# Shepherd v. United States

> United States Court of Claims · July 13, 1953 · 113 F. Supp. 648

URL: https://www.frixlaw.com/law-library/cases/8590631

## Case

- **Full name:** W. C. SHEPHERD, TRADING AS W. C. SHEPHERD COMPANY v. United States
- **Court:** United States Court of Claims
- **Decided:** July 13, 1953
- **Citations:** 113 F. Supp. 648; 125 Ct. Cl. 724; 1953 U.S. Ct. Cl. LEXIS 200
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Whitaker
- **Judges:** Howell, Jones, Littleton, Madden, Whitaker
- **Cited by:** 24 later opinions in the Frix Law Library

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## Opinion text

Whitaker, Judge,
delivered the opinion of the court:
Plaintiff, W. C. Shepherd, entered into a contract with the defendant to construct the Cumberland Oil Field protective levees, which was a part of the Denison Dam and Reservoir Project on the Red River between Oklahoma and Texas. The Denison Dam is about ten miles below the confluence of the Washita and Red Rivers. After it should have been completed it was expected that the water in the Washita River would be backed up for about forty miles. The Cumberland Oil Field lies adjacent to the Washita River at a point about thirty miles above the Denison Dam, and the backwater would have flooded it. At the time this field had seventy-five producing oil wells and it was expected that an additional seventy-five wells would be drilled in the near future. The construction of the levees was to protect this oil field.
A part of the work consisted in the diversion of the Wa-shita River at the upper part of the work. A channel about 3,300 feet long and 600 feet wide and around forty feet in depth was to be constructed, through which the river was to be diverted. This was known as Channel No. 1. On leaving this channel the water was designed to flow down a natural declivity, and then into another channel, known as Channel No. 2, which was to be about 7,000 feet long and 350 feet wide, involving cuts up to as much as 80 feet in depth.
The protective levees were to be constructed for the most *728 part from the material excavated from the two channels. The levees were to have a total length of 28,480 feet, and an average height of about 50 feet.
Plaintiff claims that in the excavation of Channel No. 2 he encountered wet materials, which differed materially from the character of materials shown on the drawings or indicated in the specifications, and that he is, therefore, entitled to a modification of the contract to provide for the increase in cost in the handling of this wet material over what it would have cost to handle the material plaintiff says he had a right to expect. He also says that in the excavation of Channel No. 1 he encountered and had to handle much more pervious material than he had reason to expect.
His third claim is that the contracting officer required excessive wetting of the levees and unnecessary compaction of the materials placed therein. He claims damages for the increased cost of doing this work in the manner required.
The case was heretofore argued before the court on the sole question of whether the plaintiff had complied with the requirements of the contract relative to notice, protest, and appeal. On October 2,1951, we rendered an opinion * holding that the plaintiff had complied with these requirements. The case was then remanded to the Commissioner for the purpose of taking proof on the question of plaintiff’s right to recover on the three items asserted in his petition, assuming compliance with the requirements relative to notice, protest, and appeal. These items were (1) excess costs by reason of encountering conditions differing from the plans and specifications or of an unusual nature not ordinarily encountered in work of this character; (2) excess costs incurred by reason of a change in design of the work; and (3) extra work demanded in the compaction of the fills.
Notwithstanding the fact that, prior to the taking of any testimony in the case, the defendant had moved for an order limiting the issues to be tried by the Commissioner to the question of whether or not the plaintiff was “precluded from recovery by virtue of the contract provisions relating to protests and appeals,” and the allowance of this motion, a great deal of testimony was introduced by both parties on *729 the whole question of liability, and we made findings based upon the testimony introduced. However, on remand to the Commissioner, further and more complete evidence was introduced, which now makes it necessary for us to amend and enlarge our former findings. For this reason our former special findings of fact are withdrawn and the findings set out hereinafter are substituted in lieu thereof.
Defendant again raises the question of plaintiff’s compliance with the requirements of the contract relative to notice and appeal. It does so because of the Supreme Court’s opinion in United, States v. Wunderlich, et al., 342 U. S. 98 . It says the Board of Contract Appeals of the War Department had held that plaintiff had not complied with these requirements and that this finding is conclusive on us under the decision in that case.
In its exceptions to the Commissioner’s findings defendant sets out what it regards as the pertinent parts of the findings of the contracting officer and of the Board of Contract Appeals. According to these excerpts the contracting officer held that plaintiff was not entitled to maintain his claim because it had not been filed until after all the work had been completed. His finding that the claim was not filed until after all the work had been completed, unreversed on appeal, is binding on us, but his conclusion that for this reason plaintiff is not entitled to recover is not binding.
Also, the finding of the Board that plaintiff did not tell the Chief of Operations and the resident engineer that he intended to make a claim for extra compensation under article 4 is binding on us; 1 but its conclusion that for that reason plaintiff cannot recover is not binding, since this conclusion calls for a construction of the contract.
In our former opinion we said that the only obligation on the contractor in the first instance was to give notice to the contracting officer [or his authorized representative] of the conditions differing from those the contractor had a right to *730 expect, and that when he had done this, he had no further duty to perform until after the contracting officer had investigated the conditions and had made a ruling on whether or not they were different to such an extent as to require an equitable adjustment. The,Board of Contract Appeals does not find that such a notice was not given.
The Board refused to consider the claim because plaintiff did not notify the contracting officer that he meant to make a claim for extra compensation under article 4. We do not think it was necessary for plaintiff to do this at the time he called the conditions to the attention of the contracting officer [or his authorized representative]. When he told the contracting officer that he had encountered a condition that was in fact different from what he had a right to expect, he had done all the contract required of him at the time.
The giving of the notice required an investigation by the contracting officer and a ruling. The investigation was made in this case by the contracting officer’s authorized representative, but his only ruling was that the material encountered was suitable to be used in the fill to be constructed. He did not rule on whether or not the conditions so materially differed as to entitle plaintiff to an equitable adjustment.
Until this ruling was made,, plaintiff was not required by the contract to go further. Plaintiff, however, did go further. He himself made several trips to see the contracting officer in an effort to secure relief from him. The contracting officer himself intended to make an investigation of the conditions and to make a ruling on whether plaintiff was entitled to an adjustment, and left plaintiff under the impression that the matter would receive further consideration, but, due to his sudden transfer to another assignment, he never did so.
Plaintiff never received a ruling by the contracting officer on whether the conditions encountered were sufficiently different from those he had a right to expect as to entitle him to an equitable adjustment.
He did get a ruling from the Chief of Operations that the material was suitable to use in the fill, but none on whether he was entitled to an equitable adjustment. Nor was this a final ruling from the office of the contracting officer, be *731 cause, as stated, the contracting officer himself intended to investigate conditions and make a ruling.
If the character of the notice plaintiff gave defendant was a sufficient compliance with the contract, we think plaintiff’s claim is not barred, since he later did make the claim that one of the conditions encountered was unforeseen and entitled him to an equitable adjustment. But was the notice sufficient? In our former opinion we did not rule on the question of whether plaintiff had to notify the contracting officer that he intended to make a claim under article 4. We did not because of plaintiff’s supposed conversation with the resident engineer asking him if he should shut down the job and make a claim then. We said that in view of all that had gone before, it was the duty of the resident engineer to communicate this to the contracting officer, and that had he done so, the contracting officer would have had all that could be required in the way of notice.
We are now faced, however, with the implied finding of the Board of Contract Appeals that plaintiff did not have this conversation with the resident engineer. It does not appear from the excerpt from the Board’s opinion that it made this express finding, but it is evident that the Board accepted the testimony of the resident engineer that no such conversation took place. Under the Wunderlich decision this finding is binding upon us.
Stripped of this conversation, we have left a complaint by the contractor of the wet material encountered in Channel No. 2 and the statement that it was increasing his costs to put it in the fill, but no claim at the time that it was an unforeseen condition entitling him to an equitable adjustment. What the plaintiff was seeking was permission to waste this material and to get material for the fill from the borrow pits, which would have greatly increased plaintiff’s compensation. This was his objective; not an equitable adjustment in the contract price because of an unforeseen condition.
Since plaintiff made no claim of an unforeseen condition, the contracting officer [or his authorized representative] evidently thought that he was not required to make an investigation to determine whether or not the conditions encount *732 ered should have been foreseen and, therefore, whether or not plaintiff was entitled to an adjustment in the contract price. He had knowledge of the conditions, but so far as we know he never made any investigation to determine whether or not they should have been foreseen.
This, however, should not foreclose plaintiff from later making a claim under article 4. He called to the attention of the contracting officer [or his authorized representative] the conditions before they were disturbed, and this is all that the contract required of him. Article 4 reads in part, “* * * the attention of the contracting officer shall be called immediately to such conditions before they are disturbed.” What is to be done next is the responsibility of the contracting officer.
It is true plaintiff’s request was to be allowed to waste the materials, and that he did not claim the conditions differed from those he had a right to expect; but how did this prejudice the defendant? It knew of the conditions and could have determined at any time whether or not they differed from those shown on the plans and specifications. It was not necessary for plaintiff to claim at the time that the conditions differed. The contract imposed the duty on the contracting officer to determine whether the conditions were materially different, even if he himself discovered the conditions; that is, in a case where the plaintiff took no action at all. Article 4 reads in part:
Should the contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications * * *.
The duty of determination was cast on the contracting officer when he became aware of the conditions, however his attention was directed to them.
Plaintiff’s request to be allowed to waste the materials no doubt induced the contracting officer not to make at that time the determination of whether the conditions so materially differed from those plaintiff had a right to expect as to entitle him to an equitable adjustment; but, when plaintiff at the conclusion of the work filed a claim on the ground that they did differ, the duty was cast upon him at that time, *733 at least, to make the determination. Since the contracting officer had been immediately apprised of the conditions, he at any time could have determined whether they differed from those shown on the plans and specifications, or were of an unusual nature differing materially from those ordinarily encountered. Plaintiff’s failure to make this claim at the time the condition was discovered did not impair the ability of the contracting officer to make the determination when the claim was made.
Since neither the contracting officer nor the head of the department made the required determination, plaintiff is not precluded from calling on this court to do so.
What we have said applies to a claim under article 4; it does not apply to a claim under article 3. That article requires a contractor to make his claim for an adjustment in the contract price within ten days from the time the contracting officer makes a change in the drawings or specifications. Article 4 contains no such requirement.
In our former opinion in this case we said:
What has been said relative to the wet materials encountered in Channel No. 2 is equally applicable to the excess sand encountered in Channel No. 1. We are of opinion that plaintiff’s rights under article 4 are not precluded for failure to comply with the contract requirements relative to the excess sand in Channel No. 1, as well as the wet materials encountered in Channel No. 2.
There is, however, an important difference between the claim relative to the wet materials in Channel No. 2 and the excess sand in Channel 1. That difference is this:
In the detailed claim filed with the contracting officer on May 15, 1944, after the conclusion of the work, plaintiff claimed that the wet materials was an unforeseen condition; but he did not make this claim with respect to the excess sand. His claim relative to it was that the design of fill areas II and III had been changed so as to utilize this excess sand, and that this change in design increased his costs. This is a claim under article 3, and, as we said above, such a claim has to be made within ten days from the time the change is ordered. The contracting officer properly denied the claim when made later.
