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Reporter's Statement of the Case

the contract was advertised had apparently struck the boulders and this layer of gravel was accordingly indicated on the contract drawings as the top of rock. The minor piers and the foundation cylinders on the Columbia Island side also had to be extended through the same gravel and had to be carried deeper than shown on the contract drawings.

At Abutment 6 (i. e., the abutment on the Virginia side of the Boundary Channel) the rock indicated on the contract drawings was found upon being uncovered, to be decomposed and traversed with layers of soft mud. It was necessary to remove this material to a depth of from 8 to 12 feet before a suitable bearing was found. The minor piers and foundation cylinders on the Virginia shore were also carried down deeper than was originally anticipated because of this same decomposed rock.

The condition at both abutments was of course entirely unsuspected by the Contracting Officer. No such conditions were found at any of the four abutments and six piers of the Main Bridge previously built. However, the possibility of such an eventuality had been foreseen and an effort to provide for it was made in Paragraph 48 of the specifications in conjunction with Article 4 of the contract. The usual test probings were made, and the depth to the top surface of the bedrock or gravel as found in the excavations agreed with that disclosed by the probings.

In the opinion of the engineers of this Commission, the additional work necessitated by the conditions as found was not unusually difficult; in fact, as foundation work goes, it was relatively easy because no sub-surface water was encountered except that from seepage, which was handled by one or two small electrically driven pumps. In the excavation for Abutment No. 5, where the gravel was found, considerable extra sheeting and bracing were necessary, but in no greater amounts than would be required in ordinary foundation excavations of the same depth. In Abutment No. 6, the soft rock was firm enough to stand alone so that little or no additional bracing was necessary.

However, it should be said in favor of the Contractor that the condition encountered was as unsuspected by him as it was by the engineers of this office, and the experience with other nearby foundation work previously done justified the assumption that similar conditions would be found here. He was necessarily

Reporter's Statement of the Case

put to considerably greater expense in making the additional excavation and in placing the additional concrete than might have been involved had the conditions been known before the work was started. The necessity for the extra bracing was not known until cofferdams had been built to conform to the conditions indicated by the contract drawings. This fact accounts for the rather large cost of the excavating and bracing work as mentioned below.

In consequence of the increased depth of the foundations, it was necessary to excavate about 3,000 cubic yards of additional material, most of which was either loose or decomposed rock or gravel, and to place approximately 1,700 cubic yards of additional concrete in the foundations. As this work progressed, payments for it were made to the Contractor under the provisions of Paragraph 48 of the specifications. All of the bills submitted by the Contractor for this work were checked by the field forces of this office and payments were made in connection with the usual monthly estimates, except in a few instances where claims were either disallowed entirely or payment postponed pending further study. These postponed claims aggregate approximately $8,000.00.

The Contractor has already received approximately $77,000.00 for the additional foundation work.

On October 23, 1929, after practically all of the foundation work had been completed, the Contractor directed a letter to this Commission claiming changed conditions and settlement for additional costs under Article 4 of the contract, and advising that he would present additional bills for his work. This was answered by a letter dated October 28, 1929, which in turn elicited a letter from the Contractor dated November 14, 1929, after a conference between the officials of this Commission and the Contractor.

No further formal correspondence on the subject took place until after the Boundary Channel Bridge was completed on September 26, 1930. Shortly after that date, the Contractor requested advice as to what procedure he should follow in presenting his claim. He was informed that the Contracting Officer would consider any direct claims for tangible items of work, and was prepared to make payment for such items if substantiated and if the work involved was authorized under the provisions of the specifications or the contract. He was also informed that the Contracting

Reporter's Statement of the Case

Officer could not advise him as to how to prepare his claims, and could not decide questions involving claims for intangible items or items involving legal interpretations. During the course of our conversations, I offered to consider the several protested items which had previously been disallowed or postponed, but the Contractor preferred to include all of his claims in the one sum which he obtained by deducting the payments which he previously received from the total cost of the work as computed by his own accounting force.

On December 10, 1930, the Contractor presented a formal letter making claim for a final payment of $187,901.70, of which $25,000.00 was the amount retained by this office from the monthly estimates, and the balance, $162,901.70 was to cover the additional costs alleged to have arisen from the changed conditions encountered. This letter was followed on December 12th and 22nd with detailed statements of cost from the Contractor, all of which were replied to by my letter dated January 9, 1931.

