KOVACS v. WPCA

Full title: KOVACS CONSTRUCTION CORP. v. CITY OF NEW HAVEN WATER POLLUTION CONTROL…

Court: Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Jul 3, 2008

2008 Ct. Sup. 10920 (Conn. Super. Ct. 2008)

Opinion

No. DBD-CV-4005291 S

July 3, 2008

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] SHABAN, J.

MEMORANDUM OF DECISION

The above-entitled action arises out of a construction contract between the plaintiff, Kovacs Construction Corporation, and the defendant, the City of New Haven Water Pollution Control Authority, under which the plaintiff agreed to renovate and upgrade two sewer pump stations at Barnes Avenue and Quinnipiac Avenue in the city of New Haven. By way of a one-count complaint filed February 8, 2006, the plaintiff is seeking to recover monetary damages from the defendant for the additional costs and delays that the plaintiff alleges to have incurred as a result of the errors, omissions and breaches of contract by the defendant. Specifically, the plaintiff claims that it is entitled to (1) $5,569.31 for the redesign work that was done by the plaintiff over the course of the construction project, ¹ (2) $57,000 for 114 days of liquidated damages that the defendant has wrongfully assessed against the plaintiff, (3) $329,892.34 to compensate for the dewatering issues that were encountered at the Barnes Avenue site, ² (4) $7,697.99 for the costs incurred as a result of various delays caused by the defendant, and (5) $9,334.61 to satisfy the unpaid balance due, which the defendant has wrongfully retained.

1 The plaintiff was originally seeking $14,300 on its redesign claim, however, the plaintiff subsequently submitted a revised redesign claim, wherein it reduced the amount sought to $5,569.31. (Pl. Ex. 5C.)

2 The plaintiff was originally seeking $386,838.79 on its dewatering claim, however. In a subsequently submitted claim, the plaintiff reduced the amount sought to $329,892.34. (Pl. Ex. 4H.)

The defendant asserts that it has acted pursuant to the terms of its contractual obligations and the plaintiff has failed to prove otherwise. Furthermore, the defendant argues that based on the explicit language within the applicable contract documents, the plaintiff has no right, or has waived its right, to recover any of the damages that were alleged in its complaint. Trial commenced on the plaintiff's claim on September 11, 2007, and continued over the course of seven days. Following trial, both parties submitted post-trial briefs and proposed findings of fact in accordance with the December 21, 2007 deadline set by the court. On January 25, 2008, both parties agreed to waive the statutory (General Statutes § 51-183b) and Practice Book requirement for the issuance of a written decision by the court within 120 days of the conclusion of the matter. The court thanks the parties for their patience and counsel for their professional courtesy in agreeing to such a waiver in light of the health issues faced by the undersigned which prevented the court from issuing a decision within the 120-day limit.

After having considered the arguments, testimony and other evidence that has been offered by each party, the court finds that the plaintiff has failed to prove by a preponderance of the evidence its claims relative to items 1, 2 and 4, above, but has established its claim to a portion of item 3 and all of item 5.

I FINDINGS OF FACT

Considering the amount of evidence that has been presented to this court it would be impractical to relay all of the relevant facts within the body of this decision. Therefore, only the most germane facts will be set forth below with other facts referenced elsewhere as needed. In this case, each party has submitted proposed findings of facts. After having reviewed all of the credible testimony and exhibits, this court finds that the following facts have been established.

The plaintiff, Kovacs Construction Corporation, is a Connecticut company that was hired as a general contractor for a public sewer and pump station project. (Pl. Ex. 1E.) At the time the plaintiff submitted its bid in March 2003, Thomas Kovacs was the president of the company and his father, Richard Kovacs was the chief executive officer (CEO). (Tr. 9/11/07, Thomas Kovacs, p. 10:8-15; Tr. 9/19/07, Richard Kovacs, 102:20-27.) The defendant, the city of New Haven Water Pollution Control Authority, is an agency of the city of New Haven and it owns the pump stations that were the subject of the project. (Def. Ex. A.)

The project in question is referred to as the Barnes Avenue/Quinnipiac Avenue Pumping Stations Project #00-144-122 ("the project") and consists of the renovation and upgrade of two existing pump stations, the Barnes Avenue and Quinnipiac Avenue pump stations, as well as the installation of related sewer piping and manholes at each site.³ (Def. Ex. A.) Pursuant to the original terms of the contract, the plaintiff was to receive $2,919,000 for completing the project by August 3, 2004. (Pl. Ex. 1G.)

3 A pump station is a concrete structure installed underground where sewage collects via incoming sewer lines. In this case, the installation of the wet wells and the yard piping for the project is complicated because the pump stations and yard piping are to be installed below the existing underground water table, which requires the contractor to first devise a method to draw down the water table in the locations to be excavated, i.e. dewater, to allow for the installation of the pump stations and yard piping. (Tr. 9/11/07 Thomas Kovacs, p. 29:15-26. 59:19-27. 60:1-6.)

The plaintiff was awarded the contract following a public and competitive biding process in which the plaintiff was determined to be the lowest qualified bidder. (Pl. Ex. 1G.) The defendant first publicly advertised the project for bid on February 2, 2003, and the plaintiff testified that it obtained a complete set of contract documents a few days later.⁴ (Tr. 9/12/07, Thomas Kovacs, p. 5:4-9; Def. Ex. A, Invitation to Bid.) These contract documents were prepared for the defendant by the geotechnical engineering firm of Metcalf Eddy ("M E"). (Tr. 9/20/07, Gary Simard, p. 179:15-27, 180:1-10.) M E also acted as the defendant's consulting engineer for the project. (Tr. 9/20/07, Gary Simard, p. 179:15-27, 180:1-10.)

4 The relevant contract documents include: 1) the Invitation to Bid: 2) the Instruction to Bidders: 3) the General Conditions, parts 1 and 2; 4) the Supplementary Conditions; 5) the Technical Specifications, including a geotechnical data report and 6) the contract plans. All of these documents were explicitly incorporated by reference into the construction agreement. (Pl. Ex. 1G, Article 3, p. 3.)

Prior to submitting its bid, the plaintiff thoroughly examined, and understood, all of the contract documents. (Tr. 9/12/07, Thomas Kovacs, p. 16:9-21.) The contract documents in this case make clear that the contractor would not be entitled to compensation for any change in work or for a claim for extra costs unless certain requirements are met. In particular, the plaintiff was aware of the conditions set forth in the instruction to bidders, specifically the portion which stated that the defendant would reject any claim based on facts which the contractor should have known of, by virtue of either the contract documents or through a site visit.⁵ (Tr. 9/12/07, Thomas Kovacs, p 17:4-18.) With respect to "Changes in the Work," the contract documents provide that a contractor may not make a change in materials or the manner of construction except pursuant to a written change order, without which no subsequent claim for payment will be deemed valid.⁶ (See Pl. Ex. 1A, ¶ 139, p. GC 15.) Similarly, should a contractor believe it is entitled to additional compensation for extra work on the project, pursuant to the terms of the contract, it must provide the requisite notice of its claim or the contractor will be barred from pursuing the claim.⁷ (See Pl. Ex. 1A, ¶ 140, p. GC 17.)

5 The instructions to bidders provided in part, that: "Each Bidder should visit the site of the proposed work and fully acquaint itself with the existing conditions there relating to construction and labor, and should fully inform itself as to the facilities involved, the difficulties and restrictions attending the performance of the Contract. The Bidder should thoroughly examine and familiarize itself with the Drawings, Technical Specifications and all other Contract Documents. The Contractor by the execution of the Contract shall in no way be relieved of any obligation under it due to its failure to receive or examine any form or legal instrument or to visit the site and acquaint itself with the conditions there existing and the City of New Haven will reject any claim based on the facts regarding which it should have been on notice." (Pl. Ex. 1A.)

6 "The Contractor shall make no change in the materials used or in the specified manner to construct and/or install the improvements or supply additional labor, services or materials beyond that actually required for the execution of the Contract, unless pursuing a written Change Order from the City authorizing the Contractor to proceed with the change. No claim for an adjustment of the Contract price will be valid unless undertaken as aforesaid." (Pl. Ex. 1A. ¶ 139, p. GC 15.)

