
    
      Opinion issued June 16, 1976
    
    NATIONAL ENGINEERING & CONTRACTING CO. vs. DEPARTMENT OF HIGHWAYS
    (No. D-753a)
    
      Gordon T. Kinder, Attorney at Law, for the claimant.
    
      Dewey B. Jones, Attorney at Law, for the respondent.
   JONES, JUDGE:

The claimant, National Engineering & Contracting Co., filed this claim against the respondent, Department of Highways, seeking payment of the sum of $5,059.01 which was deducted from the final settlement under a paving contract in Ohio County upon a determination by the respondent that concrete poured by the claimant during the period August 19 to October 28, 1970, did not reach a maximum strength of 3,000 pounds per square inch as required by the contract.

Upon the hearing of this claim, counsel for the parties stipulated in writing the following:
“It is hereby stipulated by and between National Engineering & Contracting Co., claimant, and the Department of Highways and the State of West Virginia, respondents, that the preponderating evidence in this claim is that the samples of concrete taken from the concrete placed by the contractor between August 19,1970, and October 28,1970, for purposes of testing the strength of said concrete, wére not properly screened to remove a representative quantity of the larger particles from said samples of concrete, therefore, the testing results during the aforesaid referred to period of time by the West Virginia Department of Highways were not a true representation of the strength and value of the concrete that was placed during said period of time and this contention is further supported by the fact that the same kind of concrete made and mixed in accordance with the same specifications as the concrete referred to aforesaid and placed by the contractor, after the aforesaid concrete was placed, but sampled and tested under a method whereby the larger aggregate particles were screened off and these test results showed in every test but one that the concrete was of adequate strength and not defective.
Therefore, in view of said facts the preponderating evidence there should not have been a reduction in the value of the concrete described and referred to in this claim by the Department of Highways.”

The claim having been submitted upon tíre recótd, and the Court having considered the Notice of Claim, Answer, Stipulation and the recommendation of the respondent that the claim should be paid, the Court accepts and approves the Stipulation of the parties, and pursuant thereto hereby awards the sum of $5,059.01 to the claimant, National Engineering & Contracting Co. Concurrently with the submission of this case for the Court’s consideration, a companion claim, D-753b, in the amount of $5,508.56 was dismissed upon agreement of counsel.

Judge Garden did not participate in the hearing and decision of this claim by reason of a conflict of interest.

Award of $5,059.01.  