John D. Tonkovich & Sons, Inc. v. Department of Highways

14 Ct. Cl. 505

• Court: West Virginia Court of Claims
• Decided: June 30, 1983
• Docket: CC-81-140
• Status: Published

Opinion

RULEY, JUDGE:

The claimant was awarded a purchase order by the Purchasing Division of the Department of Finance and Administration in the fall of 1980 to supply 2,000 tons of winter grade asphalting mixture for use in respondent’s northern district. The claimant alleges that the respondent, through the Purchasing Division, wrongfully canceled this purchase order thereby causing claimant to sustain damages in the amount of $11,563.00.

Claimant’s bid for the winter grade asphalt mix was approved on November 21, 1980. Thereafter, in early December 1980, claimant produced approximately 1,100 tons of the winter grade asphalt mix. When this material was placed on the surface of the highway it failed to adhere. The claimant contends that the mix failed to adhere because the respondent did not allow the mix to remain stockpiled for a curing period of two weeks.

The parties determined that the mix might perform as specified if it were mixed with sand which would expedite the curing period. However, the mix, with and without the addition of sand, failed to conform to grading requirements when tested by the respondent. The purchase order was canceled on January 26, 1981.

The tests conducted by the respondent revealed that the material did not meet the specifications and was not fit for its intended use. Accordingly, the respondent was obligated to cancel the purchase order and the claim must be denied.

Claim disallowed.