*734 The first time plaintiff claimed that this was an unforeseen condition, and that he was entitled to an equitable adjustment under article 4, was in his petition in this court. This claim was never presented to the contracting officer. Does this bar plaintiff? We think it does. The contract provided for the settlement of disputes by the contracting officer, with the right of appeal to the head of the department. Article 15 says:
* * * all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer * * *.
The contracting officer was the agreed “forum.” By their agreement the parties did not intend to leave to the courts the determination of disputed facts; they did not intend that the courts should decide what was an equitable adjustment for an unforeseen condition; they intended that the contracting officer should do so. United States v. Callahan-Walker Construction Co., 317 U. S. 56 . Therefore, if plaintiff thought that this excess sand was such an unforeseen condition as to entitle him to an equitable adjustment, he was required by the contract to present this claim to the contracting officer for his decision. This the plaintiff did not do; instead, he presented a claim under article 3, based on a change in design of the fills. With reference to the wet materials in Channel No. 2, he did present his claim under article 4, but not as to the excess sand.
Many times we have held that failure to pursue the prescribed administrative remedy bars a plaintiff from prosecuting his claim in the courts.
It follows from this that, while plaintiff is entitled to prosecute in this court his claim relative to the wet materials in Channel No. 2, he is not entitled to prosecute his claim relative to the excess sand.
Plaintiff also contends that defendant breached the contract by requiring excessive wetting and compaction on the fills. It.is alleged that the difference between the reasonable cost and the actual cost of the rolled fill work was $568,460.97, of which $301,432.89 was due to the defendant’s requirement of excessive wetting and compaction. Included in *735 the $301,432.89 is the sum of $44,256.53 claimed on behalf of the subcontractor.
The facts relating to this claim are set out at length in findings 60-80. In brief, they are that defendant’s inspectors required more wetting of the pervious material placed on the fills and more passes of the sheep’s-foot roller than was necessary to secure compaction of the fills to the density of at least 90 percent, as required by the contract.
Except for his claim relative to placing the wet materials on the fills, we do not think plaintiff is entitled to recover, because of his failure to protest to the contracting officer against what was being required of him.
The defendant’s inspectors thought that the amount of wetting and the number of passes of the sheep’s-foot roller which they demanded were necessary in order to secure the required compaction. If the plaintiff did not think so, it was his duty to present the dispute to the contracting officer, who was the arbiter designated by the contract to settle such matters.
Neither the contract nor the specifications specified the amount of the wetting or the number of passes with the sheep’s-foot i-oller that would be necessary; it provided for such amount of wetting and such number of passes as were necessary to secure the required compaction. How much wetting and how many passes were required to do so was a question of fact. Disputes concerning questions of fact were required by the contract to be settled by the contracting officer.
Plaintiff never brought the matter to the attention of the contracting officer nor to his authorized representative and, therefore, these officials had no opportunity to pass on the question. Plaintiff cannot by-pass the contracting officer and call on this court to settle a dispute which he should have presented in the first instance to the contracting officer.
It is true, as we said in our original opinion in this case, the specifications do not explicitly provide for protest against any requirement for work believed to be in excess of the contract requirements, but the contract does provide for the settlement of disputes by the contracting officer; and, hence, the plaintiff cannot call on this court to settle the dispute *736 as to whether excessive wetting and compaction were being required unless he had first presented it to the contracting officer.
If the resident engineer and the inspectors were deliberately calling upon plaintiff for greater compaction than was called for by the contract, they were calling for an extra, and the plaintiff should have refused to do the extra work demanded until he had secured from the contracting officer an order in writing, with the cost of the extra work stated in the order, as required by article 5 of the contract. Plaintiff did not demand such an order and no such order was given. It was not given both because it was not asked for, and also because the resident engineer did not think that more work was being required than was necessary in order to comply with the contract.
In any event, we do not think that plaintiff has established the cost of whatever work was required of him over and above that necessary to meet the contract requirements. Plaintiff’s excess costs in connection with the compaction of the rolled fills were due to several causes, to wit: the extra cost incident to the use of the wet material from Channel No. 2, the extra cost incident to the use of the excess pervious material from Channel No. 1, extra costs attributable to defective watering equipment and inadequate rolling equipment and other causes. It is impossible to tell from plaintiff’s proof how much of his excess costs was caused by one thing or another. We cannot tell how much of them was due to unnecessary wetting or excessive passes of the sheep’s-foot roller. Plaintiff is therefore not entitled to recover. Addi son-Miller, Inc. v. United States, 108 C. Cls. 513 ; cert. den. 332 U. S. 836 ; Eastern Contracting Co. v. United States, 97 C. Cls. 341 .
As to plaintiff’s contention that the wet material 2 encountered by him and his subcontractor in the excavation of Channel No. 2 constituted an unforeseen condition within the meaning of article 4 of the contract, as a result of which the costs of excavating, hauling, and placing the wet material on the fill were greatly increased, defendant concedes, as indeed it must, that wet material was encountered in *737 Channel No. 2, but it denies that this constituted a changed condition.
Defendant has taken sharp issue with the findings of the Commissioner of the court in regard to the wet materials claim. After carefully considering the numerous exceptions to the Commissioner’s findings, we are of the opinion that his report fairly and accurately states the facts established by the record, and we have adopted them as the court’s findings, with minor exceptions.
We do not think there can be any question but that the wet material was unforeseen by both plaintiff and defendant. It was an unknown, subsurface condition differing materially from that shown by the drawings, specifications and borings, and one which could not have reasonably been anticipated from a study of the drawings, borings and samples, or by an examination of the site. (Finding 32.) Plaintiff is therefore entitled under article 4 of the contract to recover the full excess costs of excavating, hauling, and placing the wet material on the fill, unless limited in his recovery by a matter hereinafter discussed. Great Lakes Dredge and Dock Co., v. United States, 116 C. Cls. 679 ; cert. den. 342 U. S. 953 ; Loftis v. United States, 110 C. Cls. 551 .
The presence of this wet material was due to the existence of two large depressions in the shale and one smaller one, Approximately 150,000 cubic yards of the material excavated from Channel No. 2 were in a semi-liquid or soupy state, and there was about the same amount of wet material lying above the saturated material. It was first encountered by the subcontractor in June of 1943. Defendant’s inspector permitted the wasting of 150 cubic yards of it, but shortly thereafter the resident engineer directed that the material be placed in the fill. This decision was later approved by the chief of operations on the project, and also by the contracting officer, Colonel Wanamaker.
The wet material greatly increased the cost of excavation and hauling in Channel No. 2. It was necessary for plaintiff to excavate with a dragline rather than a shovel, as had been planned. The soupy material drained from the bucket, greatly reducing the loading efficiency of the equipment. The hauling equipment could be filled only to the water line *738 with the semi-liquid material, and it drained or sloshed out of the equipment on the upgrades. Movement of machinery through the wet material both in the channel and on the fill was difficult, and at times impossible. Plaintiff doubled the number of hauling units he expected to use, and incurred extra costs in the operation and maintenance of his equipment. Additional expense in the maintenance of haul roads was also necessitated. (See further findings 34-36.)
The work on the rolled fill was also substantially increased. The wet material had to be dried for periods averaging three-fourths of a day, and layers had to be placed on the fill in shallow lifts of four to six inches in thickness, rather than the nine-inch and twelve-inch lifts prescribed by paragraph 5-03 of the specifications. Plaintiff’s planned method for excavating, hauling, and rolling the excavated material was disrupted, and repair costs to equipment were increased. •
Both plaintiff and his subcontractor excavated in Channel No. 2. The record shows that 62 per cent of the saturated material was excavated by the subcontractor, and 38 per cent by plaintiff. Plaintiff has no adequate record, however, of how much of the wet material found above the saturated material was excavated by him and how much by the subcontractor.
The amounts claimed because of the wet material are broken down into two items, the cost of excavating and hauling it, and the cost of handling it on the fill. Plaintiff seeks to recover $611,811.21 for excavating, and $93,466.50 for handling the material on the fill. On behalf of his subcontractor plaintiff seeks to recover $536,227.38 for excavating, and $103,265.24 for handling the material on the fill. Defendant vigorously argues that the excess costs incurred by both plaintiff and his subcontractor as a result of the wet material do not exceed $37,663.71.
We have found on all the evidence before us that the difference between the reasonable cost of the work if wet material had not been encountered and the actual cost due to such wet material was $214,253.88 for that part of the work performed by plaintiff, and $339,677.98 for that part performed by the subcontractor. Included in each of these amounts are the excess costs incurred on the rolled fill because of the wet *739 material, and an allowance of 10 per cent for overhead and profit, broken down as follows:
The evidence submitted by the parties on the amount of damage sustained by plaintiff and his subcontractor is voluminous. Plaintiff claims considerably more than the amount we have found, and defendant says it should be much less. As in many such cases, it is not possible to compute the amount with mathematical exactness, but after careful consideration of the entire record we have concluded that the above figures come as near being correct as it is possible to arrive at from the proof.
Plaintiff’s books and records do not show the excess costs of excavating the wet material and the excess cost of placing it in the fill. They show only the excess costs incurred by plaintiff and by his subcontractor Jones of the excavation of all of Channel No. 2. Nor do plaintiff’s books support the amount claimed. His books show that the total excess cost for excavating all of Channel No. 2 was $556,594.62, and Jones’ total excess costs for excavating Channel No. 2 amounted to $487,903.51. This includes, by the way, equipment ownership expense, not all of which is allowable.
Something over two million cubic yards were excavated in Channel No. 2, and only 300,000 cubic yards of that amount was wet material; hence, his figures give us no basis from which to determine the excess cost of excavating the wet material alone. The costs reflected by the books include those caused by delays due to weather conditions, by labor shortages, by delays in getting equipment on the project in the beginning, by the requirement that plaintiff put extra equipment on the job, by a flood, and by other causes. It is not possible to ascertain the amount of excess costs that were attributable to each of these factors, all of which would have *740 increased plaintiff’s excess costs even if the wet material had not been encountered. There is no possible way to ascertain from plaintiff’s books alone how much of his excess costs were attributable to the encountering of wet material.
However, upon the basis of all the evidence we have determined that the sum of $1.75 per cubic yard was the reasonable cost of excavating, hauling, and dumping the wet and saturated material on the fill areas. From this figure, we have deducted the contract price, less 10 percent for profit, and have multiplied the result by the total yardage which we have found was excavated by plaintiff and by his subcontractor, Jones; 114,000 cubic yards by plaintiff, and 186,-000 cubic yards by Jones. The product thus obtained amounts to $159,126.90 for plaintiff, and $259,628.10 for Jones. In addition, we have determined that the additional costs for placing the wet and saturated material on the fill amounted to $35,649.35 for plaintiff, and $49,170.06 for Jones. We then allowed 10 percent for profit and overhead, and arrived at the totals of $214,253.88 for plaintiff, and $339,677.98 for Jones.
Plaintiff is entitled to recover in his own behalf and on behalf of his subcontractor the above excess costs incurred by them due to the wet material, unless, as defendant urges, plaintiff is limited in his recovery by a release executed after the completion of the work.