The matter is further complicated by the consideration of time. The date for completion as originally fixed was February 2, 1930, whereas the work was not actually completed until September 28, 1930. Paragraph 42 of the specifications provides that liquidated damages in the amount of $100.00 per calendar day will be assessed for all delay in completing the work after the date fixed for completion, corrected if nec essary, for changes ordered in the work to be done and extra work. Besides the additional foundation work referred to above, the Contractor did other additional work which was found necessary and ordered from time to time in accordance with Paragraphs 31 and 33 of the specifications, with the result that a total of a little more than $105,000.00 has been paid to him as extras for which additional time is allowable under the specifications.

His claim is now submitted to you for your opinion as to whether the conditions described above were such as to justify legally a settlement on the basis of Article 4 of the contract, including excess costs for items and expenses not related directly to the foundation work. Personally, I have been forced to the conclusion that the conditions found were only such as Paragraph 48 of the specifications covered and was intended to cover, and that the obligations of the Government would be fully discharged by settlement in accordance therewith.

Reporter's Statement of the Case

However, the Contractor deserves every possible lawful consideration since he in no way skimped the work and finished the contract with unusual perfection, in spite of the knowledge that it was costing him much more than he had anticipated.

The Comptroller General on June 26, 1931, held that the plaintiffs were not entitled to additional payment or adjustment of contract time other than as provided in Article 48 of the specifications.

On August 28, 1931, a voucher prepared by or under the direction of the contracting officer was stated in plaintiffs' favor in the net sum of $13,900, being based (1) on a completion date of September 17, 1930, (2) the contract price of $338,000.00 without adding thereto the several items of cost and expense hereinabove enumerated, and (3) deduction for liquidated damages of $11,100, being 111 days at $100 per day, was eventually signed by the plaintiffs under protest, and payment of $13,900 in due course was made.

25. Plaintiffs have been paid for work adjudged by the contracting officer to be "extra" under the terms of the contract, a total of $105,405.38, being for the following items:

Rock excavation in Virginia abutment, piers and cylinders, and Columbia Island abutment and cylinder No. 40 thereon --.

Excavation of gravel from Columbia Island abutment---Bracing and shoring Columbia Island cofferdam below "rock line".

Extra concrete in foundations-

Extra reinforcing steel--

Extra bending of steel---.
Excavation for struts__.

Extra class "B" concrete in struts, in fillets of jamb

walls, and in fillets back of arches-
Removal of silt from Columbia Island_.
Placing rocker plates----
Setting "eagle stones".

$44,582. 43 7, 146. 11

2,262. 80 19, 922. 40 14, 490. 84

586. 22 2,543. 49

2,841.75 5, 307.62

2, 595. 72

3, 126. 00

105, 405. 38

The extra concrete in foundations, $19,922.40, consisted of 1,660.2 cubic yards, and was paid for at the rate of $12 per cubic yard, as hereinabove related. The extra class

Opinion of the Court

"B" concrete for struts and fillets, $2,841.75, consisted of 113.67 cubic yards, and was paid for at the rate of $25 per cubic yard. Payment of the remainder of the above items included 15% for overhead and profit, which was a reasonable percentage, and 12% on the aggregate thus determined, which represented the actual cost of bonds.

In addition to the payment of $105,405.38 for so-called "extra" work, plaintiffs have received from the Government on the contract $326,900.00, a total of $432,305.38. The difference between $326,900.00 and the original contract price of $338,000.00 is $11,100.00, which is the deduction for liquidated damages.

The court decided that the plaintiffs were entitled to recover in the sum of $614.72.

OPINION

WHALEY, Judge, delivered the opinion of the court:

This suit is brought to recover upon a contract between the plaintiffs, doing business as N. P. Severin Company, and the United States, represented by U. S. Grant, 3d, Executive and Disbursing Officer, Arlington Memorial Bridge Commission, as contracting officer. Plaintiffs agreed to furnish all labor and material and perform all work required for the construction of the Boundary Channel Bridge of the Arlington Memorial Bridge Project, Washington, D. C., in accordance with their accepted bid and specifications, schedules, and drawings which were made a part of the contract, for the consideration of $338,000, together with certain unit prices for possible additional contract work. The work was to commence on or before January 28, 1929, and to be finished on or before February 2, 1930. The work was completed and accepted September 17, 1930.

In the aspect of the case, as it is presented, plaintiffs claim the right to recover cost, overhead, and profit on so much of the work as was due to changed conditions resulting from the actions of defendant in imposing certain obligations upon the plaintiffs which were not set forth in the specifications or the contract.

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