T L James & Co Inc v. Traylor Bros Inc , 294 F.3d 743 ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-30773
___________________
T L JAMES & COMPANY, INC.,
Plaintiff,
versus
TRAYLOR BROS INC; ET AL.,
Defendants,
TRAYLOR BROTHERS, INC., Defendant- Third Party
Plaintiff-Appellant,
versus
BOARD OF COMMISSIONERS OF THE PORT OF
NEW ORLEANS,
Defendant- Third Party,
Defendant-Appellee.
___________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
__________________________________________
July 2, 2002
Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Plaintiff-Appellant, Traylor Brothers, Inc. (“Traylor”), appeals from the district court’s final
judgment and order denying Traylor additional compensation for alleged extra work performed
pursuant to a construction contract between Traylor and Defendant-Appellee, the Board of
Commissioners of the Port of New Orleans (“Port”). For the reasons stated herein, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On April 6, 1994, the Port announced the Nashville Avenue Terminal Complex Wharf and
Shed C project (“Project”) and solicited bids nationwide. The work involved (1) driving piles both
in the Mississippi River and on land, (2) laying a concrete deck on top of the piles, and (3) building
a large terminal shed on top of the deck with railroad tracks and a large truck loading area. Drainage
and ancillary services for plumbing, electricity, portable water, and fire protection were also required.
The Port provided a set of contract documents (“Bid Package”) for all perspective bidders, which
included the plans and specifications for the Project. The documents also advised the bidders that
there were “unknown infrastructures” at the site and that there were “numerous steel and timber piles
removed to the approximate existing mudline in the area of the required dredging.”1 The Port agreed
to compensate the contractor up to $100,000 for “removal, relocation, or for reconstruction of
[unknown] infrastructures encountered during the construction phase which were not indicated or
shown, or differs substantially from the contract document.” The Port defined “unknown
infrastructures” as “any man-made objects encountered during the required work excluding objects
and materials indicated on the Contract Drawings and/or reasonably known by the Contractor
through a pre-bid inspection of the site which conflict with new construction.” (emphasis added).
For a more detailed map of the area, the bidders were referred to the Port’s maps and archives room.
The documents also provided that any costs incurred due to cutting off piles were to be the
responsibility of the bidder. After visiting the construction site, Traylor submitted the lowest bid and
1
These obstructions were created by the demolition of a structure that was on the site prior
to the construction of the wharf.
2
was awarded the contract.2 Construction was to begin on July 11, 1994, and was to be completed
on January 31, 1996. If the Project was not completed timely, the contract provided for liquidated
damages in the amount of $2,000 for each day of delay.
Traylor subcontracted with T.L. James & Company (“TL”) to do the dredging work for the
Project. Shortly after construction commenced, Traylor began to encounter a significant amount of
obstructions which Traylor maintains were not evidenced in the plans and specifications for the job.
It contends that these obstructions discovered during the dredging work performed by TL, and during
Traylor’s pile driving work, caused a “ripple effect” and set off delays, which impacted the entire
Project. Traylor further alleges that prior to inviting bids, the Port had information regarding these
latent obstructions including blue prints, drawings, and overlays, which it failed to produce prior to
accepting Traylor’s bid. The largest problem encountered was the existence of a concrete slab in the
middle of the dredge site. The Port was informed of the slab on December 22, 1994 and on March
31, 1995, it was removed by an outside subcontractor. Because of the delay in removing the
obstruction, TL demobilized and left the site on March 14, 1995. However, TL later returned to the
site and completed the dredging on September 18, 1995. The Project was eventually finished in
March of 1997, over a year after the expected completion date.
TL brought suit against Traylor and its surety Aetna Casualty and Surety Company (“Aetna”),
Traylor’s insurer, in state court seeking additional costs incurred due to the delay in dredging. As
a result, Traylor and Aetna filed a third party demand against the Port for any amounts Traylor might
owe to TL and for additional compensation due Traylor for delay in construction. Traylor then
2
The Port’s estimate for the job was $30,000,000-35,000,000 and Traylor submitted a bid of
$ 25,424,440.
3
removed the case to federal court. Before trial, TL settled and dismissed its claim against all parties.
After TL filed its stipulation of dismissal, Aetna dismissed its third party demand against the Port and
the Port filed a counter-claim against Traylor for liquidated damages. The claims were heard by the
district court without a jury.