The facts relative to the release are these: Work on the contract in suit was completed and accepted subject to final cleanup on May 3, 1944. On May 15, 1944, plaintiff submitted to the contracting officer a written document asserting ten claims on behalf of plaintiff and his subcontractor, the A. Kaymond Jones Company. This document will hereinafter be referred to as the May claim. It contained four items here pertinent, as follows:
Item Amounts
3. Contractor’s claim for excavating, hauling, and dumping wet material from Channel No. 2_$72,081.52
4. Subcontractor’s claim for excavation of wet material from Channel No. 2_313, 780.99
5. Contractor’s claim for use of pervious material from Channel No. 1 and wet material from Channel No. 2 on fill, and for excessive wetting and rolling of fill- 371,329. 60
*741 6. Subcontractor’s claim for use of wet material from Channel No. 2 on fill and for excessive wetting and rolling of fill-$113,417.20
How much of items 5 and 6 was for the use of the wet material and how much for the use of the pervious material and how much for allegedly excessive wetting and rolling is not shown.
Article 16 of the contract provided that upon completion and after acceptance of all work required under the contract, the amount due the contractor should be paid to him after the contractor furnished to the Government “* * * a release, if required, of all claims against the Government arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the contractor from the operation of the release in stated amounts to be set forth therein.”
On June 27, 1944, approximately a week after the denial of the May claim by the contracting officer, plaintiff executed a release of “all claims arising under and by virtue of said contract * * * excepting however the claim for additional compensation filed by the contractor under date of May 15, 1944, for the sum of $1,235,833.65, which claim is being appealed.”
Plaintiff concedes that the May claim was adopted by reference in the release, and recognizes that this court has held that a contractor is limited in his recovery to the specific items and amounts reserved in the release. Bein v. United States, 101 C. Cls. 144 ; Eastern Contracting Co. v. United States, 97 C. Cls. 341 ; P. J. Carlin Construction Co. v. United States, 92 C. Cls. 280 . He argues, however, that the release does not limit recovery in this case for several reasons. Plaintiff says that the May claim and the release embodied a serious mistake of fact, i. e., the amount of plaintiff’s damage, that this mistake was, by the nature of the transaction, mutual rather than unilateral, and that the release should therefore be reformed to effect substantial justice. Alternatively, plaintiff contends that the release should be reformed even if the mistake was unilateral. Finally, plaintiff urges that, even if effective as written, the release limits recovery only to the total sum excepted from the operation *742 of the release, and not to the several items and amounts specified in the May claim and adopted by reference in the release.
This final proposition must be rejected on the authority of the Bein, Eastern, and Carlin cases, supra.
, That this court may, for the purpose of awarding or refusing to award a money judgment against the United States, reform an instrument so as to express the true intent and understanding of the parties to it is well settled. Ackerlind v. United States, 240 U. S. 531 ; Iowa-Wisconsin Bridge Co. v. United States, 114 C. Cls. 464, 504 , cert. den. 339 U. S. 982 ; Sutcliffe Storage and Warehouse Co., Inc. v. United States, ante, p. 297. But we are of the opinion that this is not a proper case for the exercise of that power.
The contract work was completed and accepted subject to final clean-up on May 3, 1944. On May 15, plaintiff filed with the contracting officer a voluminous and very detailed document containing, inter alia, the claims here pertinent. This claim was denied by the contracting officer on June 19, 1944. On June 27, 1944, plaintiff executed the release now in question, excepting only the claim filed May 15 in the amount stated. It is obvious that not only were the claims here involved in the minds and contemplation of the parties, but also that all the facts bearing on the existence of the injury were known. Even if it be true that the extent of the injury was not known to plaintiff at that time, we are of the opinion that this is not such a mistake as to justify reformation of the release freely given under the above facts and circumstances.
In his brief plaintiff points to a number of cases involving releases given by a party who has suffered personal injuries as analogous to the facts before us. Even in the personal injury cases, however, a release cannot be avoided merely because the injuries later prove more serious than the releasor believed them to be at the time of executing the release. See 117 A. L. R. 1022 ; 5 Williston on Contracts (Rev. Ed.) § 1551.
Accordingly, and without discussion of defendant’s contentions in opposition to our granting a reformation of the release, we hold that plaintiff is bound by the terms of the release as written, and is limited in his recovery to the specific *743 items and amounts excepted from the operation of the release.
In item 3 of his claim plaintiff reserved his claim for excess costs of excavating, hauling, and dumping wet material from Channel No. 2, in the amount of $72,081.52. Although we have found that plaintiff incurred excess costs on this item in the amount of $175,039.59 (including an allowance of 10 per cent for overhead and profit), he is limited in his recovery to the amount excepted from the release.
Plaintiff reserved a claim in the amount of $371,329.60 for the use of pervious material from Channel No. 1 and wet material from Channel No. 2 on the fill, and for excessive wetting and rolling of the fill. The amount claimed for the use of the wet material alone cannot accurately be determined from the May claim, but we have found that plaintiff incurred excess costs on the rolled fill because of the wet material in the amount of $39,214.29 (including an allowance of ten per cent for overhead and profit). This amount is much less than the total claimed, and, under the circumstances, we think plaintiff is entitled to recover the full amount of $39,214.29.
In item 4 plaintiff reserved a claim on behalf of his subcontractor in the amount of $313,780.99 for the excavation of wet material from Channel No. 2. We have found that the subcontractor’s excess costs on this item were $285,590.91 (including an allowance of 10 per cent for overhead and profit), and plaintiff is accordingly entitled to recover this amount for and on behalf of his subcontractor, the A. Raymond Jones Company.
Plaintiff also reserved a claim in the amount of $113,417.20 on behalf of his subcontractor for the use of wet material from Channel No. 2 and for excessive wetting and rolling of the fill. The amount claimed for the use of the wet material alone cannot accurately be determined from the May claim, but we have found that the subcontractor’s excess costs for the use of the wet material on the rolled fill were $54,087.07 (including an allowance of 10 per cent for overhead and profit). This amount is much less than the total amount claimed, and under the circumstances we think plain *744 tiff is entitled to recover this amount for and on behalf of the A. Raymond Jones Company.
Plaintiff is therefore entitled to recover the total sum of $111,295.81 in his own behalf, and the total sum of $339,-677.98 for and on behalf of his subcontractor, the A. Raymond Jones Company.
Judgment for $450,973.79 will be entered.
Howell, Judge; MaddeN, Judge; Littleton, Judge; and JoNes, Chief Judge, concur.
FINDINGS OF FACT
The court on July 13, 1953, made findings of fact, based upon the evidence, the report of Commissioner Wilson Cowen, and the briefs and argument of counsel, as follows:
1. The plaintiff, a citizen of the United States, operates a general contracting business in partnership with his sons under the name of W. C. Shepherd Company, which has its home office in Atlanta, Georgia. Plaintiff has been engaged in the contracting business since 1918 and has had considerable experience in the performance of contracts, including a number of contracts with the United States Corps of Engineers, involving earth moving and fill work.
2. On April 22,1943, plaintiff entered into a written contract with defendant, acting through Colonel W. W. Wanamaker of the Corps of Engineers, as contracting officer, whereby plaintiff, in consideration of the unit prices to be paid for the estimated quantities of the items of work, agreed to construct the Cumberland Oil Field protective levees in accordance with the specifications, schedules, and drawings.
3. The work called for under the contract was a part of the Denison Dam and Reservoir Project. At the time the contract with plaintiff was executed, the Denison Dam was in the course of construction and was nearing completion. It is a flood control dam which was erected across the Red River at a point where it forms the boundary between Oklahoma and Texas. The dam is about ten miles below the confluence of the Washita and Red Rivers. When the reservoir was full, it was expected that the dam would back water for approximately fifty miles up the Red River and for about forty miles up the Washita River.
*745 The Cumberland Oil Field lies adjacent to the Washita Eiver at a point about thirty miles above the Denison Dam. In June of 1943, the oil field had seventy-five producing oil wells and it was expected that an additional seventy-five wells would be drilled in the near future. The closing of the dam and the filling of the reservoir was expected to raise the water level in the oil field to a depth of forty-five feet, and the project covered by the contract involved here was designed to protect the oil field by the construction of levees and river discharge channels. The protective work extended over an area approximately 5.6 miles long. In the upper reach, the Washita River was to be diverted through Channel No. 1 about one-half mile to the east. The excavation for this channel, which was to be about 3,300 feet long and 600 feet wide, involved making cuts up to forty feet in depth. It was planned that after the river water was diverted into this channel, it would flow through a natural declivity and pass into Channel No. 2 about one mile to the east of the river. The excavation for Channel No. 2, which was to be about 7,000 feet long and 350 feet wide, involved making cuts up to eighty feet in depth.
The protective levees were to be constructed for the most part from the material excavated from the two channels. The levees were to have a total length of approximately 23,480 feet with 24-foot crown widths and with average bottom breadths from 300 feet to 600 feet. At points where the levees crossed the river, cofferdams and levee closures were required. The levees were to be of the rolled-fill type and were to be approximately eighty-five feet to ninety feet high at the river crossing and of an average height of about fifty feet.
4. The Corps of Engineers estimated that the levee construction would require about 5,418,400 yards of material. The channel excavation was expected to provide about 5,423,300 yards, including 2,953,200 cubic yards of levee earth, and 2,470,100 cubic yards of shale waste. The remaining 2,465,200 cubic yards of earth needed for the levees was to be obtained from five designated borrow pits.
5. In March of 1943, plaintiff learned of the possibility that a contract for the construction of the Cumberland Oil *746 Field protective levees would be let. Plaintiff’s representative went to Denison, Texas, for the purpose of making a preliminary survey of the job. A set of preliminary drawings was made available by defendant, and an employee of defendant conducted plaintiff’s representatives over the site of the project. On March 20, 1943, plaintiff mailed to the Denison District Office a list of its personnel and available equipment. On April 7, 1943, the formal solicitation for sealed bids, to be opened on April 19,1943, was issued and the final plans and specifications were made available on the same day. Plaintiff’s bid was the lowest of five received. Of the five bids received, only three, including plaintiff’s bid, covered all of the items in the contract. The following table shows the three major bids and the Government’s estimate of costs on the items material to this action.
Contract Item
6. In the interest of the war effort and to avoid the delay incident to the execution of the formal contract, a letter contract and notice of award of the contract to plaintiff was issued by the contracting officer on April 22, 1943, and accepted by plaintiff on the following day. The formal written contract was executed sometime after the notice of award but was also dated April 22, 1943. The total estimated consideration to be paid plaintiff, based on the unit prices for the estimated quantities of work, was stated to be approximately $4,858,383.36.
7. Paragraph 1-06 of the specifications required the contractor to commence work within seven days after the receipt of notice of award and to complete the entire work by March 1,1944, plus any extension of time granted under the provisions of the contract. However, before the levees could be constructed across the river, it was necessary to have the excavation of both channels completed in order that the flow of the river could be diverted into the channels. The Deni- *747 son Dam was to be closed about November 15, 1943, after which date the floodwaters of the Washita River would not run off. Accordingly, paragraph 1-06 (b) of the specifications specified that the excavation of the channels was to be completed before November 15, 1943. Paragraph 2-02 of the specifications required the contractor to complete the following items of work before undertaking the closure of the Washita River and Rock Creek channels by means of a cofferdam: (a) the excavation of the two channels to the grades and elevations shown on the drawings; (b) the placing of protective stone at elevation 620 on the riverside levee, and (3) the completion of the rolled-fill levee and adjoining blankets to an elevation of at least 620 feet, except at the closure sections. By the terms of paragraph 2-03 of the specifications, the construction of the closure cofferdams and the diversion through the discharge channels were required to be started on or about November 15, 1943. This intermediate completion date was inflexible and was to be unaffected by any time extensions.