7 "If a Contractor claims that any instruction by Drawings or otherwise involve extra cost or extension of time, it shall, within ten (10) days after the receipt of such instruction, and in any event before proceeding to execute the work, submit its protest thereto in writing to the City, stating clearly and in detail the basis of any objections. No such claims will be considered unless so made." (Pl. Ex. 1A, ¶ 140, p. GC 17.)

Prior to submitting its bid, the plaintiff clearly understood that the dewatering section⁸ of the technical specifications explicitly required that all dewatering⁹ be carried out from the inside of the excavations at both sites. (Tr. 9/12/07, Thomas Kovacs, p. 20:6-11; see also Tr. 9/19/07, Richard Kovacs, p. 193:7-10.) Nevertheless, in putting together its bid for this project, the plaintiff bid the job on the assumption that the defendant would ultimately allow the plaintiff to implement "site dewatering" at both project sites, rather than be limited to the "excavation dewatering" specifications called for by the contract.¹⁰ (Tr. 9/19/07, Robert Kovacs, p. 186:9-13; Tr. 9/19/07, Thomas Kovacs, 190:25.) Based on this assumption, the plaintiff was able to allow for cheaper material, such as a lighter and less expensive gauge of sheeting than it otherwise would have had to use had it followed the contract's specifications for site dewatering. (Tr. 9/13/07, Simeon Beer, p. 44:20-27.) Thus, by planning to utilize a dewatering method that was contrary to the specifications of the contract, the plaintiff was able to significantly reduce its total bid price.

8 Section 02140 of the Technical Specifications is entitled "Dewatering" and it requires, among other things, that "[d]ewatering shall be performed inside the excavation only." (Emphasis added.) (Pl. Ex. 1C.)

9 "Dewatering" is the process by which the level of ground water at a particular site is lowered and thus prevented from interfering with the work at the site, which in this case consisted of excavating portions of the site for the installation of underground sewer pipes, manholes and wet wells.

10 It is important to differentiate between the two different methods of dewatering that were considered for the project. The first method is "excavation dewatering," which involves the removal of groundwater from inside the area where the work is being performed. The second method is "site dewatering." This method involves the drawing down of the ground water level, both inside and outside of the work site, through the use of pumps located outside of the excavation area.

The plaintiff submitted its reduced bid on March 5, 2003. (Pl. Ex. 1E, p. F-4.) In executing the bid agreement the plaintiff agreed that if awarded the contract it would, among other things, complete the project in accordance with the contract documents. (Pl. Ex. 1E, p. F-1.) Thus, even though it had bid the job assuming it would be able to employ site dewatering, the plaintiff's signed bid compelled it to adhere to the contract's dewatering specifications. (Pl. Ex. 1E, p. F-1.) On April 7, 2003, the plaintiff was notified by the defendant that it had submitted the lowest and most reasonable bid and, was awarded the contract for the project. (Pl. Ex. 1G.)

On August 4, 2003, the plaintiff and the defendant officially entered into a construction contract.¹¹ (Pl. Ex. 1G.) With particular reference to the plaintiff's performance, Article 1 of the agreement contains the following representation: "The contractor shall . . . perform and complete in an efficient and workmanlike manner all work required for the project, in strict accordance with the Contract Documents." (Pl. Ex. 1G, Article 1.) Furthermore, the agreement also includes a General Conditions section, which includes paragraphs that set out the contract's procedure for requesting changes in the work, ¹² claims for extra costs, ¹³ as well as for addressing disputes¹⁴ that may arise during the performance of the contract. (Pl. Ex. 1A.) Pursuant to Article 3 of the contract, all bid documents including the bid specifications and the instructions to bidders were also incorporated into the contract and made applicable by explicit reference. (Pl. Ex. 1G, Article 3, p. 3.)

11 Neither party has claimed that the contract was unlawfully entered into or otherwise invalid.

12 Pl. Ex. 1A. ¶ 139, "Changes in The Work," p. GC 15.

13 Pl. Ex. 1A. ¶ 140, "Claims for Extra Cost," p. GC 17.

14 Pl. Ex, 1A, ¶ 140, "Disputes," p. GC 17.

Two months after executing the contract, Richard Kovacs contacted Gary Simard, one of the project engineers at M E, to inform him that the plaintiff wanted to use site dewatering on the project. (Tr. 9/19/07, Richard Kovacs, p. 181:15-21.) As of the time of his request Richard Kovacs had not informed either the defendant or M E that the plaintiff had bid the job differently than what the contract's dewatering specifications required. (Tr. 9/19/08, Richard Kovacs, 186:9-13.) The plaintiff's request to do so was passed on to M E's geotechnical specialists, who, on October 6, 2003, issued a memorandum to the plaintiff generally denying the request with regard to the Quinnipiac Avenue pump station site (the Quinnipiac site). (Pl. Ex. 4G1.) With regard to the Barnes Avenue pump station site (the Barnes site), M E responded, in part, that, "[s]hould the Contractor choose to submit a dewatering plan that deviates from the specification . . . [t]he review of the dewatering plan by M E will be for information only. [Furthermore,] [t]he Contractor will remain responsible for [the] adequacy and safety of the means, methods and sequencing of construction." (Emphasis in original.) (Pl. Ex. 4G1.) Within its memorandum, M E also provided a list of four additional items that it recommended the plaintiff include, should it chose to submit a dewatering plan that deviated from the contract specifications.¹⁵ (Pl. Ex. 4G1, p. 2.)

15 At trial, the plaintiff's geotechnical expert, Clarence Welti, testified that the concerns expressed by M E within this memorandum were justified. (Tr. 9/13/07, Clarence Welti, p. 97:5-15.) Welti also testified that, given the contract specifications, the additional items that M E had asked the plaintiff to include with any proposed alternative dewatering plan for the Barnes site were all reasonable. (Tr. 9/13/07, Clarence Welti, p. 97:5-15.)

At the first job meeting two days later on October 8, 2003, the parties again discussed the plaintiff's request to deviate from the "Dewatering" section¹⁶ of the contract's "Technical Specifications," which required the contractor to use only the excavation dewatering method. (Pl. Ex. 403.) At the meeting, Richard Kovacs distributed a memorandum in support of the plaintiff's request to modify the dewatering specifications. However, the memorandum did not indicate that the plaintiff had encountered differing subsurface conditions at both sites. (Pl. Ex. 402.) In fact, because the plaintiff had not begun any excavation by October 8, 2003, the plaintiff could not yet have known the subsurface conditions at either site. At this meeting, the defendant noted the contract provides that the specifications may be modified or changed, if necessary, but only where the defendant's engineer finds "subsurface or latent physical conditions [at the site] differing materially from those inherent in the work of the character provided for in [the] Contract." (Pl. Ex. 1A, ¶ 140, p. GC 17.) By the end of the discussion the plaintiff agreed to dewater both sites from inside the excavation as the contract's dewatering section required. (Tr. 9/20/07, Richard Kovacs, 11:26-27, 12:1-4.)

16 Pl. Ex. 1C. "DEWATERING," § 02140.

By late October 2003, the plaintiff had started to clear and prepare for construction at both job sites. (Pl. Ex. 5A1.) In doing so, the plaintiff discovered several problems with the proposed layouts and site plans for both sites, which had been provided by the defendant. To correct these layout issues, in November and December of 2003, the plaintiff had to take time to revise the plans for each site. (Pl. Ex. 2-1.) During this same time period, the plaintiff continued to complete other tasks at both sites as was required by contract. Such work included site clearing, the installation of power lines, completing test pits, as well as the continued setup of office trailers at both the Quinnipiac and Barnes sites. (Pl. Ex. 5A4.) At trial the parties disagreed about the approval dates for the revised plans. The court finds that the revised site layout for the Quinnipiac site was approved by the defendant at the December 17, 2003 job site meeting and the revised layout for the Barnes site was approved on January 6, 2004¹⁷ (Pl. Ex. 2-1, Summary of Time Extension Analysis. p. 1-2.)

17 Within its proposed findings of fact the plaintiff claimed that the revised site plans for the Quinnipiac site were not approved until January 2004 and the plans for the Barnes site were not approved until April 2004.

