Appeal from the Order of the Board of Arbitration of Claims in case of Buckley and Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 260.
Joseph M. Martosella, with him Ned Stein, for appellant.
Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
Buckley & Company, Inc. filed a complaint in the Board of Arbitration of Claims seeking damages for sums allegedly due and unpaid by the Commonwealth, acting by the Department of Transportation, on a road construction contract. The amount claimed by an amended complaint was $135,360, which was reduced by further amendment made at the hearing before the Board to $76,508.06. The Board denied any recovery and Buckley has appealed. Buckley's claim was without merit and we affirm.
The contract was advertised, bid and awarded on the unit price basis. The contract and the accompanying drawings showed that an estimated number of 5,463 timber piles totaling an estimated length of 165,685 lineal feet would be required to be driven. In fact, Buckley was required to drive 5,463 piles but their total length was 98,087.5 lineal feet rather than the estimated 165,685 feet. The unit price bid by Buckley was $2.00 per lineal foot. Buckley contends its cost per lineal foot was 65 cents greater than the $2.00 it bid because it actually drove 67,597.5 fewer lineal feet than the contract estimate.
The contract contained the following two pertinent provisions:
"1.2.4 INTERPRETATION OF APPROXIMATE ESTIMATE OF QUANTITIES -- The bidder's attention is directed to the fact that the estimate of quantities of work to be done and/or materials to be furnished under these specifications, as shown on the proposal form, and in the contract is approximate and is given only as a basis of calculation upon which the award of the contract is to be made. The Department does not assume any responsibility that the quantities shall materialize strictly in the construction of the project, nor shall the contractor plead misunderstanding or deception because of such estimate
of quantities or of the character of the work, location, or other conditions pertaining thereto. The Department reserves the right to increase or decrease any or all of the above-mentional quantities of work, or to omit any of them, as it may deem necessary, and such increase or decrease of the quantities given for any of the items shall not be considered as sufficient grounds for granting an increase in the unit prices bid, expect as set forth in Section 1.9.1.
"1.9.1 MODIFICATION OF DRAWINGS BY WRITTEN AGREEMENT -- The drawings herein referred to may be modified and changed from time to time, as agreed in writing between the Chief Engineer and the contractor in a manner not materially affecting the substance thereof, if such changes are necessary to carry out and complete more fully and perfectly the work agreed to be done and performed. Additional work involved in such changes shall be paid for at the contract unit price. If such changes and modifications materially increase the unit cost of the work, the increased expense will be paid by the State, except as provided in Sections 1.9.2. to 1.9.10 inclusive and Section 6.1.4(7). If such modifications and changes decrease the unit cost of the work, the amount of said decrease may be retained or withheld by the State. No consequent loss or anticipated profit on work not executed will be paid to the contractor." (Emphasis added.)
In order to recover, therefore, Buckley was required to show that it and the Chief Engineer had agreed in writing to changes and modifications in the drawings. The Board found that no such changes and modifications were made with reference to the timber piles, and it is clear that this was the case. The evidence relied on by Buckley as bringing ...