8. The specifications provided that the contractor should perform, directly and without subcontracting, not less than 50 percent of the work calculated on the basis of the contract price. Plaintiff subcontracted approximately 46.34 percent of the contract work. On April 26, 1943, four days after the contract was awarded, plaintiff entered into a subcontract with the A. Raymond Jones Company. The subcontract, among other things, included the work required for the construction of Fill Area IV, including the excavation of Channel No. 2 and the excavation of overburden in Borrow Area “K”, replacing and compacting of the rolled fill in Area IV and the excavation and hauling of shale from Channel No. 2 to designated disposal areas.
Plaintiff also sublet all the work covered by contract items 16, 17, 18, 22 and 23, which included dumping riprap and placing riprap and crushed stone, to Lambert Brothers, Inc. A portion of the work under item 16 was resublet by the subcontractor to E. C. Schroeder & Co.
9. The subcontractor, Jones, moved some equipment to the site on April 29,1943, and began work on the following day. The first of plaintiff’s equipment arrived at the site on May 6, *748 1943, and work by the prime contractor was started on May 8, 1943.
On February 29, 1944, plaintiff wrote the contracting officer that the contract could not be completed on schedule because of unfavorable weather during the winter months and the inability of the stone subcontractor to secure sufficient common labor for the placement of the riprap. Plaintiff requested that the time for completion be extended from March 1,1944 to April 15,1944, and by Modification No. 6 the completion date was extended to April 16,1944. Plaintiff requested a further extension of time from April 17 to May 3, 1944, stating that the delay in completion was entirely due to plaintiff’s inability to secure sufficient common labor to place riprap stone after the stone had been delivered on the fills. The requested extension was granted by Modification No. 8 and the contract was completed and accepted, subject to final clean-up on May 3,1944.
10. A comparison of the earth distribution as estimated by the Corps of Engineers in the plans and as performed by plaintiff is set forth in plaintiff’s exhibit No. 16. Plaintiff and its subcontractor Jones moved a total of 8,045,888 cubic yards of material, including 5,300,220 cubic yards of earth for the levee fills and 2,502,172 cubic yards of shale.
11. On May 15,1944, plaintiff submitted to the contracting officer a written document containing ten claims asserted on behalf of plaintiff and his subcontractor, the A. Raymond Jones Company. The claims, which are in evidence as plaintiff’s exhibit No. 27, included the following which are material to this action:
Claim Items Amount
1. Contractor’s claim for compensation for changes in design of typical sections in Fill Areas II and III, Items 11 and 12_$105,237.48
3. Contractor’s claim for excavating, hauling, and dumping wet material from Channel No. 2_ 72,081. 52
4. Subcontractor’s claim for excavation of wet material from Channel No. 2_ 313, 780.99
5. Contractor’s claim for use of pervious material from Channel No. 1 and wet material from Channel No. 2 on fill, and for excessive wetting and rolling of fill_ 371,329.60
*749 6. Subcontractor’s claim for use of wet material from Channel No. 2 on fill and for excessive wetting and rolling of fill- 113,417.20
Total_$975,846. 79
The claim document included one claim for $10,114.48, which has been paid, and several other claims which were not included in plaintiff’s amended petition and are not involved in this action.
12. With respect to the first two causes of action asserted in the petition, the facts relating to notice, protests, and appeals will be set forth in subsequent findings under the heading “Protests and Appeals”. The facts with respect to the claims filed with the contracting officer, and the decisions of the contracting officer and the head of the department on the claims, will be set forth under the same heading. There is no pleading or proof of arbitrary or fraudulent action by the contracting officer or by the head of the department in the decisions disallowing plaintiff’s claims.
13. Article 16 (d) of the contract provided:
Upon completion and acceptance of all work required hereunder, the amount due the Contractor under this contract will be paid upon the presentation of a properly executed and duly certified voucher therefor, after the Contractor shall have furnished the Government with a release, if required, of all claims against the Government arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the contractor from the operation of the release in stated amounts to be set forth therein.
14. On June 27, 1944, plaintiff executed the following release:
The work under Contract No. W-257-eng-2286, dated April 22, 1943, between the United States of America, represented by W. W. Wanamaker, Colonel, Corps of Engineers, District Engineer, as contracting officer, and the undersigned contractor, having been completed and finally accepted, the United States, its officers and agents are hereby released from all claims and demands whatsoever arising under or by virtue of said contract upon payment of the sum of $252,318.52, due under said contract, excepting however the claim for additional compensation filed by the contractor under date of May 15, *750 1944, for the sum of $1,235,833.65, which claim is being appealed.
15. A proposed general release covering all the contractor’s claims accompanied the final estimate which defendant sent to plaintiff for execution. When the proposed release was received, both plaintiff and his subcontractor were heavily indebted as a result of losses sustained in performing the contract, and they urgently needed the final payment to pay outstanding debts.
The claims, which plaintiff had filed with defendant on May 15,1944, had been prepared by plaintiff’s engineer without the aid of counsel. When the proposed general release was received, plaintiff’s engineer, again without consulting counsel, inserted in the release the words “excepting, however, the claim for additional compensation filed by the contractor under date of May 15, 1944, for the sum of $1,235,-838.65, which claim is being appealed.”
At the time plaintiff signed the release, no one acting in his behalf had completed any full audit of his costs in connection with the contract. An audit prepared after the release was executed indicated that the loss sustained by plaintiff and his subcontractor substantially exceeded the $1,235,833.65 stated in the release.
At the time the release was executed, plaintiff and his subcontractor had actual knowledge of all the facts bearing on the existence of the claims in suit. Although plaintiff contends that neither he nor the subcontractor intended to release any damages which might later be discovered in excess of the amounts set forth in the May claim and adopted by reference in the release, there is no evidence in the record to support a finding that such was their intention. The record does not establish that the claimed intention was ever communicated to defendant, nor that defendant intended, should it later be discovered that plaintiff had understated his and the subcontractor’s damage, that the release and the May claims should be interpreted as not limiting the claims but merely describing them.
16. Plaintiff and his subcontractor, A. Raymond Jones, sustained a substantial loss in the performance of the contract. Plaintiff claims that such loss was caused by (1) the *751 unexpected presence of subsurface water and saturated soil, which were encountered in the excavation of Channel No. 2, and the defendant’s requirement that such wet material he placed on the levees; (2) an unexpected overrun of pervious material, which was encountered in the excavation of Channel No. 1, and the defendant’s requirement that the excess material be used on the levees; and (3) the defendant’s breach of contract in failing to direct and control the rolled-fill work in accordance with the provisions of the contract and by-requiring excessive wetting and compaction of the rolled fill.
WET MATERIAL IN CHANNEL NO. 2
17. The contract provided in pertinent part as follows:
Article 4. Changed conditions. — Should the contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The Contracting Officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall with the written approval of the Secretary of War or his duly authorized representative, be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions.
Article 5. Extras. — Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the contracting officer and the price stated in such order.
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Article 15. Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail a copy thereof to the Contractor at his address shown herein. Within 30 days from said mailing the Contractor may appeal in *752 writing to the Secretary of War, whose written decision or that of his designated representative or representatives thereon shall be final and conclusive upon the parties hereto. The Secretary of War may, in his discretion, designate an individual, or individuals, other than the Contracting Officer, or a board as his authorized representative to determine appeals under this Article. * * *
THE SPECIFICATIONS
18. The specifications in Section I under the heading of “General Provisions” provided as follows:
1-03. General Information.
(d) Ewca/oation. — The excavation for discharge channel No. 1 located in the north ridge on the east side of the river will involve approximately 1,191,000 cubic yards of excavation. The excavation for discharge channel No. 2 located in the south ridge on the east side of the river involves approximately 4,232,400 cubic yards of excavation. All excavated material suitable for use in the levee will be placed in the embankment and all other materials will be disposed of in designated disposal areas as designated by the contracting officer. Additional embankment material needed over and above that excavated from the discharge channels will be obtained from designated borrow areas as designated by the contracting officer. Foundation excavation and stripping will be disposed of in designated places.
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1-05. Quantities. — The following estimate of quantities of work to be performed under these specifications is given only to serve as a basis for canvassing offers and for determining the approximate amount of the consideration of the contract. Within the limits of funds available, the contractor will be required to complete the work specified in paragraph 1-02, be the required quantities more or less than the amounts herein estimated.
1-06. Commencement, Prosecution and Completion. *****
(c) The contractor shall furnish sufficient forces, construction plant and equipment, and shall work such hours, including night shifts, Sunday and holiday work as may be necessary to insure completion of the work *753 in accordance with the schedule in subparagraph (b) above. If in the opinion of the contracting officer, the contractor falls behind schedule, the contractor shall take such steps as may be necessary to improve his progress and the contracting, officer may require him to increase the size of his working force, the number of shifts, days of work and/or the amount of construction plant, all without additional cost to the Government.
(d) If the completion of the undertaking to be performed under the terms of this contract be delayed by reason of delay in the delivery of materials or supplies essential to such performance because of War Priorities and without the fault or negligence of the contractor, the time of performance will be extended for a period equal to the delay caused to the entire undertaking as determined by the contracting officer, and subject to appeal, as provided in Article 9 of the contract.
$ ‡ *
1-13. ORGANIZATION, PLANT AND PROGRESS.
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(c) The contractor shall furnish sufficient forces, construction plant and equipment, and shall work such hours, including night shifts and Sunday and holiday work as may be necessary to insure the prosecution of the work in accordance with the approved progress schedule. If, in the opinion of the contracting officer, the contractor falls behind the progress schedule, the contractor shall take such steps as may be necessary to improve his progress and the contracting officer may require him to increase the number of shifts, days of work and/or the amount of construction plants, all without additional cost to the Government.
(d) Failure of the contractor to comply with the requirements of the contracting officer or his authorized representative under this provision shall be grounds for the determination of the contracting officer that the contractor is not prosecuting the work with such diligence as will insure completion within the time specified; and when such determination has been made, the contracting officer may terminate the contractor’s right to proceed with the work or such part of the work as to which there has been delay, pursuant to Article 9 of the contract.
*****
1-15. Physical Data.
(a) From investigations, including surveys and explorations made at the site, it is believed that physical *754 conditions are approximately as indicated on the drawings, but these data are not guaranteed.
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(c) Geology. — Subsurface conditions have been developed by core borings, overburden sampling, test pits, and open shovel cut. The core and overburden samples are available for inspection at the U. S. Engineer Office, Denison, Texas. The plan and logs of the core borings drilled in the area of the site are shown on the drawings. The subsurface data included in the plans indicate the contracting officer’s opinion as to materials encountered in making soundings intended to supply information in connection with the design of foundations. There is, however, no expressed or implied guaranty as to the accuracy of the borings or any interpretation of them. Each offerer must form his own opinion of the character of the material to be excavated from an inspection of the ground, put his own interpretation upon the borings made by the contracting officer, and make such other investigation as he may see fit.
