New York State Court of Claims

New York State Court of Claims

CATCO v. STATE OF NEW YORK, #2008-037-506, Claim No. 110831


Synopsis


Case Information

UID:
2008-037-506
Claimant(s):
CONCRETE APPLIED TECHNOLOGIES CORPORATION d/b/a CATCO
Claimant short name:
CATCO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110831
Motion number(s):

Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Fox & Kowalewski, LLPBy: Laurence I. Fox, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Eidin BeirneAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 5, 2009
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This Claim as originally filed seeks to recover money damages on causes of action for breach of contract and quantum meruit for additional work, labor and materials arising out of a contract between Concrete Applied Technologies Corporation d/b/a CATCO (Claimant) and the State of New York (State). The Claim was filed with the Clerk of the Court on May 4, 2005 and proceeded to trial. The issues at trial were bifurcated and this decision relates solely to the issue of liability.


At the trial of this claim, which took place over a period of four days, Claimant presented four witnesses:

Michael Nassoiy, employed by Claimant as superintendent for this project;

Brian Kirchmeyer, sales manager and dispatch supervisor for LaFarge North America, a concrete supply company;

Michael Salvadore, a professional engineer and owner of Claimant corporation; and

Theodore M. Babinski, a retired employee of the New York State Department of Transportation who was engineer-in-charge for this project.

Many of the underlying facts are not disputed by the parties. Claimant is engaged in the business of heavy highway construction under public improvement contracts almost exclusively with the New York State Department of Transportation (NYSDOT) and local municipalities in Western New York. On August 17, 2000, Claimant and the State, acting by and through its Department of Transportation, entered into Contract No. D258263 (Contract) for the reconstruction of 3.6 kilometers of Transit Road (Routes 20 & 78), together with the replacement of Transit Road Bridge over Buffalo Creek and Norfolk Southern Railroad Bridge over Transit Road in the Towns of Elma and West Seneca, Erie County, New York (Project) at a contract bid price of $14,882,586.05. The reconstruction of Transit Road involved the replacement of the roadway, curbs, sidewalks and basic utilities, including waterlines, sanitary sewers, storm sewers and associated lateral lines. Claimant commenced work under the Contract and the Project was completed and accepted by the Commissioner of Transportation on February 11, 2003, at which time there remained twenty-one unresolved claims submitted by Claimant for additional compensation which are set forth as causes of action in the Claim. The Court will address each cause of action seriatim, with the exception of the fourth, ninth, twelfth, fourteenth, eighteenth and nineteenth causes of action, which were either withdrawn by Claimant or upon which no proof was adduced by Claimant at trial.

FIRST, SECOND AND ELEVENTH CAUSES OF ACTION

Claimant’s first cause of action seeks to recover $3,018.52 for extra work performed in extending an 8" PVC waterline and the second cause of action seeks to recover $14,191.28 for extra work performed in installing a 900mm PCCP waterline, both of which were allegedly beyond the original Contract limits with differing site conditions not contemplated by the Contract documents. The eleventh cause of action seeks to recover $1,577.08 for additional work required to remove subsurface rock in connection with the installation of a drainage structure. Claimant alleges that it unexpectedly encountered subsurface rock formations while excavating for the installation of the waterlines and drainage structure which resulted in differing site conditions not contemplated by the Contract documents.

The Contract before the Court clearly places responsibility for determining subsurface conditions upon the contractor and discloses that subsurface conditions set forth in the bid documents are estimates only.

Article 3 of the Agreement entitled “Examination of Documents and Site” provides:
“The Contractor agrees that before making its proposal it carefully examined the contract documents, together with the site of the proposed work, as well as its surrounding territory, and is informed regarding all of the conditions affecting the work to be done and labor and materials to be furnished for the completion of this contract, including the existence of poles, wires, pipes and other facilities and structures of municipal and other public service corporations on, over or under the site, except latent conditions that meet the requirements of Section 109-16, and that its information was secured by personal and other investigation and research.”
The provisions of Article 3 are reinforced by Section 102-04 of the Standard Specifications entitled “No Misunderstanding” which provides, in relevant part:
“The attention of persons intending to make proposals is specifically called to ‘ARTICLE 3 of the AGREEMENT’ wherein the bidder agrees that it has examined the contract documents and the site of the work and has fully informed itself from its personal examination of the same regarding the quantities, character, location and other conditions affecting the work to be performed including the existence of poles, wires, pipes, ducts, conduits, and other facilities and structures of municipal and other public service corporations on, over or under the site, and that it will make no claim against the State by reliance upon any estimates, tests or other representations made by an officer or agent of the State with respect to the work to be performed under the contract.”