Based on this redesign work, the plaintiff requested both compensation for the additional man hours expended and a time extension on the contract. (Pl. Exs. 5A1, 5A6.) The plaintiff claims that it spent over 250 hours to redesign both job sites and, more importantly, that this redesign work delayed the start of construction at both sites for "three to four months." (Pl. Ex. 5B.) By way of change orders numbers 1 and 2, which were both accepted by the plaintiff in April 2004, the defendant agreed to approve a portion of the additional compensation and time extensions that the plaintiff had requested. (Pl. Exs. 2-1, 2-2.) The plaintiff continued to work on the project without any protest until October 2004, when it sent a letter to M E again asserting that it was entitled to additional time and money as a result of the redesign work that was done at both sites. (Pl. Ex. 5A6.) This request was denied in M E's response of November 1, 2004. (Pl. Ex. 5A8.) The issue of compensation for redesign work remained unaddressed until the plaintiff subsequently submitted a redesign claim on August 4, 2005, approximately three months after the project was substantially completed. See infra, p. 16-17. The plaintiff's redesign claim also encompasses its claim for wrongfully assessed liquidated damages. In its claim (Pl. Ex. 5B), the plaintiff alleges that, because it had to redesign the layout and site plans for both sites, it was delayed approximately four months in getting started on the actual contract work. Therefore, the plaintiff argues that the four months of liquidated damages, which were retained by the defendant for the plaintiff's late completion, should be repaid.

Notwithstanding the design disagreement, the plaintiff began construction on the Quinnipiac site on December 29, 2003. (Tr. 9/18/07, Thomas Kovacs, p. 49:18-20.) During the course of construction, however, the plaintiff encountered several issues, which also resulted in its having to spend extra money, time and labor on problems that had not been considered or calculated into the original contract.¹⁸ Such issues included having to excavate more rock from the Quinnipiac site then was originally anticipated by the defendant's boring reports, encountering blow-outs within the wet well from hydrostatic pressure, and having to use extra concrete in the cofferdam to curtail the flow of water between the sheeting and the bedrock. (Pl. Ex. 5A1.) However, the plaintiff acknowledged at trial, that it was paid for all of these subsurface conditions that were unexpectedly encountered within the Quinnipiac cofferdam. (Tr. 9/18/07, Thomas Kovacs, p. 61:18-26.)

18 While the contract did not calculate this extra excavation into the final contract price, the contract documents did anticipate that rock might be found in the excavation area at either or both of the excavations sites and the bid documents provided space for a contractor to provide a per-cubic yard price for removing any such excess rock.

The plaintiff's progress at the Quinnipiac site was also delayed because of problems related to locating and tying into the second existing forcemain, as well as by excessive rains and extreme weather conditions, which caused the Quinnipiac site to flood in September 2004. (Pl. Ex. 5A6; Pl. Ex. 5A8.) The plaintiff notified the defendant and the project engineer of these problems and, after looking into both issues, M E approved several change orders, which provided the plaintiff with additional time and money. (Pl. Ex. 2-4; Pl. Ex. 2-5.) Despite these obstacles, the plaintiff was able to successfully excavate and dewater the entire Quinnipiac site pursuant to the contract's specifications. (Tr. 9/18/07, Thomas Kovacs, p. 61-67.)

Construction at the Barnes site commenced in early 2004 and carried on into the summer of that year. (Tr. 9/18/07, Thomas Kovacs, p. 74:5-15.) Work at the Barnes site proceeded similarly to that at the Quinnipiac site in that the plaintiff encountered the same additional bedrock, a contingency that was provided for in the contract. (See footnote 16 above.) (Tr. 9/18/07, Thomas Kovacs, p. 73:7-20.) Additionally, because groundwater at the Barnes site was leaking into the cofferdam between the bedrock and the bottom of the sheeting, the plaintiff decided to hire an injection grouting subcontractor, who used extra concrete to stop the groundwater from flowing into the excavation site. (Tr. 9/18/07, Thomas Kovacs, p. 73:21-24.) The plaintiff, however, was "fairly compensated" for all of the additional issues that were encountered during its construction of the cofferdam at the Barnes site. (Tr. 9/19/07, Thomas Kovacs, p. 74:8-25.) By May 2004, the cofferdam at the Barnes site was in place, while work on the yard piping at the site had not yet begun. (Tr. 9/13/2007, Clarence Welti, p. 63:26-27, 64:1-5.) As to the cofferdam, the plaintiff acknowledged that "after [the plaintiff] sealed the cofferdam and got rid of the rock and all the other incidentals" dewatering from inside the wet well excavation at the Barnes site "went perfectly." (Tr. 9/18/07, Thomas Kovacs, p. 74:16-23.)

Beginning in May 2004, however, the plaintiff started the installation of the yard piping within the trench area at the Barnes site and, once again, the plaintiff renewed its request to deviate from the dewatering specifications. (Tr. 9/18/07, Thomas Kovacs, p. 80:7-25.) On May 4, 2004, the plaintiff sent a letter to M E stating that its "opinion still stands . . . that the site needs to be dewatered from the outside." (Pl. Ex. 4G9.) The plaintiff ended this letter by concluding that "[it] will stop at [the Barnes] site and move to Quinnipiac until a mutual agreement can be reached" with regard to dewatering. (Pl. Ex. 4G9.) Immediately after sending this letter on May 4, the plaintiff stopped work at the Barnes site and did not return to complete the yard piping until mid-July 2004. (Tr. 9/18/07, Thomas Kovacs, p. 82:5-22.)

M E immediately responded to the plaintiff's request in a memorandum dated May 7, 2004, in which it reminded the plaintiff that the "[u]se of dewatering from outside the excavation is not allowed by specification" and it recommended an alternative approach for the removal of remaining overburden and bedrock at the Barnes site, so as to enable the plaintiff to excavate to the specified depth. (Pl. Ex. 4G10.) On May 25, 2004, the plaintiff responded by sending M E a letter from Clarence Welti, the plaintiff's geotechnical engineer, in which Welti outlined a potential method of site dewatering which, "seems to provide the least impact on the existing piping and is probably the least expensive." (Pl. Ex. 4G11.) Within the same memorandum, however, Welti also recognized that the contract specifically excluded site dewatering. (Pl. Ex. 4G11.)

At a progress meeting that was also held on May 25, 2004, the parties discussed Welti's recommendations. (Pl. Ex. 7B.) At this meeting, M E asked the plaintiff to provide a written explanation of what it believed to be the "changed condition" that would justify utilizing a dewatering method that contradicted the contract's specifications. (Pl. Ex. 7B.) Similarly, the plaintiff requested that M E provide a letter responding to both Welti's correspondence, as well as to the site dewatering discussion that took place at the progress meeting. (Pl. Ex. 7B.) On June 3, 2004, M E sent its response, in which it advised the plaintiff that, pursuant to the contract, its request for a change order must be predicated upon the discovery of a physical condition at the site that was materially different than those indicated in the contract, rather than upon a bare request to deviate from the specifications.¹⁹ (Pl. Ex. 4G12.) Nevertheless, even though the plaintiff had failed to specify a changed condition that might justify its request to site dewater, M E stated that it would still consider granting the request if the plaintiff complied with the additional four conditions that were listed in M E's letter of October 2003. (Pl. Ex. 4G12; see also Pl. Ex. 4G1.)

19 Subsection (e) of the "Claims for Extra Cost" paragraph of the contract provides: "During the progress of the work, if the Contractor encounters at the site (1) subsurface or latent physical conditions differing materially from those inherent in the work of the character provided for in this Contract the Contractor shall promptly and before such conditions are disturbed, notify the Engineer in writing. The Engineer shall thereupon investigate such conditions and if the Engineer finds that they do materially differ, it shall cause such changes to be made in the Specifications and Drawings as may be deemed necessary, and shall make such equitable adjustment in the Contract Price or time as justified, if any, by written order, as provided in the section CHANGES IN THE WORK. No claim of the Contractor for adjustment hereunder shall be allowed unless it has given notice as above required." (Pl. Ex. 1A, ¶ 140, p. GC 17.)

The plaintiff, however, did not provide any indication that it had discovered differing subsurface conditions at the Barnes site trench yard. Instead, on June 14, 2004, the plaintiff sent a letter to M E in which the plaintiff admits that its decision to site dewater had been made before its bid was submitted in March 2003.²⁰ (Pl. Ex. 4G14.) Within the same letter, the plaintiff also argued that the defendant's refusal to allow it to dewater from outside of the excavation site constituted a "change in the work," which should allow the plaintiff to deviate from the contract's specifications and implement site dewatering. (Pl. Ex. 4G14.)

