HOWARD, Judge.
In the spring of 1988, defendant, Ohio Department of Transportation ("ODOT"), let Project No. 361 (88) for bidding. The project required provision of all labor and materials necessary to repair and resurface a section of State Route 536 ("S.R. 536"), located in Belmont County, Ohio. Bids were to be submitted on or before May 24, 1988, and the date set for the completion of the project was August 31, 1988.
Plaintiff, Tri-state Asphalt Corporation, timely submitted its bid, which was determined to be the lowest and best bid. Thereafter, plaintiff was awarded the contract. Work on Project No. 361 (88) began on July 30, 1988, and was completed on or about September 2, 1988.
By letter of May 15, 1989, plaintiff sought an additional reimbursement from ODOT in the amount of $33,781.25 for added trucking expenses allegedly made necessary by the unexpected continuation of construction on a portion of State Route 7 ("S.R. 7"). By letter of May 24, 1989, ODOT denied the additional payment request. On June 23, 1989, plaintiff again requested payment and argued that the unexpected continuation of construction constituted a sufficient change in conditions to warrant a change order. ODOT continued to deny the requested reimbursement.
On November 30, 1989, plaintiff filed the within cause of action by which it sought compensation for the additional trucking expenses necessitated by asserted changes in underlying conditions of performance. Subsequently, the matter was tried before the court. The cause is now decided based upon the evidence adduced and the arguments presented by the parties.
Plaintiff's central claim is a multi-faceted contention that it was misled into believing that certain large-scale construction on S.R. 7 would be completed by the start of plaintiff's project and, thus, S.R. 7 would be fully available to plaintiff as the haul road for the more than one thousand truck loads of asphalt required to perform its fixed-price contract. As a technical matter, and as pointed out by ODOT, no actual change in road conditions occurred on the S.R. 7 project between the time plaintiff bid the project and the time when construction began, i.e., approximately July 30, 1988. However, it is alleged that plaintiff formulated its bid upon representations that the construction zone on S.R. 7 would be passable by Memorial Day of 1988, and that the limitations upon travel through this zone, after it was ultimately opened, created a change in the anticipated haul road conditions.
Modifications of fixed-price contracts are governed by Section 104.02 of the ODOT Specifications Manual, incorporated into the contract by reference. This section generally provides for justifiable additional costs to be reimbursed to the contractor. The present case turns upon whether, as a factual matter, plaintiff's bid should have contemplated the road closing or delays necessitated by a partial opening.
The evidence indicated that plaintiff did not begin construction until after S.R. 7 had been reopened. ODOT reopened S.R. 7 to traffic on July 15, 1988. Even though the road was open to two-way traffic, stoppages were necessitated for the installation of drain culverts to underlay the new roadbed. A significant number of the culverts were required to be installed through solid rock. This process required considerable drilling and the use of explosive charges. As ODOT's contractor made the installations, first on one half of the highway then on the other, the through traffic was reduced to one lane, which was directed by a flagman. Testimony indicated that traffic was often brought to a standstill while heavy equipment was situated in the construction zone.
Both parties focused upon the term "open," and attempted to define and apply it in a manner beneficial to their respective views. ODOT asserted that the term applied to local traffic only and, since plaintiff owned no property in or adjacent to the construction zone, it was not contemplated in the announcements at issue. The court finds such analysis tenuous, at best, and concludes that the common meaning of the term, as well as its application, is much more inclusive.
It was shown at trial that virtually no one lived in the area under construction. Further, the objects of public concern were those individuals who lived in or had businesses in the area, who necessarily had to travel to the other side of the construction zone. Plaintiff had its asphalt manufacturing plant immediately north of the construction zone and understandably concluded that "open to local traffic" included its own vehicles, and the vehicles of patrons of its business.
Project No. 361 (88) required resurfacing of a portion of S.R. 536 that began at the junction of S.R. 7 and S.R. 536. This intersection is approximately twenty-three miles south of Dilles Bottom, where plaintiff's asphalt manufacturing plant is located. The construction zone at issue occupied a three-mile portion of S.R. 7 just south of Dilles Bottom. The highway runs beside the Ohio River and is considerably more level and straight than nearby roads. Alternative routes to plaintiff's project either required asphalt to be hauled more than the fifty-mile limit established as a maximum for hauling hot asphalt, or possessed topography characterized by steep hills and hairpin turns. Plaintiff was virtually foreclosed from hauling asphalt over those roads located away from the river plain because its trucks, each hauling eighteen-ton loads of asphalt, could not easily negotiate such rugged terrain.
