Transcript of Record — Carlo Bianchi & Co. v. United States

ment and’ made a part of said contract.¢The contract \

bears Number W-30-180-eng-397 and followed the stand- >.

ard form WD Contract No. 2 in use-by the Department

' of the Army. The contract is on a unit price basis for

the estimated consideration of $3,330,330.00.

’ 4, Said contract provided that the work under. the.

~ eontract was to he commenced within ten (10) calen-

‘dar days after date of receipt by contractor of notice ©

to proceed. Notice to proceed was received July 30, 1946.

Plaintiff did so proceed with the work within the ten (10) :

day period. Work was to be completed not later than 900

calendar days after receipt of notice to proceed. This time

. was subsequently extended and the Government accepted —

theework as completed on August. 22, 1949. 7

[fol. 3]° 5. Upon - receiving the invitation to bid for the.

contraet’ work above mentioned, the plaintiff made the

customary reasonable investigation of the site.of the work

-ahd carefully examined the specifications, .schedules and

drawings relating to a diversion tunnel inclu in the

“contract work. The specifications and drawings provided

that the diversion tunnel be 710 feet long, horseshoe

_ shaped, 13 feét in diameter and ¢ompletely lined with

eonerete. The contract drawings and Par. TP4-03 of the —

specifications showed. that prior to lining the tunnel with

. eonerete;” permanent tunnel protection was to be installed

for 50 feet in from each portal, this protection consisting

of steel. arch ribs covered with corrugated steel liner

plates. Paragraph TP4-03 (b) and (c) of the specifica-

‘tions provided that. the arch ribs and liner plates shoyld

- be placed in the tunnel section. where tunnel protection

is indicated on the drawings or where directed by the ¥j

- Contracting Officer. Nothing in the specifications and

drawings or in such investigation of the site as the plain-

tiff was able to make revealed conditions hereinafter de- .

scribed. As a result of said conditions, plaintiff was

required to and did install steel.arch ribs and liner. plates

throughout the entire length of the tunnel. Plaintiff was

» paid only fot the 50 foot permanent tunnel protection .

installed at the’inlet and outlet portals. Plairitiff seeks

compensation for the additional work done-and reim-

‘bursement ‘for the increaged costs occasioned by Govern-

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ment delays and other increased costs hereinafter referred

6. The. specifications, schedules and drawings contem-

plated: the nature‘of the rock throughout the tunnel,

except for a length extending 50 feet from each portal,

to be of such a character that after the tunnel was holed

_ through, the roof thereof would be sufficiently stable to

[fol.4] be self-supporting without the- necessity of in-

stalling permanent tunnel protection before the installa-

tion of the concrete lining.” |

7. The provisions of the specifications pertinent to the

installation of permanent tunnel protection are as follows: _

“TP4-03. Tunnel Protection. a. Scope. Tunnel pro-

tection shall be furnished and placed as required for

: distances of approximately the first 50 feet at each

end of the tunnel which includes the underground °

portion of the outlet transition. Such tunnel pro-

tection conforming to the cross sectional shape of the

tunnel and transition, shall consist: of steel arch ribs |

and corrugated steel liner plates as indicated on the —

drawings or required, including tie rods and spread-

ers. Liner plates shall be placed before the setting

of ribs. In erecting, each arch rib shall be properly

spaced, set to the designated grade and’ alignment,

and in a position normal to the tunnel axis. Each

rib shall be connected to each successive one by seven

(7) sets of steel tie rods and pipe spreaders, uni-

formly spaced. The contractor shall submit detailed

drawings indicating fabrication, splicing of ribs and

erection methods of the proposed: tunnel protection. -

No material delivery shall be made prior to receipt

of the Contracting Officer’s written approval but

such approval shall not relieve the Contractor of his

sole responsibility’ for damage resulting from the

_ inadequacy or lack of such protection. Steel for arch

ribs, liner and splice plates, tie rods and other items

« “necessary to tunnel protection shall be commercial

_ products and shapes having the necessary physical

and chemical qualities for the intended purpose and

. Shall be fabricated according to the best standard

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. practice The erection of such tunnel protection shall |

oa 5] be carried as close to heading blasting as is

feasible without undue. damage to tunnel protection or

“in place.

b. Steel Tunnel Protection. Supports. Steel arch

rib tunnel. protection supports shall be erected in the

tunnel sections where tunnel protection is indicated

on the drawings or directed by the Contracting Offi- .

__ cer and shall be steel I-beams of the size, weight and

" length, and bent to the shape indicated on the draw-

ings. The maximum center to center spacing shall be _

as designated. Suitable dowels shall be provided at

the invert to maintain foot of ribs in proper position.

“Tie rods and spreaders shall be installed at the same

time ribs are set.. Blocking and other timber required

for erection shall be furnished by the Contractor.

Arch rib splicing, limited to two for each rib, shall

develop the full strength of the rib. Steel ribs shall

be left in place and embedded in the concrete tunnel

lining.

c. Steel Liner Plates. Steel liner plates for tunnel

protection shall be placed in the tunnel sections,

where such protection material is indicated on the

drawings or directed, to fuynish coverage for the tun-

nel roof section above the/ spring line.. The ends of

plates in adjoining rows shall be staggered and half

plates furnished where necessary for this purpose.

Liner plates shall be left in place and have concrete

tunnel lining placed against their inner ‘surfaces.

_ Liner plates shall be fabricated corrugated steel.

plates not less‘than-number three (3) gauge, bent to

the designated radius and pressed into the required

shape consisting of integral side with square corners

and the elongated holes for connecting bolts, similar

- and equal to Armco Type 18-inch section.

~" 'TP4-08. b. Tunnel Protection. Payment for all

costs of furnishing and placing liner plates, and

tunnel supports, including tie rods and pipe spread- © 7

ers, specified herein or directed by the ea ease

3

5

6] O fficer, will be made at the applicable con-

tract ‘unit price for ‘Steel Liner Plates’, Item No. |

11 and ‘Steel Tunnel Supports,’ Item No. 12. Partial

payments will -be made according to paragraph :TP

11-14.” (italics ours)

' The drawings also specify where the permanent tunnel

protection at. both the inlet and outlet portals is to be

placed.

8. From the foregoing data pertaining to permanent

tunnel protection the plaintiff contends that the Govern-

ment designers must have concluded, on the basis of their

sub-surface and other investigations, _that the nature of

the rock which would be encountered in the boring of the

tunnel was such that permanent. tunnel protection con-

sisting of steel ribs and liner plates would not be required

beyond the 50 foot limits specified. Had the conclusion

been otherwise, permanent tunnel protection would have

been specified throughout the length of the tunnel.

9. Contrary to what would reasonably be expected from

the data furnished by the Government, indicated in the |

eontract. specifications, schedules. and’ drawings, it was

found by the plaintiff. in performing the contract that ©

the rock actually encountered was unstable and caused

heavy rock falls quite generally distributed throughout the |

tunnel, thereby requiring the plaintiff, to install .perma-

“nent: tunnel protection of the type designated in TP4-03

_.of the specifications in order to place the concrete lining

and complete the tunnel in accordance with the contract.

‘10. The sub-surface conditions encountered, hereinafter

more particularly described, created a changed condition

(fol. 7] under Article 4 of the contract, entitled a

Conditions”, which reads as follows:

“ARTICLE 4, Changed conditions. ~ Should the con- |

tractor enocunter, or the Government discover, dur-

ing 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 specifica-

tions, or unknown conditions of an unusual nature

_ differing materially from those ordinarily encoun-

tered and generally recognized as: inhering in work

of the character provided for in the plans and specifi- a

.cations, the attention of the contracting officer shall

be called immediately to such conditions before they

upon 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.”

11. The driving of the diversion tunnel began at the

outlet end on December 12, 1946. Prior to this time, |

in October 1946, in open cut excavation for the outlet

works and stilling basin, vertical intersecting fractures in

the rock had been-exposed containing clay or mud seams ~

which were later found throughout the tunnel. These

characteristics indicated the probability that the roof

of the tunnel would not be stable. ‘There was nothing con-

tained in the data supplied in the contract, specifications,

schedules or drawings to indicate the presence of vertical .

intersecting fractures in the sub-surface rock, nor did

- plaintiff’s examination conducted at the site disclose any

such condition.. Rock -of the same unsuitable charac-

[fol. 8] teristics as that uncovered in the stilling basin —

was encountered in the area of tunnel excavation as the

work progressed. The need for additional permanent tun-

nel protection on account of this unforeseen condition was

promptly called to the attention of the _Government

through its Resident Engineer.

Permission to install permanent tunnel protection was

refused. However, temporary tunnel protection was au-

thorized beyond 50 feet.at the inlet portal by the utiliza-

tion of four steel ribs which later were to be removed

and used at the outlet portal. On this basis, plaintiff

proceeded with the boring of the tunnel. The four steel

ribs were installed and afforded 16 feet of additional

protection beyond the 50 feet of permanent. portal pro-

tection. specifically provided for in the contract. When

this additional temporary protection was: later removed,

substantial rock falls from the roof occurred.

are disturbed. The Contracting Officer. shall there- — |

£ eae 7

> et Bi

12. The tunnel was completely holed through by March ~

10, 1947 and cleanup work commenced immediately. Be-

tween March 12th and April 25th there were substantial

rock falls from the roof of the tunnel, which occurred at

many places in the tunnel- where there were intersecting

fractures in the rock. Subsequent to April 25th additional

rock falls occurred. : oy tug

_ _ 138. After plaintiff discovered the substantial rock falls —

that had occurred on account of the unstable condition -

of the sub-surface rock, plaintiff by letter dated April 28,.

1947 called this condition to the attention of the Gov-

ernment ‘and again requested authorization to install

permanent tunnel protection throughout the tunnel at the

- Government’s expense, stating in substance that as a re-

[fol. 9] sult of the failure of the Government -to authorize

the installation of permanent tunnel. protection during the

* progress of excavation, there had developed large areas

where the tunnel roof had failed and that such authoriza-

_ tion was again requested in view of the then known facts,

_ which were unforeseen by either party at the time the .

contract was entered into. The Contracting Officer, upon —

his attention being called-as aforesaid,-to such unforeseen,

“unstable sub-surface conditions, advised the’ plaintiff by

letter dated May 5, 1947 that no further tunnel protection

would be placed at the expense of the Government. The

Contracting Officer based his denial of the request of the

plaintiff for permanent tunnel protection at the expense

of the Government upon findings: which were conclusions —

Of law involving construction of the provisions of the

contract and specifications relating to permanent tunnel

' protection to be installed, to temporary tunnel protection

to be provided by plaintiff and to the fact that plaintiff,

by acceptance of the contract, indicated ‘that it ‘had

satisfied itself as to sub-surface conditions. The Con-

tracting Officer’s letter of May 5, 1947 also advised plain-

tiff of its rights to appeal from his decision as provided

under the terms of Article 15 of the contract. From said

determination of the Contracting Officer plaintiff filed a

timely appeal, hereinafter referred to, under Article 15

of the Contract, such appeal being dated May 29, 1947.

14, Despite his decision of May 5, 1947, the Contract-

OE tte nner eaten.

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‘ - ing Officer and Resident Engineer entered into conferences

and.extensive correspondence with plaintiff. with respect

to the minimum permanent tunnel protection required

before installation of the concrete lining. At the first

conference held on May 12, 1947, in response to the re-

quest of plaintiff that the Contracting Officer give it an

[fol. 10]. indication of the type and character of tunnel

' protection required, the Contracting Officer requested that

plaintiff submit for approval a description of the min-

‘imum tunnel protection which it would recommend. In

accordance with this request, plaintiff consulted with in- -

dependent engineers and advised the Contracting Officer ,

that in its considered ppinion and that of its consultants.

the minimum permanent — protection which would

overcome tlie falling roof of the tunnel would be the

installation of steel ribs and liner plates, such as were

‘used at the portals, throughout the length of the tunnel. .