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1-29. Misplaced Material. — Any material that is deposited elsewhere than the place designated or approved by the contracting officer will not be paid for, and the contractor may be required to remove such material and waste it or deposit it as directed.
1-40. Liquidated Damages. — Liquidated damages will not be prescribed. (See paragraph 1-13.)
19. Section IV of the specifications under the heading of “Excavation” provided as follows:
4-01. GeNeral. — Excavation under this contract shall consist of the removal, hauling, and disposal of any class of material encountered for the construction of the protective levee and river discharge channels as shown on the drawings, specified herein, or as directed by the contracting officer. It is the intent of these specifications to require the contractors to utilize all suitable materials excavated from the channels in the construction of the rolled-fill levees and contractors will not be permitted to substitute borrow materials therefor so long as suitable materials are available from the channels. This will result in the completion of certain portions of the rolled-fill above elevation 620 on or before November 15,1948.
4 — 02. Character of Materials. — The locations and logs of core holes and test pits made by the United States to determine the character of materials to be *755 removed and encountered are shown on the drawings. The open shovel cut was made with a 1% cubic yard, No. 6 Northwest shovel. Cores and samples of materials taken from these core holes and test pits are available for inspection at the U. S. Engineer Office, Denison, Texas. The contractor is expected to examine the site of the work, the logs of the borings, the samples and cores which are on display and, after investigation decide for himself the character of the materials to be removed.
$ $ * $ $
4-05. ExcavatioN, Borrow.
(a) General. — The borrow excavation shall be taken from the different borrow areas indicated on the drawings, at the locations directed and to the depths approved by the contracting officer. The designated borrow areas and additional borrow areas, if required, will be furnished by the United States without cost to the contractor. The contractor may use any approved method of transporting material from the borrow area to the rolled-fill levee. If roads are required for the method he elects to use, he shall construct and maintain such roads and the cost of the roads shall be included in the contract unit price for borrow excavation. Borrow excavation shall include the grubbing and stripping where required of the borrow areas. Whenever, in the opinion of the contracting officer, it is necessary to change the location of the excavating equipment working in the borrow areas, in order to obtain suitable material, the contractor will be required to move his equipment to the designated location and the contractor shall be entitled to no additional compensation because of such requirement. The contracting officer reserves the right to use more material from any borrow area to the exclusion of others to secure the most advantageous materials for construction of the levee.
(b) Method of Excavation. — All borrow excavation shall be made with approved equipment and in such a manner as may be required by the contracting officer in order to produce a well mixed and blended material for incorporation in the fills.
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(4) Lower Channel. — The overburden materials in this area which are to be utilized in the rolled-fill are variable as to area. The Northwest area approximately 1,600 feet long is predominantly pervious and the Southeast area aproximately 2,400 feet long is predominantly *756 impervious. These materials shall be excavated separately and routed to the pervious and impervious zones of the fill sections, respectively. Within the two separate areas any type of excavating equipment will be permitted so long as the expected uniformity exists.
(c) Disposal. — The disposition of excavated material shall be as directed by the contracting officer. Based on his analysis, excavated materials shall be placed in the pervious and impervious portions of the levee as shown on the drawings or wasted in the borrow areas as directed by the contracting officer. Approved material shall be placed in the levee in accordance with the provisions of Section V.
*****
A-06. ExcavatioN, Discharge Channels.
(a) General. — The contractor shall remove, haul, and dispose of any class of material encountered in the discharge channels as shown on the drawings or as directed by the contracting officer.
(b) Removal. — Excavation shall be made within the lines and to the slopes shown on the drawings or as directed by the contracting officer. All the overburden excavation as shown approximately on the drawing and as determined by the contracting officer during excavation will be used in the rolled-fill levee and shall be excavated as specified for borrow excavation hereinbefore. The remainder of the excavation is waste and may be excavated in any manner with approved equipment.
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(d) Disposal. — The disposition of excavated materials from the discharge channel shall be as directed by the contracting officer. The approved overburden material shall be placed in the rolled-fill levee in accordance with the provisions of rolled-fill, Section V. All waste materials shall be placed in the disposal areas shown on the drawings. The_waste material used adjacent to the rolled-fill and considered part of the levee, known as the blanket and placed in accordance with the requirements of the blanket, Section Y and the river channel fills shall be spread in twelve (12) inch layers and compacted by the movement of the hauling and spreading equipment which shall be operated so as not to “track” the equipment which precedes it. That waste material not used above shall be disposed of in the manner and at the elevations directed by the contracting officer. All disposal areas shall be left in a neat condition, smoothly and . evenly dressed, and sloped to drain. All stumps, *757 roots, and logs shall be disposed of by burning or shall be covered in waste areas outside of the blankets.
(e) Measurement and Payment.
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(2) Payment. — Payment for all excavation will be made at the respective contract unit price per cubic yard for “Excavation, Channel No. 1 to Fill Areas,” “Excavation, Channel No. 1 to Disposal Areas,” “Excavation, Channel No. 2 to Fill Areas,” and “Excavation, Channel No. 2 to Disposal Areas,” which shall include all cost of removal, hauling, and disposing of the materials in the designated areas to the complete satisfaction of the contracting officer.
20. The protective levee system comprised seven fill areas which were divided into three zones, designated as Zones I, II, and III. Zone I consisted of Fill Areas I, II, and III, Channel No. 1, and Borrow Areas “F” and “G.” Zone II consisted of Fill Areas IV and V, Borrow Area “K” and a portion of Channel No. 2. Zone III consisted of Fill Areas VI and VII, Borrow Areas “C” and “D,” and the remaining portion of Channel No. 2. Each zone contained a stream crossing and closure section. Throughout the length of the levee, intervals of 100 feet were designated by station numbers, commencing with Fill I in Zone I at approximately Station 10+00 and extending through Fill VII (Zone III) to approximately Station 298+00.
The levee in Zone I consists of three fill areas and the upper river closure. Fill Area I begins at approximately Station 10+00, where the northwest end of the embankment ties into the natural ground, thence in a southeasterly direction to Station 64+00. Fill Area II begins at Station 64+00 thence in an easterly direction across the Washita Biver to approximately Station 92+70. The upper river closure is included in this fill area, extending between approximate Stations 68+50 and 72+50. Fill Area III begins at Station 92+70 and extends in a southeasterly direction to Station 141+00.
The levee in Zone II consists of Fill Areas IV and V and the Bock Creek closure section. Fill Area IV begins at Station 141+00 and extends in a southeasterly direction across Bock Creek and its valley to Station 181+60 where the embankment ties into the natural ground. The Bock *758 Creek closure section, extending from approximate Stations 158+50 to 159 + 50, is located in Fill Area IV. Tbe natural ground forms the levee or embankment between the end of Fill Area IV at Station 181+60 to the beginning of Fill Area V at about Station 234+80. Fill Area V begins at Station 234+80 where the embankment ties into the natural ground and thence in a southwesterly direction to Station 254+03.
The levees in Zone III consist of Fill Areas VI and VII and the lower river closure. ' Fill Area VI begins at Station 254+03 and extends in a southwesterly direction to Station 275+00. Fill Area VII begins at Station 275 + 00 and extends in a southwesterly direction across the Washita Biver to Station 298+00, where the levee ties into the original ground and the filled levee terminates. The lower river closure is included in this fill area from approximate Stations 287+50 to 291 + 50.
21. Throughout the length of the channels, intervals of 100 ■feet were also designated by station numbers. Channel No. 1 (or the Upper Channel) is located northeast of Fill Area III. The upper or inlet end of the channel commences at approximately Station 10+00. The upper or inlet end of Channel No. 2 (the Lower Channel) begins at approximately Station 3+00. The beginning station is located north of Fill Area IV in the Book Creek Valley.
22. Prior to the time his bid was submitted, the plaintiff made a thorough examination of the site and a careful study of the drawings, plans, and samples provided by the Corps of Engineers. In March 1943, the contractor’s party spent three or four days at and near the site. The party returned for a further examination of the site and a study of the plans in April 1943, several days before the bid was submitted.
23. The drawings which were made available to plaintiff in March of 1943 were preliminary drawings that had been prepared for use in drafting the contract plans and specifications. On one sheet of these drawings two proposed cut sections of Channel No. 2 were illustrated. Both drawings indicated that the channel was to be cut through a ridge which rose from an elevation of 610 feet at the bottom of the *759 cut to an elevation of approximately 688 feet. The profile of the original ground surface of the proposed channel showed a ridge with the peak or highest elevation in about the center of the proposed cut. From this peak the ground surface line sloped sharply to either side, but depressions in the ground surface line were also indicated on each side of the cut. These drawings and similar contract drawings, described in finding 24, were on a scale which was distorted vertically in relation to the horizontal in accordance with the usual engineering practice for illustrating relatively large areas on a paper of reasonable size.
Each drawing also contained the profile of the shale line below the ground surface line. The shale line conformed generally to the outline of the ground surface line except that the shale line was smoother and more regular. On one of the two drawings, no depressions in the shale line Wei's shown at the points immediately below depressions in the ground surface line. On the other drawing, a slight dip in the shale line was indicated below a large depression in the surface line.
The logs of two core borings were shown on the first drawing and the logs of three core borings were set out on the second. The presence of water was not indicated in either of the borings.
24. Channel No. 2 was to be cut through a ridge and involved an excavation to a maximum depth of 80 feet from elevation 690, the high point on the ridge, to elevation 610 feet at the channel floor. The contract drawings, which were more numerous and in greater detail than the preliminary drawings, indicated good drainage in the area in which the channel was to be excavated. One of the drawings contained a profile showing the original ground line of Channel No. 1 and Channel No. 2. As in the case of the preliminary drawings, the profile of the original ground surface for Channel No. 2 showed that the channel was to be cut through a ridge having an elevation of 610 feet on either end and reaching an elevation of 690 feet at about the center of the area. This profile indicated a sharper slope and a faster run-off than the profile of the ground line of Channel No. 1, which was shown on the same drawing.
*760 A plan of the proposed channel, which had contour lines indicating the elevation of the ground at various points, showed that the general direction of the drainage from elevation 690 feet in about the center of the proposed cut to the lower or outlet end was parallel to the line of the channel. The direction of the drainage in the upper end of the channel, beginning near the high point and extending from Station 35 to Station 10, was toward the channel and thence to the opening at the upper end. The upper end of the channel was located to take maximum advantage of a draw which extended into the ridge at that point. The elevation at the upper end was 610 feet, the specified elevation for the channel floor, and the land immediately to the north sloped into the natural declivity, which was at an elevation of about 592 feet.
25. Prior to the issuance of the formal plans and specifications, the Corps of Engineers conducted an extensive exploration of the subsurface conditions on the project through a series of core and auger borings. More than 300 auger bor-ings were made down to the shale line or to refusal. They were spaced 500 feet to 1,000 feet apart in a checkerboard pattern over the project. The core borings, which were carried below the shale line, were made only at strategic locations. There were only two core borings in the vicinity of Channel No. 2, and they were spaced from 700 feet to 800 feet apart. Since the project encompassed a large area and involved no masonry or structural work, the Corps of Engineers considered that the coverage of the borings was adequate.
