The opinion
WHITAKER, Judge
(dissenting).
■The court says the refusal of the contracting officer to make an equitable adjustment when conditions were encountered differing from those shown on the .contract documents was arbitrary and not supported by substantial evidence. I do not believe the record justifies this.
The specifications in section 3.3-b(l) -defined grading to include soft shale, and in paragraph (2) defined rock excavation as follows:
“Rock excavation shall include all solid rock and boulders having a volume of one-half (fá) cubic yard or more, and all shale or ledge rock which cannot be removed with an extra heavy duty rooter powered with a crawler-type tractor having 110 drawbar horsepower in good condition and on firm footing, or a modern power shovel of three-fourths (%) cubic yard capacity in good condition, without continuous drilling or blasting * * *.”
The opinion of the majority shows that the parties agreed on a test to see *816 if the material could be handled by a three-fourths (%) cubic yard shovel without continuous drilling or blasting. The opinion stated the result of the test as follows:
“ * * * The shovel handled the materials with difficulty, but was able to do so without drilling or blasting. The shovel did stick sometimes and it required several passes with the bucket to get a load, whereas in gravel, dirt, or clay this would not have been necessary. * * * The plaintiffs did not rely solely on the three-quarter cubic yard shovel but also used a one-yard shovel which had more power, approximately twice the weight of the smaller shovel, and was more efficient. The material could have been moved with the smaller shovel alone without blasting, but this would have required much additional time which was not available. Even with the larger shovel the teeth would break off in the hard shale and both machines required considerable repair in this regard. * * *»
As a consequence of the test made, defendant declined to pay for rock and insisted that the plaintiff was entitled to be paid only for “grading.”
Had I been the contracting officer I might have come to a contrary conclusion, but I cannot say that his conclusion was arbitrary or not supported by substantial evidence, because of the provisions of section 3.3-b of the specifications. This section shows that it was contemplated that shale might be encountered. If it was soft shale it came within the scope of “grading” as defined in subparagraph (1). If it was hard shale, it was to be classified as “rock excavation” as defined in subparagraph (2). Shale was to be included within rock excavation only when it “cannot be removed with an extra heavy duty rooter powered with a crawler-type tractor having 110 drawbar horsepower in good condition and on firm footing, or a modem power shovel of three-fourths (%) cubic yard capacity.” The test showed that this shale could be removed with a power shovel of three-fourths cubicyard capacity. It is true it was difficult to so remove it, but it was not impossible and, hence, there was a basis for the contracting officer’s determination that the material did not come within the definition of “rock excavation,” but within the definition of “grading.” There were but two classifications of excavation provided for in the contract, to wit, “grading” and “rock excavation.” There was no intermediate classification.
I see no justification for making an equitable adjustment in the contract price. It is true the borings made by defendant did not show shale, but the specifications show that it was expected that shale might be encountered, and they provided payment for its excavation — as “grading” if it was soft, and as “rock” if it was hard. Under the specifications it had to be classified as one or the other; there was no intermediate classification.
There was a substantial basis for the contracting officer’s determination that this was not rock excavation and, hence, it must be classified as “grading.” Since there was substantial evidence to support the contracting officer’s decision, it is binding on us.
I must, therefore, respectfully dissent.