‘Several weeks thereafter the Contracting officer aienitted

to plaintiff for its consideration an alternative tunnel pro-

tection which he termed temporary tunnel protection, as-

serting that it would be adequate to support the falling

rock load.as well as the material used in backpacking.

Plaintiff, after consideration of the alternative design and

consultations ‘with independent engineers with respect

thereto, advised the Contracting Officer that in. their.

opinion the alternative design was inadequate and that

the minimum protection required throughout the tunnel

- was that of the type installed at both portals. Plaintiff

reiterated its request that the Contracting Officer give

consideration and approval of such design for permanent

tunnel protection.. By letter dated August 11, 1947, the

Contracting Officer informed plaintiff that there was no

objection to the installation throughout the tunnel’of the ..

. . steel ribs and liner plates proposed by plaintiff, but that

the costs of such installation were to be borne by plaintiff

. who was required to furnish temporary tunnel protection

in accordance with the provisions of Paragraph TP4-02.

of the specifications.

(fol. 11] 15. Plaintiff, while protesting by. letter dated

August 15, 1947 the Government’s refusal to bear the costs

of permanent tunnel protection, nevertheless promptly

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upon aii of the Dpietiion Officer’s letter of awe

- gust 11, 1947 proceeded. to install the steel arch ribs and

liner plates. . Such installation was completed in Decem- _

ber, 1947 ahd the “plaintiff thereupon proceeded to Jine .

‘the tunnel with concrete in accordance with the terms of

the contract. The concrete lining was completed i in May, —

- 1948:

16.: Under the terms of: the contract, all. of the work

~ was to be completed. Bale ser) 15, 1949. The actual

completion date was e 30, 1949. Such delay. resulted

from the. Goverdment’s protracted negotiations in connec- _

__.——+tion with the determination of the necessary minimum

permanent tunnel protection required. As a consequence

thereof, plaintiff’s work in the performance of the con-

tract was delayed, impeded and hindered so that the

concrete work was required to be done in the winter

- . months of 1947-1948. Such delays resulted in the addi-

tional increased césts and loss to plaintiff hereinafter

specified.

17. On account of the changed sub-surface conditions

encountered by plaintiff requiring the. installation of per-.

manent tunnel protection and other matters heretofore.

alleged plaintiff claims reimbursement for ‘the additional |

expenses incurred by it in installing such permanent

tunnel protection by the use of steel arch ribs and steel

liner plates throughout the entire length ‘of the tunnel

and the additional costs occasioned by the delays: caused

by the Government.

18. Plaintiff further in the alternative - ‘alleges that

the provisions in the specifications set forth in Paragraph .

-[fol.12] 7% hereof, particularly the italicized portions ©

thereof, contemplated that the Contracting Officer would

and should order and pay for permanent tunnel protection ©

beyond that shown on the ‘drawings if conditions encoun-

tered were such that good engineering practice required

such protection to permit the concrete lining to be in-

- stalled without substantial risk of injury or damage to -

the work from falling rock., The temporary tunnel pro-

tection which the contractor was required to provide by ©

“ Paragraphi TP4-02 of the specifications entitled “TUN-

* NEL EXCAVATION,” as properly interpreted, -is re-

10

“movable supports of the character required to safeguard

workmen during the excavation of the tunnel, and does

not intlude steel supports needed to permit installation |

of the permanent concrete lining, which must necessarily .

be left permanently in place.

19. The faulty nature of the rock miata and

the rock falls resulting therefrom required. the installa--

tion of steel arch ribs and liner plates throughout the

: entire length of the tunnel, and by virtue of the facts .

-and circumstances heretofore alleged the Government

was obligated to order and pay for such permanent tun-

‘nel protection under Paragraphs TP4-03 and TP4-08 ..

of the specifications, as good, engineering practices re-—

quired such installation in order that the concreting of

the tunnel be accomplished. The Contracting Officer un- .

reasonably and unlawfully withheld permission for plain-.

tiff to make such installation at the expense of the Gov-

ernment.

20. As alleged in paragraph 13 hereof, plaintiff ap-_

pealed within the time limits prescribed by the contract .

from. the adverse decision of the Contracting Officer.

[fol. 13] This appeal was referred to the Corps of Engi-

‘neers Claims and Appeals Board, the duly authorized

representative of the Secretary of Way. . Hearing: was: —

held June 17, 1948 and an adverse decision was rendered

in connection therewith on December 13, 1948. A motion

for rehearing of the determination by the Board denying _

- plaintiff’s appeal was filed. on or about December 20,

1948. The motion for a rehearing was denied by the

Board by an order, dated January 4, 1949. Plaintiff has

exhausted its administrative remedies. Neither the Con-

tracting Officer nor the said Appeals Board has correctly

evaluated the evidence, and no. appropriate relief was .

. granted plaintiff for the additional work ‘performed under

the contract, occasioned either by the changed conditions

referred to in Article 4 of the contract, or by the Gov-

ernment’s breach of the contract in failing to direct the

' installation of permanent tunnel: protection throughout ©

the entire length of the tunnel at Government expense .

in conformity with good engineering practice. The deci-

sion of the Contracting Officer, and in turn that of -

11

Claims and Appeals Board, acting for the head ‘of the

War Department, were capricious or arbitrary or ‘so

"grossly erroneous as necessarily to imply bad faith, or

were ye supported by substantial evidence.

of law. Many issues raised in this complaint, particulally

‘those in Paragraphs 6, 7, 8, 16, 18 and 19 hereof, re-

~ late to questions of law involving iriterpretations ‘of ‘the

contract and specifications and breach of implied obliga-.

tions of the Government under the contract with respect ~

to which Article 15 of the. contract does not provide for -

any appeal or any finality. | | :

' [fol.14] 22. There is set forth in Exhibit A, attached

hereto, and made a part hereof, a scliedule of plaintiff’s

increased costs, totaling $233,425.75, which increased

costs were occasioned by: the changed conditions referred

to in Article 4 of the contract requiring the irstallation

of permanent tunnel protection throughout the entire

length of the tunnel and by the delays caused by the Gov- ~

“ernment or occasioned by the Government’s failure and

refusal, in violation of the contract, to direct the instal-

lation of permanent tunnel protection at Government ex-

pense under the circumstances heretofore alleged. Plain-

tiff has been damaged by nonpayment of its aforemen-

tioned claims to at least the amount of $233,425.75, plus

an allowance for profit on Items 1 to 8 inclusive listed in

Exhibit “A” attached hereto totaling $175,307.50, or

$26,296.12 (15% thereof), which the plaintiff avers to be

reasonable and proper, making the aggregate claim of

the plaintiff herein the sum of $259,721.87, together with

interest thereon, exclusive of all set-offs and just grounds

of defense, which amount plaintiff is justly entitled to

recover from the United States of America, the. defendant

28. The plaintiff is the sole owner of said claim and is

the only party interested therein, and the plaintiff says

that no asignment or transfer of said claim or of any,

part thereof or of any interest therein, has ever been

made to anyone, and that the plaintiff is fully entitled to

recover from the United States of America the entire —

‘amount of its claim as set forth above.

»

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ESR ERM OS Se BOG a Faye

12

WHEREFORE, the plaintiff prays judgment against the

United. States of America in the s — of $259,721.87,

[fo]. 15] with interest thereon as may be provided by law,

and for such other ahd further relief as the nature of the

case may require and to the Court may seem just and ~

proper. | ; ais

ROBERT W. nbs ;

> $21 15th Street, N. W..

Washington 5, D. C.

Attorney’ for Plaintiff

ROBERT F. BRADFORD

WILLIAMS H. MATTHEWS

Of Counsel -

l » *s « *

Duly Sworn to by Robert W. Knox

Jurat Omitted in Printing.

[fol. 16] _ Expert A To PETITION

} Schedule of Plaintiff's Increased Costs .

1. Cost of Removing Extra Overbreak During Orig-

‘ jnal Tunnel Driving $ 1,092.75

-

2. Cost of Removing. Fallen Rock and Extra Rock

to Invert Subsequent to Completion of Tunnel

Driving (March 25, 1947) 9,018.00

8. Permanent Tunnel Supports ° Installed After

‘ March 25, 1947...... 29,354.51

4. Backpacking Installation 24,979.15

5: Additional Concrete Placed ional 11,200.00

6. Heating Costs—Winter Concrete. 45,853.08:

7. Loss, of Efficiency—Winter Concrete... 18,560.00 —

8. Excess Supervisory, Engineering and Adminis- os

- trative Labor—period 1-16-49 thru 6/30/49.......... $5,250.01

9. Cost of principal Items of Plant and Equipment

used and Maintained on Contract after 1-16-49.. 58,118.25

; | $233.425.75

fol’ 17] ‘IN THE

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' UNITED STATES COURT OF CLAIMS

fe: No. 466-54

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CARLO BIANCHI & Co., -ING., PLAINTIFF

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THE UNITED STATES, DEFENDANT

—

' DEFENDANT’s ANSWER—Filed. May 81, 1955

1. Denied for lack of knowledge or information suff

‘cient ‘to formea belief, except that it is admitted that.

plaintiff represented itself to, and contracted with de-

fendant, as the corporation described. me

2. The material allegations are denied except as here- ©

inafter admitted or admittedwith qualifications.

8. Admitted. . meas wane

4. Admitted, except the allegation that the Government

accepted the work as eompleted on August 22, 1949,

wthat the Invitation for Bids required bidders to» care-

fully examine the drawings and specifications, to visit

the ‘site of the work, and to fully inform themselves

_ with respect to all conditions affecting the work and the

cost thereof.

-[fol. 18] Second, third: and fourth sentences: Admitted.

Fifth and sixth sentences: Denied.

Seventh sentence: Denied, except that it is-admitted —

at plaintiff was paid. the contract price which included

temporary tunnel protection and was not paid extra for .

installing permanent tunnel protection beyond the con-

tract requirements, approximately the first fifty feet at

each end of the tunnel and extending inward, or as other- ~

wise agreed to. ae

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. Eighth sentence: All material allegations are denied..

6. Denied, except that it is admitted that the specifi-

cations, schedules, and drawings ‘required the installa-

tid of permanent tunnel protection. extending: approxi-

| oi fifty feet from each -portal only,.as described in

paragraph TP4-08 ofthe specifications, and also re-

quired temporary tunnel protection where needed. '

7. Admitted, except that it is denied that all the per-

tinent specifications aré> quoted or that the quotations

were italicized as set forth.

_ *.8. First sentence: “This is a statement of plaintiff's

contention calling neither -for affirmation or denial.

Second sentence: Denied.

9. Denied.

10. Denied, except that it is "admitted that the | con-

tract contained Article 4, on “Changed Conditions”.

_11. First sentence: Admitted.

Second sentence: Admitted except that it is denied

that vertical intersecting fractures in, the rock containing

-clay or mud seams were found throughout the tunnel.

In making the rock cut for the tunnel -outlet and stilling

basin plaintiff’s rock excavation disclosed mud. seams.

No claim was made that this was a. changed condition.

under Article 4. In December 1946 the Contracting Of-

[fol. 19] ficer found that the exposed rock surfaces, in-

dicated the same ‘type of materials described in the con-

* tract drawings, and he so found. Plaintiff did not ap-

peal.

Third sentence: Denied. |

Fourth sentence: Denied, except the allegation per-

taining toe plaintiff’s examination which is denied for

lack of knowledge or information sufficient. to form a.

belief.’ Fractures and joints in nearby outcroppings were

apparent upon proper examination of the site.

Fifth sentence: Denied except as.elsewhere admitted.

. Sixth sentence: °’ Denied.

Seventh sentence: Admitted that permission to in-

‘stall permanent tunnel protection at defendant's expense

. was refused.

_ Eighth and ninth sentences: Denied. ‘Pampas tun-

nél protection was required by. the contract and utilized:

four steel ribs for this a.

15 ,

Tenth and eleventh sentences: Denied, except that it is

admitted that four steel ribs were installed and afforded

16 feet of temporary protection beyond the fifty feet of

permanent protection, and that when said temporary pro-

- tection was removed, some rock fal] occurred.

