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COUNTY ASPHALT v. STATE NEW YORK (12/09/69)

COURT OF CLAIMS OF NEW YORK Claim No. 42891 1969.NY.43830 <http://www.versuslaw.com>; 311 N.Y.S.2d 650; 63 Misc. 2d 329 December 9, 1969 COUNTY ASPHALT, INC., CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Jarvis & Pilz (Thomas B. Treacy and Emanuel F. Abbate of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (George D. Cochran of counsel), for defendant. John P. Gualtieri, J. Author: Gualtieri


John P. Gualtieri, J.

Author: Gualtieri

 This is a claim for damages arising out of a highway construction contract between the claimant and the State, dated October 21, 1960, which provided for the construction of 5.42 miles of roadway on Interstate Route 502 in Clinton County for the sum of $2,165,588.50.

The proposal was given out to prospective bidders on August 31, 1960. The bids were to be submitted by September 21, 1960, giving the bidders a period of approximately three weeks within which to study the details contained in the proposal and make such physical investigations and studies as were possible to make within the allotted time.

It cost the claimant $536,320.19 in excess of the contract price to complete the job. It is the contention of the claimant that this substantial additional cost was brought about because of the misrepresentation of quantities of Item 2-S of the contract, that the State withheld from bidders material physical facts known to it and its representatives, that it improperly altered quantity estimates under the 2-S category and that it compelled the claimant to use a substantial amount of material nowhere mentioned in the proposal. It is claimed that by reason of the State's conduct the claimant was mislead and deceived and that when it entered into the performance of the contract it was confronted with conditions which resulted in its having been obliged to perform an entirely different contract than that upon which it was invited to bid.

While the State gave out the proposal in 1960, its engineers and surveyors had been engaged in making detailed physical studies of the area embraced in the contract since 1957. These preliminary studies indicated that there would be required 1,550,000 cubic yards of unclassified excavation in Item 2-S. This estimate was given in May of 1957. The State, in order to reduce the estimated cost of the job, asked the engineers to revise their estimates. In October of the same year they so altered their figures that they came up with an estimated figure of 823,037 cubic yards of unclassified excavation. In the original quantities given in May of 1957, a quantity of Item 2-EC, select borrow, was provided for. In the revised figures given in October not only was the estimated quantity of unclassified excavation reduced by almost one half but the 2-EC material was not mentioned at all.

It may be well at the outset, in order to understand and evaluate the claimant's contentions, to set forth the quantities contained in the proposal and the actual quantities found to be required when the job was completed. They are as follows:

Contract Actual

Estimates Quantities

Unsuitable material including

stripping and topsoil 89,819 c.y. 224,722 c.y.

Rock Excavation 15,656 c.y. 22,163 c.y.

Common Borrow 686,869 c.y. 482,986 c.y.

Common Excavation 29,004 c.y. 48,208 c.y.

821,348 c.y. 778,129 c.y. However, in addition to the 778,129 cubic yards actually found to be required, the claimant was directed to furnish an item, 2-EC, select borrow, a more expensive and superior material not mentioned in the proposal at all. By the time the job was completed the claimant had to provide 501,518 cubic yards of this material, almost one half of the total quantities furnished under 2-S, which gives weight to the claimant's position that after ...


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