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Opinion of the Court
The two main contentions are (1st) that, after the contract was entered into, the Government pumped filling material on Columbia Island on which the East end of the bridge was to be erected, resulting in a heavy layer of silt being deposited within the neat lines of the site, and also adjoining thereto, which required the plaintiffs to remove the same before work could be commenced, and (2nd) that the rock lines, as shown on the drawings, did not give accurate information as to true conditions, resulting in misleading the plaintiffs, because when the rock, as indicated on the drawings, was reached no bedrock was found but only rotten rock and gravel which necessitated plaintiffs' excavating to a much greater depth, entailing the pouring of large quantities of concrete, delaying the work and retarding other work to the complete disruption of the progress schedule for the completion of the contract. There are other items of extra work and damages sustained, for which plaintiffs sue, but the two claims mentioned above are the ones on which the case is mainly based.
A determination of this controversy requires reference to certain parts of the contract and specifications and the notice to bidders. It should be mentioned at this point that the plaintiffs were contractors who had undertaken large contracts for the erection of private residences, post-offices, and schools but had never before undertaken the construction of a bridge of any considerable size, and were unfamiliar, from inexperience, with contract work in rivers and harbors.
Under the terms of the contract it was provided that the contracting officer might, by written order, change the drawings or specifications within their general scope and the contract prescribed the method of determining the ultimate decrease or increase in prices. It further provided that, if subsurface conditions at the site materially differed from those shown on the drawings or indicated in the specifications, the contracting officer should immediately make the necessary changes in the drawings and specifications and the contract price should be adjusted by methods set forth therein; that no charge for extra work and material would be allowed unless such work was ordered in writing and
Opinion of the Court
allowed by the contracting officer and the price stated in the order; that in case of delay, due solely to the fault of the contractors, liquidated damages were assessable, and the facts and the extent of the delay to be found by the contracting officer were to be final and conclusive on both parties, subject only to appeal to the head of the department.
The specifications were sent to the contractors for the purpose of having their bid made from the requirements. thereof.
1. DREDGING ON COLUMBIA ISLAND
Article 10 of the specifications provides:
Bidders to visit site.-Bidders are expected to visit the site of the work and to inform themselves as to all existing conditions, and also to inform themselves as to the progress and schedules of all work which may be under way or contemplated, such as the dredging operations on and around Columbia Island, etc. Failure to do so will in no way relieve the successful bidder from the necessity of furnishing all equipment and materials and performing all work required for the completion of the contract in conformity with the specifications.
No allowance will be made for the failure of a bidder correctly to estimate the difficulty attending the execution of the work. [Italics ours.]
There was also provided in Article 26 of Section II of the Specifications the following:
Columbia Island and dredging operations.-Columbia Island has been built up to a height of 16 to 20 feet by dredging from the river channel. The dredging was discontinued during the summer of 1927, but it is likely to be resumed by the time the work of this contract is started or very shortly thereafter, and will be continued indefinitely until dredging work contemplated upon this project is completed. The dredging of the water gate at the Washington end of the bridge will also be started before the work of this contract is finished. The scheddule of dredging operations can be obtained at the United States Engineer Office, Washington, D. C.
The contractor shall arrange his work so that the dredging may be done without interference from his operations; also he shall protect the dams and levees on Columbia Island against any damage due to the prose
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Opinion of the Court
cution of his work, and shall immediately make good at his own expense any damage which may be so occasioned. [Italics ours.]
Under Article 27 there is the following paragraph:
*** The contractor shall so conduct his operations as to allow all other construction work on the Arlington_Memorial Bridge project, whether started previously to or after the beginning of the work contemplated herein, to proceed as easily as practicable, and he shall provide for and allow the joint occupancy and joint use of all Government-owned land and facilities by all other contractors and (or) agencies engaged in such construction work. Italics ours.] Prior to making their bid, plaintiffs visited the site of the project, saw that dredging operations had been performed on Columbia Island and that the dredge was then in the river at the site but actual operations had been suspended. Subsequently, after the contract had been signed, dredging operations on Columbia Island were again commenced and there was poured and deposited upon the site and the surrounding land, a heavy layer of silt which it was found by the contractors necessary to be removed before actual operations on the East end of the work could be commenced. Plaintiffs protested to the contracting officer that the removal of this additional fill was outside of the contract, and the contracting officer authorized its removal. The contracting officer gave plaintiffs a written order to remove 3,618 cubic yards of earth at the East end of the bridge on Columbia Island and authorized payment under Article 33 of the Specifications reading as follows:
Extra Work.-The contractor shall perform all extra work not otherwise covered by these specifications which, in the judgment of the contracting officer, may be necessary or expedient to carry out the intent of the contract or incidental in any way to the work under the contract, and which is ordered in writing by the contracting officer.
