E. Joseph Buffa, Attorney at Law, for claimant.
Robert D. Pollitt, Assistant Attorney General, for respondent.


This claim arises out of the construction of group camp facilities at
Panther State forest,
McDowell County, West Virginia. The contract was entered into by
claimant Elwin E. Aliff
Construction Company, Inc. and respondent Department of Natural
Resources on July 11,
1974. The term of the contract was 240 days. The contract completion
date was extended to
May 28, 1977, by Change Order #7. The actual completion date for the
project was
September 15, 1977. The parties, by their respective counsel, stipulated
that neither the
claimant nor the respondent have any of the invoices or itemizations
regarding the specific items
of damages alleged by the claimant in this claim.

Claimant contends that it performed the following items as extra work
for which it should be
compensated: Item #2 Extra fill inside and outside buildings, Item #3
extra block and foundation
work, Item #4 Removal of stumps, Item #6 Flashing installed under wood
band around buildings,
Item *7 Filling of beams where lumber cracked, Item *8 Shower stalls
which were approved
and then rejected, Item #9 Repainting decks and ramps, Item #11
Additional overhead, Item
#14 Repair and reflash roof at cabin, Item #15 Adding electrical
contractors to protect kitchen
equipment, and Item #16 Adding back liquidated damages. Claimant amended
the amount of its
original claim to $53,920.00 at the hearing.

Claimant contends that the plans for the project did not correlate with
the actual contour of the
site. The construction site for the project is a long, sloping site. It
was necessary for claimant to
place fill for the main lodge and the parking lot which was not
indicated in the plans and
specifications. The fill was necessary to bring the floor levels up to
the levels at which the slabs
could be poured. Then backfill was placed against the foundations of the
buildings. Claimant also
alleges that the additional fill includes the fill required for the
parking lot.

The respondent contends that the floor elevations of the cabins were
adjusted and that
although the elevation lines might not be the same, the amount of fill
that was used was the same.
As the respondent determined that the increases in fill were not
substantial increases i the amount
of grading performed at the parking lot, the respondent denied claimant
additional compensation
for the fill and grade work performed on the parking lot.

During construction of the cabins, it was necessary for the walls of
the cabins to be compacted
as the plans did not allow for backfill. The specification included in
the terms of the contract
required that the opposite be done, i.e., backfill and then pour the
concrete slab. As a result of
the specifications, the walls deteriorated. The claimant was then
required to patch in and hand fill
these areas. This occurred five or six times during construction of the
cabins. As a result, extra
labor was required. Item #3 is connected with the backfill problem as
the breakdown in the
foundations of the cabins necessitated additional block, mortar, steel,
and labor which constitutes
for the amount claimed in Item #3.

Concerning Item #4, claimant contends that it was the responsibility of
the respondent to pull
the stumps in shaded areas indicated on the plans. As this was not done,
the claimant removed
the stumps. Claimant alleges extra expense for the removal of the stumps
and delay on the
project when stumps were not removed in a timely manner.

Respondent agrees that claimant's personnel assisted in the removal of
some of the stumps at
the project site. However, respondent contends that it removed the
majority of the stumps and
that at any time its personnel was requested, they removed the stumps as

Item #6 for installation of flashing under the lodge and cabin roofs
appears to be indicated on
the plans, and, therefore, claimant is not entitled to this item as
extra work.

The damages alleged in Item #7 involve extra work performed by claimant
in filling cracks in
the wood beams placed for the ceilings in the lodge and cabins.
Respondent required claimant to
fill cracks in the beams in accordance with contract specifications for
painting. Claimant stained
the beams and contends that stain is not within the specifications. The
Court has determined,
upon reviewing the specifications, that filling cracks in the beams was
unreasonable and a
strained interpretation of the specifications.

As to Item #8 relating to the installation of the shower stalls,
claimant alleges that shop
drawings for the shower stalls were submitted to respondent, approved by
the respondent, and
the stalls were, in fact, installed by the claimant at the project.
However, claimant was then
required to remove these shower stalls and replace the same with another
set of shower stalls
which had to be ordered and then installed. This caused claimant delay
in the work being
performed and extra work as the new shower stalls had to be installed
after removal of the first
stalls. Claimant did not receive a credit for the first set of shower
stalls from the supplier and was
under the impression that respondent would sell the stalls and reimburse
the claimant. The
claimant has not received any payment for the first set of shower stalls.

Item No. 16 for liquidated damages was charged by the respondent
against the claimant for
110 days at $50.00 per day for a total amount of $5,500.00. Claimant
alleges that the delays
causing the delay in completion of the project were the faulty of the
respondent. These delays
involved thefts of claimant's materials on the project when the gates to
the park were not closed
by respondent's personnel; the failure of respondent to remove the
stumps in a timely manner;
and problems with the approval of range hoods for the kitchens.

Donald Preast, Construction Supervisor for respondent at the time of
this construction (from
July 21, 1975 through August, 1976), testified that he observed the
owner and general manager
of claimant corporation, Elwin Aliff, at the construction site
approximately five times during the
time that he was assigned to the project. He kept a diary of his time at
the site. Included in the
diary were the number of people who worked on any given day for the
duration oft the time
during which he was on the project. He testified that there were many
good days on which
claimant could have worked but did not have personnel on the job. He
stated that there were
things that claimant's workmen could have been doing to bring the job to
completion at an earlier
date. He stressed the fact that this job lacked a superintendent, and
the specifications required
that a competent superintendent be on the job at all times. In addition,
the specifications called
for a schedule on the job, and there was no schedule to his knowledge.
He explained that a
number of items included in the claim were subject to force account
procedures. The procedures
for force account work are set out in the specifications of the
contract. The items for which the
claimant is entitled to extra compensation based upon change orders
included repainting (Item
#9), repairing and reflashing (Item #14), and the electrical contractors
(Item #15). He stated
that for force account, the contractor furnishes the name, labor, time,
date, time slips, wage rate,
and invoices for materials. The respondent admits the extra work was
done although it has not
been provided with invoices for labor and materials charged by claimant
for these items and,
therefore, has not been paid.

As to Item #11 for additional overhead arising out of delays on the
project, the Court has
determined that these expenses are too speculative in nature. The Court
denies this item.

The Court finds from the evidence that claimant should be paid
additional monies for this
construction project. While claimant was partially at fault for failing
to properly supervise this job
and may have failed to follow the force account procedures set forth in
the contract, it is
unconscionable for the State to receive the benefit of the additional
work claimant was required
to perform without compensation.

The claimant is entitled to $774.00 for filling the beams, $3,600.00
for the extra shower stalls,
$747.83 for the additional electrical work. $2,052.47 for the repair and
reflashing of the cabin
roof, $599.00 for separating the decks and ramps, and $4,300.00 for
extra block and
foundation work - for a total award of $12,073.30.

Award of $12,073.30.