Appeal from the Order of the Board of Claims in the case of Dixon Contracting Company, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 277.
Michael L. Harvey, Deputy Attorney General, with him Allen C. Warshaw, Deputy Attorney General, Chief of Special Litigation, and LeRoy S. Zimmerman, Attorney General, for petitioner.
Richard C. Fox, with him Robert E. Chernicoff, Fox, Farr & Cunningham, for respondent.
Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 80 Pa. Commw. Page 439]
The Commonwealth of Pennsylvania, Department of Environmental Resources (Petitioner), appeals from an order by the Board of Claims (Board) which awarded Dixon Contracting Company (Respondent) the sum of $371,768.85 with interest which the Board found to be due Respondent by virtue of its determination that the award, issuance and execution of a contract
[ 80 Pa. Commw. Page 440]
between Petitioner and Respondent to eliminate air pollution from an abandoned burning culm bank was valid.
Petitioner in 1969, advertised and invited bids for the control and elimination of air pollution resulting from an abandoned coal burning refuse bank known as the Huber Bank. The bids contained certain specifications*fn1 requiring each bidder to set forth the number of eight hour work days in which the work could be completed. These specifications also included that Petitioner might increase or decrease the number of operating days with compensation at a proportional rate. Respondent bid the highest number of days, 70, and was awarded the contract.
Prior to the execution of the contract, a determination was made to increase the number of operating days to 392 with the same per diem rate as that of the 70 days originally bid by Respondent. Respondent commenced work under the contract and on or about January 12, 1971, Petitioner and Respondent executed an "Addendum" which extended the original contract and provided for an additional 210 operating days to be paid at the same per diem rate as the original 70 days. Both increases in the number of operating days occurred without resubmission of bids.
Respondent performed all the work under the contract and submitted invoices to Petitioner for the entire contract amount. Petitioner withheld payment of the last four invoices alleging that the contract was unenforceable because appropriated money under Section 16 of the Land and Water Conservation and Reclamation
[ 80 Pa. Commw. Page 441]
Act (Act)*fn2 was designated to extinguish culm bank fires on publicly owned land and Huber Bank was privately owned, and because the addendum to the contract was executed without resubmitting bids. Petitioner alleged that the contract stated full payment was to be made only when the full complement of specified equipment was operating. Since two water monitors and one dragline were inoperative during periods when Respondent submitted the last four ...