dissenting.
This case provides the broad perspective of what, if any, limitations the supervising highway engineer has in assessing extra or supplementary construction obligations on the contractor. In essential detail, the facts of this case are not in dispute. I dissent from the decision which interjects discretional authority for desired satisfaction of the engineer as the criteria for work acceptance where satisfaction is in no regard a term of the contract documents executed between the parties. It is my perspective that this majority adds a dimension to the supervising engineer’s approval authority which was not, and never would have been, an anticipated condition of the contractor’s performance responsibility when he bid and entered into the particular road construction contract.
Appellant contracted to install a concrete overlay on a segment of the interstate highway system near Rock Springs, Wyoming. Neither a road test criteria nor an engineer’s satisfaction standard was included in the plans and specifications or contract documents. After the installation work had been completed, the engineer drove over the road and encountered what he described, in asserting his dissatisfaction, as a “harmonic wave.” The contractor was directed to grind the concrete surface of the roadway until the wave effect on passing vehicles was removed.1 One thing is agreed between the litigants as recognized both in majority decision and this dissent. There were no contractual documents which established either a profi-lograph test to profile the road surface or a road test for work acceptance. The test addressed by contract was a straight-edge test which is conceded to be less difficult to achieve than either the objective test of the profilograph or the completely subjective decision of the engineer in assessing his individual dissatisfaction with the ride provided. However, the engineer, responding to his dissatisfaction, detailed that the contractor embarked upon a grinding process for the road surface to a profilograph standard in order to satisfy his interest in a proper ride.
I do not disagree with the authorities cited for decision by this majority. The problem is invalid application in addressing specific contract documents that either establish the subjective criteria of satisfaction or the objective criteria of profilograph for work obligation. It is clear from the record provided that a substantial part of the increased cost incurred in attempting to achieve satisfaction was the failure of the engineer to provide an objective standard of exactly how much grinding of the road surface would be required to achieve acceptability. Satisfaction by ride is not empirically determinable and no more, and perhaps less, than the obligation to coat the road surface with gold. Neither was agreed and neither should be required. The engineer’s discretion and decision was confined to objective determinations from explicit plans and specifications and not to subjective dissatisfaction because the criteria for straight-edge analysis provided for in the contract did not satisfy his criteria for the anticipated final product.
It is my perspective that the State Highway Department writes the specifications and determines the cost ingredient for road construction. The engineer here asked for more than was provided or undertaken and, consequently, the contractor should be entitled to additional compensation.2
*894This highway construction contract provided for a one-eighth inch in ten foot straight-edge specification as a deviation factor which is now generally recognized to be “an inadequate specification to insure the increasingly higher standards of riding comfort expected by the motoring public.” In this case, the State Highway Department bid one requirement and then applied another more arduous and expensive one. This majority now justifies the additionally expensive requirement as obtainment of the “satisfaction” of the highway engineer. In doing this, we do not apply the intent of the litigants, but instead rewrite the contract to overlay its terminology with a new instrument, namely “satisfaction.”
Consequently, I dissent.
. As a matter of passing interest, a similar condition appears to exist in the northbound travel lanes of 1-25 near the vicinity of the State Highway building located in Cheyenne, Wyoming.
. This case provides more than just an academic exercise in contract analysis when applied to the characteristics and character of individual highway engineers. The record provides some intimation within a fact generally understood in the building industry that the fairness and professionalism of the highway engineer is a singular constituent of the cost analysis for totaling the final bid. To now add "satisfaction” as an intangible criteria can only add to the indeterminate elements for which an appropriate upward cost adjustment must be added if the contractor can be expected to survive very long in the contingent-filled world of road construction.