Helpful Advice for Smoother Roads Projects
On New Jersey DOT projects, road contractors are encouraged to construct as smooth a road surface as possible or face monetary penalties. The surface of a road is gauged by the International Roughness Index (IRI), which measures the roughness of all types of roads in countries around the world. According to the NJDOT’s Standard Specifications, the IRI is applicable to all paving in excess of one mile in length. The NJDOT’s specifications allow for positive pay adjustments for superior quality paving and negative pay adjustments, also known as penalties, for inferior quality paving. The dollar amount of the pay adjustments by roughness value are included in an NJDOT project’s specifications.
The Tilcon Case
In Tilcon New York, Inc. v. New Jersey Department of Transportation, the NJDOT imposed $419,125 in penalties due to a contractor’s failure to achieve the desired IRI values required by the Project’s specifications. Tilcon, a road contractor, sued the NJDOT, arguing that the NJDOT applied the IRI specification in an unreasonable and unfair manner. Specifically, Tilcon argued that impediments such as manholes, water valves, catch basins, and intersections skewed the averages of readings taken in the tested segments. Further, Tilcon argued that on an earlier pilot project, the NJDOT omitted such areas from the IRI testing, but failed to omit them on the project at issue. The court noted that the specifications did not state that such areas would be omitted and required bidders on the project to carefully examine the project areas and alert the NJDOT of any problematic circumstances prior to bidding. Thus, the court held that Tilcon was not justified in arguing that certain areas should be omitted from testing since Tilcon did not raise its concerns about such areas prior to bidding. Therefore, the trial court entered judgment in the NJDOT’s favor and upheld the penalties.
Recently, the NJ Appellate Division upheld the trial court’s decision, noting that the NJDOT’s specifications did not discuss the waiver of any areas from roughness testing. Further, the Appellate Division held that the specifications required the contractor to inform the NJDOT pre-bid that it would be difficult or impossible to achieve the desired IRI on particular areas of the roadway due to the existence of manholes or water inlets. Moreover, the fact that the NJDOT waived testing in certain areas on another project was not controlling on Tilcon’s project, since the IRI specification did not mention waivers. Hence, the NJDOT was not required to issue Tilcon any waivers on the project at issue.
Impact of the Decision
Since this decision is the only appellate level case interpreting the IRI specification, courts across New Jersey will likely look to it for guidance. It is imperative that contractors thoroughly review the project area and alert the NJDOT of any impediments that could make it difficult to achieve the desired IRI roughness goal prior to bidding a project. The NJDOT has eased roughness requirements in the past when notified of contractors’ concerns. However, if the NJDOT does not make such an adjustment and a contractor submits a bid, the contractor may be required to meet the specified IRI goals or face penalties.
On the other hand, it is not clear how the Courts will react to other IRI challenges. For example, if events occur during the course of a project that interferes with a contractor’s ability to achieve the desired roughness value, a court may not uphold the penalties. If this happens, it is critical that such events be documented and reported to the Resident Engineer. A court will be less likely to relieve the penalties if the NJDOT was not given an opportunity to fix whatever circumstances made it difficult for the contractor to achieve the desired roughness value.
Further, the NJDOT may use the Tilcon decision to justify a “bidder beware” approach to any existing site conditions, even if the condition is not as obvious as a manhole. It is imperative that contractors carefully review the specifications and the site, and alert the NJDOT, pre-bid, to any issues that may prevent conformity with the specifications.
