2 construction companies lose fight for $713K in extra costs

New Brunswick's top court has ruled the province doesn't have to pay an extra $713,808 to two construction companies contracted to build the foundation for the provincial court in Saint John.

Brad Gould Trucking and Excavating Ltd. and Bird Construction Company expected to remove the majority of the soil using excavators, the least expensive means of excavation. 

However, they encountered "stronger" bedrock than expected and broke it down using hydraulic rock breakers, which is a more expensive excavation method, according to court documents.

That decision caused a significant increase in the companies' costs, which the provincial government ended up refusing to pay the extra costs. 

With both sides dug in, the fight over extra costs to build the law courts building in Saint John ended up in front of the Court of Appeal.

Justice Richard Bell rejected the companies' claim for compensation on Thursday, ruling that the province's geological Conquest Report provided enough information about soil conditions and described exactly what was encountered during the excavation.

"Through minimal enquiry, Bird [Construction Company] could have avoided its own error regarding the 'diggability' of the bedrock," the court documents said.

Mark McGraw, Bird's estimator, admitted during the trial to not having a full understanding of soil and bedrock classifications by the standards outlined in the report.

The judge ruled reasonable assumptions about the soil conditions could not have been made by the company without this knowledge. 

Instead, McGraw based his analysis on measurements of Rock Quality Designation (RQD).

'There are a lot of other factors'

Gordon Mouland, the president of Fundy Engineering and Consulting, said RDQ measures the amount of fracture in the rock.

"It's [RDQ is] just one part of a description of bedrock," said Mouland. 

"There are a lot of other factors ... that would factor into how diggable or how much effort it would take to excavate bedrock."

Hydraulic breakers are probably required in most cases.- Gordon Mouland, president of Fundy Engineering & Consulting

The Uptown Saint John area is built mostly on rock. 

While the surface may be relatively diggable, it doesn't get any easier the farther down that workers dig, said Mouland.

"Hydraulic breakers are probably required in most cases," Mouland said.

Bird was on a fixed-sum contract with the provincial government when it enlisted Gould for the excavation. The two agreed on a fixed-sum contract of $1.25 million. 

Gould began working on the site in March 2010, and a month later, workers realized they would need to employ rock-breakers to break down the bedrock. 

Gould threatened to remove the company's equipment from the site if it didn't receive compensation for the extra work, but continued after Bird agreed to assist in presenting its claim to the provincial government. 

In the end, the provincial government rejected the claim.