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Ross Contracting, Inc. v. Frederick County

Court of Special Appeals of Maryland

February 25, 2015

ROSS CONTRACTING, INC.
v.
FREDERICK COUNTY, MARYLAND

Page 1277

For Appellant: Howard S. Stevens, Marc A. Campsen, Wright, Constrable & Skeen LLP on the brief, Baltimore, MD.

For Appellee: Kathy L. Mitchell, John S. Mathias, County Attorney on the brief, Frederick, MD.

Berger, Nazarian, Reed, JJ.

OPINION

Page 1278

[221 Md.App. 567] Nazarian, J.

This appeal arises from a construction contract between the Board of County Commissioners of Frederick County (the " County" ) and Ross Contracting, Inc. (" Ross" ), for the replacement of the Bidle Road Bridge. Among other things, the Contract required Ross to remove the bridge's existing supporting abutments and excavate for new supports. In the course of excavating one of the abutments, Ross encountered subsurface conditions that differed from those it expected, so it filed a request for an equitable adjustment in the contract price to reflect the differences. The County denied Ross's request. An arbitrator appointed pursuant to the Contract[1] affirmed that denial in part, reversed it in part, and awarded Ross a smaller equitable adjustment than it had requested. The Circuit Court for Frederick County upheld the arbitration decision, finding substantial evidence in the record to support the arbitrator's decision that Ross did not encounter a materially different site condition. Ross seeks our review, but we dismiss because Ross had no right of appeal to this court.

I. BACKGROUND

A. The Contract And Its Performance

In October 2008, the County issued an Invitation to Bid (the " Invitation" ) for a contract to construct the " Replacement of Bidle Road Bridge No. F03-10 over Catoctin Creek." The Invitation called for the removal of the existing one-lane bridge structure and supporting abutments, excavation for new supports, and construction of a new two-lane bridge [221 Md.App. 568] structure and roadway (the " Project" ). Prospective bidders were also provided, among other things, with the Maryland State Highway Administration's Standard Specifications for Construction and Materials (the " Specifications" ) and four soil boring logs[2] of the excavation area, designated B-1 through B-4, that indicated to bidders the types of subsurface materials at the excavation site.[3] Soil boring logs B-1 and B-2 were from the area where Abutment A was to be constructed, and B-3 and B-4 were from the area where Abutment B was to be constructed. The soil boring logs for Abutment B indicated that the winning

Page 1279

contractor should anticipate disintegrated rock down to a depth of 360 feet above sea level (" ASL" ) at B-3 and 366.40 feet ASL at B-4. As such, the contract provided that the contractor would excavate to a depth of 382 feet ASL, where it would place the bottom of the footer for Abutment B.

Ross, a construction company based in Mount Airy, reviewed the Invitation and, as part of the bid process, examined the Project site on four separate occasions. Ross was the successful low bidder and entered into a contract with the County on February 3, 2009 (the " Contract" ). The Contract incorporated, among other things, the Invitation, the Specifications, and the soil boring logs. The Specifications included specific provisions covering situations where site conditions during performance varied from the conditions set forth in the Contract:

GP-4.05 Differing Site Conditions

(a) The Contractor shall promptly, and before such conditions are disturbed, notify the procurement officer in writing of:
[221 Md.App. 569] (1) Subsurface or latent physical conditions at the site differing materially from those indicated in this Contract; or
(2) Unknown physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract.
The procurement officer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the work under this Contract, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the Contract modified in writing accordingly.
(b) No claim of the Contractor under this clause shall be allowed unless the Contractor has given the notice required in (a) above; provided however, the time prescribed therefore may be extended by the State.

GP-4.06 Changes

(d) . . . [I]f any change under this clause causes an increase or decrease in the Contractor's cost of, or the time required for, the performance of any part of the work under this Contract, whether or not changed by any order, an equitable adjustment shall be made and the Contract modified in writing accordingly. Provided, however, that except for claims based on defective specifications, no claim for any change under [4.06](b) above shall be allowed for any costs incurred more than 20 days before the Contractor gives written notice as therein required; and provided further, that in the case of defective Specifications for which the [County] is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with such defective Specifications.
[221 Md.App. 570] (e) If the Contractor intends to assert a claim for an equitable adjustment under this clause, he shall, within 30 days after receipt of a written change order under [4.06](a) above or the furnishing of written notice under [4.06](b) above, submit to the procurement officer a written statement setting forth the general nature and monetary extent of such claim, unless this period is extended by the State[.]

Overall, and before any adjustments, the County agreed to pay Ross ...


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