20 Within its June 14, 2004 letter the plaintiff stated that: "At bid time, KC Made an educated decision [to dewater] outside the sheeted excavation areas."

Finally, on July 6, 2004, the plaintiff forwarded to M E a letter in which it claimed for the first time that it encountered site conditions at the Barnes site that were materially different than what had been presented in the contract documents and, therefore, it should be allowed to implement site dewatering. (Pl. Ex. 4G13.) Specifically, the plaintiff noted its inability to drive sheets within the cofferdam as deeply as the contract had specified because bedrock was encountered at higher levels then the boring reports had depicted. (Pl. Ex. 4G13.) The plaintiff, however, did not provide M E with a proposed method or plan for the proposed site dewatering, nor did it attempt to satisfy the four additional conditions that M E had previously set out in its letter of October 6, 2003, in order to allow such a change to take place. (Pl. Ex. 4G13.)

On July 16, 2004, M E responded to the plaintiff's July 6th letter, noting that, while the plaintiff sought permission to utilize site dewatering to complete both the cofferdam and the yard piping, the excavation of the Barnes site's cofferdam appeared to have been successful, following the implementation of injection grouting, as the cofferdam remained dry. (Pl. Ex. 4G21.) Moreover, with regard to the yard piping at the Barnes site, M E noted that there was no evidence of any changed condition in that location: "Whereas the bedrock constituted a changed condition for [the] installation of the wet well, no such changed condition occurs for [the] sewer installation." (Pl. Ex. 4G21.) Therefore, "[t]he depth to bedrock in the area of the sewer installation should be well below any excavation [depth]." (Pl. Ex. 4G21.) M E also noted that "[t]he test boring for the site indicates soil and ground water conditions in the overburden [that are] consistent with those noted in the field." (Pl. Ex. 4G21.) Therefore, based on these facts, M E denied the plaintiff's request to utilize site dewatering. (Pl. Ex. 4G21.)

The plaintiff responded by submitting a letter to the defendant on July 22, 2004, entitled: "Claim and Protest Notification," which purports to be a claim, submitted pursuant to paragraphs 140 and 141 of the General Conditions section of the contract, to recover for extra costs related to the dewatering of the Barnes site. (Pl. Ex. 4G27.) The July 22nd correspondence was the first time that the plaintiff submitted a claim, in accordance to the terms of the contract, regarding the problems that it alleged to have encountered in dewatering the Barnes site. In that letter, the plaintiff stated that it "will continue to work at . . . [the Barnes site] . . . under protest in accordance with the provisions of the Contract," but, it would "not accept any responsibility for any damages caused . . . from the dewatering methods required by the specifications." (Pl. Ex. 4G26.)

The plaintiff then began construction of the Barnes yard piping "under protest" on October 20, 2004, at the location of manhole number one, which was successfully installed by November 8, 2004. (Pl. Ex. 4B, p. 26, 32.) However, in attempting to install manhole number two, the plaintiff encountered running sand, which undermined the trench. (Pl. Ex. 4B, p. 34.) Because of this issue, the plaintiff decided to modify its plan and, thus, it hired the River Pile and Foundation Company to design, supply and help install a $47,000 soldier pile system to facilitate the installation of the second manhole and the interconnecting pipe. (Pl. Ex. 4B, p. 34.) With this system in place, the plaintiff was able to backfill against the soldier pile trench box to restore the physical integrity of the trench. (Pl. Proposed Finding of Fact, ¶ 119; Pl. Ex. 4B, p. 34.) By November 15, 2004, the plaintiff had installed sewer piping between manhole number one and two and it had successfully excavated to the bottom elevation planned for the installation of manhole number two. (Pl. Ex. 4B, p. 34.)

Nevertheless, on November 29, 2004, the plaintiff unilaterally decided that the specified dewatering method had proven to be "unsafe and commercially impracticable, if not impossible" and, therefore, it ordered and installed a site dewatering system from Griffin Dewatering without authorization from the defendant. (Pl. Ex. 4B, p. 40; Pl. Proposed Finding of Fact, ¶ 20.) On December 2, 2004, the plaintiff proceeded to assist the Griffin technician with installing well points and a jetting system so as to dewater the entire yard piping site from outside the excavation. (Pl. Ex. 4B, p. 41; Pl. Proposed Finding of Fact, ¶ 20.) The plaintiff elected to take this course although there were methods available by which a contractor could have dewatered and completed the yard piping at the Barnes site according to the contract's specifications.²¹ (Tr. 9/13/07, Theodore Von Rosenvinge, p. 147:23-27, 148:1-4; Tr. 9/13/07, Clarence Welti, p. 84:5-17.)

21 The plaintiff's own experts, Theodore Von Rosenvinge and Clarence Welti, acknowledged that site dewatering was not the exclusive method for completing the job. Further, Mr. Welti issued a letter to the plaintiff stating that the contract excluded dewatering from outside the excavation site. (Pl. 4G11.) Moreover, on cross-examination, Richard Kovacs acknowledged that the plaintiff knew site dewatering was not permissible under the terms of the contract.

On the same day that the site dewatering system was installed, M E issued a letter dated December 2, 2004, advising the plaintiff that the implementation of site dewatering at the Barnes site did "not conform to contract specifications" and that "[t]he contract requires that [it] submit and obtain approval for [its alternative] dewatering plan." (Pl. Ex. 4G33.) M E ended the letter by notifying the plaintiff that "[p]roceeding without an approved submittal is in violation of the Contract." (Pl. Ex. 4G33.) Nonetheless, the plaintiff utilized the site dewatering method to finish the yard piping job at the Barnes site. (Pl. Proposed Findings of Fact, ¶ 20.)

Although the contract originally had a substantial completion date of August 3, 2004, during the course of the project the defendant granted, and the plaintiff agreed to, several extensions of time totaling 175 days relative to various change orders. (Pl. Exs. 2-1, 2-4, 2-5, 2-6, and 2-7.)²² Thus, the contractual date of substantial completion was extended to January 24, 2005. The total contract price was also increased, by way of change orders, to ultimately be set at $3,111,537.12, an increase of $192,547.12 over the original contract price. (Pl. Ex. 2-7, p. 8.)

22 It should be noted that change order number 7, dated August 3, 2005, includes an incorrect "date of substantial completion" for the project. Instead of correctly providing that January 24, 2005, was the contract's new date of substantial completion, the change order incorrectly provided the date that the plaintiff achieved substantial completion on the project, or May 18, 2005.

Despite these extensions, the plaintiff was unable to substantially complete the project until May 18, 2005, a total of 114 days behind schedule. (Tr. 9/11/07, Stipulation by Counsel, p. 97:18-19.) Accordingly, by the end of the project the defendant had assessed a total of $57.000 in liquidated damages against the plaintiff for failing to timely complete the project (114 days late at $500 a day). (Pl. Ex. 2A; Tr. 9/11/07, Stipulation by Counsel. p. 105:27, 106:1-2.) These damages were assessed pursuant to the liquidated damages clause located within the contract's Special Conditions section, which states: "The Contractor guarantees that he can and will complete the work within the time limit stated in the Contract Documents or within the extended time limit provided elsewhere in the Documents. Since the damages and losses to the City which will result from the failure of the Contractor to complete the work within the stipulated time will be most difficult or impossible to accurately assess, the damages to the City for such delay and failure on the part of the Contractor will be liquidated in the sum of five hundred dollars ($500.00) each calendar day, Sundays and Holidays." (Emphasis in original.) (Pl. Ex. 1A, ¶ 307, p. SC 4.)

In addition to the liquidated damages, the defendant retained a balance of $9,334.61 of the total contract amount as "unbilled retention" after the plaintiff substantially completed the project (Pl. Ex. 2A; Tr. 9/20/07, Wanda McGarry, p. 82:22-27, 83:1-24.) This "unbilled retention" is the only portion of the adjusted contract fee that remains unpaid. (Pl. Ex. 2A.) The plaintiff's office manager, Wanda McGarry, ²³ testified that on two occasions in late 2005 she presented M E with a written requisition, in which she requested payment of the retained balance, however, no physical evidence was provided to support her allegation. (Tr. 9/20/07, Wanda McGarry, p. 82:22-27, 83:1-24.) Conversely, Gary Simard testified that M E had no record of ever receiving such a final requisition and, furthermore, had such a letter been received after the project's punch list was completed, there is no reason why approval would not have been given. (Tr. 9/21/07, Garry Simard, p. 9:1-24, 9:20-27, 10:1-2.) The court finds that as of November 3, 2005, the plaintiff had not yet billed the defendant for the final retainage and, additionally, there was at least one item on the punch list that still needed to be completed. (Pl. Ex. 13.)