26. Included in the contract plans were the logs of 91 core and auger borings. A total of 14 core and auger borings was shown on the plans in the vicinity of Channel No. 2. No water or wet material was shown in any of these borings. The two core borings nearest the area in Channel No. 2, where wet material was later discovered, included one boring in the proposed channel and another about 700 feet away. Neither boring disclosed any wet or saturated materials. The logs of seven borings were shown in the contract plans on the profile of Channel No. 2. There was no indication of water or wet material in any of these borings. However, four *761 of the seven borings were “projected” and were not located in the immediate area to he excavated.
In the general vicinity of Channel No. 2 there were three borings showing the discovery of water and wet materials in the areas which were to be foundations for the levee closures. These borings were made in the river valley and indicated a general water table below the bed of the proposed channel.
27. The contract drawings did not show a profile of the shale line below the ground surface line as was illustrated on the preliminary drawings. However, the core borings, which were carried down through the shale, indicated that shale was encountered at varying elevations. The logs of the borings shown on the profile of Channel No. 2 indicated that the material to be excavated consisted of mixtures of sand, clay, and silt, interspersed with clay lenses.
28. The area in which the two channels were excavated was located on the northeastern slope of the land leading down into the valley of the Washita River. The general topographic slope was from the northeast toward the southwest and into the valley of the river. The area was dissected on the planar relationship by Kansas Creek and Rock Creek, two live streams which flowed throughout the year in a southwesterly direction into the valley of the Washita.
The average annual rainfall in the area where the contract was performed is 36 inches.
At the time the site was available for investigation by bidders, an old well, known as the old Fort Washita well, was situated about 3,500 feet northeast of proposed Channel No. 2. It contained a small quantity of ground water, which was at a higher elevation than the designated elevation of the channel floor. There were also two springs at a point near the base of a hill about 3,000 feet southwest of the proposed channel. The springs, which emptied into concrete retaining tanks, were at a higher elevation than the bottom of the proposed channel cut. Near the southeast outlet of the channel there was a cistern, which contained water at an elevation of 650 feet, and near the southwestern end of the channel, there was another cistern which had water at an elevation of about 628 feet. About 2,000 feet west of the *762 proposed channel, there was a small draw where water seeped at an elevation higher than the specified elevation for the channel floor.
29. Since ground water will ordinarily seep through per-vious overburden down to impervious shale and then follow the grade of the shale line, the contractor, in his study of the drawings, and the logs of the borings, expected that there would be no accumulated surface water in the overburden and that the material would be dry. This conclusion was, in part, based on the fact that the only core or auger borings which indicated the presence of water were the three borings made in the river valley in the areas where the foundations for the levee closures were to be located.
In addition to the information disclosed in the contract drawings and by the borings, there were other factors which lent plaintiff’s assurance that material to be encountered in the excavation of the channel would be dry.
The terrain indicated a good drainage slope away from the proposed channel. Local residents complained to plaintiff’s representatives about the lack of water in the region, stating that the water supply was often insufficient for their livestock except at the river itself. The core samples displayed by the Corps of Engineers showed that the moisture content of the soil in the borings taken in the area of proposed Channel No. 2 was 17 percent. Plaintiff’s engineer, who had had some experience with comparable soils, concluded that the moisture content was close to optimum and that it would probably be necessary to add some water to the material to get good compaction. An official of the Corps of Engineers, who escorted the contractor’s party over the site in March of 1948, advised that the contractor’s principal problem would be the difficulty of obtaining a sufficient supply of water for wetting the fill areas.
30. In the excavation of Channel No. 2, the contractor encountered a considerable volume of saturated and wet material in the upper end of the channel. It was found between Stations 3 and 10, between Stations 14 and 81, and between Stations 38 and 41. The presence of the wet material was due to the existence of two large depressions and a third' and much smaller depression in the shale. The largest de *763 pression was found between Stations 16 and 30, another between Stations 38 and 41, and the third and smallest depression at Station 10. Within the depressions, the overburden was completely saturated over an area which averaged about five feet at a depth above the shale line to the extent that approximately 150,000 cubic yards of the material was in a semi-liquid or soupy state. Above the saturated material, there was a stratified material consisting of layers of clay and layers of wet sand, the average depth of which was approximately five feet to seven feet. The layers of clay varied in thickness from two inches to fifteen inches and in between the layers of clay were layers of fine wet sand, which, for the most part, were considerably thicker than the layers of clay. Before excavation, the sand appeared to be a homogeneous damp material. When it was removed, shaken, and vibrated, however, the sand became quaky and livery to the extent that free water rose to the surface. The quantity of the wet material lying above the saturated material was about equivalent to that of the saturated material. The material was sensitive to vibrations so that when it was dumped into a truck or when heavy equipment was operated over it, it went into a livery or semi-liquid condition.
31. The greater weight of the evidence establishes that the Corps of Engineers did not anticipate that the depressions in the shale existed or that saturated and wet materials would be encountered in the excavation of Channel No. 2.
The evidence shows that neither the defendant’s engineers, who were in charge of the field exploratory work and of analyzing the materials obtained from the borings or those in the Design Section, who computed the yardage of material required for the fill and borrow areas, expected that the contractor would find the condition which he encountered in the excavation of the channel.
Under the supervision and with the approval of the Chief of the Operations Division, there was prepared for the contracting officer a cost estimate, based on the Government’s performance of the contract work with hired labor and the use of its own equipment but without any allowance for profit. The estimate was not furnished to any bidder but the costs set out therein were compared with the various bids *764 for the purpose of determining whether such bids were reasonable. Although the estimate, which is in evidence as plaintiff’s exhibit No. 48, does not contain work sheets showing in detail how each item of cost was calculated, the estimate shows that the defendant expected that the excavation of Channel No. 2 would proceed with greater efficiency than the excavation of Chamiel No. 1 or other borrow areas. The Government’s estimate for the cost of excavating Channel No. 2, which involved an estimated total of 1,832,700 cubic yards, was 24 cents per cubic yard, whereas its estimate for the cost of excavating Channel No. 1, which involved an estimated total of 989,200 cubic yards, was 27 cents per cubic yard.
32. The saturated and wet material was found in areas between the points where the borings were made by the Corps of Engineers and at an elevation of about 35 feet above the water table in the valley below. It was an unusual, unknown, subsurface condition materially different from that shown by the drawings, borings or specifications, and could not reasonably be anticipated from a study of the drawings, borings and samples, or by an examination of the site.
33. The wet material was first encountered in June 1943, by the subcontractor, Jones, who was excavating in the upper end of the channel. Defendant’s inspector permitted the contractor to waste 150 cubic yards of such material, but immediately thereafter the inspector was overruled by the defendant’s Resident Engineer, who directed that the material be placed in the fill.
34. After the wet material was encountered, the subcontractor carried on the excavation in a series of benches in an effort to provide drainage into the low point at the upper end of the channel. During the month of July, the subcontractor, at the suggestion of the Resident Engineer, dug a 20-foot ditch in an effort to drain the material. Both methods were ineffective because the material would not drain. The futility of the contractor’s efforts to drain the material was demonstrated by the fact that seven years after the contract was completed, the 350-foot-wide channel itself had failed to drain the water from the wet material on the sides of the cut.
*765 35. Plaintiff’s bid of 39 cents per cubic yard for the excavation of Channel No. 2 was based on his expectation that he would encounter good, workable material, whereas his bid for the excavation of the levee foundations, where he expected to encounter wet material because this condition was shown in the borings, was $1.50 per yard.
In arriving at the amount of his bid, plaintiff planned to excavate by a steady progression through blocks. He proposed to use shovels for excavating the channel and to haul the material from a single point of excavation to the fill areas in Euclids. Each of these trailer-type vehicles is capable of transporting 13 cubic yards of material. The dumping of the material on the fill was to be followed by a sequence of spreading, sprinkling, and rolling equipment. In order to make a profit on the work at the bid price, the contractor contemplated a continuous, belt-line type of operation from excavation to final compaction.
36. When the wet material was encountered, it was necessary for plaintiff to excavate it with a dragline rather than with a shovel as had been planned. The soupy material drained from the bucket, and the loading efficiency of the equipment was greatly reduced. In order to use the wet material, defendant ordered plaintiff to mix it with alternate layers of dry material on the fill. This required excavation operations in two places and entailed frequent moves of the equipment. The hauling equipment could be filled only to the water line with the semi-liquid material, and it would drain or slush out on the upgrades. It was difficult, and at times impossible, to move machinery through the wet material, both in the channel and on the fill. Plaintiff had to build ramps and had to haul out of the channel over steep grades when the Euclids were unable to pull through the floor of the channel.
From time to time, the defendant, pursuant to paragraph 1-13 of the specifications, ordered plaintiff to place additional equipment on the job so that the excavation could be completed by November 15,1943. As a result of these orders and the difficulties caused by the wet material, it became necessary for plaintiff to double the number of hauling units he expected to use and to incur extra costs in the operation *766 and maintenance of such equipment. On account of the damage caused when the soupy material flushed out on the haul roads, plaintiff was also obliged to incur additional costs in the maintenance of the roads.
37. The work on the rolled fill was also substantially increased on account of the wet material. It had to be dried for periods of from one-half day to three days, or an average of about three-fourths of a day. It was also necessary that the layers of wet material be placed in shallow lifts of four to six inches in thickness instead of the 9-inch and 12-inch lifts prescribed by paragraph 5-03 of the specifications. Haul roads of dry material had to be constructed through the wet areas on the fill, and the necessity of drying and mixing the wet material made it necessary for plaintiff to haul to and work on several zones of the fill simultaneously. As a consequence, plaintiff’s planned method for excavating, hauling, and rolling the excavated material was disrupted. The equipment, which usually had to be operated at its maximum power, frequently broke down and repair costs were greatly increased.
38. Plaintiff’s subcontractor, who excavated the major portion of the wet material in Channel No. 2, had bypassed portions of the wet and saturated material during the months of August and September. Representatives of the contracting officer had ruled shortly after the wet material was encountered that the material was suitable for use on the fill. On October 12, 1943, they instructed plaintiff, by the letter quoted in finding 85, to remove the remainder of the saturated material in Channel No. 2. This instruction was given in order that the wet material could be removed during hot weather, during which it could be aerated and dried out more quickly than during the cooler months of the year, and in order that such wet material could be mixed with the dry material from the channel. In compliance with the instructions given, the contractor proceeded thereafter to excavate and place in the fills the remainder of the saturated material.
39. A total of 2,138,744.9 cubic yards of overburden was excavated from Channel No. 2. Of this amount, 1,095,922.3 cubic yards were excavated by plaintiff and placed in Fill Areas V, YI, and VII, and 1,042,822.6 cubic yards were ex *767 cavated by the subcontractor, A. Raymond Jones, and placed in Fill Area IY. The upper 2,100 feet of the channel from Stations 0 to 21 were excavated by the subcontractor, and the lower 2,400 feet between Stations 44 and 70 were excavated by the prime contractor. Between Stations 21 and 40, the operations of the prime contractor and Jones overlapped, a portion of the overburden in that area being removed by each of them. Approximately 62 percent of the saturated material was excavated by the subcontractor and placed in Fill Area IY and the remainder was excavated by plaintiff and placed in Fill Areas Y, YI, and YII. Although plaintiff has no adequate record as to how much of the wet material, which was found above the saturated material in Channel No. 2, was excavated by plaintiff and how much was excavated by the subcontractor, it is found as a fact from the records as a whole that plaintiff excavated 114,000 cubic yards of the wet and saturated material, and his subcontractor Jones excavated 186,000 cubic yards of the wet and saturated material.