Addendum No. 1 to the Standard Specifications supplemented Section 102-04 by adding the following provision:

“A. Base Line Data.

a. The Department will make available relevant project specific information and engineering data that were used to develop the contract plans and proposal. The material will be listed as available on a form in the contract proposal entitled ‘Supplemental Information Available to Bidders.’ The supplemental information could include, for example, earthwork cross section sheets, various subsurface information, record plans, special reports and other pertinent project data. The information or data listed as available on the form can be accessed by the Contractor for inspection or reproduction at the Regional Office administering the contract. This material will be the Base Line Data and together with other contract documents will be used to determine changes to the work.”

The Supplemental Information Available to Bidders form which provides the Base Line Data under this Contract reflects that earthwork sheets and logs of subsurface exploration are available for inspection but indicates that the following items are not available: tabulated results of probings, tabulated depth to bedrock, logs showing laboratory description of soil samples, laboratory test data from soil samples, rock outcrop maps, subsurface data obtained from sources outside the Department and rock cores. The above referenced earthwork sheets, which are attached to the Contract plans, do not show any quantity of rock to be excavated in the area of the waterline or drainage structure excavations and contain the following notation:
“The contractor’s attention is directed to the fact that conditions and quantities as shown on these tables are estimated. These conditions and quantities are not to be deemed or considered by the contractor as a warranty or representation by the State of actual field conditions to be encountered or exact quantities of work performed.”
Section 102-05 of the Standard Specifications entitled “Subsurface Information” provides, in the final paragraph:
“Subsurface information is made available to bidders in good faith so that they may be aware of the information utilized by the State for design and estimating purposes. By doing so, the State and the Contractor mutually agree and understand that the same is a voluntary act and not in compliance with any legal or moral obligation on the part of the Department. Furthermore, insofar as such disclosure is made, the Department makes no representations or warranties, express or implied, as to the completeness or accuracy of this information or data, nor is such disclosure intended as a substitute for personal investigations, interpretations, and judgment of the bidder.”

Similarly, the last paragraph of Section 102-05 in Addendum No. 1 to the Standard Specifications states:
“The subsurface information shown was obtained for State design and estimate purposes. It is made available to bidders so that they may have access to the same information available to the State. It is presented in good faith, but as with all subsurface information it represents only a small fraction of the total volume of material at the site. Interpolation between data points may not be indicative of the actual material to be encountered.”
The excavation work for which Claimant seeks reimbursement under the Contract is described in Section 206 of Addendum No. 2 to the Standard Specifications as “Trench, Culvert and Structure Excavation.” The work required under Section 206-1.01 “shall consist of the excavation of all materials and backfill or disposal of excavated material required for trenches, culverts, structures . . . .” Such excavation is defined in § 203-1.01 as unclassified excavation which “shall consist of the excavation and disposal of all materials, of any description, encountered in the course of construction, unless otherwise specified in the contract. Estimated limits and descriptions of subsurface deposits and formations which may be shown on the plans, are supplied in accordance with §102-05, Subsurface Information.” The agreed unit price for this unclassified excavation work under Section 206-5.01 includes “presplitting rock excavations where required . . . .”

The applicable rules for proving a differing site condition claim are set forth in Fruin-Colnon Corp. v Niagara Frontier Transp. Auth., 180 AD2d 222, 226 [1992], as follows:
“In order to prevail on its differing site condition claim, [Claimant] was required to prove six elements: the contract documents must have affirmatively indicated the subsurface conditions; [Claimant] must have acted as a reasonably prudent contractor in interpreting the contract documents; [Claimant] must have reasonably relied on the indications of subsurface conditions in the contract; the actual subsurface conditions encountered must have been reasonably unforeseeable; and [Claimant’s] claimed damages, excess costs associated with extra work and delays . . . must have been solely attributable to such materially different subsurface conditions.”
The Court finds that Claimant has failed to prove the elements of its causes of action based upon differing site conditions by a preponderance of the credible evidence. Claimant acknowledges that the Contract documents do not affirmatively indicate the subsurface conditions in the area of the waterline and drainage structure excavations which is the first prong of the Fruin-Colnon test. Thus, there were no representations by Defendant of subsurface conditions for Claimant to rely upon and, as a result, the conditions actually encountered did not differ from those indicated in the Contract and were not reasonably unforeseeable.

Furthermore, there are express and multiple disclaimers throughout the bid documents, specifications and final Contract advising contractors that the information regarding subsurface conditions for this Project was incomplete, at best, and cautioning them to conduct their own investigation of the work site. In addition, by executing the Contract, Claimant acknowledged that there was no misunderstanding as to the quantities, character, location and other conditions affecting the work to be performed.

