UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 19, 1975
G.C.S., INC. and I.S.C. Inc., Plaintiffs,
FOSTER WHEELER CORPORATION, Defendant. FOSTER WHEELER CORPORATION, Plaintiff, v. G.C.S., INC. and I.S.C. Inc., Defendants
The opinion of the court was delivered by: WEBER
WEBER, Chief Judge.
These are cross-suits between a prime contractor and its sub-contractor over damages for delay in completion. We have a motion for partial Summary Judgment filed by the prime contractor, Foster-Wheeler, on certain of the claims asserted by the subcontractor, G.C.S. Inc. in its complaint and in its counterclaim to Foster-Wheeler's suit.
We have previously considered a motion for summary judgment by Foster-Wheeler on its "no damages for delay" clause of its contract. We found that issue not appropriate for disposition by summary judgment at that time.
The matter has proceeded through voluminous discovery and pre-trial statements to a point where we can determine the evidentiary basis for the delay damage claims sufficiently to consider them with respect to partial summary judgment to define and narrow the fact issues that can be presented at trial. We have pressed G.C.S. Inc. to supply at the pretrial the evidentiary basis by which its loss and damage can be established by reason of its claims that damages were caused by change orders, extra work and drawing revisions.
The contract between the parties contains the following provisions with respect to change orders, extra work and revisions:*
Foster Wheeler Purchase Order.
Terms and Conditions . . . .
"2. CHANGES: Purchaser shall have the right from time to time by written notice, without notice to Seller's sureties, to make changes in or additions to the instructions, drawings, or specifications for the items to be supplied under this Order and Seller agrees to comply with such change notices which shall become a part of the contract. If such changes cause an increase or decrease in the cost of or time required for performance, an equitable adjustment in the price and delivery schedule shall be made."
Through interrogatories, depositions and documentary discovery it has been established that in all cases where GCS performed extra work under contract changes GCS agreed to all changes and was compensated for such extra work in accordance with the provisions of the agreement. Although the above quoted provision of the contract allowed GCS to request additional time to complete its work by reason of any change order the evidence shows that at no time did GCS ask for such additional time. Actually, one item of extra work was performed by GCS prior to the execution of the Purchase Order and prior to the date of commencement of the contract work, this being the excavation and site-preparation work for the north end of the refinery project.
The Purchase Order provided the method for the authorization of changes and extra work and the compensation to be paid therefor:
"Sec. 4 B PART ONE (PHASE "B") BUILDING.
. . .
FOR PART ONE (PHASE "B" ONLY) THE FOLLOWING SHALL APPLY FOR AUTHORIZED EXTRA WORK.
a) Materials Cost plus 10%
b) Subcontracts Cost plus 10%
c) Labor (Burdens
included) Cost plus 15% Plus 10%
d) Equipment (Company
Owned) A.E.D. Less 10%
e) Equipment (Rented) Cost plus 10%
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