23 Wanda McGarry serves as the vice president and corporate secretary for the plaintiff corporation and also is the daughter of Richard Kovacs and the sister of Thomas Kovacs.

On August 4, 2005, several months after the project was substantially completed, the plaintiff submitted separate claims to the defendant seeking extra costs as remuneration for the dewatering problems at the Barnes site, as well as for the redesign work that it did at both sites. (Pl. Ex. 5B.) Additionally, on November 2, 2005 the plaintiff presented to the defendant, for the first time, a claim for additional contract costs which included reimbursement for the costs and expenses that had accrued during the various extensions of time that were granted through the agreed-upon change orders.²⁴ (Pl. Ex. 5E.) On December 27, 2005, M E responded to the plaintiff's request for additional contract costs by noting that every change order agreed to by the parties, which extended the contract's completion date, clearly stated that "you agree that you shall not have or assert any claim for nor shall you be entitled to any additional compensation or damages over and above that included in this change order for issues related." (Def. Ex. SSSS.) Based on this language, M E concluded that the costs and time extensions noted in the relevant change orders were inclusive of all related work, additional costs and extra time, and therefore, the plaintiff's request was denied. (Def. Ex. SSSS.)

24 The defendant's response to this letter notes that although the plaintiff's letter was dated November 2, 2005, it was postmarked December 22, 2005 and received by the defendant on December 23, 2005.

By November 17, 2005, the plaintiff had yet to receive a response from either the defendant or M E regarding the original dewatering and redesign claims that it had submitted in August 2005. (Pl. Ex. 4G40.) Thereafter, on February 8, 2006, the plaintiff filed this complaint against the defendant. On the eve of trial, the plaintiff submitted both a revised redesign and a revised dewatering claim, which were substantially reduced from the original amount sought.²⁵ (Pl. Ex. 4H; Pl. Ex. 5C.) By way of its revised dewatering claim, the plaintiff now seeks a total of $329,892.34 for dewatering costs, which includes the cost for items such as thicker sheeting, as well as the rental costs for the site dewatering system. (Pl. Ex. 3; Pl. Ex. 4H.) In its revised redesign claim, the plaintiff has reduced the amount of compensation claimed from $14,300 to $5,569.31. This was based on its recognition of a memorandum dated October 27, 2004, in which M E agreed to credit several hours of redesign work against other back charges that the plaintiff owed. (Pl. Ex. 5C; Pl. Proposed Findings of Fact, ¶ 7.) In addition to these two revised amounts, the plaintiff alleges that it is entitled to recover $57,000 for the liquidated damages that were wrongfully assessed, $7,697.99 for the additional costs incurred as a result of the contract being extended and $9,334.61 for the unpaid portion of the contract balance. Thus, the total amount of damages being sought by the plaintiff is $409,494.25, not including interest. (Pl. Proposed Finding of Fact, ¶ 30.)

25 See footnotes 1 2 above.

II DISCUSSION

In a case such as the one at hand, a court's analysis must be guided by the strong public policy in Connecticut favoring the freedom of contract, which has "established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability." (Emphasis added.) Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993); see 1 Restatement (Second), Contracts §§ 154, 159 (1981); see also 2 Restatement (Second), Contracts § 208 (1981). Unless voidable, "[i]t is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. [Therefore,] [w]hen the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction." Levine v. Massey, 232 Conn. 272, 278-79, 654 A.2d 737 (1992.)

For instance, "[c]ourts [should] not unmake bargains unwisely made. Absent other infirmities . . . [a]lthough [the] parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement; contracts voluntarily and fairly made should be held valid and enforced in the courts." Tallmadge Bros. Inc v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505-06, 746 A.2d 1277 (2000). This is because "a party is entitled to rely upon its written contract as the final integration of its rights and duties." Levine v. Massey, 232 Conn. 278-79. Therefore, "[a] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms." Id. With these rules in mind, the court will address the plaintiff's various claims.

A REDESIGN CLAIM

In its complaint the plaintiff alleges that, as a result of the redesign work that it did on the site plans for the Quinnipiac and Barnes sites, it had to pay for over 250 additional man-hours, at a cost of $65 per hour, which was outside the scope of its contractual obligations. However, the defendant, by way of its project engineer, M E, only approved and compensated the plaintiff for 30 of the 250 hours claimed. The plaintiff claims that the defendant "wrongfully refused" to provide full compensation and, as a result, it is entitled to recovery for the remaining 220 hours, which, at $65 an hour, equals $14,300.

However, this amount was reduced from $14,300 to $5,569.31, by way of the plaintiff's revised redesign claim. This reduction was based on the plaintiff's recognition of a memorandum dated October 27, 2004, in which M E agreed to compensate the plaintiff for several additional redesign hours. (Pl. Ex. 5C.) In particular, the plaintiff alleges that within this memorandum M E recognized a maximum of thirty additional hours, or $1,950, towards the redesign of the Barnes site and an additional 125 hours, or $8,125, towards the redesign work done at the Quinnipiac site. While the additional compensation mentioned in this memorandum was never officially processed by M E in a change order, the plaintiff acknowledged that M E credited these redesign adders, totaling $10,075, against other proposed back charges which the defendant never assessed against the plaintiff. Based on this credit, the plaintiff reduced the amount in demand on its redesign claim by $10,075, resulting in a reduced total of $4,225, or 65 man hours. The plaintiff then added $1,344.31, which was the `net total' that resulted when all of the adders and deducts that were agreed to in the October 27, 2004 memorandum were added together. (Pl. Ex. 5C.) After adding this net amount, the plaintiff's revised redesign claim totaled $5,569.31. Having considered both parties' arguments, together with the relevant contract language, the court finds that the plaintiff is not entitled to recover any additional remuneration for its redesign work, other then the additional compensation that the defendant has already provided.

Looking first to the terms of the applicable contract, paragraph 140 of the General Conditions section is entitled "Claims for Extra Cost" and it specifies that "[i]f the Contractor claims . . . extra cost or [an] extension of time, it shall, within ten (10) days after the receipt of such instruction, and in any event before proceeding to execute the work, submit its protest thereto in writing to the City, stating clearly and in detail the basis of any objections. No such claim will be considered unless so made." (Emphasis added.) (Pl. Ex. 1A, ¶ 140, p. GC 17.) Paragraph 141 of the General Conditions portion of the contract is entitled "Disputes" and it provides, in part, that "[a]ll disputes arising under this Contract or its interpretation . . . and all claims for alleged breach of Contract shall within ten (10) days of commencement of the dispute be presented by the Contractor to the City for decision . . . Any claim not presented within the time limit specified . . . shall be deemed to have been waived . . ." (Emphasis added.) (Pl. Ex. 1A, ¶ 141, p. GC 17.) Such notice provisions have been strictly enforced by the Connecticut courts. See Ceicio Bros., Inc. v. Greenwich, 156 Conn. 561, 244 A.2d 404 (1968) (finding that a contract's notice provision was a necessary condition precedent to recovery).

The general principles governing the construction of contracts provide that "[w]here the language of [a] contract is clear and unambiguous, the contract is to be given effect according to its terms." Lawson v. Whitey's Frame Shop, 241 Conn. 678, 686-87, 697 A.2d 1137 (1997). As the contractual language presented above is both clear and unambiguous, this court must strictly enforce both notice requirements. See Cecio Bros., Inc. v. Greenwich, supra, 156 Conn. 561; see also Milford Power Co., LLC v. Alstom Power, Inc., Superior Court, complex litigation docket at New London at Norwich, Docket No X04 CV 00 0121672 (June 28, 2001, Koletsky, J.), rev'd on other grounds, 263 Conn. 616, 822 A.2d 196 (2003). In Cecio Brothers, Inc., the Connecticut Supreme Court held that providing notice within two days of a perceived claim for extra work, as required under the terms of a municipal construction contract, was a necessary condition to the validity of any claim by the contractor. Cecio Bros, Inc. v. Greenwich, supra, 156 Conn. 568-69. The Court found that, if contractors are not required to comply with a contract's notice provisions, "it is difficult to see how a municipality could ever protect itself from a contractor's unanticipated and long-delayed claim for compensation in addition to that provided by the contract and in excess of the public funds appropriated for a construction project." Id.