Notwithstanding the foregoing, the State will be held liable for breach of a construction contract when it withholds relevant information concerning site conditions or furnishes inadequate and misleading information to bidders which does not fairly represent the conditions at the site (Public Constructors v State of New York, 55 AD2d 368 [1977]), including subsurface soil conditions (Grow Constr. Co. v State of New York, 56 AD2d 95 [1977]). Liability under this theory will not be imposed when the State made no test borings and did not possess any detailed knowledge of subsoil conditions (Conduit & Found. Corp. v State of New York, 52 NY2d 1064 [1981]). The applicable rules are explained in Savin Bros. v State of New York, 62 AD2d 511, 515 [1978], affd 47 NY2d 934 [1979]:
“The ultimate guide in determining whether or not the contractor is to be paid for extra work is the contract itself (Kuhs v Flower City Tissue Mills, Co., 104 Misc 243, mod other grounds 189 App Div 539, affd 190 App Div 928, affd 231 NY 637; 10 NY Jur, Contracts, § 282). It is a question of intent of the parties. Where the contract contains positive representations as to conditions, substantially amounting to a warranty, recovery may be had, but if the parties intended the contractor to rely upon its own investigation, no recovery for extra work may be had, absent a showing of fraud or misrepresentation as to existing conditions.”
Here, it is established that the State did not conduct test borings to determine subsurface conditions in the area of the waterline and drainage structure excavations and the Contract documents do not make any affirmative representations as to those subsurface conditions amounting to a warranty. Rather, under the terms of the Contract, Claimant was required to determine the subsurface conditions by its own investigation of the job site. The Claim and the proof submitted at trial in support thereof do not show that Defendant acted fraudulently or in bad faith or that there was insufficient time for Claimant to inspect the site. Therefore, the Court finds no basis not to enforce the plain language of the Contract documents and dismiss the first, second and eleventh causes of action.

THIRD CAUSE OF ACTION
Claimant’s third cause of action seeks to recover $1,830.80 for extra work performed in re-striping the center line of Transit Road during the course of construction at the direction of the State’s Engineer-in-Charge (EIC) of the Project. Claimant alleges that it had previously installed the construction zone pavement markings in accordance with Contract plans and specifications which was not disputed by the State and, therefore, it should be paid for replacement of completed work damaged by the traveling public. Defendant counters that under the terms of the Contract the Contractor is responsible for maintaining construction zone pavement markings for the duration of the Project.

The resolution of this issue is found in the Standard Specifications. Section 619-3.06 of the Standard Specifications entitled “Short-Term Pavement Markings” provides, in pertinent part:
“The Contractor shall furnish, apply, maintain, and when so ordered, remove short-term pavement markings, where shown in the contract documents or where directed by the Engineer.”

“Any markings, including raised markers, that fail to adhere to the pavement, become abraded, dislodged by snowplowing, or in the opinion of the Engineer become ineffective in any manner during the ‘period of use’ shall be replaced by the Contractor at no additional expense to the State.”

Section 619-3.12 B of Addendum No. 2 to the Standard Specifications entitled “Maintenance of Pavement Markings” likewise provides, in part:
“The Contractor shall be responsible for maintaining the construction zone pavement markings for the duration of the temporary traffic pattern or detour. Any marking material that fails to provide for any reason, both satisfactory daytime and nighttime delineation, in the opinion of the Engineer, shall be replaced immediately by the Contractor at no additional cost to the State.”

There was no proof submitted by Claimant that the short-term pavement markings as originally installed remained in acceptable condition or that the EIC was not justified in requiring replacement of the markings. Based upon the foregoing Contract language, the Court finds that Claimant was mandated to replace damaged pavement markings at the direction of the EIC during the course of construction at its own cost and expense. The safety component underlying this requirement is self-evident. The very fact that the Standard Specifications contain references to replacement of pavement markings during the course of construction is evidence that some damage to temporary markings is anticipated and the cost of replacing the same is specifically assigned to the Contractor. Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the third cause of action.

FIFTH CAUSE OF ACTION

Claimant’s fifth cause of action seeks to recover $3,508.97[1] for extra work performed in handsetting a curb as a result of design changes made by the State which resulted in a material alteration to the character of the work. Defendant argues that neither the Contract nor the State dictated the method Claimant was to use to perform this work; rather it was Claimant’s decision to conventionally form the curb as opposed to performing the work by machine.

Claimant seeks reimbursement for the construction of cast-in-place concrete curb under Item Number 609.0401 of the Contract and the work required is described in Section 609-3.04 of the Standard Specifications as follows: “Cast-in-place concrete curb or curb and gutter shall either be conventionally formed or machine formed to the size and shape shown on the standard sheets or as indicated in the contract documents.” Claimant contends that the bid price submitted for this item was calculated based on the use of a “slip form” curb machine rather than the more costly method of conventionally or hand forming the curb.