12. Denied, except that it is admitted that the tunnel

was completely holed through by March 10, 1947 and

that cleanup work was in progress shortly thereafter, .

It is also admitted that rock falls occurred between

March 12 and April 25, 1947, and after April 25, 1947

at places where there were intersecting fractures in the

rock. Defendant denies that this constituted a changed

condition, that the rock falls -were excessive, or that they

‘ [fol. 20] would have ‘occurred if plaintiff had complied

with the contfact requirements.

13. Denied, except as admitted ‘herein. Many months

prior to April 23, 1947: there were conferences and cor-

respondence between plaintiff’s and defendant’s repre-

sentatives relative to tunnel protection and ‘sub-surface

conditions. By letter dated April 10, 1947 plaintiff pro-

posed that» permanent tunnel protection be extended

throughout the tunnel instead of at the ends only, bé-

cause of possible hazards to its workmen, and requested

payment therefor. The- Assistant Resident Engineer

promptly called plaintiff’s attention to the Resident En--

gineer’s decision and to the contractor’s responsibility

fer temporary tunnel protection atid for the safety of the

workmen and ‘the ‘work, and declined to authorize in-

stallation of permanent protection at defendant’s ex-

pense. $25 |

By letter dated April 23, 1947 plaintiff wrote. the Res-

ident Engineer as follows: was

_ We have. received. a ietter dated April 15, 1947, -

from Mr. Dale A. Losey, Assistant Resident Engi-

neer, in reply to ours of April 10, 1947, on the

above subject. : : |

We wish to point out, that the request contained

in our letter of April 10 does not concern itself

with the matter of temporary tunnel protection; —

it. is concerned wholly with the permanent type of .

(16.

tunnel protection as described in the contract speci-

fications paragraph TP4-03.

The specifications clearly indicate that the Gov-

ernment intended installation of permanent steel

supports and liner plates to a distance of 50 feet

*{fol. 21] in from each end of the tunnel and for such

additional distance as conditions would require.

Ever since the start of rock excavation work on

this project, and even prior to the time when the

actual tunnel excavation was started, the question

of the character of the’ rock that would be en-

. eountered.in the tunnel has been the subject of dis-

cussions with the Resident Engineer and his staff.

-These discussions were participated in by our sub-

contractor, Cabot Construction Corporation; as well

as ourselves. We consistently maintained the posi-

tion that the character of the rock within the tunnel

was such that provision should be made. for per- ©

manent tunnel protection. The Resident Engineer

took the position that ‘the permanent tunnel pro-

tection would be authorized only for 50 feet from

- each end.

In view of’ the position taken by the Govern-

ment, the subcontractor was required to proceed

with the excavation of the tunnelgwithout the in-

stallation of permanent tunnel protection, employ-

ing temporary tunnel protection of its own devising

in order to afford the necessary protection for its .

workmen.

As a result of the failure of the Government to

authorize the installation of permanent tunnel pro-

tection during the progress of excavation, there

have now developed large areas where the tunnel

roof has disintegrated or failed, and there are piles

of dislocated material on the floor of the tunnel.

In view of the now known facts with reference

"to. the dislodgment or failure of large areas-of the

tunnel roof, a condition which could have been an-

ticipated and prevented had the. Government ac- |

[fol. 22] ceded to our request for permanent tunnel

protection, we now again request that the Govern-

UOT Nala

17

ment’ authorize the installation of the permanent .

‘ tunnel protection, together with the necessary and —

obvious corrective -measures incidental thereto, at

_ the Government’s expense. | '

_. May we have the courtesy ‘of a prompt reply

granting to us the above-requested authorization?

A copy of this letter was also directed to the -War De-

partment, attention of Col’.J. S. Seybold, District En- |

gineer, at Baltimore, Maryland.

By letter dated: May 5, 1947,°Col. Seybold wrote plain-

tiff as follows: - . rs

__ Reference is made to your contract number W-

' 80-180-eng-397, providing for construction of -Al-

mond Dam at Almond, New. York, and to your

letter dated 23 April 1947 inclosing for my consid-

eration your letter of even date addressed to my

Resident Engineer requesting an authorization to

place at contract. prices additional permanent pro-

tection in the tunnel. cos

I have caused an examination to be made of the

contract documents and the circumstances and |

events that have preceded your request and I have.

found as follows: woes

__a. Contract drawing sheet No. 7 shows founda-

. tion exploration data that indicates the type and

_ character of the material that would. be encounter

. during the tunnel driving and lining. operation. y

b. Paragraph SC-7a of the specifications notified

all parties interested in this project that ea

of the materials removed from the_ foundation ex

- Efol. 23] plération holes were available for inspection

at the U. S. Engineer Soils Laboratory at Ithaca,

New York. . ‘

C. Paragraph GC-3 of the Specifications anno-

tated for the information of prospective bidders,

certain items of consequence with respect to ‘site

_and job conditions. Your acceptance of the con-

_ tract indicates that you have satisfied yourself as |

_ to those conditions including subsurface conditions.

uv

18

d. Contract drawing sheet No. 24 pner indi-

cates tunnel protection 50 feet back from the face

. of each portal of the tunnel.

e. Paragraphs TP4-03(a) and (c) of the speci-

fications also ‘describes and indicates the limits of

‘ “tunnel protection “as required for distances of

approximately 50 feet at each end of the tunnel.” |

This limitation to hold unless directed otherwise.

f. Paragraph TP4-02 of the specifications con-

‘tains a statement that “temporary tunnel protec-

tion shall be provided where required for safety

of the workman.”

Under the terms of the contractual requirements

‘cited above, I consider that the Government clearly . -

and in a very exact ‘manner indicated the extent to |

which the Government would require and assume

payment for permanent tunnel lining. I also con-

sider that sufficient data was available for you to

make a proper consideration of the tunnel protec-

tion which would be necessary for you to install in

- order to.provide adequate protection against damage

-to completed work. as well as the safety of your

workmen. »

»A review of the records of my Resident Engineer

indicates that he consulted with your representa-

~ [fol. 24] __— tive prior to the commencement of the tunnel

work and advised you fully and correctly as to the

extent of both the Government’s responsibility and —

your responsibility in placing tunnel lining beyond

the limits required and indicated for payment.

Interim correspondence indicates that you were

periodically aware of the gradual deterioration of

the rock in the tunnel which did not commence un-

til the tunnel was completely holed out, yet you

apparently took no action to protect either yourself

or. the interest of the Government.

It is my decision, in view of the above finding,

that no further tunnel lining will be placed at the

expense of the Government. Furthermore, my. Resi-

dent Forces will be instructed to require that ade- ©

quate precautions be taken to insure the safety of. -

19

all . personnel when your tunnel operations are |

resumed.

If you wish to appeal my decision in the matter,

you are advised of your rights of appeal within 30

days from date of receipt. of this letter as provided

under the terms of Article 15 of the contract. -

On or about May 12, 1947, the contracting officer and

plaintiff’s representatives conferred at’ Baltimore, and

thereafter by letter dated May 29, 1947 plaintiff ap-

pealed to the Secretary of War.

14. Denied, for ‘lack: of knowledge. or information —

sufficient to form a. belief, except as admitted herein.

Under date of May 12, 1947, plaintiff’s representatives

conferred with Col. Seybold at Baltimore and endeavored

_to obtain authority to install permanent tunnel protec-

tion throughout at Government expense. May 26, 1947,

plaintiff also wrote to Contracting Officer that it con-

[fol. 25] sidered the minimum permanent tunnel pro-

tection necessary was that the protection installed at

‘the portals be extended throughout the tunnel. Under .

date of June 13, 1947, Col. Seybold replied as follows:

Reference is made to your letter dated 26 May

1947 wheréin you submit a proposal for the safe

protection of your workmen in the tunnel at Al-

mond Dam under your Contract No. W-30-180-eng-

397. ©

Your request refers to “Permanent Tunnel Pro- .

tection”. You are advised that no permanent tun-

nel protection. will be required to be “installed in

Almond Dam Tunnel in addition to that protection _

already installed and paid for under contract pay- .

ment items numbers 11 and 12. Also, you are ad-

vised that “Permanent Tunnel: Protection” required -

under this contract is at the portals only and is

protection designed to withstand earth pressures.

_ Temporary tunnel protection as required under

the provisions of paragraph TP4-02 of the contract

specifications is temporary in that its only function

is to support a falling rock load and prevent injury

to your workmen. The greatest load to which it

will be subjected: ‘will be the. dead toad of the back

packed materials. —

_In paragraph 8 of your letter, you state that you

are of the opinion that~the’minimum.permanent

tunnel protection that will meet the requirements of ~~

the situation ‘adequately and for which you request

approval are the same ribs and liner plates used at

the portals. If you desire to use this design of

tunnel protection throughout the tunnel length, its

[fol. 26] use is approved. You are advised, however,

that this type of installation is considered as an over

design for the purpose required and will be a more

costly installation to you that is considered necessary.

It is suggested: and recommended to you that ade-.

quate temporary protection may be obtained by using

I-beam ribs of about 3 inches and 6 pound weight

spaced 4 to 8 feet apart (depending on the over-

break) with 2” timber lagging. The void area in

the arch would then be uniformly packed with shale

or bank run gravel in a manner to insure a uniform

* load distribution: Protection of this kind will be

adequate to support the falling rock load as well as

the material used in back packing. -Favorable con-

sideration will be given to a proposal of comparable

design.

It might be called to your attention that a scheme

similar to the above was proposed to my Resident

Engineer by a. representative of your subcontractor,.

the Cabot Construction Company, at the time tunnel

excavation was commenced.

- It is to be: understood that the contents of this.

letter are not to be construed as a reversal of my.

decision to you dated 5 May 1947 to the affect that

no payment would be made by the Government for

the additional: tunnel protection required to com-

plete. work under your contract. ©

Under date of June. 28, 1947 plaintiff i Peter M.

- Bianchi wrote Col. Seybold as follows: :

We have your letter of June 13, 1947 in reply to .

‘ ours of May 26, 1947 on the subject of- Tunnel |

Protection. == = ——*—™

2

[fol.27] . You are advised that nowhere in our letter

did we make reference ‘to the subject of safe protec-

* tion of workmen in relation to Tunnel Protection.

We understand that you have decided that no

“Tunnel Protection will be required, and to this

position we have taken: exception by our letter of

appeal to the Secretary of War; Washington, D. C.,

dated May 29, 1947. | eas

We assume that your reference is. to earth pres-

sures resulting from rock or other materials sur-

rounding the tunnel bore. |

We cannot agree with the statement in regard to

temporary Tunnel Protection in the third para-__

- graph of your letter. . ; ie

We cannot agree with your position in regard to

the design of Tunnel Protection as we are of the

opinion that the conditions require an installation

at least of such strength as used at the portals.

We are proceeding to order this material and will

- install it at the earliest possible moment on the

~~ assuniption that this procedure is acceptable as stated

in the fourth paragraph of your letter of June 13.

In reference to the next to the last paragraph of

your letter to the effect that a scheme for tempo- -

rary protection similar to that suggested by your’ —

letter was proposed to the Resident Engineer by 4

. representative of the Cabot Construction Corpora-

tion, please be advised that this is not consistent

with the statement made to us by the Cabot Con-

struction Corporation, to whom the matter was

‘referred. mS Siameebro tec oe

It is understood that the contents of this letter

(fol. 28] are not to be construed as waiving any of

our rights involved in our appeal of May 29, 1947.

Under date of July 25, 1947, plaintiff wrote the Dis-

trict Engineer that plaintiff intended to install tunnel

protection of its design as an extra under the contract.