40. Plaintiff claims that, as a result of the wet material found in Channel No. 2, his costs were increased to the extent of $705,277.71 and the extra costs of his subcontractor amounted to $689,492.62. However, the evidence shows that part of such claimed costs was due to other causes.
41. Rainfall on the project during the months of May and June 1943 was heavy. On May 9, 1943, a flood on the Washita River inundated a part of the project area and twenty-two pieces of plaintiff’s plant and equipment were trapped and partially covered by the flood waters. Plaintiff was not able to remove the equipment from the flooded area until May 18, 1943. On account of the flood, the time required for cleaning and overhauling the machinery, and heavy rainfall, progress during May and the early part of June was slow.
42. By the terms of that contract, plaintiff was required to and did submit to defendant a list of the machinery and equipment he proposed, to use in the performance of the contract. Some of the equipment described in plaintiff’s list was not on the job by June 5, 1943, on which date defendant made a field check of such equipment. Plaintiff’s *768 failure in this respect was partly due to rail congestions caused by floods, and to other delays in shipment but was also caused by plaintiff’s failure to acquire some of the heavy equipment he had anticipated would be available at the time work began.
On account of the rains, the flood and the initial delays in getting the equipment on the project, plaintiff was five percent behind schedule on June 15, 1943. During July, however, progress was rapid. Plaintiff’s production during that month was about 50 percent above the average monthly production required for completion of the contract on schedule.
43. From time to time during the period from May 2 to September 4,1943, defendant wrote plaintiff that the equipment employed on the project was insufficient to complete the excavation of the channels and related work by November 15,1943, and directed plaintiff to obtain and place additional machinery and equipment on the job. These orders were made during the war period when the great demand for and shortage of all types of construction equipment made it extremely difficult to purchase or lease any of such equipment without assistance from the Government. Despite the fact that the notice of award stated that the contractor could not expect to obtain assistance from the Government in procuring new equipment, plaintiff called on defendant and through it obtained many units of equipment on a rental basis from supply depots, warehouses, and other Government sources. Although plaintiff complied with defendant’s directions to the best of his ability, he was not able to obtain the various pieces of equipment specified in the several orders issued by defendant until some time after the orders were received, but by September 4,1943, plaintiff had in operation on the project a considerably larger quantity of machinery and equipment than was described in the list submitted with his bid or that was considered necessary for the completion of the work by defendant’s engineers at the time they prepared the Government’s estimate of costs.
Plaintiff also had difficulty and experienced some delay in obtaining supplies, repairs and parts for his plant and equip *769 ment and received assistance from defendant in obtaining such supplies and parts.
The defendant’s demands for the additions to the contractor’s plant and equipment were made pursuant to paragraph 1-13 of the specifications and were actuated by defendant’s concern for completion of essential items of the work by November 15, 1943, the date fixed for closing the Denison Dam.
44. Plaintiff’s rock subcontractor had difficulty in securing sufficient labor for the delivery of riprap and crushed stone to the work areas in time to keep pace with other portions of the work. To avoid undue delay on this account, the defendant permitted the construction of certain fill areas to continue, with a modified arrangement for placing the riprap and crushed stone as it was made available.
Plaintiff completed the excavation of the overburden in Channel No. 1 on September 23,1943, and the excavation of that channel on November 17, 1943. However, plaintiff was not able to complete the excavation of Channel No. 2 by November 15, 1943, the date required by the contract, and, after some discussion with the Eesident Engineer, made a written proposal to the defendant, under the terms of which plaintiff was to proceed with the closure of the Washita River and Rock Creek Channels on the basis of completing by November 15, 1943, a restricted diversion channel 200 feet wide instead of 350 feet wide. Defendant’s acceptance of plaintiff’s proposal was set forth in Modification No. 4, which recited that the contractor’s failure to complete the work on November 15, 1943, was due to unforeseeable causes beyond his control and without his fault or negligence, and provided that the remaining 150 feet of required channel width was to be completed at a later date and on the condition that the contractor would assume all extra costs that might be incurred as a result of diverting stream flows through Channel No. 2 prior to its completion to the full design, section and grade. Plaintiff completed the overburden excavation in Channel No. 2 on December 3,1943, and the shale excavation on January 25, 1944.
*770 45. As stated in finding 9, plaintiff obtained extensions of time aggregating 63 days on account of delays caused by weather conditions during the winter months and a subcontractor’s inability to hire a sufficient supply of labor for laying riprap stone.
46. The difference between the reasonable cost of the work, if wet and saturated material had not been encountered in Channel No. 2, and the actual cost due to such wet and saturated material amounted to the sum of $214,253.88 for the portion of the work performed by plaintiff and $339,677.98 for that part of the work performed by his subcontractor, A. Raymond Jones. Each of these amounts includes the extra costs incurred on the rolled fill on account of such wet material, and each contains an allowance of 10 percent for overhead and profit. These sums are broken down as follows:
47. During the progress of the work, plaintiff did not make any written complaint to the contracting officer or any of his representatives against the use of the wet material, nor did the plaintiff submit to the contracting officer or his representatives any written claim or contention to the effect that the wet materials constituted a changed condition for which an adjustment in price should be made under the provisions of article 4 of the contract. The facts with respect to the oral complaints and claims made by plaintiff and the action taken thereon by defendant’s representatives are set forth in subsequent findings under the heading “Protests and Appeals.”
OVERRUN OF PERVIOUS MATERIAL IN CHANNEL NO. 1
48. Certain provisions of the contract and the specifications, which are relevant to this claim, are quoted in findings 17,18, and 19.
*771 49. Articles 2 and 3 of the contract provided as follows:
ARTICLE 2. Specifications and drawings. — The contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the contracting officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy in the figures, drawings, or specifications, the matter shall be immediately submitted to the contracting officer, without whose decision said discrepancy shall not be adjusted by the contractor, save only at his own risk and expense. The contracting officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided.
Article 3. Changes. — The contracting officer may at any time, by a written order, and without notice to' the sureties, make changes in the drawings and/or specifications of this contract within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered: Provided, however, That the contracting officer, if he determines that the facts justify such action, may receive and consider, and with the approval of the Secretary of War or his duly authorized representative, adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in Article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed.
Other provisions of the specifications, which are relevant to this claim, read as follows:
1-04. DRAWINGS.
(a) The work shall conform to the following drawings, entitled “Red River, Denison Dam and Reservoir, Cumberland Oil Field Protective Levees” which form a part of these specifications.
Hs Hs 4 * Hs Hs
*772 (c) The work shall also conform to such additional drawings and addenda to these specifications, as may be published or exhibited in the office of the contracting officer prior to the opening of proposals, and to such drawings in explanation of details or modifications as may be furnished by the contracting officer from time to time during construction including such changes as the contracting officer may consider necessary on account of special conditions encountered during prosecution of the work.
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1-31. MiNOR MODIFICATIONS. — The right is reserved to make such minor changes in the execution of the work to be done under these specifications, as, in the judgment of the contracting officer, may be necessary or expedient to carry out the intent of the contract; provided, that the unit cost to the contractor of doing the work shall not be increased thereby; and no increase over the contract amount will be paid to the contractor on account of such change.
# * * * ❖
4-05. Excavation, Borrow.
‡ ‡ í
(b) Method of Excavation. — All borrow excavation shall be made with approved equipment and in such a manner as may be required by the contracting officer in order to produce a well mixed and blended material for incorporation in the fills.
(1) Upper Channel. — The overburden materials in this area which are to be utilized in construction of the rolled-fill are stratified both as to cross-section and area. There are areas of fairly clean sand that will require excavation without mixing in order to construct the pervious zones of the fill section of the levees in fill Area II. This required pervious zone is comparatively small in section and may be enlarged if pervious material is encountered in larger quantities. The contractor will be permitted to excavate by means which does not mix the comparatively pervious and impervious materials to the extent that he routes the pervious materials to the landside portion of the fill and to the extent that he routes the impervious materials to the riverside portion of the fill.
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(c) Disposal. — The disposition of excavated material shall be as directed by the contracting officer. Based on his analysis, excavated materials shall be *773 placed in the pervious and impervious portions of the levee as shown on the drawings or wasted in the borrow areas as directed by the contracting officer. Approved material shall be placed in the levee in accordance with the provisions of Section Y.
50. Channel No. 1, which was also referred to in the contract documents as the Upper Channel, was approximately 3,800 feet in length with a 600-foot base width and a maximum depth cut of about 40 feet. Four hundred feet of the base width was at elevation 610; 200 feet of the base width was at elevation 600. The earth work distribution table on the contract plans showed that the estimated excavation of Channel No. 1 would amount to 1,190,900 cubic yards of materials, consisting of 989,200 cubic yards of overburden to be placed in Fill Areas II and III, and 201,700 cubic yards of shale. According to the distribution table, Fill Area II was to be constructed of 742,100 cubic yards of overburden from Channel No. 1, 302,100 cubic yards of material from Borrow Area “G” and 100,000 cubic yards of material from Borrow Area “F”. Fill Area III was to be constructed with 247,100 cubic yards of material, all of which was to be overburden from Channel No. 1. In the Government’s estimate of quantities of materials to be excavated and placed in the several fill areas, there was no breakdown between pervious and impervious materials.
51. The preliminary drawings, which were issued by the Corps of Engineers in March 1943, contained a profile of the ground through which Channel No. 1 was to be cut, showing that the overburden above the shale was composed of sandy, silty clay and a relatively small area of silty sand. The log of only one core boring was shown on the drawing. It indicated that the material encountered, beginning at the ground surface, consisted of about six feet of clay containing some silt with traces of sand, about three feet of very silty loose sand, and that the remainder of the material above the shale varied from medium sand to fine gravel. The log of one core boring and the logs of the five auger borings in Channel No. 1 were shown in one of the contract drawings. The presence of clean sand, containing less than 10 percent of fines, was indicated only in one core boring, which showed that the depth of such clean sand was about five feet. How *774 ever, the same core boring showed that immediately above the clean sand there was a deposit of sand containing from 20 to 34 percent of other soils and that the depth of this sandy deposit was approximately 10 feet. In addition, two of the auger borings showed that 50 percent or more of the material found was sand containing from 10 to 34 percent of other soils. The remaining three auger borings indicated the presence of impervious material.
52. Typical cross-sections for the several fill areas were shown on sheet 15 of the contract plans. The cross section for Fill Area III showed that such fill area was to be constructed entirely of impervious material. The cross-section for Fill Area II showed that a comparatively small section of the levee immediately adjacent to the rock toe drain on the land side was to be constructed of pervious material, and that the remainder of the fill was to be composed of impervious material. The small pervious section was outlined on the drawing with a dashed line and there was a note, referring to the depth of the pervious zone, which read “10' min.”
53. The proper design of the levee required that the riverside be constructed of impervious soil to prevent the seepage of river water into the structure. The purpose of the pervious toe, which was required for Fill Area II and several other fill areas, was to provide drainage for water that seeped into the embankment.