Claimant argues that the delay caused by a NYSDOT decision to redesign a drainage structure prevented it from completing the curb construction for the Project while the slip form machine was available at the job site, resulting in a significant change in the character of the work. Under Section 109-16 (3) (iv) (a) and (b) of Addendum No. 1 to the Standard Specifications, a “significant change” applies when the character of the work as altered differs materially in kind or nature from that involved or included in the original construction or when the quantity of a major item of work goes above 125 percent of the original contract quantity. In this instance, there is nothing in the record to show that there was a significant change in the character or quantity of the work. Claimant was required to construct the curbs conventionally or by machine and the decision to proceed conventionally was the result of its own choice and not directed by NYSDOT (see Triple Cities Constr. Co. v State of New York, 194 AD2d 1037 [1993]).

Based upon the foregoing, the Court finds that Claimant has failed to prove the elements of this cause of action for breach of contract by a preponderance of the credible evidence.

SIXTH CAUSE OF ACTION

Claimant’s sixth cause of action seeks to recover $520 in damages for extra work performed at the request of NYSDOT to satisfy conditions imposed by the Erie County Water Authority (ECWA). Testimony at trial indicated that Claimant was required to have a welder on standby at the work site while work was performed on ECWA’s thirty-six-inch waterline which was not provided for in the Contract between Claimant and NYSDOT. Defendant counters that the Contract documents place responsibility for compliance with ECWA regulations on the Contractor and that NYSDOT has no liability for expenditures incurred by Claimant in satisfying those requirements.

The pertinent provisions of the Contract documents relating to this issue are set out here verbatim:
“Work shall be scheduled for minimum interruption of service and must meet the approval of the utility company and the Engineer” (Standard Specifications, Section 660-3.02).
***
“The Contractor shall observe all Federal, State and applicable local laws and regulations” (Standard Specifications, Addendum No. 1, Section 107-01).
***
“Under these specifications, the Contractor shall make all necessary installation and/or alterations to the water supply system located in the construction area as shown on the plans, called for in the specifications or as required by the Engineer to complete the work.”

“All work shall be done in accordance with the plans, these specifications and the standard practices of the owners of the water system and shall be satisfactory to the Engineer” (Contract, “Watermains and Appurtenances”, p 11/46).
***
“All installations are to be in accordance with Erie County Water Authority and all other applicable regulatory agency standards and specifications” (Contract, “Waterline Details”, Drawing No. WD-2, Sheet No. 229A1, General Notes No. 1, p 10/53).
Based upon the foregoing language, the Court finds that Claimant was obligated to comply

with the standards and practices of the ECWA during the tie-in of the thirty-six-inch waterline and there was no proof submitted at trial that NYSDOT imposed additional conditions or in any way interfered with the relationship between Claimant and ECWA. Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the sixth cause of action.

SEVENTH AND EIGHTH CAUSES OF ACTION

In the seventh cause of action, Claimant seeks to recover $4,634.43 for extra work performed and costs incurred in connection with the repair of an existing underground eight-inch waterline which was damaged during construction and in the eighth cause of action Claimant seeks to recover the sum of $4,329.47 paid to the ECWA for water lost as a result of the damage to the waterline. Claimant asserts that the damage occurred because the Contract plans depicted the location of the waterline to be outside the limits of the Project and not within the area where work was to be performed by Claimant. Defendant counters that the location of underground utilities shown in the plans was approximate and Claimant was obligated to protect existing underground utilities during construction and to repair any damage thereto at its own cost and expense.

The pertinent provisions of the Contract documents pertaining to this issue are set out here verbatim:
“The locations of utilities or other underground man-made features were ascertained with reasonable care and recorded in good faith from various sources, including the records of municipal and other public service corporations, and therefore the location of known utilities may only be approximate” (Standard Specifications, Section 102-05).
***
“Under the contract the Contractor shall be required to do all work enumerated under the different terms of the contract and in addition to this shall be required to protect all adjoining properties, all Utilities and existing highway facilities within the Right-of-Way and to repair or replace any such properties, Utilities and facilities damaged or destroyed by it or its employees through the construction operations, both within and adjacent to the Right-of-Way” (Standard Specifications, Section 104-01).
***
“The Contractor shall also use suitable precaution necessary to prevent damage to pipes, conduits and other underground structures . . .” (Standard Specifications, Section 107-08).
***
“All damage, direct or indirect, of whatever nature resulting from the performance of the work or resulting to the work during its progress from whatever cause, including omissions and supervisory acts of the State, shall be borne and sustained by the Contractor, and all work shall be solely at its risk until it has been finally inspected and accepted by the State . . .” (Standard Specifications, Section 107-09).
***
“All existing utilities must be supported during construction of the new waterline. Cost shall be included in pipe price” (Contract, “Waterline Details”, Drawing No. WD-2, Sheet No. 229A1, Note No. 1 “Typical Pipe Crossing”, p 10/53).
Based upon the foregoing Contract language, the Court finds that Claimant was obligated to repair or replace, at its own cost and expense, existing underground utility lines damaged during the course of construction. Claimant admitted at trial that its excavation around the waterline likely undermined support for the brittle asbestos pipe, causing it to rupture. The fact that the Standard Specifications reference the possibility of damage to existing underground utilities during the course of construction is evidence that some damage is anticipated and the cost of the same is specifically assigned to the Contractor. Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the seventh and eighth causes of action.

