# Fehlhaber Corporation v. United States

> United States Court of Claims · June 5, 1957 · 151 F. Supp. 817

URL: https://www.frixlaw.com/law-library/cases/9654093

## Case

- **Full name:** FEHLHABER CORPORATION v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** June 5, 1957
- **Citations:** 151 F. Supp. 817
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Jones, Chief Judge, and Littleton, Whitaker, Madden and Laramore, Judges
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JONES, Chief Judge, and MADDEN, WHITAKER and LITTLETON, Judges, concur.
Findings of Fact.
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29. The hard materials encountered in driving the sheet piling are more fully described in later findings concerning excavation of the cofferdam and driving of the steel H piles for the pier foundation.
In driving the cofferdam sheeting, plaintiff encountered subsurface conditions materially different from those indicated by the contract drawings.
If conditions had been as represented, plaintiff could have set and driven 15 sheets per 8-hour shift and thus have taken 9 shifts to drive the 136 sheets that were placed. It was reasonably estimated by plaintiff that 5 shifts would be required to set the driving frame. A total of 14 shifts, or 18 calendar days, would have been required for the entire operation. This work actually was done over a period of 51 calendar days from February 19, 1947, through April 10, 1947, utilizing 43 shifts, of which 11 shifts were employed on the driving frame and miscellaneous matters, none of which were affected by changed subsurface conditions. The remaining 32 shifts were devoted to sticking and driving of sheeting, and the excess number of such shifts caused by the changed subsurface conditions amounted to 23.
30. Reasonable costs incurred by plaintiff on the sheeting and bracing operations amounted to $5,181.97 for labor for the 43 shifts and $5,660 for equipment use (including fuel) for the 51 calendar-day period, or total direct costs of $10,841.97.
These costs, being an average of $252.-14 for each of the 43 shifts, amounted to a total of $5,799.22 for the 23 excess work shifts.
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64. If the subsurface conditions at Pier 1-N had been as shown on the contract borings, plaintiff could have excavated with the equipment available at the site 200 cubic yards per 8-hour shift, and on this basis, the excavation of the 3,-800 cubic yards required for Pier 1-N would have been accomplished in 19 shifts, or about 25 calendar days on a single shift basis.
The actual time taken for the excavation work was May 7, 8, 9, and June 9 through September 11, 1947, a period of *827 98 calendar days, during which plaintiff employed a total of 105 shifts, or an excess of 86 shifts.
Reasonable costs incurred by plaintiff on the excavation operations amounted to $6,755.61 for labor for the Í05 shifts, and $14,290 for equipment use (including fuel) for the 98 calendar-day period, or total direct costs of $21,045.61.
These costs, being an average of $200.-43 for each of the 98 shifts, amounted to a total of $17,236.98 for the 86 excess work shifts.
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79. Had the subsurface conditions been as shown by the contract borings, plaintiff with the equipment which it had at the site, could have driven at least seven piles per 8-hour shift, and thus have driven all 231 piles in 33 8-hour shifts. ’
The actual time required was 48 calendar days during which plaintiff utilized 77 8-hour shifts, or an excess of 44 shifts required by the changed subsurface conditions encountered.
Reasonable costs incurred by plaintiff on the driving of the H piles amounted to $14,260.59 for labor for the 77 shifts. Heavy use of equipment was made during the 48 calendar-day period of these operations, and reasonable costs incurred by plaintiff for equipment use (including fuel) amounted to $17,255. These costs amounted to $31,515.59 for the 77 shifts.
With the average of such costs being $409.29 for each of the 77 shifts, the total reasonable amount of such costs for the excess 44 shifts amounted to $18,-008.76.
Had the subsurface conditions been as represented, the pile driving would have been accomplished in 41 calendar days on a single shift basis, whereas actual operations extended over 48 calendar days with multiple shifts.
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85. Plaintiff contends that in addition to the excess costs which it incurred in direct connection with the construction of the coffefdam, excavation for -the pier base, and driving of the H piles at Pier 1-N, it incurred additional costs of an indirect nature which it identified by name and amount as follows:
Additional Field Costs:
Field Office ...................$12,737.25
Batching plants .............. 38,584.05
- $51,321.30
Employees Room and Board............... 805.00
Overhead Expense .......................... 21,202.35
Total ................................ 73,328.65
86. In connection with the operation of the field office at the project, plaintiff had a superintendent and other straight time and regular employees who were paid on a weekly basis, such employees being required to remain assigned to the project as long as there was any work to be done. These employees were paid a total of $462 per week, on which payroll insurance at a rate of 9.96 percent, or $46.02 per week, was paid. Two of these employees, including the superintendent, received allowances for room and board amounting to a total of $66.25 per week.
Plaintiff necessarily maintained a job truck and a job boat at the project throughout the performance, at reasonable costs of $100 per week for the truck and $75 per week for the boat.
The total costs of these fixed items was $749.27 per week, or on the basis of a 5 work-day week, $149.85 per day.