Under date of August 11, 1947, the Acting District

Engineer replied to plaintiff as follows: - |

Reference is made to your letters dated 25 July

1947 and 1 August 1947 relative to the temporary

tunnel protection which you propose to install ‘under

your Contract Number W-30-180-eng-397 which pro-

vides for the construction. of — Dam at: Al-

mond Dam, New York. °

By letter dated 5 May 1947 you were furnished

a decision by Colonel J. S. Seybold, then District

Engineer, to the effect that the ‘tunnel protection

remaining “under your contract would consist of

temporary protection placed in accordance with. para-

graph TP4-02:of the contract specifications as a

safety precaution for the workmen at no additional

cost to the Government. You. have appealed this -

decision of the District Engineer in accordance with

the terms of the contract. Subsequent to your ap-

peal you had offered for approval a proposed plan

of protection, the merits and necessity for which .

were clearly discussed in a letter to you from the

District Engineer dated 13 June 1947. j* &

Your letter dated 25 July 1947 outlines again the

plan of protection which you are electing to use.

You also express your views with respect to prob-

able differences in cost between your proposed plan

and the scheme suggested by this office as adequate.

[fol. 29] Your letter cites the interests of the Govern-

_ment in the matter as an extra and infers a liability

for costs on the part of the Government. It becomes

necessary, therefore, to advise you that the: decision

of the District Engineer and your subsequent ap-

peal will be reviewed and a final decision rendered

by higher authority as sodn as an orderly process-

ing of your appeal can be accomplished. In the

meantime, severe inexcusable delays to.the work

are resulting from your failure to proceed and it is

not believed that your interests will be furthered

by continuing correspondence on the matter.

The Government position has been made clear in

the previous correspondence and is ‘summarized

briefly as follows:

a. In accordance with paragraph TP4-02 of the

contract specifications “temporary tunnel protec-

‘tion shall- be provided where required for safety of.

Met cate onnctnte ns ranaen

the workmen”. The installation of. this. temporary

_ protection is not structurally necessary to insure

_ the safety of the completed tunnel structure and

need be designed only to support a falling stone

. » load and backfilled material in the tunnel over-

_ break .area. The design, suggested ‘by this office is

. considered adequate for that purpose and will be

' approved for use if you wish to. reconsider our

plan. However, since the safety. of your workmen

is your responsibility you must, of course, provide -

a protection which you consider adequate for their

safety, therefore, no objection will be made to the

protection plan which you propose to use: Under

the terms of the contract all costs will be accrued

‘to you unless found otherwise by higher authority.

(fol. 30] Plaintiff failed to proceed with the installation

\ and completion of the concrete tunnel lining during all of

‘this period as required by the contract, but delayed —

commencement until December 1947. — ty A sceroee

15, Admitted, except the allegations that plaintiff pro-

ceeded promptly, and completed the ‘installation of the ..

‘steel arch ribs and liner plates in December 1947, which

are denied. ene ene

' -16.-Denied, except as admitted herein. The contract

‘ requirement of .completion by January 15, 1949 was

extended to June 30, 1949. :

17. All material allegations are denied.

18. Denied. Ss: Rees

19. Denied. a at en: Gece

20. First, second arid third sentences: Admitted.

Fourth and fifth sentences: Admitted except that de-

fendant avérs that a-motion for rehearing was enter- .

tained, and the decision of December 9, 1948. reaffirmed.

i sentence: This is a conclusion of law, but is

otherwise denied.’ |

Seventh sentence: Denied.

Eighth sentence: Denied.. | ee. \

-. 21. The allegations in this paragraph are argumenta-

tive. All material allegations of fact are denied.

22. All ‘material allegations of fact are denied. -

4

23. Denied, for lack of knowledge or information suffi-

cient to form a belief, except the allegation’ that plaintiff

is fully entitled to recover, which is denied. Defendant

alleges on information and’ belief that plaintiff assigned

all moneys due or to become due under the contract to

‘the National Shawmut Bank of Boston, Massachusetts

on September 26, 1946.

24. Defendant specifically denies that plaintiff com- —

(fol. 31] plied with Article 4 of the contract: entitled

“Changed Conditions”.. Denies liability for any increased

costs incurred by any subcontractor -of plaintiff for which

plaintiff was not itself obligated to the subcontractor.

25. Denies each and every allegation of the petition

not herein expressly admitted, or admitted with nd :

. fications.

WHEREFORE defendant deiticnds judgment that the beti-

tion be dismissed with all costs taxed against plaintiff.

, WARREN E. BURGER,

Assistant Attorney General,

; Civil Division.

‘EDWARD L. METZLER, .. ©

Attorney, Civil Division,

Department of Justice. —

wo bene -

ee acai ‘

bie <tesireatvetineee siete ot. <a ts

men.

(fol. 1] eo. IN THE / |

‘""” UNITED STATES COURT OF CLAIMS - ar

No. 466-54

CARLO BIANCHI AND CoMPANY, INC., PLAINTIFF

. oes

UNITED STATES OF AMERICA, DEFENDANT

Boston, Massachusetts,

Monday, September 24, 1956,

10:00 o’clock a.m.

*¢ TESTIMONY FOR PLAINTIFFS AND DEFENDANT

~The parties met, pursuant to notice of the Commis-

sioner, at the time above stated, in Court Room 4, 12th

_ Floor, Federal Building, Boston, Massachusetts.

Present: _ Hon. William E.° Day, Commissioner ;

APPEARANCES

Robert w. Knox, Esq,,

William H. Matthews, Esq., and

Robert. F, Bradford, Esq. ., counsel for plaintiff;

E. L. Metzler, Esq., counsel for defendant.

Mr. Kenneth K. Jehnston and Mr. D. F. King, re-.

porters, were thereupon sworn by the Commissioner to

well: and truly take down and transcribe the questions

propounded to and the answers given by the witnesses,

and to do all other things required of them by the. Com-

missioner. |

Pursuant to the order of reférence by the Honorable,

: the United States Court of Claims, in the ‘above-entitled

[fol. 2] cause, testimony on behalf of the Plaintiff was

taken as follows:

TESTIMONY FOR) ‘PLAINTIFF |

COMMISSIONER DAY: You may Proceed, gentle-

. .

‘

26 -

MR. KNOX: Mr. Commiasioner, ‘iis your permis-

sion I would like to make an opening statement ‘outlining

--as briefly as possible the issues involved in. this suit and

the Plaintiff’s eens and contentions in connection there-

with.

. OPENING STATEMENT By COUNSEL FOR PLAINTIFF

MR. KNOX: The Plaintiff, Carlo Bianchi and Com-

pany, Inc,, a Massachusetts corporation, bid and was |

awarded on,or about® July 3, 1946, Contract W-30-180-

eng-897 by the Corps of Engineers, U.S. Army Appro+

priation Flood Control for the construction of an earthen

- dam and diversion tunnel at Almond, Steuben County,

‘New York: The contract was on a unit price basis for

an estimated consideration of $3,330,330.00. The con-

' tract provided that the work was to be ‘commenced within

ten calendar days after date of receipt by the Contractor

of notice to proceed. Notice to proceed was received

= _July 30, 1946 and Plaintiff complied therewith. The con-

* ‘tract provided that thé work was‘ to bé completed not

later. than 900 calendar days after receipt of notice to

proceéd._ This time was subsequently extended and the

-work was completed on June. 30, 1949.

The issues-.involved in this suit concern solely the

diversion tunnel.” “The Plaintiff upon receiving the invita-

_ [fol. 3] tion to bid nfade an investigation of the site, ex-

. amined the specifications,-~the logs of the borings, the ~

_ Schedules and drawings relating | to the dam arid the .

diversion tunnel. These specifications and drawings pro- -

vided that the diversion tunnel would be 710 feet long,

horseshoe shaped, 13 ‘feet in diameter, and completely

lined with concrete after the tunnel was bored through.

The specifications, drawings and logs represented to

_ the Plaintiff that subsurface conditions in the excavation —

of the tunnel would be such that the roof of the tunnel

- would be stable and would not require permanent tun-

nel protection beyond 50 feet at the inlet and outlet por-

tals. The specifications provided that for 50 feet in from

each portal steel arch ribs. and steel liner’ plates were to

be installed and that such tunnel protection should’ be

*

ee ne ee ON foe eter renwer ene

27

installed elsewhere as directed by the Contracting Offi-

cer. The condition as represented by Defendant was not

‘found and.due to the unstable roof of the tunnel when

completely bored: through the Plaintiff was required to

and did install steel arch ribs and the liner plates through-

out the entire length of the tunnel. It was not possible

for the Plaintiff to install the concrete lining without

first installing permanent tunnel protection. The. roof. |

of the tunnel was unstable primarily due to vertical in-

tersecting fractures with clay lining found in the éhale

‘ of the tunnel. Nothing in the specifications, "logs ,or

drawings, or the investigation of the site as the Plain- .

[fol. 4] tiff-was able to make, revealed these conditions.

The Plaintiff’s position is that the conditions which

were found during the course of the excavation of the

Almond Dam Tunnel and when the tunnel was “holed

through” materially differed from those shown on the

drawings or indicated in the specifications and constituted

changed conditions within Article 4 of the Contract. The

subsurface latent’ conditions which materially differed |

- from ‘those represented were promptly called to the at-

tention of the Résident Engineer and the Contracting

Officer. In fact, such conditions’ were called to the

- Resident Engineer’s: attention during the excavation of

the stilling basin by pointing out the possibility that the

vertical intersecting fractures with clay lining found

therein might reasonably be expected to be found in the

tunnel when the. excavation was under way. The Resi-

dent Engineer took the position that the rock. that would

be found during the excavation of the tunnel would be

more ‘sound and that the roof of the tunnel would be

. stable. When the tunnel was completely “holed through”

the entire roof of the tunnel was unstable and required

permanent tunnel protection. The tunnel was completely

driven through by March 1947; the clean-up work was

completed. in the same month. Immediately thereafter |

there were substantial rock falls from the roof of the

tunnel occurring at many places where the intersecting

fractures existed. It then became apparent that the

[fol.5] roof of the tunnel was unstable and could not

_without permanent tunnel protection be concreted suc- —

cessfully and the contract completed. This condition was

called to the attention of the Resident Engineer and the

Contracting Officer. The Contracting Officer on May 5,

1947 denied the existence of this condition and refused

' to permit the Contractor to install permanent tunnel pro-

tection at the Defendant’s. expense. Subsequently and

‘within the period of time provided in the Contract, the

Plaintiff appealed from this decision.

Despite the decision of May‘5 and the subsequent ap-

peal the Contracting Officer and the Resident Engineer

entered into numerous conferences and extensive corres-

pondence with the Plaintiff with respect to minimum: ‘per-

manent tunnel protection. to be installed before the .in-

stallation of the concrete lining. These conferences and

discussions took place over quite a period of time, and a

proposal was submitted by the Contracting Officer to the

Plaintiff as to what he considered would be proper tunnel

protection. He requested the Plaintiff to consider and ad-

vise him whether the alternative design was adequate or

inadequate. The Plaintiff engaged several consulting

engineers to determine whether or not the proposed tun-

nel protection submitted by the Contracting Officer was

sufficient so that the tunnel could be safely lined with

concrete. The opinion of the various consultiag engineers

[fol. 6]. was that the Contracting Officer’s proposed plan

was inadequate and that the minimum requirement for

permanent tunnel protection prior to the lining with con-

crete would be that proposed by the Plaintiff.. The Con-

tracting Officer was promptly advised of this decision by

the Plaintiff. By letter of August 11, 1947 the Contract-

ing Officer informed the Plaintiff that there was no ob-

jection to the installation throughout the tunnel of the

' steel ribs and liner plates proposed by, ithe Plaintiff but

the cost of’ this installation would have to be borne by

the Plaintiff. The Plaintiff while protesting this action by

letter nevertheless promptly proceeded to order and re-:

ceive delivery and_ install the steel arch ribs and liner

plates. This installation was completed in December 1947

and the Plaintiff thereupon proceeded to line the tunnel

with concrete in accordance with the. terms of the Con-

tract. The concrete lining was completed in May 1948.

REF A rete

a) .

