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WALDINGER v. ASHBROOK-SIMON-HARTLEY

February 9, 1983

THE WALDINGER CORPORATION, PLAINTIFF,
v.
ASHBROOK-SIMON-HARTLEY, INC., AND CRS GROUP ENGINEERS, INC., CLARK DIETZ DIVISION, DEFENDANTS. ASHBROOK-SIMON-HARTLEY, INC., THIRD-PARTY PLAINTIFF, V. CRS GROUP ENGINEERS, INC., CLARK DIETZ DIVISION, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Baker, District Judge.

  FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

The plaintiff, The Waldinger Corporation (Waldinger), a citizen of Iowa, complains that the defendant, Ashbrook-Simon-Hartley, Inc. (Ashbrook), a citizen of Texas, breached its contract to supply Waldinger with sludge dewatering machinery for use in the waste water treatment facilities being constructed by the Urbana and Champaign Sanitary District (Sanitary District), an Illinois municipal corporation, in Urbana and Champaign, Illinois. Waldinger also complains that the defendant, CRS Group Engineers, Inc., Clark Dietz Division (Dietz), sued originally as Clark Dietz & Associates, Inc., a citizen of Illinois, was negligent in failing to draft proper specifications for sludge dewatering equipment to be incorporated in the Sanitary District's treatment plants. Alternatively, Waldinger claims that Dietz intentionally interfered in Waldinger's contract with Ashbrook. Ashbrook, as a defense to Waldinger's claims, pleads impracticability of performance of its contract to supply sludge dewatering equipment because of Dietz' negligent or intentional drafting of improper specifications for the sludge dewatering equipment. In the alternative, Ashbrook claims that if it is liable to Waldinger then Dietz must indemnify Ashbrook for that liability. More than $10,000.00 exclusive of interest and costs is at issue. Jurisdiction is vested in the court under 28 U.S.C. § 1332 (1976).

FACTUAL FINDINGS

Summary History

In 1977 the Sanitary District was engaged in planning and designing two waste water treatment projects. The first project, identified as the Northeast Waste Water Treatment Facility, was located on East University Avenue in Urbana, Illinois. The second project entailed modifications and additions to the Southwest Waste Water Treatment Facility, which was located at Windsor and Rising Roads near Champaign, Illinois.

In July of 1977 both the United States and the Illinois Environmental Protection Agencies granted approval of the final construction drawings and specifications for the projects and approved the issuance of construction permits. Dietz, as engineer for the Sanitary District, was responsible for the preparation of the specifications for the waste water treatment facilities. The specifications prepared by Dietz are contained in Exhibits W-1 and W-2.

Among the equipment required for the waste water treatment projects were belt filter presses. Those presses are described in § 11140 et seq. of the specifications. The specifications detail two kinds of requirements for the belt presses — performance capabilities and mechanical components. The performance specifications describe the abilities a press must have in terms of production. The mechanical specifications define physical dimensions, construction materials, and details of the subsystems of the machine.

Waldinger, a mechanical contractor, in preparing to bid on the mechanical portions of the Sanitary District's projects, solicited prices on sludge dewatering machinery from belt press manufacturers. Waldinger received quotations for sludge dewatering equipment from Ashbrook, E.D.C. Corporation, The Ralph B. Carter Company (Carter) and Komline-Sanderson Company (Komline).

Bids for the projects were opened by the Sanitary District on March 30, 1978, and G.L. Tarlton Contracting Company (Tarlton) was the successful bidder as general contractor. Waldinger was the successful mechanical subcontractor, and Ashbrook was the successful supplier of sludge dewatering equipment.

On May 22, 1978, pursuant to quotes made to Waldinger in February, 1978, Ashbrook executed purchase orders prepared by Waldinger and agreed to furnish the sludge dewatering machinery for the Sanitary District Projects "in complete accordance with plans and specifications § 11141-sludge dewatering system including all applicable specification sections made reference to in that section." Ashbrook also agreed in its contract with Waldinger to furnish all required submittal data for approval by the owner's engineer in such a manner as to meet the requirements of the plans and specifications.