At trial, Traylor argued that the Port knew that there were significant obstructions in the site
area, but failed to advise Traylor of the obstructions in its plans and specifications. Traylor contended
that it had no obligation to investigate or otherwise rely on information not set out in the plans and
specifications provided by the Port concerning possible obstructions. Representatives of the Port
testified that if any obstructions are shown in the plans, or otherwise identified in the contract, the
obstructions cannot be considered “unknown infrastructures”, thus, the cost for removal and disposal
would not be borne by the Port. They further interpreted the contract to mean that even if an
obstruction is not evidenced in the Bid Package, the obstruction is still not an “unknown
infrastructure” if it could have reasonably been discovered by searching the Port’s maps and achives
room.
The district court awarded Traylor $287,032.50 plus interest and costs, finding that the Port
wrongfully assessed Traylor with barge demurrage charges. However, the district court dismissed
Traylor’s claim for additional compensation and the Port’s claim for liquidated damages. Thereafter,
Traylor filed a motion for new trial, which was denied. However, the district court am ended
Traylor’s award to include pre-judgment interest under Louisiana law. Traylor now appeals.3
STANDARD OF REVIEW
3
The Port does not appeal the award of barge demurrage charges to Traylor or the district
court’s denial of its liquidated damages claim.
4
A district court's interpretation of a contract is reviewed de novo. Musser Davis Land Co.
v. Union Pacific Resources, 201 F.3d 561, 563 (5th Cir. 2000). Thus, this court must “review the
record independently and under the same standard that guided the district court.” Am. Totalisator
Co., Inc. v. Fair Grounds Corp., 3 F.3d 810, 813 (5th Cir. 1993) (citing Walker v. Sears, Roebuck
& Co., 853 F.2d 355, 358 (5th Cir. 1988)). A de novo standard of review is also applied to a court’s
conclusions of law. Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir. 1995). We will not set aside
a district court’s factual findings, unless they are clearly erroneous. United States v. Hill, 258 F.3d
355, 357 (5th Cir. 2001).
DISCUSSION
I. Unjust Enrichment
Under an unjust enrichment theory, Traylor argues that it is entitled to compensation for extra
work performed, which was necessary for the completion of the Project. The contract defines “extra
work” as work neither shown on the drawings nor reasonably implied elsewhere in the contract and
for which no price had been named in the agreement. To establish a claim for unjust enrichment, the
plaintiff must prove: (1) the defendant was enriched, (2) the plaintiff was impoverished, (3) a
connection between the enrichment and resulting impoverishment, (4) no justification exists for the
enrichment and the impoverishment, and (5) there is no other remedy at law. Schiro-Del Bianco
Enter., Inc. v. NSL, Inc., 765 So. 2d 1087, 1092 n.3 (La. Ct. App. 2000) (citing Minyard v. Curtis
Products, Inc., 205 So. 2d 422 (La. 1967)).
Traylor asserts that (1) the Port was unjustly enriched because it received a completed wharf
structure; (2) Traylor was impoverished because the Port refused to compensate it for additional costs
incurred due to cutting of concrete piles; and (3) there was no justification for the enrichment because
5
the Port had knowledge of certain obstructions, the Port selected the piles and the length, and the
Port set the pile driving criteria.
The Port maintains that Traylor has not met its burden under this theory for several reasons.
First, it argues that it has not been “enriched,” as it only received what it paid for under the contract:
a completed wharf structure. In addition, the Port contends that even assuming arguendo that there
was an “enrichment,” a claim for unjust enrichment was nullified by the contract. We agree. Traylor
has not met the first and second elements of an unjust enrichment claim. The Port was not enriched -
it received what it bargained for under the contract, a wharf structure, and nothing more. In addition,
since the contract provided a remedy for any additional costs incurred by Traylor, it has failed to meet
the fifth element, i.e., no remedy at law. Morphy, Makofsky & Masson, Inc. v. Canal Place 2000,
538 So. 2d 569, 575 (La. 1989) (action de in rem verso, a counterpart to unjust enrichment, is not
available where there is an independent remedy at law, i.e, a contract exists). Accordingly, we find
that Traylor is not entitled to additional compensation under this theory.
