Jahncke Service, Inc. v. Department of Transp.
| Decision Date | 10 September 1984 |
| Docket Number | No. 68959,68959 |
| Parties | JAHNCKE SERVICE, INC. et al. v. DEPARTMENT OF TRANSPORTATION et al. |
| Court | Georgia Court of Appeals |
Aubrey L. Coleman, Jr., Atlanta, Ewell P. Walther, Jr., New Orleans, La., for appellants.
William B. Brown, Atlanta, for appellees.
Appellants Jahncke Service, Inc., and T.L. James & Co. (hereinafter collectively referred to as "contractor" or "contractors") entered into a contract in August 1971 with the State Highway Department (now known as the Department of Transportation and hereinafter referred to as DOT) for construction of 6.61 miles of highway embankment on Interstate 95 in Camden County, Georgia. Prior to bidding on the contract the appellants, along with other potential bidders, had been supplied with, inter alia, a report ("boring report" or "borrow pit report") on DOT's investigation of possible borrow pits from which materials for use in building the embankment could be obtained. DOT also obtained permission of the pits' owners for them to be used for that purpose and, additionally, obtained dredging permits from the U.S. Corps of Engineers. The boring report, which listed results of tests of the three pits, contained a clear and conspicuous statement that the results of the tests were not guaranteed, and an admonition to potential bidders that they needed to make their own tests before submitting a bid, or "proposal."
The contract between the two parties, DOT and the successful bidders (appellants here), consisted of the following documents: (1) Notice to Contractors; (2) the contractor's proposal, Special Provisions, Supplemental Specifications, Performance and Payment Bonds, the formal contract document between DOT and appellants executed August 31, 1971, and documents contained in a bound volume entitled "State Highway Department of Georgia--Proposal"; (3) Standard Specifications of the State Highway Department of Georgia for the Construction of Roads and Bridges, January 1966, vols. 1 and 2; and (4) highway construction engineering plans, entitled "Plan and Profile of Proposed Jacksonville, Florida-Brunswick, Georgia, Interstate Road Construction Contract." The boring report bore on its face a statement that it was not part of the contract. As is customary in highway construction work, payment was to be made on a "unit/price" basis; that is, for a specified price per cubic yard, the contractors were to do all work necessary or incidental to performance of each unit of work.
Appellants assert that after work had gotten under way, the largest of the three borrow pits, which according to the boring report seemed capable of providing the major portion if not all of the required fill, did not produce adequate material of a quality acceptable to DOT. Appellants further allege that DOT arbitrarily classified as unacceptable material which its boring report had indicated would meet the applicable standards. Consequently, appellants allege, they were forced to dig the pits to greater depths than they had anticipated, thereby allegedly incurring additional expense. Moreover, instead of the largest pit's supplying all the materials needed (as the contractors apparently expected), appellants had to use material from both the remaining pits in order to obtain an adequate supply for the embankment. This process allegedly began in April of 1971; appellants did not bring it to DOT's attention, however, until late July of that year, when a letter to the State Highway Engineer from appellants set forth their claim for additional compensation. Other letters in the same vein were written the following August and October. DOT refused to consider this as "extra work" or as an alteration in the character of the work involving "a substantial change in the nature of the design or in the type of construction" which "materially increase[d] the cost of the performance," as defined in the Standard Specifications, §§ 4.03, 4.04. Therefore, under the contractual documents, DOT declined to authorize additional payment for this work.
Upon completion of the work contracted for, appellants filed a written claim for additional compensation for expenses incurred as a result of encountering unforeseen conditions during the construction process. DOT sought a declaratory judgment in the Fulton Superior Court as to the validity of the claim for additional compensation and subsequently moved for summary judgment. 1 See Jahncke Service v. Dept. of Transp., 137 Ga.App. 179, 223 S.E.2d 228 (1976); Jahncke Service v. Dept. of Transp., 134 Ga.App. 106, 213 S.E.2d 150 (1975). In November 1983 the court granted summary judgment to DOT. Jahncke and James appeal, enumerating as error this award of judgment, on the basis that there exist genuine issues of material fact which preclude summary adjudication. Held:
1. Provisions of the contract and related documents which are of particular significance to our review of the case at bar can be summarized in the following excerpts:
"Whenever an alteration in character of work involves a substantial change in the nature of the design or in the type of construction, a Change Order covering such alteration will be issued ... If the alteration materially increases or decreases the cost of the performance, a Supplemental Agreement acceptable to both parties shall be executed before work is started on such alteration ... In all other cases the work involved in all changes shall be performed on the basis of the Contract unit price and no Supplemental Agreement will be necessary." (Standard Specifications § 4.03A.)
(Standard Specifications § 4.04.)
(Standard Specifications § 5.01A.)
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