Applying these contractual requirements to the plaintiff's redesign claim, the court finds that the plaintiff failed to submit a written protest seeking extra redesign costs within ten days of beginning its redesign work in October 2003. In fact, the dispute over compensation for the additional redesign hours commenced well after the project was substantially finished in May 2005. This was months before the plaintiff initially submitted its redesign claim in August 2005. As a result, the plaintiff failed to satisfy the applicable notice requirements provided in paragraphs 140 and 141 of the contract, and, therefore cannot recover the remaining portion of its redesign claim.

In addition, even if the plaintiff had provided timely notice of its redesign claim, the supporting evidence and testimony provided by the plaintiff was too ambiguous and vague to establish by a preponderance of the evidence that the plaintiff was entitled to extra compensation on that claim. See Busker v. United Illuminating Co., 156 Conn. 456, 458, 242 A.2d 708 (1968): see also Vigorito v. Allard, 143 Conn. 70, 71, 118 A.2d 906 (1955) (the plaintiff's burden of proof in a civil case is by a fair preponderance of the evidence). It is also noted that the plaintiff submitted its original redesign claim without providing any evidence to support the allegations that it made within the claim. However, in submitting its claim, the plaintiff did attach several of its daily job reports. While these reports were offered to provide a summary of the amount of time that the plaintiff's computer-aided design (CAD) engineer spent revising the site layouts for both sites, the descriptions of the work performed are also too vague to sufficiently establish by a preponderance of the evidence that the man hours being calculated into the plaintiff's claim were related to the redesign work.²⁶

26 For example, there are several days where the work description entered was simply "reviewed project w/Tom," which does not establish that any redesign work was done. Moreover, although Thomas Kovacs testified at trial regarding these daily job reports, he was unable to provide further information or insight regarding these entries.

Furthermore, the plaintiff included several entries in its calculation of total redesign time which are unrelated to any redesign work done at either site. For example, the 250 hours of redesign work claimed by the plaintiff includes eight days of daily report entries for work described as "rock removal calculations." The plaintiff has also included "HVAC (Duct)" work and the review of "L B purchase order for Tom" in its calculation of total redesign hours, which are not related to the plaintiff's redesign work. Additionally, the daily job reports contain duplicative entries for the same day, all of which were included in 250 hours of design time being claimed by the plaintiff. Wanda McGarry not only acknowledged that there were three job reports submitted for November 12, 2003, which totaled nineteen and a half hours, but she also testified that she did not know how much, if any, of the hours included within these three entries represented time actually spent on redesign work. (Tr. 9/20/07, Wanda McGarry, p. 88:7-27 89:1-21.) The court finds that significant portions of the evidence provided by the plaintiff are simply too ambiguous to support the plaintiff's redesign claim.

Lastly, the court finds that the plaintiff erred when it decided to add the net amount of $1,344.31 to its revised redesign claim. This amount is the net result of all adders and deletions that were considered in the October 27, 2004 memorandum. However, many of the items that were considered in this memorandum are unrelated to the plaintiff's redesign work and, thus, should not be added to the claim. For example, the memorandum recognized over $9,000 in adders for both soil stabilization and the digging of test holes, as well as nearly $23,000 in deducts for unused materials, labor and equipment. Furthermore, the plaintiff failed to provide any detailed breakdown of how this net figure was calculated. After reviewing the October 27th memorandum and the other credible evidence, the net total appears to be the total of all adders and deducts that were considered, including both redesign and non-redesign related costs. By including the $1,344.31 as part of its redesign claim, the plaintiff has either double counted the redesign adders, or added costs that are wholly unrelated to redesign work, neither of which is permissible. Thus, the court finds that the plaintiff is not entitled to further compensation for the claimed redesign man hours, nor is it entitled to the net total of $1,344.31 that was erroneously added.

B LIQUIDATED DAMAGES

With regard to the liquidated damages that have been assessed, it is undisputed that the contract documents contain a liquidated damages clause which provides that if the plaintiff did not complete the project on time it would be assessed $500 for each calendar day, past the contract's date of substantial completion, that the project was delayed. Despite this clear language, both in its complaint and at trial, the plaintiff has alleged that the defendant was wrong to withhold any liquidated damages because the contract's date of completion should have been extended by approximately 4 months, or 120 days, to account for delays caused by having to redesign the layout of both sites. The plaintiff argues that if an extension had been granted, it would have completed the project well within the extended completion date and no liquidated damages would have been assessed. It is noted, however, that the plaintiff has neither contested the enforceability of the contract's liquidated damages clause, nor argued that the daily rate of liquidated damages is unreasonable.

The court finds the plaintiff's argument that it is was entitled to a 120-day extension of the contract's date of substantial completion is unavailing. The plaintiff had originally submitted a request for an 120-day extension in connection with its redesign work on March 5, 2004. M E issued a detailed response on March 9, 2004, in which it agreed to grant the plaintiff a 60-day extension of time, after considering the amount of redesign work that was done. The plaintiff accepted this proposal and the contract's completion date was modified by way of a mutually executed change order dated April 8, 2004. Pursuant to paragraphs 140 and 141 of the General Conditions of the contract documents, if the plaintiff wished to preserve a claim on this issue, or dispute the amount of time it had agreed to accept in this change order, it was required to notify the defendant of such claim within ten days of when its claim or dispute arose. At no time did the plaintiff comply with these contractually provided procedures. Therefore, the plaintiff cannot belatedly claim that the liquidated damages should be returned because it was entitled to additional extensions of time.

Secondly, having determined that the contract's substantial completion date was not extended, the court finds that the liquidated damages clause in question is fully enforceable. By way of the express language of that clause, the plaintiff "guarantee[d] that [it] can and will complete the work within the time limit stated in the Contract Documents or within the extended time limit provided elsewhere in the documents." (Pl. Ex. 1A, ¶ 307, p. SC 4.) The plaintiff, however, failed to fulfill this guarantee, as it did not finish the project until May 18, 2005, which, as the parties have stipulated, was a total of 114 calendar days after the contract's substantial completion date. Thus, the court finds that the defendant was entitled to recover the contractually provided liquidated damages of $500 a day for each of the 114 days that the plaintiff was late, for a total of $57,000.

C DEWATERING CLAIM

As to its revised dewatering claim, the plaintiff alleges that it is entitled to $329,892.34 from the defendant as remuneration for the dewatering issues that the plaintiff encountered at the Barnes site. The plaintiff's dewatering claim is set forth in paragraphs 9 through 14 of its complaint and is expressly predicated upon the alleged discovery of existing subsurface conditions "that differed materially from the conditions represented in the contract documents."²⁷ It is undisputed that, since the first progress meeting, the plaintiff had requested permission to utilize the site dewatering method at both sites. In response, the defendant maintained that any implementation of the site dewatering method would be a deviation from the contract's specifications and, accordingly, it refused to grant a change order permitting the use of this method. The plaintiff claims that the defendant breached the contract by refusing to authorize the use of a dewatering process different than the process specified in the contract (and to which the plaintiff agreed to abide) when the plaintiff allegedly encountered materially different subsurface conditions. The plaintiff argues that it would not have encountered these dewatering issues and costs had the defendant not wrongfully refused to recognize the changed conditions.

27 Within its complaint, the plaintiff alleges:
¶ 10. In October 2003, upon discovery of existing subsurface conditions that differed materially from the conditions represented in the contract documents, plaintiff requested that it be permitted to dewater the Barnes and Quinnipiac sites outside the excavation areas and that the City issue a change order approving this change in the contract requirements. The City wrongfully refused to recognize the changed conditions and rejected the plaintiff's request, essentially taking the position that any dewatering outside of the excavation would be conducted "at plaintiff's risk."