TENTH CAUSE OF ACTION

In the tenth cause of action, Claimant seeks to recover $5,500[2] for extra work performed at the request of NYSDOT in connection with the construction of a lagging wall to support the reconstruction of the Transit Road Bridge over Buffalo Creek. Claimant alleges that the extra work required its subcontractor, Northeast Caissons, Inc. (NEC), to return to the Project site to install additional drilled shafts in the ground after having completed the work originally required by the Contract. The State agreed to pay the unit bid price set forth in the Contract for the extra work on the lagging wall, but refused to pay the additional $5,000 charged by NEC to cover the cost of remobilization and demobilization at the work site. Defendant contends that the State is authorized under the Contract to order changes in the quantities of this type of work and that payment for the same is to be made at the Contract unit bid price.

The applicable provisions of the Contract relating to this issue are set out here verbatim:
“The State reserves the right, at any time during the progress of the work, to alter the plans or omit any portion of the work as it may deem reasonably necessary for the public interest; making allowances for additions and deductions with compensation made in accordance with the Standard Specifications, for this work without constituting grounds for any claim by the contractor for allowance for damages or for loss of anticipated profits, or for any variations between the approximate quantities and the quantities of the work as done” (Contract, Article 5, Alterations and Omissions).
***
“The Department reserves the right to order changes in quantities of contract work items as is necessary to complete the project, in accord with the contract documents.”

“For other than ‘major items,’ payment shall be made at the contract unit bid price for all work less than, or equal to, twice the original contract quantity” (Standard Specifications, Addendum No. 1, section 109-05 A, Contract Item Charges).
In this instance, there is no proof in the record that the additional work ordered by the State either qualified as a “major item” or was greater than twice the original Contract quantity. Accordingly, as provided in the Contract, Claimant was entitled to be compensated for the additional work performed by NEC at the contract unit bid price which was paid by the State. There is no provision for payment of a remobilization/demobilization charge as demanded by Claimant.

Based upon the foregoing, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the tenth cause of action.

THIRTEENTH CAUSE OF ACTION

In the thirteenth cause of action, Claimant seeks to recover $1,840.80 for additional quantities of concrete placed in the north abutment footer of the Transit Road Bridge over Buffalo Creek. Defendant does not contest this cause of action and concedes that Claimant is entitled to recover the amount demanded.

Accordingly, the Court finds that Claimant is entitled to payment under this cause of action for the additional quantities of concrete actually furnished and installed on this portion of the Project.

FIFTEENTH CAUSE OF ACTION

Claimant’s fifteenth cause of action seeks to recover $34,860 for trench protection work allegedly performed under Contract Item 552.16M, Excavation Protection System (EPS). Claimant contends that since the quantity of work performed under this Item was more than double the original estimate of quantities in the Contract, it was entitled to renegotiate the unit price for the work pursuant to Section 109-16 (A) (3) of Addendum No. 1 to the Standard Specifications. Defendant counters that the majority of the trench protection work for which Claimant is seeking reimbursement was actually provided and paid for under Contract Item 206.02M, Trench and Culvert Excavation, and the balance was paid under Item 552.16M.

The pertinent provisions of the Contract documents relating to this issue are set forth below:
“This work [trench, culvert and structure excavation] shall consist of the excavation of all materials and backfill or disposal of excavated material required for trenches, culverts, structures, conduit and direct burial cable not otherwise provided for in other sections of these specifications. All such excavation shall be unclassified excavation as defined in §203-1.01. The work shall also consist of all required protection necessary to ensure the safety of the workers and the public” (Standard Specifications, Addendum No. 2, Section 206-1.01).
***
“The Contractor shall be responsible at all times for carrying out of all excavation operations in a safe and prudent manner so that the workers, the public, and adjacent public and private property will be protected from unreasonable hazard. Details and requirements of this protection shall conform to Title 29 Code of Federal Regulations, Part 1926, Safety and Health Regulations for Construction (OSHA) and Subsections 107-05 Safety and Health Requirements Paragraph E and 107-08 Preservation of Property. All applicable local, State and/or Federal requirements shall be observed and necessary permits acquired by the Contractor.