29

It is Plaintiff’s position that not only were the con-

ditions found in the tunnel materially different from those

represented in the contract drawings, specifications. and

logs, but also that under the provisions contained in the

specifications the Contracting Officer, in accordance with

good engineering practice, should have authorized the in-

Stallation of the permanent tunnel protection such as. |

was installed by the Plaintiff and that under the terms of —

the Contract Plaintiff should have been compensated for

[fol. 7] such installation. The failure of the Contract-

ing Officer to authorize such tunnel protection was arbi-

trary and unwarranted and contrary to good engineer-

ing practice. Apparently the basis for the position taken

-by the Contracting Officer was predicated solely upon his

interpretation of the Contract and specifications which is

a question of law—his interpretation was that any tun-

nel protection to be installed beyond the 50 feet at the

outlet and inlet portals would be temporary protection

even though it had to stay in place permanently and that

the expense of such protection had to be borne by the

Contractor. The only reference to temporary tunnel pro-

tection is contained in Paragraph TP4-03 of the ‘specifi-

cations entitled “Tunnel Excavation.” The type of tun-

nel support referred to therein is support to safeguard

workmen during the excavation of the tunnel. Such sup-

port would be removable and could not embrace per-

manent tunnel protection required to be installed and

remain in place permanently in order that the concrete

' lining could be installed and the Contract. completed.’

The. Plaintiff will establish that the tunnel protection

which was installed and remained permanently in place ©

had for its purpose the protection of the unstable roof ©

in order that the Contract could be performed by com-

pletely lining the tunnel with concrete.

As I have previously stated, the Plaintiff duly ap-

pealed to the Corps of Engineers Claims and Appeals

[fol. 8] Board from the decision of the Contracting Of-

ficer. A hearing was held and an adverse decision. ren-

dered, the final order of the Board being issued on Janu--

ary 4, 1949.- Plaintiff has exhausted its administrative .

remedies and takes the position that neither the Contract+~.

ing Officer nor the’ Appeals Board has correctly evaluated”

30

the evidence and that the Plaintiff should have been

granted. relief by reason of the changed conditions pur-

suant to Article 4 of the Contract or by reason of the

Government’s failure to authorize the installation of the

permanent tunnel protection throughout the entire length

of the tunnel at Government expense in conformity with

good engineering practice. Thus it is the position of the

Plaintiff that the decision of the Contracting. Officer and

in turn that of the Claims and Appeals Board were:

capricious or arbitrary, or so grossly erroneous as neces- -'

sarily to imply bad faith or were not supported by’ sub- —

stantial evidence. .

I further wish to point out that it is the Plaintiff’s

“position that many of the issues relate to questions of ©

_ law involving interpretations of the Contract and breach

of implied obligations of the Defendant. Plaintiff is.

seeking in this suit to recover judgment against the De-

fendant. for its increased’ costs which were incurred.

through no fault of its own but solely attributable to the

actions and inaction of the Defendan .

[fol.9] COMMISSIONER DAY: [To you wish to reply,

Mr. Metzler?

- OPENING STATEMENT By COUNSEL FOR DEFENDANT

MR. METZLER: Mr. Commissioner, I think the

pleadings have substantially indicated the issues, and I

presume the Commissioner is familiar with them.

The claim as presented to the Engineers Claims and

Appeals Board, which acted for the head of the depart-

ment, pursuant to Article 15 of the Contract, which is

the’ Disputes Clause, was considered under Article A,

? the Change Conditions Clause, and that was the basis -of .

the contractor’s claim, although there ‘was a disclaimer

of intention under Article 4 at the time that the hearing

was held before the Engineers Appeal Board.

- The- contractor seems now, to some extent, to have —

shifted slightly from its fundamental position taken both

before the Appeals Board, and even to:some extent in. —

its petition, by endeavoring to present a claim of mis-

representation rather than a claim based strictly on Ar-

ticle 4, which of course was the type that the Engineers

31

Claims .and Appeals Board had been authorized to hear

‘under Article 15, the Disputes Article. |

We believe that the law is certainly definitely settled

that the decision of the. head of the department, under

Article 15, is final and conclusive on all questions of fact,

and it can be overturned only if it is arbitrary or capri-

cious or not’ established by substantial evidence. ‘ That

_ question has been reviewed by the Court of Claims and by

the Supreme Court ‘in many cases. _ 7 :

, [fol.10] So we believe at the threshold that there should

- be a determination made as to whether that decision of

_ the head of the department, acting through the Claims

Appeais Board, was established by substantial evidence —

or, in substance, that no evidence is admissible in this

Court, if that record before the Appeals Board and.that

decision on which: it was based was one where there was

substantial evidence which leads to the fact that that |

* conclusion was reasonable. We believe that is the thres-

hold of the determination. |

COMMISSIONER DAY: By whom? _~

MR. METZLER: I say it is one even by the Commis-

sioner. © _ NN , a

COMMISSIONER DAY: Of.course I have been con-

scious-that there was potential argument, and I believe

_ that that is the kind of-thing that should have been taken

care of at pre-trial, because, obviously, the record that

was made before the Appeals Board and before the con-

tracting officer is one that I should review before I con-

sider the taking of testimony. 7

MR. METZLER: As the Commissioner knows, we-

suggest that the issue was one which could be well limited

to the issue of liability. We have made that position clear ©

to Plaintiff’s counsel, and I believe I have covered that in

a letter to the Commissioner, also.

COMMISSIONER:- DAY: The matter of dividing: the

case between liability and.damages is apart from the

matter under consideration here.

[fol.11] MR. METZLER: That matter could have been

well raised at a pre-trial. We had no objection to a pre-

trial and raising that issue at any time.

COMMISSIONER DAY: You are making the sug-

gestion now that we should have a determination, first,

before we go into the evidence, that the decision: was sup-

ported by substantial evidence and was not arbitrary?

‘MR. METZLER: I think that is a perfectly proper

determination for the Commissioner to make.

COMMISSIONER DAY: I am suggesting that that

should have been done earlier than the date upon which

trial has been set.

MR. METZLER: I think it eule have been’ advisable *

and we certainly’ had no objection to that procedure.

' However, even at this time I do not believe that evidence

is properly receivable, unless it is established that that

decision was not supported by substantial evidence. I

think that the Plaintiff’s case before the Court must go.

only to the question of whether or not that decision was

_arbitrary, capricious, grossly erroneous, or not’ supported

by substantial evidence.

If that can be done in some manner, then the entire

record may be opened up = the issues of damages, and

so forth, considered.

~ It seems to me that the Plaintiff wishes to go beyond

that, and in effect not to try the limited issue which the

[fol. 12] Court is to consider, but all issues of any char-

acter or description.

I will call the Commissioner’s attention that it says

that Article 4—and I am sure the Commissioner is fa-

miliar with that from many cases—is not. a misrepre-

sentation article. It is a contract article and Provides for

adjustment under the contract.

Now during the period from 1946, or early in 1947,

the best that can be said, apparently, is that the Plain-

tiff predicated its claim on a changed condition. ‘That is

exemplified by the conduct of the Plaintiff in presenting

its claim, and by the hearing before the Appeals Board,

where an Article 4 claim was considered.

Now I raise the question whether Plaintiff can now,

- after having that considered as an Article 4 claim, come

in and say: “No, that really isn’t our claim. Our claim

is a misrepresentation claim.”

Ay

I believe that the evidence will establish conclusively—

however, ,if the Commissioner permits that type of evi-

dence—that there was no misrepresentation of any char-

‘acter whatsoever. In the entire record I do. not believe

there is any evidence whatever that the Government. in

. any way withheld any information that it had, or in any

"way misrepresented one matter which was untrue in any

degree. kee : Sec

That being so, it is a matter of law, and there was no

[fol. 13] misrepresentation under the decisions of the

Court of Claims and under numerous decisions of the

Supreme Court.

‘That is the basic position which the Government takes —

with regard to what we consider to be the real issues

presented in this case, aside from the issues which arise ~

from questions of damages.

‘COLLOQUY BETWEEN COMMISSIONER AND COUNSEL

MR. KNOX: Mr Commissioner, referring to counsel’s

statement, I think perhaps we could clarify this situa-

tion. We are not taking a position that there was an in-

tentional misrepresentation. In other words, our position

relates to changed conditions, materially different from

those in accordance with Article.4, the subsurface, latent

conditions. — oe )

We believe there are questions of law involved as to

the interpreting of what constituted temporary and per-

manent tunnel protection, and that. the contracting of-

ficer and the resident engineer, aside from the factual

situation, ‘interpreted the contract.so that there would be -

no provision for any type of protection other than tem-

porary protection, which: under the terms of the contract

' had to be borne by the contractor. .

__ So that we have involved questions of law, questions of

changed conditions, and I believe that ‘we should be able

to go forward with the evidence and make the determina-

tion at a later time or at.a later period, as to whether or

not there was substantial evidence before the Appeals and |

- Review Board. That would go, to a large extent, to the

_ [fol. 14] question of the weight of the evidence. I have

in mind the Williams case before the Court of Claims.

>

34

COMMISSIONER DAY: This very issue is up before .

the Court of Claims right now, that is as to whether or

not there should be a trial de novo or as to whether«the

- Plaintiff is limited to what is shown by the administra-

tive rd. Until the Court comes down with something

more definitive than they have heretofore, I am going to <

hear the evidence that may be offered. |

However, I am going to require that counsel for the

Plaintiff start off with the administrative determination

and its antecedents and the decision thereunder, as a

starting point for putting the evidence in. |

MR. METZLER: Off the record, please.

(Discussion off the record. )

COMMISSIONER DAY: Back:on the record.

MR. KNOX: Mr. Commissioner, it is my understand-

ing, from your statement, that ‘you are requesting that

we introduce the record of the Appeals and Review

Board and the decision of that Board first, at the outset.

COMMISSIONER DAY: I think. you should. ‘That is

what you are-attacking. =~

MR. KNOX: Mr. Commissioner, what we had in mind

was bringing in a running story of ‘the evidence, and then

' [fol. 15] bringing in toward the conclusion the entire

record of the Appeals and Review Board and the deci-.

sion, as part of our case. . i

COMMISSIONER DAY: I will-amend my statement —

to allow you to do so. I won’t require it at this point.

You may proceed and I will make each ruling as it is

indicated. . |

~ MR. KNOX: We were only thinking of the sequence

of our presentation. In other words, we can introduce the

record of the Appeals and Review Board: decision. We

had intended to do so at a little later stage of the hear-

— :* ;

GOMMISSIONER DAY: Is there any objection to that

procedure being followed?

MR. METZLER: Mr. Commissioner, I am not anxious

to prolong this trial or to interrupt the presentation by

counsel for the Plaintiff, but I am going to object to the

introduction of evidence. which was not before the Ap-

- 35 '

peals Board, as a basis for showing that the findings of

the Board were arbitrary and capricious. I do not-see-.

that you can impeach a District Court, for example, or an

administrative tribunal, by saying that they failed. to:act

on- evidence which was not presented to them. That is

the type of issue which we have. | ;

We have no objection to the Commissioner and the.

_ Court fully considering and studying the entire record

before the Engineers Claims and Appeals Board. We are

~ perfectly willing that the whole matter go in, but if the

Plaintiff in this case is seeking to go outside and present .

documents and so forth, he must: show that that record

would have been different if they had presented that

(fol. 16] evidence and those witnesses, and I am going to"

object to it, and I am going to object to it-right here and

now, along with the Commissioner’s thought—or what I

believe is his thought—that it will go into evidence.:

. COMMISSIONER DAY: Go ahead. / a

MR. METZLER: Off the record, please.

(Discussion off the record.) : ) od

COMMISSIONER DAY: Back on the record. ay

MR. KNOX: Mr, Commissioner, we will proceed, if

COMMISSIONER ‘DAY: All right. |

MR. KNOX: The first witness will be Thomas R.

’ Sullivan.

COMMISSIONER DAY: Very well.