The court finds, however, that the plaintiff failed to provide any proof that the defendant wrongfully refused to issue a change order. Instead, the evidence shows that the defendant simply followed the substantive and procedural terms of the contract and, furthermore, it directed the plaintiff to do the same if it wanted to deviate from the contract's original requirements. The plaintiff failed to meet its obligation to establish that it had encountered "materially different subsurface conditions" and to provide timely notice thereof to the defendant. While the plaintiff continuously contested the defendant's refusal to grant a change order, the court finds that the plaintiff did not properly provide the defendant with notice to preserve its claim to any additional dewatering costs until July 22, 2004.

As was discussed in the redesign claim section, supra, the contract documents in this case clearly provide that a contractor will not be entitled to compensation for any change in the work or a claim for extra costs unless certain requirements are met. Paragraph 139 of the General Conditions section of the contract is entitled "Changes in the Work" and it states, in relevant part, that "[e]xcept for the purpose of affording protection against any emergency endangering life or property, the Contractor shall make no change in the materials used or in the specified manner to construct and/or install the improvements or supply additional labor, services or materials beyond that actually required for the execution of the Contract, unless pursuing a written Change Order from the City authorizing the Contractor to proceed with the change. No claim for adjustment of the Contract price will be valid unless undertaken as aforesaid." (Pl. Ex. 1A, ¶ 139, p. GC 15.) Furthermore, paragraph 140 of the General Conditions section provides, in part, that "[i]f the Contractor claims that any instruction . . . involve extra cost . . . it shall, within ten (10) days after the receipt of such instruction, and in any event before proceeding to execute the work submit its protest thereto in writing to the City . . ." (Emphasis added.) (Pl. Ex. 1A, ¶ 140, p. GC 17.) Lastly, paragraph 141 of the General Conditions section provides, in part, that "[a]ll disputes arising under this Contract . . . shall within ten (10) days of the commencement of the dispute be presented by the contractor to the City for decision . . . Any claim not presented within the time limit specified . . . shall be . . . waived." (Pl. Ex. 1A, ¶ 141, p. GC 17.)

Unlike the redesign claim, which was barred because it was not submitted pursuant to the contract's claims or disputes provisions, the plaintiff is not barred from bringing its claim for dewatering costs, as its claim was preserved through its July 22nd protest letter. See Pl. Ex. 1A. In this letter the plaintiff notified the defendant that it encountered subsurface conditions that made the completion of this project much more difficult. Nevertheless, the plaintiff stated that it would "continue to work at . . . [the Barnes site] . . . under protest [but] in accordance with the provisions of the Contract . . ." (Pl. Ex. 4G26.) After submitting this letter to the defendant, the plaintiff proceeded to work at the Barnes site from late July until November 2004.

However, on November 29, 2004 the plaintiff unilaterally decided to disregard the contract's specifications when it ordered a site dewatering system for the Barnes site. This system was installed on December 2, 2004, and used until May 18, 2005 when the construction of the Barnes site was substantially completed. By implementing the site dewatering system, the plaintiff clearly and knowingly breached the contract's explicit dewatering specifications. Therefore, while the plaintiff may have properly preserved its right to recover for the reasonable extra costs it incurred while it worked under protest, it will not be able to recover for any costs incurred after it breached the contract by implementing the site dewatering system on December 2, 2004. See Somers v. Busch, 283 Conn. 396, 409, 927 A.2d 832 (2007) ("[w]hen a contracting party has unjustifiably breached a contract, the breaching party cannot recover restitution damages unless . . . [the breaching party has made a claim for unjust enrichment]").

The plaintiff alleges that it had to install the site dewatering system because "proceeding with the work at Barnes without dewatering from outside the excavation was unsafe and commercially impracticable, if not impossible." However, the court finds that the plaintiff has not satisfied the several requirements of the impossibility doctrine. "A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes." Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989) citing Restatement (Second), Contracts § 261. The court first finds that the plaintiff has failed to prove any fact(s) that could be construed as a supervening event in this case. Instead, the plaintiff has, in effect, created its own impracticability by bidding the job on assumptions contrary to what the specifications required. Nothing in the bid documents permitted the plaintiff to assume that the defendant would simply agree to permit the plaintiff to dewater in any manner it chose. To the contrary, the contract documents made it patently clear to all bidders that the defendant expected the chosen contractor to complete the project in "strict accordance" with the contract documents. See Pl. Ex. 1G, Article 1.

Nonetheless, even if the plaintiff could satisfy all the foregoing elements of the impracticability doctrine, the increased costs the plaintiff is alleged to have incurred are not sufficient enough to warrant a finding of impracticability. The Supreme Court has recognized that "only in the most exceptional circumstances have [the] courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated." Id. In the present case, the plaintiff's dewatering claim is merely 11% of its original contract amount, which is found to be insufficient, especially when it is noted that most of the plaintiff's additional costs result from its having underbid the job. Thus, the court rejects the plaintiff's argument that its breaching the contract should be excused based on the doctrine of commercial impracticability.

The court does note that some of the items included within the dewatering claim are for dewatering costs that were incurred when the plaintiff was working at the Barnes site under protest. Nevertheless, the majority of the costs included in the dewatering claim had been incurred after the plaintiff breached the contract's specifications and, as such, they cannot be recovered. As a result, the court must examine each of the 21 items of the plaintiff's dewatering claim to parse out which costs were preserved by the plaintiff's protest letter, and which will be barred by the plaintiff's decision to go beyond the specifications contained within the contract. In addition, even if a claimed cost was incurred prior to the plaintiff having breached the contract's terms, the plaintiff still must provide sufficient evidence to establish that it is, in fact, entitled to the amounts being claimed.

The court finds that of the 21 items, the plaintiff should receive full remuneration for items numbered 2, 4 and 20, as these costs were incurred while the plaintiff was still attempting, under protest, to comply with the contract's specifications and before it had breached the contract on December 2, 2004, by installing the site dewatering system. These recoverable items include the costs for both the soldier pile system and the sump pumps that were used in an attempt to comply with the contract dewatering specifications, as well as for the consulting services that Clarence Welti had provided to the plaintiff. Furthermore, the plaintiff has provided sufficient evidence, in the form of billing invoices, to not only confirm the amounts being claimed, but to also clearly establish that these costs were incurred prior to when the contract was breached by the plaintiff. Therefore, the court finds that the plaintiff is entitled to recover $56,992.81, which was the actual cost being claimed for these three items.

The court finds, however, that the plaintiff can only recover a portion of the total amounts being sought in items numbered 3, 6, 8, 9, 10, 11, 12, 13, 18 and 19. This is because the total costs for each of these items includes some costs that were incurred before the contract was breached and some costs that were incurred after the site dewatering system was installed on December 2, 2004. Therefore, since the plaintiff can only recover the costs that were incurred prior to its breach of contract, the court must go through each item to determine which portions of the total amounts being claimed had been incurred before the plaintiff breached the terms of the contract.

At trial, the plaintiff provided copies of its monthly invoices to support the total costs being claimed for each item of its dewatering claim. From this the court was able to calculate the portion of the claimed costs that were incurred before December 2, 2004, which is when the plaintiff breached the contract by installing a site dewatering system. Any charge incurred after the date of breach cannot be recovered. If a charge was incurred during a billing cycle that began before the breach, but ended afterwards, the bill was prorated to determine which portion of the total charge had been incurred by, or before, December 1, 2004. After isolating the portion of each item's total cost that had been incurred before the plaintiff breached the contract, the court then added either 5 or 15% to the recoverable amounts, as allowed by the contract. Based on these calculations, the court finds that the plaintiff is entitled to recover a total of $71,321.74 on items numbered 3, 6, 8, 9, 10, 11, 12, 13, 18 and 19.

The court finds that the plaintiff is completely barred from recovering on items numbered 1, 5, and 21, as these items refer to costs that were created by the plaintiff, itself. It is undisputed that the plaintiff assumed that it would be allowed to implement a site dewatering system, which clearly was not permitted by the contract. In item number 1 the plaintiff seeks to be remunerated for the difference in price between the lighter sheeting that it included in its bid and the heavier gauge of sheeting that it had to buy because it was not allowed to dewater from outside the excavation site. The plaintiff created this cost by assuming, when it bid the job, that it could act in a way prohibited by the contract and, therefore, it cannot recover this price difference from the defendant. In item number 5, the plaintiff seeks to recover the rental and related costs for the site dewatering system. As these costs are a direct product of the plaintiff's breach of contract, and because the use of this system was clearly not permitted, the plaintiff cannot recover these costs. Lastly, item number 21 includes the cost for the washed sand that the plaintiff used in December 2004, after it had installed the site dewatering system. Because this cost resulted after the plaintiff decided to breach the contract, it is not recoverable.