If no support or protective system is shown in the plans or proposal, the Contractor may open the excavation with the sides sloped to a stable slope not steeper than that allowed by the Title 29 Code of Federal Regulations, Part 1926, Safety and Health Regulations for Construction (OSHA). Taking this option, however, does not relieve the Contractor of responsibilities as stated in this subsection” (Standard Specifications, Addendum No. 2, Section 206-3.01).
***
“The cost for necessary guarding and protection required to protect the public from open trenches and, that required for the protection to ensure the safety of the workers shall be included in the bid price for Trench, Culvert and Structure Excavation” (Standard Specifications, Addendum No. 2, Section 206-5.01).
***
“Under this work, the Contractor shall design, furnish, place, maintain and remove an excavation protection system (EPS) at locations shown on the plans or as ordered by the Engineer. Details of the EPS must conform with the requirements of Title 29 Code of Federal Regulations, Part 1926, Safety and Health Regulations for Construction (OSHA), and installation shall be in accordance with State and Federal Safety Codes. A sloping (layback) option will not be allowed.

Sheeting, shoring, a shield system, i.e. trench box or trench shield or other pre-engineered protective system may be used to prevent cave-ins. The requirements of any protective system shall be as contained in Title 29 Code of Federal Regulations, Part 1926, Safety and Health Regulations for Construction (OSHA)” (Standard Specifications, Addendum No. 2, Section 552-1.04).
An examination of the Contract documents reveals that no support or protection system was shown in the plans or proposal and there is no proof that the EIC ordered the use of any particular system during the course of construction. Therefore, based upon the foregoing Contract language, the Court determines that Claimant was required to provide protection for workers engaged in trench excavation work and the decision to use a trench box or other methods acceptable to OSHA was the result of its own choice and not directed by NYSDOT.

Claimant argues that there is obvious ambiguity in the Contract on this issue as evidenced by the fact that NYSDOT assigned payment for trench protection to Item 206.02 after initially authorizing payment under Item 552-16M and the Court is urged to find that such ambiguity should be construed against the State and reflect what Claimant reasonably understood the language to mean, not what the State intended it to say (Levco Constr. Corp. v State of New York, 43 AD2d 759 [1973], lv denied 34 NY2d 518 [1974]). However, Claimant admitted at trial that it recognized the ambiguity during the bid process and, as a result, bid only $32.25 for 3,225.00 square meters of EPS under Item 552.16M while adding $32,000 to a 36-inch waterline item (for which it was paid) to cover the estimated cost of worker protection. Therefore, the Court finds that to the extent the Contract language may be construed as ambiguous, any such ambiguity should be resolved against Claimant which could have made inquiry about this issue prior to submitting its bid. Furthermore, by executing the Contract, Claimant acknowledged that there was no misunderstanding as to the quantities, character, location and other conditions affecting the work to be performed.

In order to sustain this cause of action, Claimant must establish that the worker protection provided was payable under Item 552.16M rather than Item 206.02 and that it was not paid for the amount of work performed. The only proof offered is that construction inspectors employed by the State initially allocated the work to Item 552.16M and after NYSDOT determined that to be an error it was reallocated to Item 206.02. Claimant failed to offer proof of the amount and type of excavation protection provided for the Project and failed to offer an accounting for payments received under each Item pursuant to the bid proposal. Therefore, the Court has determined that Claimant has failed to meet its burden of proof on this cause of action by a preponderance of the credible evidence.

SIXTEENTH CAUSE OF ACTION

Claimant’s sixteenth cause of action seeks to recover $8,272.24[3] for extra work performed in connection with the removal and replacement of a signal pole foundation based upon design changes made by the EIC during the course of construction which resulted in a material alteration to the character of the work. Defendant contends that Claimant was paid by force account for the extra work performed in removing and replacing the signal pole foundation and that the remaining work was paid under standard contract items.