II. Adequate plans and specifications
Next, Traylor argues that the plans and specifications provided by the Port, prior to the
submission of its bid, were insufficient in that they failed to give an accurate account of the conditions
of the Project site. Because of the alleged inadequate contract documents, Traylor asserts that it
suffered substantial unforseen costs, which should be borne by the Port. The district court treated
Traylor’s claim as one for equitable adjustment due to changed conditions and delays. Louisiana law
has not yet established the elements necessary for the above cause of action. However, in analyzing
the claim, the district court adopted the elements set out by the Federal Circuit Court in Stuyvesant
Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987). Under Stuyvesant Dredging
6
Co., in order to recover for equitable adjustment, the “conditions actually encountered in the field
must have been reasonably unforeseeable based on all of the information available at the time of the
bid.” Id. (emphasis added). In addition, the contractor has to establish that “it reasonably relied on
the contract and related materials and that it suffered damages as the result of the material difference
between the expected and encountered conditions.” Id.
A. Duty to Investigate
The district court determined that the contract adequately advised Traylor of possible
“unknown infrastructures” on the site and referred Traylor to the maps and archives room for detailed
maps of the area. It also found that Traylor had a duty to investigate the site and to review
information concerning a prior structure on the Project site, which was available at the Port’s office,
to ensure that the site conditions stated in the plans and specifications were accurate. Finding that
Traylor failed to conduct an adequate investigation, the district court concluded that it was not
entitled to damages.
The relevant provision contained in the Bid Package provides as follows:
The Contractor is obligated to visit the site and study existing conditions. The Board
assumes no responsibility for the discrepancies or differences between existing
conditions and conditions indicated on drawings or combination of original
construction plans (available for review at the Board’s office) and recent surveys
conducted by the Board. Every reasonable effort has been made by the Board to
indicate and describe existing conditions at the project site with an acceptable degree
of accuracy, but the Contractor is held responsible for performing his work under
existing conditions as he finds them at the time of performing work, and payment of
extra work will not be allowed because of reasonable discrepancies or differences,
which are encountered at the time work is performed. (emphasis added).
The contract also advised that there were “numerous steel and timber piles removed to the
approximate existing mud line in the area of the required dredging” and that the demolition of an
existing structure on the Project site would be accomplished prior to the expected commence date
7
of the Project.
Traylor argues that the Bid Package itself did not sufficiently notify Traylor of the kind,
number, and size of the obstructions that it may encounter. It asserts that everything necessary for
a bid must be provided in the Bid Package and that it had every right to expect that the site would
be free from obstructions other than those evidenced in the plans and specifications distributed by the
Port. If the plans and specifications fail to completely and accurately present the scope of the Project
and the problems that may be encountered, Traylor claims that any additional costs incurred must be
borne by the Port. Traylor challenges the district court’s consideration of any knowledge that Traylor
may have obtained regarding the obstructions had it conducted a thorough investigation of the Project
site as a basis for denying it additional compensation. Traylor maintains that its right to recover
additional compensation does not depend on what it knew or should have known about the Project
site before submitting their bids. It explains that the contract is governed by industry practices and
public law, which provide that the risk of differing site conditions are placed on the owner for
circumstances beyond the contractor’s control. Thus, Traylor concludes that its knowledge at the
time of bidding is irrelevant.
In support of its position, Traylor relies on Con-Plex, Division of U.S. Industries., Inc. v.
Louisiana. Department. of Transportation & Development, 439 So. 2d 567 (La. Ct. App. 1983). In
Con-Plex, the Department of Transportation (“DOT”) advertised for bids to construct a bridge and
to remove an existing pontoon bridge. Con-Plex obtained a set of plans and specifications and
conducted a contractually required on-site inspection. Relying upon the aforementioned plans and
specifications and a site inspection, Con-Plex submitted a bid and was awarded the job. Upon
commencing removal of an existing bridge on the site, it became apparent that the plans and
8
specifications relating to the Project did not accurately reflect the number or size of pilings to be
removed. The court held that the DOT failed to provide adequate plans and specifications and to
warn prospective bidders of the true number and location of pilings to be removed. Accordingly, the
court held that Con-Plex was entitled to additional compensation. Traylor avers that since there is
no meaningful distinction between Con-Plex and the present case, it is entitled to an award of
damages.