On April 5, 1978, after the bids had been opened and Tarlton, Waldinger, and Ashbrook were the apparent successful bidders on the aspects of the projects which are the subject of this case, Dietz held a meeting with representatives of the successful bidders to discuss equipment for the project. At the meeting Dietz' representatives stated that the Ashbrook 1-V Winklepress, which had been bid to Waldinger, had been previously evaluated by Dietz and was regarded as not having adequate capacity to comply with the contract documents. Dietz further said it would not approve the size 1-V machine upon the information available to Dietz at that time. Ashbrook stated that it would provide actual operation data to confirm the capacity of the 1-V machine and would supply equipment that would comply with the specifications.

Between June 1978 and July of 1979 Ashbrook submitted operating data on its 1-V Winklepress from various sites to Dietz and prepared a number of shop drawing submittals involving the size 1-V machine. The data and the shop drawings submittals were rejected by Dietz which insisted on strict adherence to the specifications.

On October 5, 1979, Ashbrook submitted a proposed change order to Dietz requesting a modification of the contract price for the filter press equipment. Dietz refused to recommend the proposed change order to the Sanitary District and told Ashbrook that the proposed change order would not be approved.

On October 23, 1979, Ashbrook notified Waldinger that Ashbrook would not fulfill its contract with Waldinger until there was a modification of the contract price. A similar demand was made by Ashbrook on November 6, 1979. Finally, on December 3, 1979, Ashbrook notified Waldinger that Ashbrook was unable to supply the equipment described in the specifications set forth in the contract.

On January 2, 1980, Waldiner terminated the purchase orders to Ashbrook and obtained the sludge dewatering equipment for the Sanitary District projects from The Ralph B. Carter Company of Hackensack, New Jersey.

Belt Filter Presses

The function of a belt filter press in a waste water treatment plant is to remove waste solids from the waste water. Sewage enters the belt filter press as a slurry of solids and water. The slurry is mixed with polymers, organic compounds which cause the solids in the slurry to floculate. The floculated sludge is deposited in a section of the machine where gravity dewatering takes place and excess water drains off from the floculated sludge. The floculated sludge is then fed into a shear press section of the machine where more water is extracted by shear pressure and the sludge emerges from the filter press as a friable, cake solid.

Different belt filter presses have different mechanical features. The Ashbrook Winklepress was a flat belt press and its gravity dewatering section was a flat belt upon which the polymer treated sludge was spread to allow the separated water to run off. The polymer mixing section was a static vortex shaped device with adjustable feed controls for injecting polymer and sludge. The Carter machine, which is the other belt press featuring in the contentions in this litigation, had a revolving drum in which the polymer and sludge were mixed and had a second revolving section called a "reactor conditioner" in which the gravity dewatering took place. From the "reactor conditioner", the sludge in the Carter machine was fed into a shear belt pressure dewatering section not unlike that found in the Ashbrook machine.

Did Dietz prepare exclusionary specifications?

The initial question in this litigation is whether the engineering specifications for the sludge dewatering system were worded in such a way that only the equipment of a particular manufacturer would conform to the specifications. It is manifest that Dietz patterned the sludge dewatering equipment specifications on equipment produced by the Carter Manufacturing Company.

Robert Hurdle, the engineer called by Dietz as an expert, said his examination of the Dietz files showed that Carter had supplied the data and performance descriptions for the sludge dewatering equipment which Dietz adopted and incorporated in the specifications.

John Sakolowsky, the Dietz project manager for the Sanitary District, admitted that the specifications were drafted around systems provided by Carter and subsystems that were available from the Carter Manufacturing Company. Sakolowsky said the Carter 15-31 machine was the machine whose subsystems were described in the specifications and that it was in the late summer of 1977 that Dietz decided to use Carter as a model.

Edward Nevers, a member of the Dietz design team and the Dietz engineer to whom the task of gathering information on belt filter presses was assigned, said that the specifications were closely patterned on Carter machine specifications and that none of the components were different from Carter's. The "reactor conditioner" gravity dewatering section described in the specifications was clearly a Carter design. Nevers said that if the flat belt gravity dewatering provision in the specifications had been omitted then the specifications would have described a Carter machine and nothing else.

Harold W. Johnson, an expert in chemistry and environmental science presented by Ashbrook who at one time in his career had worked for the Carter Company, said he was familiar with the specifications for the Sanitary District project and those specifications described the Carter machine. No manufacturer but Carter, Johnson said, could have met the specifications for the sludge dewatering equipment.