The court finds that items numbered 7, 14, 15, 16, and 17 must also be denied because the plaintiff has provided insufficient evidence to prove the dollar amounts being claimed. With regard to item numbers 14-17, the plaintiff failed to attach any supporting documents to either its original or revised dewatering claim, which could establish that it had incurred the amounts being demanded and therefore failed to meet its burden with regard to these items. While the plaintiff did provide a one-page cost proposal to support the amount being claimed in item number 7, the court finds that this letter is too vague to establish whether these costs were incurred before or after the site dewatering system had been installed. Because no additional evidence was provided to clarify this ambiguity the plaintiff cannot recover the costs being claimed in item number 7.

Thus, after having reviewed all items, and based on the credible evidence that was submitted, the court finds that the plaintiff is entitled to recover $133,108.79 out of the $329,892.34 that it had demanded in its revised dewatering claim.

D DELAY RELATED COSTS

The plaintiff has also alleged that it is owed $7,697.99 for additional project expenses that were incurred "due to previously approved extensions of time to complete the Contract." (Pl. Ex. 5E.) Over the course of this project, the parties agreed upon various change orders, beginning with change order number one in April 8, 2004 and ending with change order number seven on August 3, 2005. The parties have stipulated that, by way of these change orders the contract's date of substantial completion was extended, a total of 176 days, to January 7, 2005. The plaintiff alleges, however, that although the defendant approved several change order requests to extend the contract's date of substantial completion, none of the change orders, nor any of the other contract documents considered the additional costs that the plaintiff would incur during this extended period. According to the plaintiff, these costs included the rental of two office trailers, temporary fencing, portable toilets, as well as telephone and water rental charges, which were all incurred over the five-month period that began in May 2004 and ended in October 2004.

Although seeking reimbursement for costs that were incurred during this five-month period, these incidental costs were never included in any of the change order requests that plaintiff submitted while working on the project. In fact, the plaintiff did not submit its claim for these additional costs to the defendant until December 23, 2005, approximately six months after the project had been substantially completed and a full year after the last additional cost was alleged to have been incurred. Based on this extreme delay in filing its claim, the court finds that the plaintiff has not complied with the notice requirement of paragraph 140 of the contract's General Conditions section. As has been mentioned previously, to preserve a claim for extra costs the claim must have been presented to the defendant within ten days of when the claim arose. Furthermore, even if the plaintiff were to argue that its costs for the period in question could not have been calculated and claimed until it had received invoices for the costs, the court finds that the plaintiff had received all invoices for these additional costs by November 2004. Thus, although the plaintiff knew of these extra costs in November 2004, it waited over a year to submit its claim to the defendant. In doing so, the plaintiff failed to comply with the contractually provided process for claiming extra costs and, as a result, they cannot be recovered.

The plaintiff's claim is also untimely under the paragraph 141 of the contract's General Conditions section, which requires that all disputes must be presented to the defendant within ten days from when the dispute commenced. Any dispute as to these additional costs arose when the last change order was issued. By that time, had the plaintiff been diligent it would have known that the change orders would not provide full compensation for all of its operating costs. The plaintiff's claim, however, was not filed within ten days from August 3, 2005, which is when the final change order of the project was approved. By August 3, 2005, the plaintiff should have known that a dispute existed, as the job was not only finished, but the plaintiff had already received all of the bills that made up its claim for additional costs. Despite its knowledge that certain costs had not been reimbursed, the plaintiff inexplicably waited until December 2005 to submit its claim for the disputed additional costs. Based on this failure to timely notify the defendant, the court finds that the plaintiff has waived its right to bring this dispute and, therefore the claim should not be considered. Although there might be other applicable provisions that would bar the plaintiff's claim for additional costs, ²⁸ the court finds that regardless of those provisions, because the claim was not submitted until over six months after the project was completed, the plaintiff failed to comply with paragraphs 140 and 141 of the contract's General Conditions section and is thus barred from recovery.

28 In response to the plaintiff's claim for additional costs, defendant argues that by agreeing to execute each change order the plaintiff agreed to be bound by specific language provided within the first paragraph of the memoranda that were attached to each change order, and, this language would bar the plaintiff's claim. The court, however, will not address this argument, as the plaintiff's claim for additional costs was found to be submitted in violation of both the claims and disputes provision of the contract's General Conditions section and, therefore, regardless of this change order language, it must be denied.

E UNPAID CONTRACT BALANCE

The plaintiff claims that it is owed $9,334.61 for the defendant's retention of the outstanding contract balance. The evidence provided by the plaintiff at trial establishes that this amount remains unpaid on the contract, over and above the liquidated damages that were offset against the contract balance. With regard to payment of this remaining balance, the General Conditions section of the contract documents contains paragraph 139, which is entitled "Payment to Contractor." This paragraph provides, in part, that: "After final inspection and acceptance by the City of all work under the Contract, the Contractor shall prepare a requisition for final payment . . . Final payment to the Contractor shall be made subject to the Contractor furnishing the City with [a] release in satisfactory form of all claims against the City arising under and by virtue of the contract, other then such claims, if any, as may be specifically accepted . . . under the section entitled DISPUTES under GENERAL CONDITIONS."

At trial, Wanda McGarry credibly testified that she never submitted a final requisition for this unpaid balance because when she presented M E with a pencil copy of the bill for final approval, she was told she could not submit a final requisition. Mr. Simard, on the other hand, recalled receiving such requisitions in the summer of 2005, but denied them because "at that point in time there [still] was a punch list" for the project. However, both Simard and McGarry acknowledged that the punch list for the project was completed by the plaintiff some time in the fall of 2005. In November 2005 McGarry wrote an e-mail to Simard at M E again asking if she could submit the plaintiff's final requisition. (Pl. Ex. 13.) The plaintiff received no response to this e-mail because by that time, Simard was no longer involved in the project.

The court finds that the plaintiff is entitled to recover this unpaid portion of the total contract amount from the defendant. While the plaintiff did not fully comply with the "Final Payment" procedure provided in the General Conditions section of the contract, it attempted, on several occasions, to submit a final requisition to the defendant. In its proposed finding of facts, the defendant acknowledges that, as to this issue "there was some miscommunication at the end of the job." The court finds that the failure to comply with the contract's provisions for final payment cannot be attributed to the plaintiff. The project was completed by the plaintiff and there remains an unpaid balance of $9,334.61, relative to this claim. Under the circumstances, the plaintiff should not be barred from recovering the retention amount held by the defendant.²⁹

29 The "Final Payment" portion of the contract also required the plaintiff to provide the defendant with a release prior its receiving final payment. However, the judgment entered in this matter makes any such release issues moot, as the practical purpose behind the contractually required release will be satisfied. Therefore, the court finds that the plaintiff is entitled to recover the unpaid balance that has been retained by the defendant.

F PREJUDGMENT INTEREST

CT Page 10945

PURSUANT TO GENERAL STATUTES § 37-3a

In its prayer for relief the plaintiff asks for interest on the damages being sought.³⁰ The plaintiff argues that the defendant wrongfully withheld the liquidated damages since May 11, 2005, and that all other damages were wrongfully withheld since January 1, 2006. As a result, the plaintiff claims that a total interest amount of $85,698.85 has accrued through January 1, 2008. Thereafter, the plaintiff argues that interest should accrue on the total damages sought at $3,412.45 per month until paid.

"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . . A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated. A plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful." (Citation omitted; internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).

In this instance, the court finds that the plaintiff has failed to establish that the defendant acted wrongfully. As already stated, the defendant followed the substance and procedural terms of the contract in both denying the plaintiff's various claims for additional money and, in retaining the $57,000 as liquidated damages. Because the court does not find any bad faith on the part of the defendant, payment of prejudgment interest to the plaintiff is not warranted.

III CONCLUSION

The court enters judgment in favor of the plaintiff in the amount of $133,108.79 relative to the claimed dewatering costs and $9,334.61 for the unpaid retention, for a total of $142,443.40 in damages. Because there is no evidence of a wrongful detention of funds, no prejudgment interest shall be awarded.

SO ORDERED.