Traylor’s reliance on Con-Plex is misplaced. In Con-Plex, the DOT did not allege that Con-
Plex failed to adequately investigate the site prior to submitting its bid. Instead, it contended that the
language of the contract entered into by the two parties put Con-Plex on notice that the plans and
specifications did not indicate all the piles then in existence, and that the site inspection required by
the contract cured any failure or deficiency in the plans and specifications. The trial court determined
that DOT violated the public bid law when it prepared a contract which “passed on” or imposed a
duty to inquire upon the bidders. Expressly rejecting this theory, the state appellate court affirmed
the trial court’s judgment, but only on contractual grounds. Specifically, the court determined that
the terms of the contract did not adequately warn Con-Plex of the site conditions, and that the
language of the contract was ambiguous. Here, as in Con-Plex, Traylor had a contractual duty, prior
to submitting its bid, to adequately examine the site to determine whether it was possible to perform
the job. One notable difference between Con-Plex and the present case is that Con-Plex was hired
to both remove an existing structure and to build a structure at the same location, a bridge, whereas
here, Traylor was only hired to build a structure, the wharf. The divergence that is fatal to Traylor’s
claim, however, is that the contract in this case, unlike in Con-Plex, sufficiently warned Traylor of
the obstructions that may be encountered. Specifically, the contract advised that there were
9
“numerous steel and timber piles removed to the approximate existing mudline in the area of the
required dredging” and that there were unknown infrastructures for which the contractor would be
compensated up to $100,000 for the “removal, relocation, or for reconstruction of [unknown]
infrastructures encountered during the construction phase.” The only obstruction that Traylor could
logically argue constituted an unknown infrastructure was the concrete slab in the dredging area.
This obstruction, however, was removed at the Port’s expense.4 Traylor does not dispute that it was
advised of the obstructions for which it now complains. Instead, it maintains that the number of the
obstructions encountered were far greater than anticipated. During trial, Michael Traylor
(“Michael”), a civil engineer, who was the lead estimator of the Project bid team for Traylor, testified
as follows:
COURT: When the Port tells a prospective bidder . . . contractors shall be
advised that there are numerous steel and timber piles removed to the
appro ximate existing mudline in the area of the required dredging,
what does that mean to you?
MICHAEL: It means that there are some old piling out there. Numerous is a very
questionable number. I would have guessed about fifteen, twenty
wood piles that were removed for some reason, to the mudline.
COURT: What do you base that guess on?
MICHAEL: There is no way to guess, really, I would just assume that, you know,
to be competitive in bidding a job. I looked at it and I said to my self,
these piles, you don’t know exactly how many there are. But I talked
to [TL] and they said that they have done lots of bridge dredging and
they would give us a competitive price. And they were fine with this
specifications and it was a riverside excavation specification.
COURT: And if your guess is wrong, as it was here, who do you think is
4
The district court found that at the time the concrete slab was removed, Traylor was driving
piles approximately 350 feet away from where the slab was located. Thus, it determined that the slab
was removed long before it could have caused any delay or disruption in Traylor’s work.
10
responsible for the error?
MICHAEL: My guess, I’m saying what my guess is, at this point of time, of
twenty, I personally believe that if they put a very vague thing like
numerous in here, especially since it is in the river excavation, the
things are going to be removed. . . .
COURT: You didn’t see any need or any of your engineers or even [TL] saw no
need to find out more information about how many or to what extent
that phrase meant, numerous steel and timber piles?
MICHAEL: We did not.
If the district court finds that the contract is clear and unambiguous, the specific provisions
within the contract "should not be disregarded under pretext of pursuing its spirit.” Cashio v.
Shoriak, 481 So. 2d 1013, 1015 (La. 1986). Rather, once the court concludes that the contract is
unambiguous, the terms of the contract must be enforced as written. Louisiana Ins. Guar. Ass'n v.
Interstate Fire & Cas. Co., 630 So. 2d 759, 764 (La. 1994).
In the present case, the district court never made an expressed determination of whether the
term “numerous” as used in the bidding package is vague or ambiguous. Although the court did not
explicitly so hold, it is reasonable to conclude that the court found that the term was neither vague
nor ambiguous since it concluded that the contract sufficiently put Traylor on notice of the
obstructions. While Michael testified that the term “numerous” within the meaning of the contract
is vague, Traylor has neither briefed nor argued this issue on appeal. It is well-settled that when a
party fails to brief an issue, it cannot be considered on appeal. Matter of Tex. Mortgage. Services
Corporation, 761 F.2d 1068, 1074 (5th Cir. 1985) (“[I]ssues not raised or argued in the brief of the
appellant may be considered waived and thus will not be noticed or entertained by the court of
appeals."). Because Traylor is precluded from asserting that the terms of the contract were vague
and ambiguous, it has no basis for arguing that the Bid Package failed to provide sufficient notice of
11
the obstructions.