The cost of all extra work carried out under the provisions of this paragraph will be paid for on the basis of the actual cost thereof to the contractor (including the hire or rental of such plant as may be used exclusively for such extra work and including also workmen's compensation insurance, but excluding over
Opinion of the Court
head), plus fifteen (15) per cent of that cost to cover profit and all indirect charges against such extra work except those specifically mentioned herein to be included.
The time fixed for the completion of the work will be extended for all extra work by the same method as described in paragraph 31 for changes in amount of work to be done.
However, the plaintiff removed not only the quantity specified by the contracting officer, which was the cubic yardage confined to the bridge site, but also additional fill under derricks. Plaintiffs claim in addition the extra cost of removing prior fill, under bridge site and derricks, incurred by reason of its having been saturated by the additional superimposed fill. They also claim the cost and maintenance of plank roads and mats, necessitated by the wet condition of the fill, and the expense of floating equipment, in all, $11,747.65 and, as this was a changed condition, the Government is responsible under Article 4.
The contention of the plaintiffs is that this additional burden was not contemplated by the contract or shown by the specifications and that, in making their bid, plaintiffs had no way of knowing the situation on which to base their estimate, other than as shown by the specifications. However, the specifications distinctly notified plaintiffs that dredging operations would be commenced either before or after the signing of the contract, and that plaintiffs had to make their bid in contemplation of this work which was to be performed. When the contractors visited the site, before making their bid, they knew that dredging operations had been performed on Columbia Island and saw that the dredge was still in position, and they were also informed by the specifications that further dredging operatios were to be performed. With this notification, plaintiffs bid without further inquiry or clarification of the situation. There can be no recovery for the additional amount of material removed for the reason that the specifications distinctly notified plaintiffs of the conditions which arose.
Plaintiffs contend that they were put to additional expense in the removal of the earth beneath the silt because of the fact that the water, which brought the silt on the
Opinion of the Court
site, saturated the ground underneath so that extra expense was incurred in removing it in its saturated condition, and that further extra expense was incurred by reason of the saturated condition of the ground in that plaintiffs were prevented from using land equipment and were forced to procure floating equipment. In our opinion, the contracting officer was liberal in his interpretation of the specifications when he allowed the change order for extra work in the removal of the silt on the site of the work. Article 26 of the Specifications notified the contractors that dredging operations would be resumed by the time the work on plaintiffs' contract was started and would continue indefinitely until the dredging work was completed. Plaintiffs had notice, before and after making their bid and after entering into their contract, of the conditions which subsequently arose, and it was their bounden duty to take the situation into consideration and to protect themselves in their bid and also in the protection of the site either by berm or cofferdam. An experienced contractor, familiar with hydraulic dredging work, with the provision in the specifications (Article 26) before him, would have known that he would have to anticipate, not only silt, but the saturation from the water which brought the silt in. The contracting officer refused to make payment as an extra for this work. We think he was correct in his construction of the contract and, therefore, no recovery can be had for these items.
2. ROCK AND GRAVEL EXCAVATION
The second claim is for expenses of excavating for abutments, cylinders, and piers both on Columbia Island and the Virginia shore below the rock line indicated in the drawings and including concrete in excess of the contract requirement. Article 34 of the Specifications provides:
Estimate of quantities.-The estimated quantities of the major items of the work to be done under this contract are approximately as follows:
Class A concrete___.
750 cu. yds. 11, 900 cu. yds. 55, 835 cu. ft.
466. 3 tons. 300. 4 tons.