MR. KNOX: Mr. Commissioner, may I say, before

we start with this witness, that we could introduce, if

this would help, the record of the Appeals and Review

decision, but the entire record of exhibits is not:

available at this hearing because of the fact that a num-

ber of those exhibits we do not ‘possess. We tried to

obtain them through Mr. Metzler, who does have them, °

and we have had opportunity to look at them, but we

have never been able to obtain them, on the theory: that

all those exhibits in that Appeals and Review Board

hearing were Government property, and we do. not .have

those documents, but Mr. Metzler does, _ Tie

MR. METZLER: I do not think thaf is quite the

[fol. 17]. situation, Mr. Knox. The exhibits which you

refer to were returned to.you, and I do not have those

exhibits. When I:say “returned to you,” I mean they

were returned to the Plaintiff or its prior counsel. .

_ Any documents which I have had, which we know of,

- and which were before the Review Board, have been avail-

able to you or your associate counsel for. inspection at any

time.

MR. KNOX: ‘That is quite true, but you still possess

the. exhibits. I am referring now specifically to a list

of photographs which you did allow us to examine, but

they are in your possession. ‘They were exhibits in that

case.

_ MR. METZLER: I\do not want to prolong this, but in

so far as I know, the situation is this: .

There were thirty-nine or forty photographs, which

were apparently before the Engineers Claims and Ap- .

peals Board. In so far as I know, however, the photo-

graphs which were introduced by your client’s prior coun-

sel, they were returned to them, and they are not in the

Government’s possession. There may be copies, because I

gave those photographs to you for the — of making

copies. | ;

MR. KNOX: . That is right. ; :

MR. METZLER: Or for any use you might. want to

make of them.

MR. KNOX: That is right. We have copies, but they

___ are not the original exhibits. The markings on them are

{fol. 18] markings of our own witness. -You have the

; - exhibits, _—— they were never returned to

MR. METZLER: I can say. that there were no mark-

ings of any kind on them but they were specific ex-

hibits before the Appeals Board. They might have been

identified in some way. If that is the only: problem, and

- -if you do have copies of those, I would have-no objection

to introducing those as an exhibit so as to avoid that

_ difficulty.

COMMISSIONER DAY:. All right.

37

MR. ‘METZLER: We do not want to stop at ‘that - ,

point. |

MR. KNOX: ‘Mr. Commissioner, I would like to re-

quest of counsel, or we could at this time have an under-

standing, that we stipulate. that the Appeals and Review

Board record, and submit it to the Commissioner in its |

- entirety. You also have some Government pictures or

photographs which were introduced, which we do not have.

‘COMMISSIONER DAY: Let us go off the record for

a minute, Mr. Reporter.

(Discussion off the record.) oe Geeta ve eC

COMMISSIONER DAY: Back 6n the sone’, :

MR. KNOX: I might say, Mr. Commissioner, that -

- gubsequent to this there was a motion for reconsideration,

pale

which was denied January 4th, and this is dated in De-

cember. I understand. we have got that here. :

COMMISSIONER DAY: Very well.

(fol. 19] MR. KNOX: I would like to ask that those

- documents be marked for identification as Plaintiff’s Ex-

hibits Nos. 1, 2 and 3.

COMMISSION ER DAY: Very well.

(Decision ‘of the Appeals and Review Board was

marked: for identification as — — No.

Sel

(Record of henttads ‘before the Appeals and Review :

Board was marked for identification as Plaintiff’s

Exhibit No. 2.)

_AMotion for reconsideration, denied January 4 by Ap-

~ peals and Review Board was marked for —

tion as Plaintiff’s Exhibit No. 3.) .

MR. KNOX: We ask. leave to substitute photostatic

copies for Plaintiff’s Exhibits Nos. 2 and 3. :

COMMISSIONER DAY: Very well.

THOMAS R. SULLIVAN, a witness produced on behalf

of the Plaintiff, having been first duly sworn by said’

Commissioner, was examined, and in answer to. inter-

rogatories testified as follows:

sion.

DIRECT EXAMINATION.

BY MR. KNOX:

Q. Mr. Sullivan, will you state your full. name and

residence?» - :

A. Thomas R. Sullivan, 256 West, Central. Street, .

Framingham, Massachusetts.

[fol.20] Q. Mr. Sullivan, are you associated with Carlo

Bianchi and Company, Ine. of Framingham, Massachu-

setts? ;

A. Yes.

Q. In what capacity?

A. I am assistant treasurer.

Q. How long a period of time have you been associated

with Carlo Bianchi and Company, Inc.? 3» ;

A. Since 1940.

Q. Will you:state whether or not Carlo Bianchi —

Company, Ine., is a Massachusetts corporation?

A. It is.

_Q. When was it organized? : |

. A. It was incorporated under the laws of the Comsnoni-

_. wealth of Massachusetts in 1912.

~ +Q. Mr. Sullivan, are you familiar with the proceed-

ing of Carlo Bianchi and Company, Inc. before the Engi-

neers Appeals and Review Board of the Army wei of

Engineers?

A. Before the Appeals Board, -yes: .

-Q. Do you ‘keep the records of Carlo Bianchi and Com- .

pany, Inc.? |

A. I have over-all responsibility of them and supervi-'

Q. I now hand you Plaintiff’s Exhibits ‘Nos. 1, 2 and .

8, marked for identification, and request that you identify

these documents. :

(fol. 21] A. Exhibit No. 1 is a transcript of the’ pro-

- ceedings of the hearing on the appeal of Carlo Bianchi

and Company, Inc., before the Engineers Claims and.

Appeals. Board, under Case. No. 14, which took place in

Washington, D. C. on June 17, 1948.

_ + Exhibit No. 2-is a letter ‘addressed to Carlo Bianchi

and Company, Inc., by the Recorder of that Claims and

>

Appeals Board on December 14, 1948, appended to which

was a certified copy of Decision No. 14 of. the Corps of

Engineers Claims and Appeals Board, relating to the

appeal that I have just mentioned. That was dated

December 9, 1948. ‘o | P

Exhibit No. 3 is a letter addressed to Carlo Bianchi

and Company, Inc., by the Recorder of the Corps of

Engineers Claims and Appeals Board on January 14,

1949, appended to which is a supplementary opinion _.

rendered by the Board, under date of January 3, 1949.

MR. KNOX: Mr.’ Commissioner, I now offer into

evidence Plaintiff’s Exhibits Nos. 1, 2 and 3.

MR. METZLER: No objection, subject to compari-

son and verification. ;

COMMISSIONER DAY: Admitted.

(The documents heretofore marked for identifica-

tion as Plaintiff’s Exhibits Nos. 1, 2 and 3, were

made a part of this record) » ‘ :

MR. KNOX: We request with respect to Plaintiff’s

- Exhibits Nos. 2 and 3 that we may substitute photo-

static copies. . "@

' [fol. 22]: MR. METZLER: No objection.

COMMISSIONER DAY: Very well. :

MR. KNOX: Will you idéntify this document as

Plaintiff’s Exhibit No. 4-A and B, Mr. Reporter?

(Contractor’s copy of original contract agreement

with the Department of the Army, U. S. Engineers

Office, Contract W-30-180-eng-397, dated July 3, 1946

Bg hoe for identification as Plaintiff?s Exhibit

o. 4-A. oe |

(Bound ‘set. of _the contract drawings applicable to.

said contract, enclosing copy of Addendum No. 1°

- hey for identification as Plaintiff’s Exhibit

0.°4-B.) .

BY MR. KNOX: ©

Q. Mr. Sullivan, I now hand you Plaintiff’s Exhibit No.

A-A marked for identification and Exhibit No. 4-B like-

40 P

wise marked for identification, and request that you

identify those documents.

A. Exhibit No. 4-A consists of the Contractor’s copy

of the original contract agreement with the Department

of the Army, U. S. Engineers Office, Contract W-30-180-

eng-397, that contract being dated July 3, 1946. ;

Enclosed in the same folder is a set of the contract

specifications, together with Addenda No. 1 and 2 there-

of.

Exhibit No. 4-B is composed of a bound set of the

-[fol. 23] contract drawings, applicable to that contract.

- Enclosed in it, as well, is a copy of Addendum No. 1,

together with an additional set of eight drawings, re-

vised, which accompanied Addendum No. 1." .

MR. KNOX: Mr. Commissioner, at this time I would

like to offer Plaintiff’s Exhibits Nos. 4-A and 4-B.

MR. METZLER: Mr. Commissioner, we have no ob- —

jection to the introduction of Plaintiff’s Exhibits Nos. —

4-A and 4-B, subject to comparison and verification.

However, attention is called to the fact that the contract

counsel offered is incomplete, and that there were numer-

ous changes subsequent to the time that it was entered

into.

COMMISSIONER DAY: If they do not intend to

offer them, you can.- You can round it out.

‘MR. METZLER: I am just calling attention right

now that the document is objectionable, in so far as it

is an incomplete copy of the contract which was entered

into between the parties. I think the burden is on the

Plaintiff and not on the Government to introduce the com-

. plete contract.

_ COMMISSIONER DAY: Off the record, Mr. Re-

porter, please.

(Discussion off the record.) .

COMMISSIONER DAY: Back on the record. Is.

--. your objection satisfied now, Mr. Metzler?

MR. METZLER: If these documents as offered in-

clude the complete contract and the modifications, I think

that it would be complete. However, I have not had time

[fol. 24] to examine these documents as yet.

41

COMMISSIONER DAY: They will be subject to veri-

fication. —

MR. METZLER: Very well.

MR. KNOX: Always.

(Plaintiff’s Exhibits Nos. 4-A and 4-B ‘were re-

marked as Plaintiff's Exhibits Nos. 4-A! and 4-A?.)

(Modifications and changes of contract was marked

' Plaintiff’s Exhibit No. 4-A*.)

MR. METZLER: That is satisfactory.

. MR. KNOX: I want to offer these documents subject

to substitution of the change orders because these are

the originals, and we would like’to have them. batk, and

they can always be verified.

COMMISSIONER DAY: Very well. They will be

received. |

MR. KNOX: Off ‘the record. >)

(Discussion off the record.) | ™S

COMMISSIONER DAY: Back on the record.

BY MR. KNOX:

Q. Mr. Sullivan, in- relation to Plaintiff's Exhibit No.

4 for identification, I now hand you Plaintiff’s Exhibit

‘No. 4-A?, 4-A? and 4-A* marked for identification and

will you state what these.consist of?

A. First, .No. 2 is a folder in which are. contained a

[fol.25] series of change order modifications officially

made by the Corps of Engineers to the contractor. . There

are sixteen of them. And these are the contractor’s

signed copies. No. 4-A® consists of a typewritten faesimile

of the original Contract W-30-180-eng-397, dated July

& 1956 with the War Department, U. S. Engineers Of-

ce.

- MR. KNOX: Mr. Commissioner, I now offer into evi-

dence as Plaintiff’s Exhibits 4-A', 4-A?, and 4-A® the

documents described by the witnéss, with leave to sub-

stitute for Plaintiff’s Exhibit 4-A? true and authentic

copies of the change of orders and modifications.

MR. METZLER: I have. no objection to substituting

a photostatic copy if that is what you mean.

42

MR. KNOX: Photostatic copies will be furnished.

THE WITNESS: They are not photostatic. copies.

_ One is. Most of them are ditto copies representing an

extra copy furnished to us by the Corps of Engineers.

Two or three of them are typed completely, as you will

- see.

_ MR. KNOX: They are all subject to verification.

_ MR. METZLER: I have no objection subject to com-

parison and verification and provided that legible: — |

are furnished.

COMMISSIONER DAY: There is no point in piving :

. us anything that we can’t read, because it won't be read,

anyway.

MR. METZLER: We might want to read it, too.

MR. KNOX: With the exception of the first two.

sheets. .

[fol. 26] COMMISSIONER DAY: They, are admitted.

(The documents heretofore marked for identification

-Plaintiff’s Exhibits Nos. 4-A‘, 4-A? and 4-A® were

- made a part of this record.)

MR. KNOX: Off the record.

(Discussion off the record.) — oie

COMMISSIONER DAY: Go ahead, Mr. Knox.