The explorations in Channel No. 1 indicated a considerable variability, both laterally and vertically, of types of material. On the basis of the exploratory data, it appeared to defendant’s engineers that the quantity of pervious soil in Channel No. 1 would not be sufficient to develop a section-alized levee with definite zones of pervious and impervious materials. Therefore, Fill Area II was designed to allow some latitude in the use of pervious soil. These considerations led to the formulation of paragraph 4-05 (b) (1) of the specifications, which was issued as an addenda on April 12,1943, five days after the issuance of the contract drawings. The last two sentences of paragraph 4-01 of the specifications were also included in an addendum of April 12, 1943.
*775 54. On the basis of the information shown on the typical cross-section for Fill Area II, plaintiff determined that the pervious toe on the land side of the levee would be about 60 feet wide and 10 feet high, and that he would have to excavate and place in the pervious area only 56,690 cubic yards of pervious material. After an examination of the drawings and borings, he concluded that the amount of pervious material to be encountered in the excavation of Channel No. 1 would not exceed his estimate of 56,690 yards by more than 10 percent. Except for a small area of clean sand, he expected to find impervious materials throughout Channel No. 1, and his bid was submitted with that expectation. He planned to excavate the overburden in the channel down to the shale with elevating graders, an efficient and economical method of excavating and unloading. He anticipated that he would have to excavate approximately 60,000 yards of clean sand and that this material would have to be handled separately from the remainder of the overburden. However, for the major portion of the overburden in the channel, he assumed that he would be able to carry on a continuous operation of excavation, hauling, spreading, sprinkling, and compaction. He planned that the work on the fill would proceed in large blocks and that the entire fill would be available as his work area.
55. During the early part of July 1943, it became apparent that the quantity of pervious material in Channel No. 1 would greatly exceed the quantity estimated by the contractor, as well as the quantity required for constructing the area indicated on the drawings as the minimum pervious zone in Fill Area II.
This condition became evident when the levee embankment was about 10 feet above ground level. The overburden material excavated from Channel No. 1 and used in Fill Areas II and III consisted of approximately 350,000 cubic yards of sandy material, which was classified in the final cross-sections made by defendant’s engineers as pervious and random per-vious material, and 450,985 yards of impervious material.
Overlying the shale, there was a deposit of clean sand which was about two feet in depth and covered two-thirds the length *776 of the channel. A portion of this deposit immediately above the shale was wet but the remainder was dry. The top of the overburden consisted of impervious material, which extended from the surface down to an average depth of six or seven feet throughout the length of the channel. Between the impervious material and the deposit of clean sand above the shale, the greater bulk of the material was a coarse sand, interspersed at points with some layers of clay. There is considerable conflict in the evidence as- to the nature and character of the sandy material. A laboratory analysis of samples of the coarse sand, taken from an area extending for a distance of about 400 yards along one side of the excavation bank, showed that the coarse sand was a pervious material which contained less than 10 percent of fines. The quantity of such pervious material was much greater than was indicated in the borings, but some of the sandy material contained a higher percentage of clay, silt, and other impervious soils. As material was excavated and the fills were constructed, the defendant’s engineers on the job classified a considerable portion of the coarse sandy material as random pervious, a designation denoting that it did not fall clearly within the pervious or impervious classifications. The term “random pervious” was not referred to in the contract, specifications, or drawings, and during the progress of the work and until the date the final cross-sections were prepared this sandy material was designated in the official reports of the engineers as pervious material. From the contractor’s standpoint, which was based on workability rather than proper design of the levee, there was little or no distinction between the material classified as pervious and that classified as random pervious.
56. When it became apparent that the quantity of pervious material in Channel No. 1 would greatly exceed the quantity required to construct the small pervious zone, indicated as the minimum pervious zone on the typical cross-section for Fill Area II, the Resident Engineer directed his subordinates in the field to shift the stakes so as to divide the impervious material from the pervious and random pervious materials at the center line of the levee. As the material from the chan *777 nel was excavated, the contractor was directed to place the material, which the defendant’s inspectors decided was clearly of an impervious nature, on the riverside of Fill Areas II and III. When material was encountered, which the inspectors determined was without question a pervious material, the contractor was ordered to place it in the designated pervious zone of Fill Area II. Although the exact extent of the pervious zone is not shown in the record, it extended to an elevation which the engineers determined would provide drainage for water that seeped into the embankment. This left a considerable quantity of coarse, sandy material which the contractor was required to place on the land side of Fill Area III and on the land side of Fill Area II above the designated pervious zone. As a result of this action, the pervious zone in Fill Area II, which on the typical cross-section was shown as a small area having a minimum depth of 10 feet and located adjacent to the rock toe drain, was enlarged to the extent that the lower 1,807 feet of Fill Area II on the land side was constructed entirely of pervious and random pervious material. The defendant also required plaintiff to place a 4%-foot blanket of impervious material on top of the pervious area. The design for Fill Area III, which according to the typical cross-section was to be built entirely of impervious material, was changed to the extent that most of the land-side half of the levee was constructed of pervious and random pervious material. As in the case of Fill Area II, the contractor was required to place a cap of impervious material about two feet thick on top of the pervious and random pervious zone.
57. The Resident Engineer informed plaintiff’s representatives that his action in moving the stakes on the fill areas was authorized and contemplated by the provisions of the specifications. His decision was approved by the defendant’s Chief of Operations and also by the contracting officer, Colonel Wanamaker.
During one of his visits to the site,.the contracting officer was informed about the overrun of pervious material in Channel No. 1 and the fact that the Resident Engineer had enlarged the pervious zone in Fill Area II and changed the *778 design of Fill Area III in order to use the additional material. He discussed the matter with the Chief of Operations and, although he did not issue a formal ruling on the question, he decided that paragraph 4-05 (b) (1) of the specifications reserved to the contracting officer the right to modify the design of the levee sections within acceptable design standards in order to make the best use of the materials found on the job and that as much as one-half of the levee sections involved could be changed from impervious to pervious material without an increase in the contract price. He also decided that the contractor was required by the provisions of paragraph 4-01 of the specifications to use the pervious and random pervious materials found in the channel without regard to the information shown on typical cross-sections as to the pervious and impervious zones in the two fill areas.
There is no evidence that at the time he made the informal ruling mentioned above the contracting officer considered whether or not the additional pervious and random pervious material encountered in the excavation of the channel constituted a changed condition within the meaning of article 4. The contracting officer’s conclusion was not communicated to plaintiff.
58. During the progress of the work, plaintiff made no written protest to the defendant against the use and excavation of the pervious material involved in this claim, nor did plaintiff make any written claim that the excess material found in the channel was a changed condition under article 4 of the contract or that the alteration in the levee sections was a change in the drawings and specifications within the meaning of article 3 of the contract. The facts with respect to the oral complaints and claims made by plaintiff to defendant’s representatives are set forth in subsequent findings under the heading “Protests and Appeals.”
59. No findings are made as to whether or not the additional pervious and random pervious material encountered in Channel No. 1 was a subsurface or latent condition materially differing from that shown on the drawings or indicated in the specifications, nor are any findings made as to plaintiff’s additional costs resulting therefrom, for reasons indicated in finding 98.
*779 CLAIM FOR WORK OK ROLLED FILL
60. The specifications provided:
5-03. E.OLLED-FILL.
(a) Placement. — After completion of the foundation preparation, the rolled-fill levee shall be constructed to the elevation, lines, grades, and cross sections indicated on the drawings or otherwise directed by the contracting officer, plus such increased height and width as may be determined necessary to allow for subsequent shrinkage or settlement, but in no case will such increased heights and widths exceed 2 percent of those shown on the drawings. The riverside slope of the rolled-fill levee to he covered with protective stone shall be placed and compacted to a line not less than six (6) inches outside of the required fill section. The excess material shall be removed and the surface trimmed and dressed to the grades or payment lines indicated on the drawings or staked in the field prior to placing the protection. No separate payment will be made for dressing the surfaces but the cost thereof shall be included in the contract unit price for fill. The landside slope of the rolled-fill levee shall be maintained to the lines and grades constructed until accepted by the Government. The required materials shall be secured from the borrow areas indicated on the drawings and from the discharge channels excavation. The use of materials from the different parts of the borrow areas or excavations will be determined acording to the grading of the material and its suitability for rolling. No brush, roots, sod, frozen material, or other perishable or unsuitable material, or stones of twelve (12) inches or greater maximum dimensions shall be placed in the levee. Any rolled-fill material that may be lost or loosened, after being placed in the levee ana before the completion and acceptance of all work under the contract, because of floods, elements, operations of the contractor, or for other causes that, in the opinion of the contracting officer, were avoidable or under the control of the contractor, shall be replaced by and at the expense of the contractor in a satisfactory manner. In the event that it is determined that such loss is not due to fault or negligence on the part of the contractor, the rolled-fill levee shall be replaced at the contract unit prices. The rolled-fill levee shall be constructed in approximately uniform horizontal layers for the entire width of the cross-section of the rolled-fill *780 and for tbe entire length of the area under construction except as follows: the difference between the elevation of the impervious and pervious portions shall not be greater than three (3) feet, and the construction of the blankets shall be as specified in paragraph 5-01. The top surface of the rolled-fill during construction shall be raised or crowned with grades not to exceed two (2) percent so that the fill will drain freely. Stones less than twelve (12) inches in maximum dimensions and gravel shall be carefully bedded to avoid any cavities or seepage planes. After dumping, the materials shall be spread by approved methods in approximately horizontal layers. These layers shall not be greater than nine (9) inches in thickness for the impervious portion and twelve (12) inches for the pervious portion. If, in the opinion of the contracting officer, the rolled surface of any layer of material is too smooth to bond properly with the succeeding layer, it shall be roughened or loosened by scarifying or other approved method before the succeeding layer is placed thereon. If, during construction any part of the rolled-fill levee becomes frozen, it shall be scarified and rerolled after it has thawed. If work js stopped on the section of the rolled-fill levee for a period of time the area shall be rolled with a smooth roller weighing not less than seven hundred (700) pounds per linear foot of roller to prevent loss of moisture and facilitate drainage. Before work is resumed in that area it shall be scarified and rerolled with sheepsf oot rollers. No separate payment will be made for the above scarifying and rerolling. The contractor will be required to break up the earth fill materials, either in the borrow area or on the rolled-fill levee, to such maximum size as is determined necessary by the contracting officer, to provide optimum compaction in the rolled-fill levee. Stones of greater than twelve (12) inches in maximum dimensions, removed from the rolled-fill levee section may be placed on the riverside riprap of the levee. Boots, debris, and trash removed from the loose materials shall be hauled away and destroyed or disposed of as directed.
* * * * *
(c) Moisture Control. — The material in each layer, while being compacted by rolling, shall contain the amount of moisture required for optimum compaction, as nearly as is practicable, as determined by the contracting officer, and the moisture content shall be uniform throughout the layer. The watering shall be done with any type of watering equipment which will give *781 the required results, but jets shall not be directed at the material with such force that the finer materials are washed out. The amount of sprinkling shall be controlled so that no free water will appear on the surface during or subsequent to the rolling. Should too much water he added to any part of the rolled-fill levee, such that the material is too wet to permit, in the opinion of the contracting officer, the desired compaction, the rolling and all work on that section of the rolled-fill levee shall be delayed until the material has dried to the required moisture content. Because of the hot dry winds prevalent at the site, the contractor will be required to keep placed earth fill materials wetted to a degree wh

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8590631. Public record. Not legal advice.