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04/21/97 STABLER CONSTRUCTION v. COMMONWEALTH

April 21, 1997

STABLER CONSTRUCTION, INC. ON ITS OWN BEHALF AND ON BEHALF OF BEAR CREEK CONSTRUCTION, INC. AND BEAR CREEK CONSTRUCTION, INC., ON ITS OWN BEHALF, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appealed From No. 1646. State Agency Board of Claims.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

BY JUDGE FLAHERTY

FILED: April 21, 1997

Stabler Construction, Inc. (Stabler), on its own behalf and on behalf of Bear Creek Construction, Inc. (Bear Creek), petitions for review of an order from the Board of Claims (Board) denying Petitioner's claim against the Pennsylvania Department of Transportation (DOT) for breach of a bridge rehabilitation contract (Contract). We affirm.

After competitive bidding which opened on February 5, 1990, DOT awarded the bridge rehabilitation Contract to Stabler. The Contract required the three-phase removal and replacement of an existing concrete bridge deck and integrated steel of the bridge structure which carries I-83 over the Paxton Creek in Harrisburg. The Contract incorporated DOT's standard specifications and DOT's "Publication 408" Specifications (Specifications). After contracting with DOT to perform the bridge rehabilitation, Stabler entered into a subcontract with Bear Creek for the bridge deck work. Bear Creek purchased the concrete used for the bridge decking from the Pennsy Supply Company (Pennsy), a DOT approved vendor of concrete.

Section 704, Table A of the Contract Specifications established minimum design and compressive strengths of the concrete required for all three phases of the project. The Contract Specifications required class AAA concrete which was required to achieve a compressive strength of 3,600 PSI after seven (7) days of curing and 4,500 PSI after twenty-eight (28) days of curing. (R.R. 221a). The concrete compressive strength was to be determined by testing various concrete test cylinders. DOT was responsible for conducting the tests, and its results were binding. DOT established the specifications for the materials and the procedures for achieving the required design mix of the concrete. Additionally, DOT inspected the formulation and manufacture of the concrete used in the instant case.

After seven (7) days of curing, the concrete in the test cylinders from the Phase-II pour failed to meet the required compressive strength. The concrete also failed to meet the required compressive strength for testing at twenty-eight (28) days. Consequently, DOT ordered Bear Creek to remove and replace the concrete that it poured to form the bridge decking. The Phase II re-pour and the Phase III pour also failed to meet the required compressive strengths. However, rather than requiring Bear Creek to replace this concrete, DOT charged only penalties against Bear Creek because the compressive strength of those subsequent pours was high enough to safely support commuter traffic. Stabler sued DOT to recover these additional costs.

Stabler raises several issues for our review. *fn1 Stabler argues that the Board erred as a matter of law by concluding that the Contract Specifications placed the responsibility of properly protecting and curing the concrete on Bear Creek. Stabler specifically contends that, pursuant to our decision in Department of Transportation v. W.P. Dickerson & Son, Inc., 42 Pa. Commw. 359, 400 A.2d 930 (Pa. Commw. 1979), when DOT exercises extraordinary control over the development, production, and application of construction material, the contractor is not responsible for any failure in the material once it has been established that the contractor complied with contract specifications.

In Dickerson, under the constant supervision of a DOT inspection team, Dickerson manufactured several hundred prefabricated, prestressed concrete box beams according to DOT's design specifications. After DOT rejected several beams for cracking, Dickerson failed to meet the contract deadline. Consequently, DOT withheld a substantial part of the payment. Dickerson, 400 A.2d at 931. In determining that Dickerson was not responsible for penalties, this court stated that "it is well established that a contractor who performs according to detailed plans and specifications is not responsible for defects in the result." Id. at 932. We recognized that Dickerson exercised little, if any, discretion and complied with all specifications for materials and procedures which were monitored by inspectors with the authority to stop operations at any time. Id. We held that Dickerson fully satisfied his obligation under the contract by constructing the beams according to specifications, and Dickerson was not responsible for delays that resulted from the cracked beams. Id.

The case sub judice is distinguishable from Dickerson. Here, the Board specifically found that the Specifications were incorporated into the Contract. (Finding No. 12). Section 704 of these Specifications provides procedures for concrete mixing and the required tests for measuring compressive strengths at seven (7) and twenty-eight (28) days of curing for various types of concrete. (Findings of Fact 13-15). DOT testing concluded that the concrete from the first and second Phase-II pour and the Phase-III pour failed to meet minimum compressive strength requirements.

Moreover, section 105.11 of the incorporated Specifications states that the "presence of the inspector during the performance of any work on the project will not relieve the Contractor of the responsibility for work that is later determined by the Engineer to be defective." (R.R. 208a). Additionally, section 107.16, entitled "Contractor's Responsibility for Work," provides that the contractor must repair, remove, or restore any damage or latent defects at no expense to DOT. This language expressly places the legal obligation on the contractor to ensure compliance with all procedural specifications regardless of the presence of DOT inspectors and renders our holding in Dickerson inapplicable to the case sub judice.

Determining rights and obligations under a contract depends on the contract provisions in the specific case. Sections 105.11 and 107.16 are part of a 1987 version of the Specifications which post-dates the Dickerson case. The Dickerson court did not mention any contractual language that expressly placed all responsibility on the contractor regardless of the presence of inspectors. Therefore, as found by the Board, the responsibility for meeting the procedural specifications pertaining to the proper protection, transportation, and maintenance of the bridge concrete remained on Bear Creek until DOT accepted the work under the express terms of the Contract. (Finding No. 24).

Additionally, the Board did not base its decision on the quality of the mix design or Specifications, both of which were controlled by DOT. Rather the basis for the Board's decision was Bear Creek's failure to meet procedural specifications through improper maintenance and curing of the concrete. Procedural specifications are as important to the quality of the resulting product as the material specifications. The failure to properly follow procedures resulted in Bear Creek's failure to comply with the Specifications for compressive strength and perform its obligations under the Contract. In a project such as the one in the case sub judice, DOT cannot, as a practical matter, maintain constant supervision of the bridge construction operations. DOT cannot be responsible for defects in the cured concrete when a contractor's negligence during periods between inspections caused such deficiencies. In this regard, the Board found that Bear Creek failed to adequately maintain the required temperatures for curing the concrete and provide for a proper level of hydration by allowing burlap wraps to dry ...


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