MR. KNOX: Mark | this Plaintiff’s Exhibit No. 5,

please. | ,

(Letter addressed by Col. A. C. Welling, District

Engineer of the Baltimore District of Corps of

Engineers, dated July 20, 1949 to Carlo. Bianchi &

Co., Inc. was. marked Plaintiff’s Exhibit No..5 for

identification. )

BY MR. KNOX:

Q. Mr. Sullivan, I now hand you Plaintiff's Exhibit -

_ No. 5 marked-for identification. Will you identify. it?

A. This is a letter addressed by Colonel A. C. Welling,

- District Engineer of the Baltimore District of the Corps

of Engineers, on July . 20, 1949 to Carlo “Bianchi and

Company, Inc., informing the contractor that all work |

«43

and services in connection“with Contract W-30- 180-eng-

397 was satisfactorily completed in accordance with the.

terms of the contract on June 30, 1949 and are hereby

accepted.

: COMMISSIONER DAY: You may be seated while

you are testifying, if you like.

{[fol.27] THE WITNESS: Thank you. —

MR.’ KNOW: I now offer Plaintiff’s Exhibit No. 5

for identification in‘ evidence. .

MR. METZLER: No objection.

COMMISSIONER DAY: . Admitted.

(The document heretofore marked for identification

Plaintiff’s. Exhibit No. 5 was made 4 part of this

record.)

MR. KNOX: Mark this document Plaintiff’s Exhibit

- 6 for identification, please.

(Climaticalogical data from U.S. Weather tess,

Albany, New York, for December 1946 through May

1947 was marked for identification Plaintiff's “Ex-.:

hibit. No. 6.)

‘BY MR. KNOX:

Q. Mr. Sullivan, I now hand you Plaintiff’s Exhibit.

No. 6 marked for identification, consisting of certain

printed documents, and ask you to identify this exhibit.

A. This éxhibit -consists of the climaticalogical data —

from the U. S. Weather Bureau, Albany, New York,

covering the months of December 1946 through May 1947,

together with a certification by Harold J. Smith, Acting

Meteorologist in charge at Albany, that the six ‘publica- ,

tions are. official rn of the United States

Weather Bureau:

Q. Mr. Sullivan, do these weather: reports to which you -

have referred show the precipitation and temperatures at

[fol. 28] the area at the Almond Tunnel?

___ A. Yes, they cover the so-called New York Section in-

cluded, in which is an official U. S. Weather Station at

Alfred University, and the data covering daily precipi- .

tation is shown in detail.

» M4

@ For wink pera?

A. For all those months that I named, from —

ber 1946 through May 1947.

MR. KNOX: Mr. Commissioner, I now - offer Plain-

_ tiff’s Exhibit: No. 6 for identification into evidence.

MR. METZLER: I have no objection to these re-

ports being received,. subject to some relevancy being

later established. :

_ COMMISSIONER DAY: They may be received.

(The document heretofore marked for identification

Plaintiff's Exhibit No. 6 was made a part of this

record.)

- COMMISSIONER DAY: Suppose we take about a

five-minute recess at this point and let’s limit it to five

minutes.

- (Short recess. )

COMMISSIONER DAY: Proceed.

BY MR. KNOX:

Q. Mr. Sullivan, I now hand you: a. document Hae

for identification as Plaintiff's Exhibit No. 7. Will you

identify it? .

A. This is the .contractor’s file copy of a letter dated

(fol. 29.) O@gober 14, 1946 addressed to Mr. D. E. er

Resident Engineer.

(Copy of letter dated October 14, 1946 to Mr. D. E. .

Mather, Resident Engineer, was marked for identifi-

cation Plaintiff’s Exhibit No. 7.)

- (Letter to Carlo Bianchi & Co., Inc., from Resident .

Engineer on Oct. 17, 1946 was marked for identifi-

cation Plaintiff’s Exhibit No. 8.) |

BY MR. KNOX:

_-Q. I now hand you Plaintiff's Exhibit No. 8 for | identi-

aan Will you briefly describe it so we can identify

it

A. No. 8 is a letter: addressed to Carlo Bianchi &

' Company, Inc., by the Resident Engineer on October 17.

1946. This is.an original letter

ao

om )

-Q. I now hand you Plaintiff's Exhibit No. 9, marked

for identification.

(Contractor’s file copy of letter to. District Engineer

at Baltimore, Maryland, on December 12, 1946, was

marked for identification Plaintiff's Exhibit, No. 9.)

BY MR. KNOX: |

Q. Will Ege please tell us what that is?

A. No. 9 is the contractor’s file copy of a letter ad-

dressed to. ia District Engineer at Baltimore, Maryland

on Deceinber 12, 1946.

(fol. 30] (Letter by Col. J. S. Sebold, District Engineer,

to Carlo ‘Bianchi & Co., Ine., dated December 18,

1946, was marked for identification Plaintiff's Ex-

hibit No. 10. | ay

BY MR. KNOX: ee

Q. ‘I now hand you Plaintiff’s Exhibit No. 10 marked

for identification, and ask you what that is?

A. No. 10 is a letter written by Colonel J. S. Sebold, _

District Engineer, to Carlo Bianchi & Company, Inc.,.

on December 18, 1946. This is an original letter.

(Contractor’s file copy of letter to Resident: Engineer

. on December 18, 1946 was marked for identification

Plaintiff's Exhibit ‘No. 11.) ,

BY MR. KNOX:

QI now hand you Plaintiff's Exhibit No. 11 marked |

for identification.

A. No. 11 is the contractor’s file copy of a letter ail-

dressed to Resident Engineer on December 18, 1946.

’ (Original letter from Resident Engineer to Carlo

Bianchi & Co., Inc., on. December 20, 1946 was ©

marked - for identification as Plaintiffs ‘Exhibit: No.

12.) |

BY MR. KNOX:

Q. I now hand you Plaintiff’s Exhibit No. 12 marked |

for identification. |

i":

A. No. 12 is an original letter written by the Resident

{fol. 31] Engineer to Carlo Bianchi & Company, Inc., on

December 20, 1946.

(Original letter written by the District Engineer to

Carlo Bianchi & Co., Inc., on. December 20, 1946 was

marked for identification ’Plaintiff’s Exhibit No, 13.)

BY MR. KNOX: :

-Q. I now hand’ you Plaintiff's Exhibit No. 18 marked

for identification.

A. This is an original letter written by the District

Engineer to Carlo Bianchi & Company, Inc., on December

20, 1946.

(Copy of letter to District Ganineee on Decuaber

27, 1946 was marked Plaintiff’s — No. 14 for.

identification. ts

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 14 marked

for identification. _

A. No. 14 is the contractor’s file copy of a letter writ-

ten to the District Engineer on December 27, 1946.

(Original letter from’ District Engineer to, Carlo

Bianchi & Co., Inc. on January 3, 1947 was marked |

Plaintiff’s Exhibit No. 15 for. identification. )

BY MR. KNOX:

Q. Now I hand you Plaintiff's Exhibit No. 15 marked

for identification. ;

_ (fol. 32]. A. No. 15 is an original letter written by the

District Engineer to Carlo- Bianchi & Company, Inc. on

January 3, 1947.

(Contractor’s file copy of letter to Resident Engineer

on January 14, 1947 was marked for identification

Plaintiff’s Exhibit No. 16.) |

BY MR. KNOX:

Q. I now hand you Plaintiff’s Exhibit No. 16 marked ;

al identification. ¢

| - en

A. No. 16 is the ominsitiae! S file « copy of a letter ad-

' dressed to the Resident Engineer on January 14, 1947.

(Contractor’s file copy of letter to Resident Engineer

on January 14, 1947 was marked for identification

Plaintiff’s ‘Exhibit No. 17.) .

‘ BY MR. KNOX:

Q I now hand you Plaintiff's Exhibit No. 17 ‘aaitiad

for identification. °

A. No. 17 is the contractor’ s file copy of a letter ad-

dressed to the Resident Engineer on January 14, 1947.

(Original letter from Resident Engineer on January

20, 1947 to Carlo Bianchi & Co., Inc., was marked

for identification Plaintiff’s Exhibit No. 18.)

BY MR. KNOX:

Q. I now hand you Plaintiff’s Exhibit No. 18 for identi-

fication, and ask you what that is. -

A. No. 18 is an original letter written by the Resident |

(fol. 33] Engineer on January 20, 1947 to Carlo’ Bianchi !

_ & Company, Inc.

Contractor’s file copy of letter to District Engineer

on January 24, 1947 was marked for identification

Plaintiff's Exhibit No. 18-A.)

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit ‘No. Ba: marked

for identification. |

A. Plaintiff’s Exhibit No. 18-A is the contractor’s file

copy of .a letter ‘addressed to the District Engineer " ¥

- January 24, 1947.

(Original letter from, District ‘Engineer to Cute

Bianchi & Co., Inc., on February 3, 1947 was marked

- for identification Plaintiff’s Exhibit No. 19.) |

. BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 19- marked

for identification. |

48

A. No. 19 is an original letter written by the District —

Engineer to Carlo Bianchi & Company, ncaa on re

-8, 1947.

(Copy of letter dated April 10, 1947 to Resident

Engineer was marked f identification, 7

Sphiit No. 20.) : :

BY MR. KNOX:

* Q. I now hand you Plaintiff's Exhibit No. § 20 marked

for identification.

A. No. 20 is a contractor’s file copy of a letter dated:

[fol. 34] April -10, 1947 addressed to the Resident Engi- |

neer.

(Original letter from Assistant Resident Engineer to 7

Carlo Bianchi & Co., Inc., on April 14, 1947 was

_ marked for identification Plaintiff's Exhibit No. 21. )

BY MR. KNOX: _—_—.-

Q. I now hand you Plaintiff’s Exhibit No. 21 marked

for identification.

A. No. 21 is an original letter written by Dale Lasey,

Assistant Resident Engineer, on April 14, 1947, to _—

. Bianchi & Company, Inc.

. (Photostatic copy of letter from Carte Bianchi & Co., .

' Ine. to Resident Engineer on April 238, 1947 was |

marked for identification Plaintiff’s Exhibit No. 22.).

BY MR. KNOX:

Q. I now hand you ‘Plaintiff's Exhibit No. 22 marked

for identification. ©

A. No. 22 is a photostatic copy of a letter addressed °

by Carlo Bianchi & Company, Inc. ‘to the Resident Engi-

neer on April 23, 1947. .

(Photostatic copy of letter frem Carlo Bianchi & Co.,

_ Ine. to District Engineer, April 23, 1947 was marked

for identification Plaintiff’s Exhibit N 0. 28.) |

BY MR. KNOX: 3

, Q. I now hand you Plaintiff’s Exhibit No. 23 marked

‘ (fol. 35] for identification.

49

A. No. 28 is a photostatic copy of a letter addressed

by Carlo Bianchi & Company, Ine. to the District Engi-

neer on April 23, 1947...

(Original letter from District Rnliteaer to "Carlo

Bianchi & Co., Inc.; May 5, 1947 was marked for*..

| identification Plaintiff’s Exhibit No. 24.) |

BY MR. KN OX:

Q. I now hand you Plaintiff’s Exhibit No. 24 marked

for identification.

A. No. 24 is an original letter from the District. Eng!-

neer to Carlo. Bianchi . Company, Inc., dated May: 5,

1947. ni

(Continctor’s file copy of a letter to ‘District Engi-

neer on May 26, 1947 was marked ~ identification

_Plaintiff’s Exhibit No. 25. et 7

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 25 marked

for identification. —

A. No. 25 is the contractor’s file copy of a. letter writ-

ten to the District Engineer on May 26, 1947.

_ (Contractor’s file copy of @ letter to Secretary of

_War, Washington, D. C. from Carlo, Bianchi & Co.,

-Ine.,-on May 29, 1947, was marked for identifica-

tion Plaintiff’s Exhibit No. 26. ) =

[fol. 36] BY MR. KNOX:

Q. I now hand you Plaintiff’s Exhibit No: 26 marked

for identification. |

A. No. 26 is the contracto s. file copy of ‘a letter ad-

dressed to the Secretary of War, Washington, D. C., by -

the: ‘Carlo Bianchi & Company, Ine.; on May 29, 1947.