Claimant argues that the delay occasioned by NYSDOT’s decision to redesign the signal pole foundation caused a significant change in the character of the work, specifically hand forming of curb in lieu of slip forming by machine, fine grading by hand instead of by mechanical grader and placement of asphalt by hand instead of by machine since the machines were no longer available at the job site. Under Section 109-16 (3) (iv) (a) and (b) of Addendum No. 1 to the Standard Specifications, a “significant change” applies when the character of the work as altered differs materially in kind or nature from that involved or included in the original construction or when the quantity of a major item of work goes above 125 percent of the original contract quantity. In this instance, there is nothing in the record to show that there was a significant change in the character or quantity of the work. Claimant was required under the Contract to construct the curb, asphalt and related items, and the method used to complete the work was the result of its own choice and not directed by NYSDOT (see Triple Cities Constr. Co. v State of New York, supra).

Based upon the foregoing, the Court finds that Claimant has failed to prove the elements of this cause of action for breach of contract by a preponderance of the credible evidence.

SEVENTEENTH CAUSE OF ACTION

In the seventeenth cause of action, Claimant seeks to recover $6,542.85 for the additional cost of supplying Class HP (high performance) concrete in place of Class A concrete in connection with the construction of footers for the Norfolk Southern Railroad Bridge over Transit Road. Claimant alleges that during the course of construction the EIC required the substitution of the more costly Class HP concrete in place of the Class A concrete called for in the Contract in order to meet compressive strength standards and then refused to reimburse Claimant for the price differential. The State counters that under the Contract documents it was the Contractor’s responsibility to provide footer concrete with a compressive strength of 4000 psi at 28 days and Claimant elected to use Class HP instead of Class A to meet those design standards.

By way of background, there is no dispute that the Contract plans require the use of Class A concrete for the construction of footers for the Norfolk Southern Bridge and that the design mix for Class A concrete was furnished by NYSDOT. It is also uncontested that the plans for the bridge stipulate that “[f]or design purposes, compressive strength of concrete for substructures at 28 days: F’C = 28 MPa,”(Contract, “General Notes”, Drawing No. S-5, Sheet No. 300A1, p 17/53) which equates to 4000 psi (pounds per square inch) at 28 days. However, witnesses for both parties acknowledged that the design mixes for Class A concrete set forth in Table 501-3 of the Standard Specifications (p 5-3) and for Class HP concrete under Item 18557.XXM of the Contract (p 289) contain no reference to compressive strength. The only documented reference to the compressive strength of concrete is found in the 2001/2002 Concrete Cylinder Log (Defendant’s Exhibit B) which reveals that pours of concrete utilizing Classes A, H and HP for the bridge footers achieved a compressive strength of 4000 psi, or greater, at 28 days as required by the Contract.

Based upon the foregoing, the Court determines that the class of concrete and compressive strength are two separate issues leading to the conclusion that Claimant elected to substitute Class H or HP for Class A concrete in order to guarantee compliance with the standards set forth in the Contract. There is no proof to support Claimant’s contention that NYSDOT required that it utilize Class HP concrete for the bridge footer and the EIC testified that it was Claimant’s decision to substitute Class HP for Class A, which he approved with the notation “[t]his substitution is acceptable at no additional cost to the New York State Department of Transportation” (Claimant’s Exhibit 61). Section 555-5.01 of the Standard Specifications (p 5-63) provides that “[w]hen the Contractor elects to substitute an optional concrete class as permitted . . . , payment will be made for the originally specified class of concrete using the originally specified method of measurement.” As a result, Claimant was paid for the footer concrete under Item 555.0104M of the bid proposal based upon the price of Class A concrete.

Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the seventeenth cause of action.

TWENTIETH CAUSE OF ACTION

In the twentieth cause of action, Claimant seeks to recover $54,703.20 for breach of contract, alleging that the State failed to reimburse Claimant for all labor costs incurred to satisfy the EEO training requirements under the Contract. Defendant contends that Claimant was paid in full for this item pursuant to orders-on-contract approved by NYSDOT and that this claim is for extra costs which were not authorized or approved.

By way of background, the original Proposal prepared by NYSDOT listed Item No. 691.01, EEO Training Requirements, at a fixed price of $241,000 and prospective bidders were cautioned not to change the amount printed in the proposal. Prior to the Contract letting date NYSDOT issued a notice to prospective bidders which reduced the price of this Item to $100 and added the following pertinent Contract language:
“The lump sum for this work shown in the itemized proposal is a nominal sum only. It is recognized that it will not be sufficient for the intended purpose. Accordingly, a lump sum price is to be negotiated at the time of the preconstruction conference which will be sufficient to include the cost of labor trained as defined under this item” (Contract, Amendment No. 3, Section 691-5, “EEO Training Requirements,”p 171A1).
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“The lump sum of money shown in the itemized proposal for this work is a nominal amount, but will be considered the price bid for the purpose of determining total amount bid, even though payment will be made for actual work performed. (At the time of the preconstruction conference, the Contractor will propose a training program for the Department’s approval, and a negotiated amount will be added to the contract by order-on-contract for the proposed training program.)