We further reject Traylor’s contention that it had no duty to investigate the Project site. The
Bid Package specifically provided that
It is understood that Contractor has, prior to submission of bid, satisfied himself as
to the . . . character, quantity, and quality of the materials to be encountered. . . Prior
to submitting a proposal, bidders are expected to examine these contract documents
in their entirety and to visit the site of the work, and to investigate operations of the
Board and others at the site. (emphasis added).
Michael Landrieu Mayeux, a civil engineer for TL, testified that his investigation of the
Project site consisted of “basically just [standing] on the river bank and look[ing] at the water go by.”
Further, Michael and Tom Peterman, Traylor’s manager of the Project, who was also a member of
the bid team, both testified that while observing the Project site, prior to submitting Traylor’s bid,
they did not examine the maps in the Port’s maps and archives room, as suggested by the Bid
Package. They simply looked to see if there were any other activities on the sight and whether the
water was rising. Michael also admitted that he was aware that demolition work on the site would
take place before the Project’s commencement date, however, he did not inquire as to how much
debris, if any, would be left on the site once the structure was removed.5
5
During Michael’s testimony the following exchange between Michael and the district court
judge took place:
COURT: [Did] you know at the time you made this pre-award visit that there
was a prior demolition and a prior structure?
WITNESS: I knew that there was an existing structure just by the plans, but there
was a demolition contract and I guess I believed that the total
structure was removed. When I visited the site, you could not see any
thing at all.
COURT: You know who was awarded the demolition contract?
12
All of the evidence stated above weighs strongly against an award of damages in favor of
Traylor. The contract informed Traylor of both known and unknown obstructions on the site and
referred Traylor to the Port’s maps and archives room to receive a more detailed map of the premise,
which Traylor failed to do. Apparently conceding notice of the obstructions, Traylor attempts to
argue that its knowledge of the obstructions prior to bidding is irrelevant because the contract is
governed by industry practices and public law, which shifts the risk of differing site conditions to the
owner for circumstances beyond the contractor’s control.
In support of this proposition, Traylor again points to Con-Plex. Its reliance on Con-Plex is
erroneous because the Con-Plex court specifically refused to rule that an owner violates public law
when it drafts a contract that passes on, or imposes a duty to inquire upon the bidders. The court
only found in favor of Con-Plex because it determined that the terms of the contract did not
adequately warn Con-Plex of the site conditions and that the language of the contract was ambiguous.
Here, the Bid Package gave Traylor sufficient notice of the obstructions it may encounter and referred
Traylor to the Port’s maps and archives room for more detailed information. In addition, the Bid
Package informed Traylor of the demolition contract. Nevertheless, Traylor did not investigate the
“operations of others at the site,” as advised by the contract. Lastly, the district court did not rule that
the terms of the contract were ambiguous and Traylor does not assert this argument on appeal. Thus,
Con-Plex does not support Traylor’s contention.
Because Traylor failed to conduct an adequate investigation of the site, it cannot now
WITNESS: No, I didn’t.
COURT: Did you make an effort to find out?
WITNESS: No.
13
complain of the character and amount of work it had to perform under the contract. See O'Leary
v. Bd. of Port Com'rs for Port of New Orleans, 91 So. 139 (La. 1922) (“Where in an offer for bidders
to a contract . . . the bidders were warned to examine the location of the proposed work and acquaint
themselves with existing conditions, plaintiff, having accepted, cannot complain of the character and
amount of work to be performed under the contract.”). Because the obstructions actually
encountered by Traylor were reasonably foreseeable “based on all of the information available at the
time of the bid,” it has failed t o meet the first element required to sustain an equitable adjustment
cause of action. As the district court correctly stated, the evidence clearly reveals that Traylor
suffered from deliberate ignorance, and therefore, is not entitled to additional compensation.
B. Improper Sequence
The district court also determined that Traylor failed to follow the design sequence as set
forth in the Bid Package. The sequence required that the wharf be constructed in the following order:
(1) dredging, (2) pile driving, and (3) rip-rap. However, after dredging, Traylor placed the rip-rap,
rather than driving the piles. The district court concluded that had Traylor followed the
specifications, there would have been no problems with the dredging and the design grade would have
been maintained. Accordingly, the district court held that this was another basis for denying Traylor
additional compensation.
