Ashton Co., Inc., Contractors & Engineers v. State

• Decision Date: 28 May 1969
• Docket Number: CA-CIV,No. 2,2
• Citation: 9 Ariz.App. 564,454 P.2d 1004
• Parties: The ASHTON COMPANY, INC., CONTRACTORS AND ENGINEERS, Appellant, v. STATE of Arizona, Appellee. 599.
• Court: Arizona Court of Appeals

Page 1004

454 P.2d 1004

9 Ariz.App. 564

The ASHTON COMPANY, INC., CONTRACTORS AND ENGINEERS, Appellant, v. STATE of Arizona, Appellee.

No. 2 CA-CIV 599.

Court of Appeals of Arizona.

May 28, 1969.

Rehearing Denied June 30, 1969.

Hall, Jones, Hannah, Trachta & Birdsall, by Ben C. Birdsall, Tucson, for appellant.

Gary K. Nelson, Atty. Gen., Stanley Z. Goodfarb, Sp. Asst. Atty. Gen., Phoenix, for appellee.

HATHAWAY, Judge.

This is an appeal from a judgment in favor of the State in a suit by the appellant-contractor on an alleged claim arising out of a highway construction contract it performed for the State. ¹ The case was tried to the court and extensive findings of fact and conclusions of law were entered. The facts, as found by the trial court, which we accept for lack of a 'clearly erroneous' showing, Tuab Mineral Corporation v. Anderson, 3 Ariz.App. 512, 415 P.2d 910 (1966); Rule 52(a), Rules of Civil Procedure, 16 A.R.S., are as follows.

In December, 1961, the State advertised for bids on a highway construction project in Tucson. Ashton, a knowledgeable highway contractor who had entered into prior contracts with the State, sent for the plans and a bid proposal. The construction project required, inter alia, the placement of large quantities of borrow ² for the roadway embankment. The original plans showed the source of borrow as pit No. 5947, but prior to the bid opening date, the State notified all prospective bidders that pit No. 5947 could not fulfill the borrow requirements and that the additional borrow needed was to be obtained from pit No. 6165. Ashton received this information and based its bid on the anticipated use of pit No. 6165, the site of which was visited on several occasions by two of Ashton's representatives.

Included in the proposed plans were a number of sheets prepared by the Materials Division of the State Highway Department. These sheets contained sketches of material sources, test results on material sources, and subgrade information. The information sheets on pit No. 6165 were furnished to Ashton before bidding and were to be attached to the plans. The introduction to this 'Materials Division Information' recited:

'Information contained in the following sheets is information developed by the Materials Division for the planning of this project. It is being made available to prospective bidders for information purposes only and is not to be considered a part of the contract papers. The information is developed as accurately as possible by the methods utilized, however, the State accepts no responsibility for any conditions encountered which may be at variance from information contained herein.

'Test analysis given in a pit tabulation is generally representative of the material in the test pit. However, in the case of pits containing considerable oversize (boulders and broken rock) too large to be conveniently placed in a sample sack, some portion of this oversized material may not be included in the sample, consequently, the analysis shown represents only the material without such oversize.'

Included in the Materials Division Information sheets were sketches of pit No. 5947, showing its location, that test samples had been removed, and the results of certain tests. These results indicated that the State had tested only one hole, 0--4 feet depth from the surface, for density. Using this density test result, the Materials Division estimated that the weight of borrow from pit No. 5947 would run 125 pounds per cubic foot when compacted, allowing for a shrink factor of 20 per cent. This conclusion was relayed to the Contracts and Specifications Division prior to advertisement for bids. The tests of other samples indicated that the pit contained more than one type of material. In preparing the bid proposal and its own cost estimate, the Contract and Specifications Division used the weight of 125 pounds per compacted cubic foot to convert the cubic yards of borrow shown on the plans to an approximate tonnage quantity. It estimated that 783,000 tons would be the approximate weight of the volumetric quantity of borrow described in the plans.