“Payment will be made under this item for qualified trainees or apprentices required under this item not to exceed the lump sum amount in the contract as established through the order-on-contract mentioned above” (Contract, Amendment No. 3, Section 691-4, “Method of Measurement.” p 170A1).
Pursuant to the foregoing provisions, Claimant proposed to increase the EEO Training item from $100 to $210,000 for the term of the Contract which was submitted to NYSDOT for issuance of an order-on-contract. However, the compliance officer rejected the proposal with the direction that Claimant submit a request for the 2001 construction season only. Accordingly, a revised proposal was submitted to increase Item 691.01 to $76,500 for the 2001 construction season which was approved and a confirming order-on-contract was issued. In November, 2001, Claimant requested an extension of its trainee program for the 2002 construction season seeking to increase the EEO Training item to $153,000 which was approved and a confirming order-on-contract was issued by NYSDOT.

Claimant asserts that it incurred a total labor cost of $207,703.20 for EEO Training for which it was paid $153,000 pursuant to the order-on-contract, leaving a balance of $54,703.20 which NYSDOT has refused to pay. The State counters that under the Contract it is only permitted to pay the amount approved by order-on-contract and Claimant failed to follow the appropriate procedure to obtain approval for additional training and compensation.

Based upon the proof at trial and the foregoing Contract language, the Court finds that Claimant was obligated to propose an EEO training program for approval by NYSDOT and to negotiate an amount to cover the cost of the program which would be added to the Contract by an order-on-contract. On two separate occasions in 2001, Claimant submitted proposals to NYSDOT for EEO Training which were approved and orders-on-contract were issued for a total of $153,000. There is no proof that Claimant submitted any further proposals for training and/or compensation or that an order-on-contract was issued for the additional amount sought in this Claim. Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the twentieth cause of action.

TWENTY-FIRST CAUSE OF ACTION

In the twenty-first cause of action, Claimant seeks to recover $3,000 for breach of contract alleging that the State refused to reimburse Claimant for four concrete cylinder curing boxes furnished under Item 634.03 of the Contract. Defendant contends that Claimant was paid pursuant to the provisions of the Contract for the two curing boxes actually used on the Project.

Section 634-3.03 of the Standard Specifications requires the Contractor to furnish a concrete cylinder curing box for the duration of the contract which will remain the property of the Contractor and is to be removed from the work site upon completion of the project. Section 634-4.03 provides that for payment purposes “[c]oncrete cylinder curing boxes will be measured by the number of units furnished and installed and actually used.”

Claimant argues that it should be paid for the four concrete cylinder curing boxes furnished in accordance with the estimated quantity set forth by NYSDOT in Item 634.03. However, Claimant admitted at trial that it actually used two of the four boxes on this Project for which it was paid by the State. Based upon the foregoing provisions of the Standard Specifications, the Court finds that Claimant was only entitled to payment for the two concrete cylinder curing boxes actually used. The fact that the unit of measurement in the Standard Specifications contains a reference to boxes “actually used” is evidence that a difference between the number of boxes furnished and those actually used was anticipated. Accordingly, the Court finds that Claimant has failed to establish by a preponderance of the credible evidence a breach of contract on the twenty-first cause of action.

SUMMARY

Recapping, the Court finds as follows:
  1. Claimant is entitled to payment on the thirteenth cause of action;
  2. Claimant’s first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth,
eleventh, twelfth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth and twenty-first causes of action are dismissed.

Finally, because there was a contract governing Claimant’s entitlement to payment for the work performed, recovery may only be had pursuant to the express terms of the Contract and not under the implied or quasi-contract theory of quantum meruit (Panetta v Tonetti, 182 AD2d 977 [1992]). Accordingly, all claims based upon quantum meruit are dismissed.

All motions made at the time of trial on which the Court reserved or which were previously undecided are hereby denied.

Counsel should contact Chambers to schedule a damages trial.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.



February 5, 2009
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1].Claimant acknowledges that the State paid the original Contract price of $1,086 for this item, leaving a balance due on its claim of $2,422.97. The Court sua sponte amends the ad damnum clause in the Claim to conform to the proof at trial (CPLR 3017 [a]).
[2].Claimant acknowledges that the State paid the unit price of $6,931.57 for this item of extra work leaving a balance due on its claim of $5,000. The Court sua sponte amends the ad damnum clause in the Claim to conform to the proof at trial (CPLR 3017[a]).
[3].Claimant acknowledges that the State paid $2,832.55 for this item leaving a balance due on its claim of $5,439.69. The Court sua sponte amends the ad damnum clause in the Claim to conform to the proof at trial (CPLR 3017 [a]).