Traylor concedes that it did not perform the work in the sequence set out by the contract;
however, it asserts that the obstructions disrupted the orderly sequence of the Project to such an
extent that the proper sequence could not be followed. Traylor reasons that because the job could
not have been accomplished except at a greater expense to Traylor, the plans were defective. The law
is clear t hat, as a general rule, “[w]here one agrees to do, for a fixed sum, a thing possible to be
14
performed, he will not be excused or become entitled to additional compensation because unforeseen
difficulties are encountered.” La. Shipbuilding Co. v. Bing Dampskibsaktieselskab, 104 So. 364, 365-
66 (La. 1925); See Day v. United States, 245 U.S. 159, 161 (1917). However, when the contractor
is required to build according to set plans and specifications prepared by the owner, the “contractor
will not be responsible for the consequences of defects in the plans and specifications.” Id. (citation
omitted). An owner cannot shift this respo nsibility to the contractor by simply placing the “usual
clauses requiring builders to visit the site, to check the plans, and to inform themselves of the
requirements of the work.” La. Shipbuilding Co., 104 So. at 365-66 (citing Christie v. United States,
237 U.S. 234, 239-42 (1915)).
In the instant case, Traylor does not allege that the wharf design itself was defective, rather
it contends that the number and magnitude of the obstructions encountered caused greater difficulty
then Traylor originally anticipated.6 Having already concluded that the contract documents provided
Traylor with sufficient notice of the obstructions, we reject this argument. Because Traylor agreed
to perform a task that was possible to complete, it is not entitled to additional compensation simply
because it failed to anticipate additional costs when submitting its bid.
6
Traylor does, however, allege that the pile cap design was defective. After all the piles are
driven in columns extending out from the sheet pile wall into the river, they must be connected
together and tied into the sheet pile wall. This connecting and tying-in is done with a concrete pile
cap. The pile caps were designed to be poured-in-place concrete caps. After all the piles were driven
and brought into tolerance, a framework or cage of steel reinforcing bars approximately 4-1/2 feet
high and 3 feet wide was fitted and arranged over the tops of the piles. Concrete was then poured
inside the steel forms over the framework, and the concrete pile caps were constructed.
Traylor asserts that the mis-match of the design requirements for the piling and the caps
resulted in the need to rearrange the reinforcing bars resulting in delay and considerable additional
work. Because Traylor has failed to establish that the delay was unreasonable, and it has not
identified any specific additional costs incurred as a result of retying the reinforcing bars, the district
court properly denied additional compensation.
15
Traylor also points out that the contract provided that “if construction is in accordance with
the plans and specifications, the Project can be successfully completed as bid.” It claims that this
language created a warrant y that the plans and specifications were workable, and that the Port
breached this warranty by failing to reveal the obstructions for which it had knowledge, resulting in
greater expense then could have been anticipated by Traylor. The Supreme Court has determined
that plans and specifications within a contract impose an implied warranty that if they are adhered to,
an acceptable product will result. See United States v. Spearin, 248 U.S. 132, 137 (1918). Because
Traylor admitted that it did not follow the sequence for constructing the wharf as set out in the Bid
Package, the implied warranty of adequate plans and specifications is inapplicable.
C. Changed Conditions
1. Soil Conditions
At trial, Traylor argued that the conditions of the soil represented i n the plans and
specifications were materially different from that encountered during construction, 7 and, as a result,
the Port was required to change the pile driving criteria, which caused substantial delay for which
Traylor should be compensated.
The district court determined that it was reasonably foreseeable that Traylor would encounter
varying river currents and accompanying changes in the condition of the soil. Thus, the court
concluded that Traylor could not be compensated for changes in the soil for which it should have
anticipated and made an allowance for when submitting its bid. Further, the court noted that even
if the change in the soil was not foreseeable, Traylor failed t o show that the soil conditions
represented in the Bid Package were materially different from those encountered in the field and that
7
The variations in the soil condition were due to the rising of the Mississippi River.
16
the pile driving criteria changes were a substantial deviation from that stated in the Bid Package.