As to the S.R. 7 project, it began in November 1986 and was to include a widening of the existing highway and major excavations of the adjoining hillsides, which had been the source of virtually annual landslides onto the existing highway. The project required movement of millions of tons of earth. Initially, only one lane of traffic was closed; however, it soon became necessary to close the entire highway due to the dangers posed by material falling from the higher excavation points down onto the single open lane. The road was closed in August 1987.
The closing of S.R. 7 created considerable hardships for area residents and businesses. Hospitals and grocery stores were located north of the project, while those needing to travel south were required to make lengthy detours over difficult terrain. The state provided emergency flights by National Guard helicopters to alleviate medical hardships. There had been considerable press coverage of the closing as well as the attendant difficulties.
The S.R. 7 project was plagued with delay almost from the beginning. The project was brought to a standstill in March 1987 because the original plans were discovered to be in error. Also, as the project progressed, it became necessary to enlarge its scope due to unanticipated site conditions. In October 1987, a landslide of enormous proportions occurred. This slide obliterated the railroad tracks on the downslope side of S.R. 7 and sent debris well out into the Ohio River. This event produced a massive expansion of the excavator's tasks.
As of the bid day for plaintiff's project, there had been newspaper articles, television reports and public announcements by officials of ODOT on the subject of the S.R. 7 closing. All of these sources stated that the project would be open to traffic by the Memorial Day weekend, which began May 27, 1988. Apparently, the highway did open on Friday, May 27. A ceremony was held and traffic was permitted to travel upon the roadway all weekend, but only in groups or caravans with escorts in front and behind. The road was clearly not yet finished and the following Tuesday ODOT reclosed S.R. 7.
Plaintiff contends that such behavior amounted to a misleading course of conduct, upon which it relied in estimating its bid on this job. A review of the evidence indicates, however, that plaintiff had much more precise information than was presented in the public announcements and, thus, did not rely upon them in formulating its bid.
Plaintiff's bid calculations presumed that its trucks would load and haul asphalt from the nearest manufacturing plant, which was at Dilles Bottom. Plaintiff had concluded that the only viable haul road was S.R. 7. The evidence unsurprisingly indicates that plaintiff's employees monitored the conditions of the S.R. 7 project from the very beginning of excavation. Plaintiff's chief executive officer and owner had personally driven into the construction zone at regular intervals both before and after the bidding process for Project No. 361(88). This he did in part because of plaintiff's ownership of the Dilles Bottom asphalt manufacturing plant and also because plaintiff was a supplier on the S.R. 7 project.
Based upon the preponderant evidence presented at trial, it is concluded that plaintiff had actual knowledge of the conditions extant in the construction zone at the time of bidding. Bid day for plaintiff's project, as previously mentioned, was May 24, 1988. This was only three days before the scheduled opening of S.R. 7. Plaintiff knew, as it prepared its bid, that the roadway surface was not ready for finish materials, and was composed of mere gravel interspaced with earth. It knew that travel conditions were poor at that time and would certainly not improve by Memorial Day. Therefore, whatever else may have been stated publicly, and for whatever reasons, plaintiff relied upon its own calculations based upon the personal observations of its employees in formulating and submitting its bid, including calculations as to when S.R. 7 would become passable for its heavy trucks. Furthermore, even supposing that plaintiff had not fully investigated the conditions prevailing in the S.R. 7 project, as a reasonably prudent contractor confronted with the reality of a closed haul road during the bidding process, plaintiff should have fully apprised itself of the likelihood of S.R. 7 reopening, and the likely conditions to be encountered in the interim.
Plaintiff also asserted at trial that it had utilized the change order process to receive reimbursement for additional trucking expenses due to unforeseen difficulties on other ODOT projects it had recently completed. It is doubtlessly true that plaintiff indeed received added reimbursements for increased trucking expenses on other state projects. A review of the circumstances involved, which differ significantly from the case now considered, indicates that plaintiff had justifiably submitted change orders because of changed hauling circumstances. These changes all occurred after the bidding process had ended and ODOT promptly paid plaintiff those amounts requested.
Whether plaintiff may have considered these previous experiences in arriving at its bid price in the case at bar cannot now be determined. It is, however, certain that plaintiff is bound to its contract price on the project at issue, and is not now entitled to obtain extra payments for conditions known to it and ostensibly the subject of its bid.
Judgment for defendant.
LOWELL B. HOWARD, J., retired, of the Athens County Court of Common Pleas, sitting by assignment.