The information sheets concerning pit No. 6165 included the results of testing done by the State on samples removed from 12 test holes. Among these tests was one density test on a hole located at a depth of 0--12 feet and 350 feet outside the pit boundary. Other tests results indicated the plasticity and gradation of the samples and that there were at least three different types of material in the pit. The Materials Division estimated that the weight of the borrow from pit No. 6165 would be 120 pounds per compacted cubic foot and have a shrink factor of 15 per cent and so informed the Contract and Specifications Division. The borrow tonnage estimate in the bidding schedule, already submitted to the prospective bidders, was not changed because the combination of the cubic weights used and the shrink factor applied gave a result close enough to each other to be insubstantial in bidding and estimating procedures.

The facts that the State's weight-ot-cubic yards conversion factor was based on one shallow test in each pit and that, as to pit No. 6165, the test hole was not within the pit boundaries was apparent on the face of the Materials Division Information sheets. Ashton accepted the State's conversion factor for the reason that such information furnished by the Materials Division had been 'historically correct.'

The plans detailed the approximate quantity of borrow which would be required to construct the roadway: approximately 580,000 cubic yards with an estimated shrink factor of 20 per cent, resulting in approximately 464,000 cubic yards of compacted borrow. This volumetric quantity was only an estimate, being subject to variables such as shrinkage and ground compaction. The borrow, along with ten other unit bid items, was required to be bid on a per ton basis. The bidding schedule showed an approximate quantity of 783,000 tons of borrow. Although the plans detailed the borrow quantities in cubic yards, a weight basis was used in the bidding schedule because the designated pits were located in the Santa Cruz River, this making volumetric measurement difficult. Ashton submitted a bid of 40 cents per ton as to the borrow item. The first page of Ashton's bid proposal recited:

'The undersigned certifies that the approved Plans, Standard Specifications, July, 1960, Special Provisions and forms of Contract and Bond authorized by the Commission and constituting essential parts of this Proposal, have been carefully examined, and also that the site of the work has been personally inspected. The undersigned declares that the amount and nature of the work to be done is understood and that at no time will misunderstanding of the Plans, Specifications, Special Provision, or conditions to be overcome, be plead. On the basis of the Plans, Specifications, Special Provisions and the forms of Contract and Bond proposed for use, the undersigned proposes to furnish all the necessary machinery, tools, apparatus, and other means of construction, to do all the work and furnish all the materials in the manner specified and to finish the entire project within the time hereinafter proposed, and to accept, as full compensation therefor, the sum of the various products obtained by multiplying each unit price, herein bid for the work or materials, by the quantity thereof actually incorporated in the complete project, as determined by the Engineer. The undersigned understands that the quantities mentioned herein are approximate only and are subject to increase or decrease and hereby proposes to perform all quantities of work as either increased or decreased, on accordance with the provisions of the Specifications, at the unit price bid in the Bidding Schedule.'

Ashton was the low bidder and was awarded the highway construction contract. The contract agreement, entered into voluntarily and fully understood by both parties, included the bidding proposal, plans, and the 1960 Standard Specifications of the Arizona Highway Department. It provided, inter alia:

'The party of the second part (Ashton) agrees that he has investigated the site of the work and all parts and appurtenances thereto and hereby waives any right to plead misunderstanding or deception as to location, character of work or materials, estimates of quantities or other conditions surrounding or being a part of the work and understands that the quantities given in the Bidding Schedule are approximate only, and hereby agrees to accept the quantities as actually placed and finally determined upon the completion of the work, in accordance with the Contract Documents.

'For and in consideration of the faithful performance of the work herein embraced, as set forth in the Contract Agreement, Specifications, Special Provisions, Bidding Schedule and all general and detailed Specifications and Plans, which are a part hereof, and in accordance with the directions of the State Highway Engineer and to his satisfaction or his authorized agents, the said State of Arizona agrees to pay to said contractor the amount earned, computed from the actual quantities of work performed, as shown by the estimates of the State Highway Engineer, and the unit prices named in the attached Bidding Schedule and Supplementary Agreements made a part hereof, and to make such payments in the manner at the times provided in the Specifications hereto appended.'

The 1960 Standard Specifications, part of the contract, provided:

'It is understood and agreed that the items of work shown in the bidding schedule are subject to increase or decrease in quantities during the progress of the work. * * *

'When a change made by the engineer or a change resulting from the contingencies of construction involves an increase or decrease of 25 per cent or less in the quantity of any contract item, as shown in the bidding schedule, the work as increased...