Arizona SR87 - Beeline Hwy: Rye Section Post 3 - How claims become specifications

651 Scraper and D8L + Cut Boss

"I don't see all this excess dirt you keep talking about," the District Engineer growled as he stood in front of my desk. He was referring to the claim that I had filed against the Highway Department concerning the balance of earthwork on the project.

The history behind the claim went back to before this project had even been awarded to Sundt Corp. The project that connected to the south end of my project was performed by another contractor years earlier and they had run into a similar situation where the excavations generated a significant amount of excess dirt, greater than what had been represented in the plans.

When ADOT started requiring the contractor provide survey for the project, they invented a new specification titled "Lump Sum Earthwork". This specification essentially made the contractor responsible for the earthwork balance on the job, provided the volumes correlated with the design and cross sections provided in the project plans. In other words, you got paid for the calculated quantity and any mathematical discrepancies discovered in the plans would be compensable if they deviated significantly from the contract pay item quantity. The contractor on the previous job did not have the existing ground sections required for quantity calculation. Its important to note here that these project are in the mountains, so the terrain is highly irregular and interpolation between slope stakes will not provide defensible quantities.

Cutting new NB Grade

Realizing that the contractor on the previous section had taken a financial beating due to "lack of evidence", I issued a change order to our survey company requiring them to record the existing ground elevations as they did the project slope staking. In the 1990's, survey was still done with optical methods, so the convenience of GPS or LIDAR Drones was still decades in the future. The expense was significant but I felt it was worth it to have rock solid evidence of any discrepancies that might arise. I always drafted a "block diagram" for my earthwork projects. These diagrams represented the earthwork quantities within defined segments of the roadway. We would require the excavation crews to report their location daily with their quantities so we could plot the as-built quantities as they correlated to the design. In the early part of the project, it quickly became obvious that something was wrong with the balances because as-built quantities did not correlate well. The trend was that the project would have a significant surplus of material if nothing changed. Based on that indication, we notified ADOT of the potential for an issue and our intent to request compensation if the discrepancies held. i.e. Notice of Potential Claim.

Block Diagram - Blank area is where excess dirt was ultimately left in place.

The project plans called for a long section near the center of the job where the median between the roadways was to be cut to a median flowline that was actually below the roadways. Anticipating a fight about quantities, I had our crews excavate only what was needed to construct the new Northbound Roadway and leave the rest of the median excavation until phase 2 or Southbound Roadway. We finished the Northbound Roadway, moved traffic onto the new pavement and started excavating the Southbound sections. By this time it had become glaringly apparent that we were going to have hundreds of thousands of excess cubic yards of dirt due to the discrepancies that we still had not determined because the cross sections were still being developed. The fact that we were now at a point of needing to resolve the excess dirt issue, the conversations and correspondence between myself and the resident engineer were getting heated and ugly. This tenor is what prompted the District Engineer to visit me on that day.

"I drove the job and I can't see where all of this dirt is located." he said as I rolled my eyes in acknowledgement that finally someone from ADOT was taking our claim seriously instead of just repeating the line about this being one hundred percent the contractor's problem. My office window just happened to look out over the job and the area where we had left dirt in the median was framed perfectly by the aluminum surrounding window. I pointed to the section of roadway just south of Rye Creek and asked "do you see that dirt between the two roadways?" he nodded his head as I led him to the conference table and unrolled the project plans. Flipping to the sections representing that part of the job, I showed him where the plans called for us to excavate that entire hillside in order to create a median. I then asked "where are we supposed to put all of that dirt?" He groaned and sat down in silence as the realization that his people had been gaslighting him about the validity of our claim began to sink in.

Leaving dirt in the median

While he didn't acknowledge that we were entitled to any compensation at this point, he did concede that this was the department's problem to resolve due to the large deviation in surplus material. He worked with us to redesign portions of the roadway to leave material in the median and he worked with the Forest Service to get their blessing on how they wanted it to look in the end. I had been posturing to refuse to move the median dirt if the department held firm. They would have beneficial use of the roadway as designed, so there would be no impact to the traveling public. A court battle would likely be cheaper than off hauling tens of thousands of cubic yards of dirt. The late but effective actions of the District Engineer substantially mitigated a larger claim, but there was still the issue of why the quantities were so incorrect.

In addition to giving excavation and embankment quantities in the plans, ADOT at the time also gave their estimation of shrink/swell for different sections of the roadway. Soil as it lays in-situ has potentially had millions of years to consolidate and there are times when we cannot mechanically restore it's density when placing it in a fill. Other times, the soil density can be increased through processing and compactive effort. So one cubic yard (27 cubic feet) in-situ will occupy a different volume in the embankment. If there is 10 percent shrinkage, the 27 cubic feet of excavation will only make about 24 cubic feet of embankment fill. Likewise with a 10 percent swell, the 27 cubic feet become about 30 cubic feet. Once we had done all of the calculations on the original ground survey, we were able to determine that the plans quantities were accurate volumetrically, so the only remaining cause of the problem was inaccurate shrink/swell factors provided in the plans.

Going back to what caused us to issue the potential claim notice months earlier, we used our detailed contemporaneous records on the block diagram to determine that many of the indicated factors were indeed reasonable, however the large excavation at the south end of the project consisted of a chalky clay material that was extremely dense and the department had classified it as 20 percent shrinkage, when in fact it was closer to 20 percent swell.

The big cut - very hard material

So finally, the basis of our claim was starting to take shape and the department went into full defensive position. Their Lump Sum Earthwork specification provided them with protection against volumetric discrepancies but it did not provide for discrepancies in mischaracterization of the soil properties. On projects in the Forest, contractors are not allowed to do their own pre-bid geotechnical investigations and therefore we have to rely on the Department's representations. Ultimately we had to escalate up to the State Engineer, but we were successful in recovering a significant portion of our losses on the earthwork.

But.. as the title of this blog proclaims, the result of our success created a special provision that now often includes the statement that claims are not allowed for shrink/swell discrepancies. Public agencies continue to shift liability to the private sector contractors, even if they don't provide accurate or sufficient information for a contractor to make a responsible bid. They expect you to anticipate problems, but still only award to the lowest bidder. "Be prepared, but be Cheap"