Traylor alleges that under the contract, the Port assumed responsibility if Traylor could not
comply with the specifications for reasons beyond its control. Traylor states that the required driving
criteria was set out in the Bid Package and its bid was submitted with those criteria in mind. It
contends that because of the significantly different soil conditions, the driving pile criteria contained
in the Bid Package was unworkable. As a result, Traylor claims that the actual number of blows
required to drive the piles was thirty percent higher than that represented in the contract information.
It argues that not only did the change in the pile driving criteria cause delay, but the need for more
hammer blows significantly impacted the equipment and the equipment’s maintenance.
We agree with the district court that it was reasonablely foreseeable for a prudent bidder to
anticipate encountering varying river currents and accompanying siltation problems in wharf/bridge
work on the lower Mississippi river. In fact, this risk was expressly shifted to the contractor under
the contract. We also find that, in any event, the conditions of the soil and the change in pile driving
criteria were not substantial deviations from that described in the Bid Package. Traylor’s own expert,
David Huval, testified that the soil data provided in the Bid Package showed dense soil and that
ninety-nine percent of the extra pile driving effort expanded on the job was due to dense soil. In
addition, a representative of Lloyd Held of Eustis Engineering, the company that performed the test
pile and soil programs for the Port, testified that it would not be reasonable for a contractor to
assume all piles would drive exactly like the test piles. He stated that given the varying soils
evidenced in the plans, it would be very difficult to drive the piles to the right tip elevation with the
blow count criteria set forth in the specifications without having some modifications to the pile
driving criteria. We conclude that Traylor is not entitled to compensation for de minimus changes
17
in the soil for which Traylor should have anticipated and made an allowance for when submitting its
bid.
2. Pile Cut-offs
Traylor argued in the court below that it should be compensated for excessive pile cut-offs.
The district court refused to grant Traylor additional compensation, finding that under the contract
Traylor was responsible for the cut-offs and that its failure to allow for such cut-offs in its bid as a
margin of error does not relieve it of its contractual obligation.
Contrary to the district court’s determination, Traylor contends that the evidence presented
at trial demonstrated that it did provide an allowance for reasonable cut-offs when submitting its bid.
However, it maintains that the cut-offs were excessive due to the breach of warranty of plans and
specifications and the changed conditions in the soil. This argument must fail for two reasons. First,
these alleged excessive cut-offs were occasioned by the change in soil conditions. We have already
determined that the soil conditions were sufficiently described in the Bid Package, and therefore, the
implied warranty of adequate specifications was not breached. Furthermore, even assuming that the
Port should be held liable for the alleged excessive cut-offs, Traylor has not specified how many of the
piles it had to cut-off and has not produced any evidence concerning the cost of cutting an individual
pile. The contract contained a provision allowing Traylor to make a written claim to the Port engineer
for any additional costs it believed it incurred wit hin thirty days after sustaining the damages or
additional costs. Traylor’s claim was not submitted to the Port until December 12, 1996, over two
years after the Project had commenced. By the time the Port received notice, it had lost its
opportunity to contemporaneously track the costs and delays that Traylor alleged. See Nat Harrison
Assoc., Inc., v. Gulf States Utils. Co., 491 F.2d 578, 582-83 (5th Cir. 1974) (“[T]he obvious purpose
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of notice provisions . . . [are] to protect the owner against mistaken or fraudulent charges in the work
under the contract.”). Thus, we conclude that by failing to give proper notice, Traylor has forfeited
its right to seek additional compensation. See Meaux v. S. Const. Corp. 159 So. 2d 156, 161 (La.
Ct. App. 1964) (“The general rule in Louisiana is that a provision in a written construction contract
that no claims for extra work or materials shall be allowed unless made in writing is valid and binding
upon the parties, and that when the contract so provides, and there is no written order for such extras,
no recovery can be had for them.”).
II. Damages
Traylor next argues that the district court erred in ruling that “even if damages were due,
[Traylor’s] use of the [total] cost method has not met the legal requirement for justifying the use of
that method.” Because we find that Traylor is not entitled to any damages, we do not reach this issue.
III. Additional Compensation for Subcontractors
In refusing to award Traylor additional compensation, the district court also denied damages
asserted by Traylor’s subcontractors, which were encompassed in Traylor’s request for additional
compensation. The arguments raised on behalf of the subcontractor were essentially the same claims
asserted by Traylor for additional costs due to extra work and delay. For the same reasons that
Traylor cannot make out an equitable adjustment claim, their arguments fail as well.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s ruling denying Traylor additional
compensation.
AFFIRM.
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