Appeals from the Order of the Board of Claims in the case of Anjo Construction Company, Incorporated v. Commonwealth of Pennsylvania, Department of Transportation, No. 574, dated March 1, 1983.
George D. Wenick, Assistant Counsel, with him, Robert H. Raymond, Jr., Assistant Chief Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner/respondent, Department of Transportation.
Robert N. Peirce, for respondent/petitioner, Anjo Construction Company, Inc.
Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 87 Pa. Commw. Page 311]
Each Anjo Construction Company, Incorporated (Anjo) and the Commonwealth Department of Transportation (DOT) has appealed from an order of the Board of Claims directing DOT to pay Anjo the sum of $25,537.00, plus interest, for material used by Anjo in making repairs to a state-owned road.
The Board of Claims made the following findings of fact which economically state the case:
(3) On the basis of a bid it submitted, Anjo and PennDOT entered into a written contract dated April 13, 1977 for slabjacking and concrete patching to repair L.R. 1016-72-641-1023 . . . in Allegheny and Beaver Counties.
[ 87 Pa. Commw. Page 312]
(4) Slabjacking is a procedure for raising slabs of pavement which have settled by drilling holes in them and injecting the holes with a mixture of cement concrete, sand and expansive admixture.
(5) The contract, which by its terms incorporated Form 408 specifications (1976) and Form 409 (1973), has three items in its schedule of prices which relate to the slabjacking portion of the repair project:
Item Number Quantity Item Price Amount
681-002 581 Holes drilled $30.00 $17,430.00
681-0025 581 Bags Cement $30.00 $17,430.00
681-0050 195 Ounces Expansive $10.00 $1,950.00
(6) Under the terms of the contract, PennDOT agreed to pay the unit prices for each and every item set forth in the contract as compensation for the furnishing of all materials, work and labor required to complete the whole of the work to be done under the agreement.
(7) The contract contained an estimate for the quantity of admixture based on the mistaken assumption that one ounce [of admixture] would be sufficient for every three bags of cement concrete.
(8) Under the specifications, the final mix design setting for the proportion of admixture to cement concrete in the injected material was not determined until after the contract was awarded.
(9) Pursuant to § 681.3 of Form 408, Anjo submitted for approval, a slabjacking mix design.
[ 87 Pa. Commw. Page 313]
(10) On June 20, 1977, a report of the Pittsburgh Testing Laboratory relating to the concrete mix design which set forth the required amount of admixture for the slabjacking operation calling for interplast (4%) 3.8 pounds or 60.8 ounces per bag of grout was delivered to [PennDOT] and approved by the Assistant Construction Engineer, Materials Engineer and District Engineer of PennDOT.
(11) The design was prepared in accordance with the provisions of Section 681.3 of the 1976 Form 408 Specifications calling for 60.8 ounces of expansive admixture per bag of cement.
(12) Subsequently, Anjo began the slabjacking portion of the work and had drilled 18 holes, placed 42 bags of cement and furnished 2,553.6 ounces of admixture as of June 24, 1977.
(14) As a consequence of the mix design tested by the Pittsburgh Testing Laboratory and approved in the presence of PennDOT representatives, 35,324.8 ounces of expansive admixture were necessary for completion of the work pursuant to the contract.
(15) On June 24, 1977 PennDOT, believing that the unit price of $10.00 per ounce of expansive admixture was too high and having unsuccessfully negotiated with Anjo to reduce the unit price, ordered Anjo to cease ...