new bridge. B&E made a concrete pour in late June (or early
July) on the new bridge deck after steel reinforcement rods (rebar) had been
fitted. The specifications provided that the concrete should cover the rebar by
a specified depth so that road salt would not contaminate the rebar and cause it
to deteriorate.
7.
MHD measured the thickness of the concrete overlay with a non-intrusive
concrete depth-measuring device (Measuring Device). The Measuring Device
readings of late June (or early July) showed that the concrete pour did not
cover the rebar to the depth specified.
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8.
The Department ordered B&E to take corrective action. B&E disputed the
need for corrective action, claiming that the Measuring Device was not
accurate. The Department and B&E then conducted field testing. The results
showed that the depth of the concrete overlay recorded by the Measuring
Device correlated very closely to overlay depth measured by field testing.
B&E conceded that corrective action was necessary.
9.
B&E proposed a plan for corrective action to MHD on July 13, 2000, which
called for B&E to chip away the original concrete overlay to expose the rebar.
The rebar would then be cleaned, coated and covered by a new cement
overlay. The Department approved B&E’s plan with minor modifications on
July 17, 2000.
10.
Three to four weeks elapsed from the time of the original concrete pour until
the Department approved B&E’s plan for corrective action.
11.
B&E began the corrective work in August 2000. It was completed by Labor
Day. The temporary bridge was removed in early September 2000.
12.
Six to eight weeks elapsed between the discovery of the defective work and
B&E’s completion of the corrective work.
13.
B&E paid Acrow for 14.4 months of bridge use. The Department paid B&E
for 12.9 months of temporary bridge rental under Item 993.3. As a result of
the need to correct the work, B&E paid Acrow additional rent for 1.5 months,
which the Department refused to pay. B&E claims the Department must pay
it $41,640.00, based on the unit price in Item 993.3 ($27,760 X 1.5).
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14.
The temporary bridge was removed in early September 2000 after B&E
completed the remedial work.
15.
Had B&E not been required to perform corrective work, B&E would not have
paid Acrow the additional 1.5 month’s rent.
DISCUSSION
It is a familiar principle that public contractors must strictly comply with project
plans and specifications. See Albre Marble & Tile Co. v. Goverman, 353 Mass. 546, 549
(1968). B&E admits by word and action that it failed to pour concrete over the rebar on
the bridge deck to the depth specified. B&E does not claim that the Department or
anyone else contributed to B&E’s failure to correctly perform the bridge deck work.
The Contract expressly addresses the obligations of the contractor when its work
fails to meet the governing specifications. Subsection 5.10 of the Standard Specifications
entitled “Removal of Defective or Unauthorized Work” provides, in pertinent part,
All defective work shall be removed, repaired or made good…. If the work or any part thereof shall be found defective at any time before the final acceptance of the whole work, the Contractor shall at his own expense make good such defect in a satisfactory manner. Subsection 5.10 governs the result here. The Department discovered the defect
after the original concrete pour. It never accepted the work. B&E, once it had no choice
but agree that the readings of the Department’s concrete Measuring Device were
accurate, did not contest its responsibility to “remove” the non conforming cement cover,
“repair” the work and “make good” its performance. B&E thus performed the corrective
work that Subsection 5.10 required within eight weeks.
Subsection 5.10 in broad, clear and unambiguous language provides that the
Contractor “shall at his own expense make good such defect.” Where the wording of a
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contract is found to be unambiguous, the contract must be enforced according to its
terms. See BayBank Middlesex v. 1200 Beacon Properties, Inc., 760 F. Supp. 957, 963
(D. Mass. 1991). The phase “shall at his own expense make good such defect” plainly
means that the financial onus to cure falls on the contractor alone. Part of B&E’s “own”
expense to cure was its cost to rent a temporary bridge for 1.5 additional months. Under
the Contract that cost is properly charged to B&E alone in the circumstances here.
B&E makes three arguments contending that the Department, not B&E, must pay
1.5 months of extra rent under Item 993.3. None has merit.
B&E first claims that, because Item 993.3 specifies a unit price/month for
temporary bridge rental, the Contract imposes upon the Department a separate obligation
to pay for bridge rental. As B&E puts it “The rental of the bridge is not related to the
corrective action of the work. The state used the bridge for the 1.5 months in question.”
But it is uncontradicted that the public used the temporary bridge only because use of the
new bridge was delayed. Thus, the corrective action and the extended use of the
temporary bridge are not separate but inextricably linked.
B&E next claims that the Department must pay under Item 993.3 because the
Contract estimate of 15 months was not exceeded. However, B&E erroneously supposes
that the Department’s estimate of 15 months “guarantees” payment to B&E no matter the
circumstances. Here had B&E’s work not been defective the temporary bridge would
only have been used for 12.9 months. Item 993.3 is not a guarantee of payment for use
for an estimated time of 15 months in all circumstances.
Third, B&E argues that the Department should pay for the temporary bridge
rental because it failed to notify B&E that it would refuse to pay B&E under Item 993.3
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as B&E hoped. The Contract does not obligate the Department to notify B&E how it will
rule on a claim B&E had yet to file.1 B&E had the obligation to present the Department
with a plan to fix the work. The use of the temporary bridge was part of its plan and thus
it is part of B&E’s “own expense.”
FINDINGS
I find that Subsection 5.10 requires B&E to bear the full expense necessary to
correct its own defective work, of which increased bridge rental expense was an integral
part.
RECOMMENDATION
The Board should adopt the findings of fact set forth above.
I recommend that the Board deny B&E’s claim.
Respectfully submitted,
Stephen H. Clark
Chief Administrative Law Judge
1
The Department did not defend this appeal on the grounds that B&E failed to timely file its claim for
compensation. The Standard Specifications require, among other things, that “all claims … must be made
in writing to the Engineer within one week after the beginning of any work or the sustaining of any damage
….” Section 7.16. B&E’s claim letter to the Department was dated October 20, 2000, which appears to be
more than one month after B&E had fully performed the work to make good the defect.
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