Some of the witnesses testified that the specifications were not discriminatory or exclusionary because manufacturers other than Carter were "able" to produce the machine described. I find that testimony totally unpersuasive because if the specifications were literally enforced, which they were, other manufacturers would have been required to redesign their equipment and to retool in order to comply with the specifications. That would not be economically competitive by any stretch of the imagination.

Was Dietz' conduct intentional?

I find that it is more probably true than not true that Dietz intended to use the Carter equipment in the Sanitary District project to the exclusion of the equipment of other manufacturers. I find the Dietz decision to use Carter equipment was made consciously and deliberately.*fn1

Clearly, Dietz understood the Environmental Protection Agency's requirements concerning competition among bidders and the need to draft specifications to achieve those requirements. 40 C.F.R. §§ 35.936-3, 35.936-13 (1976). There is also no question that Dietz was staffed by competent and experienced engineers. Notwithstanding that, Dietz insisted almost blindly on the literal requirements of the specifications it had drafted when there was no scientific foundation or empirical basis for that insistence.

Sakolowsky said that Dietz relied on Carter and believed Carter to be a leader in its field. Although he had never seen a Carter 15-31 machine perform, he decided to use it as a model. He did so without investigating whether certain aspects of the Carter machine were covered by patents and, in fact, as it developed, the "rotator conditioner" described in the specifications was patented.*fn2 He knew that no manufacturer other than Carter recycled the belt wash water used in the machine, but nonetheless, specified that subsystem when he knew of nothing that would prove that belt wash recycle would increase solid removal or reduce polymer consumption in the sludge dewatering process.

The building that Dietz had designed to house the sludge dewatering equipment was sized to fit the Carter 15-31 machine. On January 31, 1978, when Dietz wrote to Ashbrook (Exhibit A-19), Dietz took the position that an Ashbrook machine larger than its 1-V press would not fit into the building as designed.

In August of 1978, Dietz, on the basis of field tests, had reached the conclusion that the Ashbrook 1-V machine met the performance requirements of the specifications, but Dietz subsequently rejected the 1-V machine because it did not have proven dewatering capacity with alum sludge, which was the sludge present in the Sanitary District's treatment facilities. That preference for the Carter machine over the Ashbrook machine was made even though, to the knowledge of Dietz, the Carter machine had never been tested on alum sludge. This is another indication that Dietz was determined to find any reason it could to reject the Ashbrook machine and force the installation of a Carter machine.

Sakolowsky states that in 1976 and 1977 he did nothing to determine whether the Carter claims of increased production through use of their rotating drum gravity dewatering section was factually founded. At the time of drafting the specifications Sakolowsky knew of no Carter 15-31 machine in operation. In fact, at that time, Carter only had flat belt machines in operation. Sakolowsky also knew of no manufacturer, other than Carter, who offered belt water recycling.

I found the answers Sakolowsky gave denying his intention to use Carter to the exclusion of other manufacturers dissembling, and I form the conclusion that it was his specific intention to use a Carter machine in the project to the exclusion of the machines of other manufacturers.

Tony Cantello, the third member of the Dietz design team, confirms that as early as January 21, 1978, Dietz had reached a decision to reject Ashbrook. He testified that the building that was to house the sludge dewatering equipment was designed for future expansion, and that the inclusion of an Ashbrook Winklepress in the building would have affected that capacity. Like Sakolowsky, Cantello had no hard information concerning the performance of a Carter 15-31 machine and had never even seen one operate. While he tried to justify the specification requiring recycling belt wash water on anticipated improved solid recapture and diminution of polymer use, he admitted that there was no data to support either of those expectations. He also admitted that there was no scientific basis for saying in the specification that a flat belt press had to have a 540 square foot dewatering area.*fn3 Cantello also said that the stainless steel clad rollers described in the Carter specifications (Ashbrook had nylon clad rollers) were included in the Sanitary District's specifications without any scientific basis and because "we thought they were better." Cantello also said the 1-V Ashbrook machine was rejected because of "tremendous clogging problems."*fn4 He admitted, however, that he gave no consideration whatsoever to clogging problems in the flow in the Carter machine from the polymer mixing to the gravity dewatering section.

Cantello also testified that he was one of the persons who had overruled Edward Nevers' conclusion that the Ashbrook 1-V machine had the performance capacity required by the specifications. Cantello did so ...


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