Appeal from the Order of the Board of Arbitration of Claims, Department of the Auditor General, in the case of Black Top Paving Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 630.
Larry A. Housholder, with him Lawrence R. Zewe, for petitioner.
Michael D. Reed, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 77 Pa. Commw. Page 613]
Black Top Paving Company appeals from an order by the Board of Claims (board) which dismissed the company's claim against the Pennsylvania Department of Transportation (DOT) for $5,382.06, the amount withheld by DOT because of Black Top's inability to meet compaction standards for the wearing (surface) course of an area, designated as Lot 1, under a contract to resurface a legislative route in Perry Township.
We must decide if, in interpreting the contract, the board committed an error of law*fn1 by (1) holding Black Top to a minimum acceptable theoretical density compaction standard of ninety percent and by (2) concluding that neither constructive fraud nor a mutual mistake of fact existed to excuse Black Top from complying fully with DOT's compaction requirements.
In June of 1977, Black Top and DOT entered into a contract for resurfacing 19,157 linear feet of existing roadway; the contract's sketches and typical sections revealed that the roadway had widths varying from twenty to twenty-four feet between shoulders or between shoulders and existing curb.
Before DOT awarded the contract, Black Top's vice-president, William Spencer, inspected the project site and observed that the highway was not uniformly at least twenty feet wide, and did not have two feet
[ 77 Pa. Commw. Page 614]
of bituminous concrete base course widening on each side of the road, as he viewed the typical section drawings. Mr. Spencer did not bring these alleged discrepancies to DOT's attention, however, believing that after the award of the contract but before the start of Black Top's performance, DOT would perform work on the site so that road conditions conformed to the drawings. Hence, Black Top relied solely upon the drawings in preparing its bid.
Before Black Top commenced operations, DOT personnel placed cross drains at various locations along the project and removed unsuitable material from Lot 1, as well as from other portions of the roadway.
Sometime after commencement of the resurfacing project, Black Top constructed three control strips under DOT supervision for the purpose of establishing a standard against which DOT could measure compaction compliance in the field. Specifically, section 401.3(h) of the 1976 Form 408 Specifications (1976 specifications), incorporated by reference into the contract, called for construction of control strips "to obtain the maximum density attainable under the existing field conditions, and employ this target density value as the standard for measurement of compaction compliance for the work."
Section 401.3(h) also provided that (1) upon completion of compaction, DOT would perform density tests at random locations to determine the average in-place density of the control strip, (2) the value of the average would serve as the reference density target for the course, and (3) the value "shall not be less than 92% of the theoretical maximum density*fn2
[ 77 Pa. Commw. Page 615]
for the wearing course. . . ." The contract also provided that if the 92% density target was not met, DOT's engineer could "direct the use of more effective compaction procedures, or the redesign of the pavement mixture."
DOT tested the control strips with a nuclear testing gauge; all three strips failed to meet the contract's minimum acceptable theoretical density target of 92%. Black Top, however, achieved 91.8% of theoretical density in one control strip. Therefore, instead of directing the use of more effective compaction procedures or the redesign of the pavement mixture, as provided in section 401.3(h), DOT held Black Top to a 91.8% theoretical density target, which the company had shown it could produce under field conditions.
Upon completion of the project, several locations failed to meet the adjusted 91.8% target. According to the findings of fact, DOT then applied a conversion factor to all failed tests, reducing the acceptable degree of theoretical density to 90%, a reduction of 1.8%. The area designated as Lot 1 failed to meet this reduced standard. Accordingly, DOT ...