87. The specifications contained the following provision with respect to batching and mixing of concrete:
“1-10 Batching and Mixing. a. Equipment. — The contractor shall provide at the site of the work two (2) or more modern and dependable batch-type mixing plants. The plants shall be so located and arranged that a minimum plant capacity of 1,000 cubic yards of concrete per 8 hours is made available and ready for use on the same side of the canal as the pier during the placing of each separate lift in either main pier base. (IN and IS.) The remaining plant capacity shall be available for immediate use, if necessary, to maintain a continuous rate of pour of 85 cubic yards per hour. The available plant shall include not fewer than two (2) complete mixers with separate power *828 plants. The equipment shall be capable of combining the aggregate, cement, and water into a uniform mixture and of discharging this mixture without segregation.
* * * * * *
“(8) The mechanism for delivering water to the mixers shall be such that leakage will not occur when the valves are closed. * * * ”
Plaintiff did not provide the batch-type mixing plants but instead two batching plants each possessing a capacity of 500 cubic yards per 8-hour day, one of which was located on the north side of the canal and the other on the south side of the canal. The batched aggregates were discharged into transit-mix trucks, and the concrete mixed on the way to the point of deposit. - No objection was ever made by any representative of the defendant to the batching plants and concrete equipment employed by plaintiff, or the combined use of both plants for a pour on one side of the canal.
The largest continuous pours to be made under the contract were the two tremie pours for Piers 1-N and 1-S, each located at the bottom of the pier excavation about and just above the pile projections, and plaintiff by use of both batching plants during each operation succeeded in maintaining a continuous rate of pour of 85 cubic yards per hour, or 680 cubic yards per 8-hour shift. Except for these two tremie pours, each plant was used to service pours on the various piers and the abutment on the same side of the canal.
The average daily reasonable cost incurred by plaintiff on account of the two batching plants was $453.93.
88. In its claim for additional field costs, plaintiff combined the daily costs of field office expense and batching plants and arrived at a total daily cost of field expense of $603.78. Plaintiff applied this rate to 85 working days which it derived from 118 calendar days, the alleged total excess time required to perform the sheeting and bracing, the excavation and the H pile driving operations at Pier 1-N.
These claimed 118 calendar days occurred within the period February 20, 1947, to October 29, 1947, during which time work was being prosecuted throughout the entire project. The daily reports of the resident engineer show that during this time concrete pours were conducted on most of the piers of the project.
The evidence is not sufficient to support any finding that plaintiff’s field costs for field office and batching plants were increased in the above-stated period because of changed conditions at Pier 1-N, or that such costs were increased by any overall delay in completion of the entire project, caused by such changed conditions at Pier 1-N.
89. During the course of the contract performance sufficient skilled labor in the immediate area was not available and plaintiff was required to recruit employees from New York and other areas and pay their room and board.
It is not shown in evidence that these employees were engaged to work solely at Pier 1-N, or that their period of employment was confined to the time when changed conditions were encountered there. It is established that during this period two of these employees were detained at Pier 1-N at times when they could have been assigned to other work.
The excess costs thus incurred by plaintiff by changed conditions at Pier 1-N on account of employees’ board and room was the reasonable sum of $345.
90. The fairly allocated amount of plaintiff’s general overhead on all of its business to the pertinent project was the sum of $5,395 per month. By applying this monthly sum to the claimed 118 calendar-day period, which is equivalent to 3.93 months, plaintiff requests the sum of $21,202.35 as general overhead cost.
These claimed 118 calendar days occurred when work was progressing on the whole project. No overall delay of the entire project is shown to have been caused by changed conditions at Pier 1-N.
A fair and reasonable allowance for general overhead expenses would be 10 *829 percent of the total excess of direct costs caused by changed conditions encountered on the three pertinent phases of the work at Pier 1-N.
Summary of Damages.
91. In the performance of the work required for the construction of Pier 1-N, plaintiff incurred reasonable excess costs caused by the above-described changed conditions, as follows:
Sheeting and bracing.........................$5,799.22
Excavation .................................... 17,236.98
Driving H piles.................. 18,008.76
Employees room and board................... 345.00
41,389.96
Overhead expenses at 10%.................... 4,139.00
45,528.96
In the allowances of additional sums of money for changed conditions on other piers, defendant allowed 10 percent of the increased costs for profit, and on the costs summarized above, such allowance for profit would amount to $4,552.90 for a total sum of $50,081.86.
Plaintiff would be further obligated to pay an additional amount of premium to its bonding company for bonds furnished as required by the contract and specifications at a rate of .665 percent of the $50,081.86, or $333.04.
Total damages amount to $50,414.90.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9654093. Public record. Not legal advice.