" (Contractor’s file copy of letter addressed to ‘District

Engineer on May 29, 1947 was marked for identifi-

cation Plaintiff’s Exhibit No.. 26-A.)

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 26-A initia

‘for identification. ae

Foe

-

© me 26-A is the contractor’s file copy a: a letter ad-

dressed: to the District Engineer on May 29, 1947.

(Original letter from B. C. Samples, Chief Construc-

2 tion Division, Corps of Engineers, to Carlo Bianchi

tees ~& Co., Inc., on June 2, 1947 was marked for identi-

fication«Plaintiff’s Exhibit No. 27.)

BY MR. KNOX:

Q. I now hand you Plaintiff’s Exhibit No. 27 for iden-~

tification.

A: No. 27 i an original letter addressed by B.C.

| . Samples, Chief Construction Division, Corps of Engi-

i947. to Carlo’ a & Company, Inc., on June (2,

1947.

3 [fol. 37] ( Original letter to Carlo Bianchi & Co., Inc., .

from W. H. Fox, Recorder of the Corps of Engineers

Claims and Appeals Board, June 5, 1947, was marked

for identification Plaintiff’s Exhibit No. 28.) .

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 28 marked

- for identification.

A. No. ‘an original communication addressed to

Carlo Bian Company, Inc., by W.-H. Fox, Recorder . |

of the Corps ngineers, Claims and Appeals Board,

Washington, D. €., dated June 5, 1947.

(Original letter from District Engineer to Carlo

Bianchi & Co., Inc., June 13,'1947 was marked for

identification Plaintiff's Exhibit No. 29.)

- BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 29 iaamia = oe

for identification.

A, No. 29 is an original letter written by the District

Engineer on June 13, 1947 to Carlo Bianchi & Company,

Inc.

| ‘eiaiiaaats file copy of a , letter addressed to the

District Engineer on June 23, 1947 was marked for

pieces Plaintiff’s Exhibit No. 30.)

> : 51

BY MR. KNOX:

Q I now hand ybu Plaintiff's Exhibit No. 30 ‘eames

fot identification. . .

[fol.. 38] A. No. 30.,is the contractor’s file copy of a

', - letter addressed to the’ Dishrict Engineer on. June 23,

cr 1947. PES 3

' (Contractor’s file copy of a letter to Resident Engi-

-neer from Carlo Bianchi & Co., Inc., June 23, 1947. ;

was marked for identification Plaintiff's‘ Exhibit No.

eee

BY MR, KNOX;

; Q. I now hand you Plaintif’s Exhibit No. 31 tre af

: a identification.

A. No. 81 is the. contractor’s file copy of a letter ad-

dressed ‘to the Resident Engineer by Carlo Bianchi &

- Company, Inc., on June 23, 1947... |

(Contractor’s file copy of a letter to District: ‘Engi-

neer, July 25, 1947 was marked for identification ;

as Plaintiff’s Exhibit No. 32.)

BY MR. KNOX:

Q. I now hand you. Plaintiff's Exhibit No. 32 marked

for identification. .

A. No. 82 is the contractor’s file copy of a 1 letter ad-

_. dressed to the District Engineer on July 25, 1947.. :

(Contractor’s file copy of a letter addressed to the

Resident Engineer on July 30, 1947, was marked

for identification Plaintiff's Exhibit - No. $3.)

aes , BY. MR. KNOX:

now hand ‘you. Plaintiff's Exhibit No. 33 for :

stot 00) identification.

A. No. 33 is-the contractor’s file copy of a letter ad-

: dressed to the Resident Engineer on July 30, 1947.

(Contractor’s file copy of a letter addressed to the

- District Engineer on August 1, 1947 was marked for

identification as. Plaintiff's Exhibit ‘No. 34.)

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52

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 84 marked. .

for identification.

“@. _ A. No. 34 is the equtiacton’ s file copy: of a letter ad-

dressed to the District. Engineer on August 1, 1947.

(Original letter to Carlo Bianchi & Co., Inc., from - ~

J. P. Campbell, Lt. Col.,.Corps of Engineers, Acting:

District Engineer, ‘August 11, 1947, was marked for

identification as Plaintiff's ‘Exhibit No. ™ )

BY MR. KNOX:.

QI hand you, ‘Plaintiff's Exhibit, No. 85 marked" for’

identification.

A. Plaintiff’s Exhibit No. 35 is an original letter ad-

dressed to Carlo Bianchi & Company, Inc., on August 11,-

- 1947 by J. P. Campbell, Lt. Cols oe of Engineers, Act-

_ ing District Engineer.

. (Contractor’s file copy . of a letter autea August 15,

1947 to District Engineer was marked for- identi-

fication Plaintiff’s Exhibit No. 36.) :

(fol.40] BY MR.KNOX:- ~~ = <°

Q. I now hand you Plaintiff's Exhibit No. 36 marked

for identification. ..

| A. Plaintiff’s Exhibit No. 36 is the contractor’ 8 file :

- - eopy of a letter dated August 152 1947 addressed to the

Distritt Engineer. .

Plaintiff’s Exhibit No. 36, inclusive.

MR. METZLER: I would have to have some time to ©

examine the exhibits, Mr. Commissioner, before taking —

_ any position with respect to them.

COMMISSIONER DAY: Well, take the time. Wouldn’t -

. you prefer to do that?

. MR. KNOX: It is inane all right. T will sit down

for a few minutes.

COMMISSIONER DAY: Mr. Metzler, I don’t mind

your examining them, but.I didn’t want to sit here while

ci are ae © a lot of notes.

~

Pe

en ee ee te ee

MR. KNOX: Mr. Commissioner, at this time : wish to

offer into evidence Plaintiff’s Exhibit No. 7 through

. of your people or received by one of. y

“MR. METZLER: Jaan aarp tacking faethe: Mee.

Commissioner, to ascertain whether or not I have a valid

objection, and in order to do that, that involves the

checking of several records. For example, I am trying

not a make objections which will just clutter up the |

reco |

. With respect to Plaintiff's Exhibit No. ft, for example, .

[fol. 41] the first document, it does not appear that, at

-Jeast from the informati on I have presently examined,

this was before the Engineers ‘Appeal Board. If that is

the situation’ then I would object to it as a document

_ whick was not: previously submitted to the Engineers

Appeals Board...

COMMISSIONER DAY: You can ial objection with * :

respect to any of them that were not before the Board. .

MR. METZLER: I would be glad to do that and that

is what I was trying to do, Your Honor, but in order

to do that it takes ‘some time to examine these some

twenty-nine documents. ~

COMMISSIONER DAY: These twenty-nine documents: /

obviously are all letters that. were it. sent to one

ae

you can determine that by looking at hednienanl )

MR. METZLER: That doeSn’t make them admissible

in evidence, Mr. ‘Commissioner, the mere fact that they

were an ex of correspondence. | ‘ee

_ COMMISSIONER DAY: The only observation I have ~ “

is I am not going to sit here while you make. a lot of :

extensive notes about each one of the papers before. you

state your position with respect to each one. of them.

You can make your records as, you go along. ae

MR. METZLER:’ I haven’t even been given an oppor-

a tunity to-see these twenty-nine documents and I have had

but two minutes to examine them.

(fol. 42], COMMISSIONER DAY: We are not calling

upon you . to state your objection with respect to all

- twenty-nine of them in an instant, and I am not going

to sit here while you make extensive notes about each

document so you can determine what objection, if any,

you may have.

“ai

MR. METZLER: Well, all'that I-am trying to°do is

not to miake objections here unnecessarily. If I must

make a blanket objection, then I must object to any of

these documents. unle&s it were established that they were

before the Appeals Board. Otherwise, I do not believe

they are competent or relevant to the case and, secondly,

I must make an objection to any of the documents ‘unless

it is established that they have something to’ do with

this case. The mere fact that they are documents ex-

changed between the parties does not make them ad-

»missible in evidence. I think that of these docu- |

_ ments were before the Appeals Board and I think jr

ps

many, of the documents are relevant, but I just haven’t —

had time to make that check.‘ That is all. I am trying

‘to do tle best. I can. ,

MR. KNOX: Mr. Commissioner, if I: may say that of

' these documents, these exhibits which we have offered,

sixteen of those letters were called to the attention of

Mr. Metzler pursuant to Rule 28 (B) (1). ‘Now, those

sixteen letters are letters from the contractor to the

Resident Engineer, the contracting officer and various :

branches of the Army Corps of Engineers. Those letters,

_ [fol. 43] the originals, are in the possession of Mr. Metz-

ler and he has had an opportunity to examine those, and

as I gathered from a conversation, you indicated that you —_—_-

- had no objection to those sixteen. copies ~ ‘where’ ‘the

~ originals reposed in your possession.

The balance, as I understood it, of the exhibits here

are the original letters ffom the War Department.

-.° Now, I have introduced, for various reasons, in order

to make your record complete, the appeal notice and the

Engineers’ Appeals and Review - Board, the acknowl-

edgment of it, and in addition the correspondence with |

the Engineers’ Corps in this matter. I think all that is

relevant and material. — ——

COMMISSIONER DAY: The only cette I had |

was with respect to the fact I am not going to sit here

while extensive. notes are’ being made about each docu-

ment. Instead of that we wili just take them one at.a

_ time and let you look at them and give you —

time to look at each one:

DN

‘MR. METZLER: I made two notes of two lines. That

is the extent of my notes, Mr. Commissioner, on these

documents. I didn’t have the opportunity because they

were introduced so fast, to even correctly identify them.

I am so

COMMISSIONER DAY: I have .a list of each one. of

. ~ them I made as they, were being identified by the witness.

What is your position with respect to Plaintiff’s Ex-

hibit No. 7? We will take them’one at a time. -

. MR. METZLER: Mr. Commissioner, with respect to

-ffol. 44] No. 7, it is not established that this document’ .

was before ‘the Appeals. Board, at least at. the present —

time.

jection?

MR. METZLER: | don’t think that this itness i

been qualified to testify with respect to the contents of |

the letter: We will admit the receipt of them.

| COMMISSIONER DAY: I am here to hear whatever _

‘ , objection you. have.. I. don’t want to have a recitation

about your position about it. If you have an objection,

state it. .

_ MR. METZLER: Well, I think I am: stating my ob-

x, Jection—___—_—-

COMMISSIONER. DAY: Do you: ‘have any further

objection? I want to know if you are through.

MR. METZLER: I have stated my position as to No.

¥: .

COMMISSIONER DAY: Then ‘sna:

MR. METZLER: It is clear, Mr. ao Neva that

I lave objected on the ground the witness has not been

qualified to testify to the contents of this letter of October

| 44 1947, Plaintif’s Exhibit No. 7.

COMMISSIONER DAY: I suppose the Reporter got :

your objection.

MR. METZLER: With respect: to Plaintiff's Exhibit

No. 8 it is not established that this was presented to the

\ Engineers Claims and- Appeals Board. There is no ob- .

jection to the document otherwise except that I would .

like to ask Mr. Sullivan whether or not this appendage

(fol. 45] was affixed to the original document when it

was received or — that ‘was dsc te added?

COMMISSIONER DAY: Do you have any further ob-

.

. ~ X

“s/ beyond that.

‘COMMISSIONER DAY: Well, don’t you know what ?

. THE WITNESS: The slit isa ‘toiamentnt of

“Article: 4 “Changed Conditions” of the contract specifi- .

cations.

COMMISSIONER: DAY: Was it on there when you got :

the letter? |

THE WITNESS: ‘It-wasn’t.on there wile we got it:

> _ ‘Thad it put on there i in order to properly study the letter

itself.

MR. METZLER: ‘It. will be so considered, —_ that

this is not a part of the comunication?

THE WITNESS: You can tear it off if you. want to.

COMMISSIONER DAY: It may be received.

" (The document. Jieretofore wom identification:

Plaintiff's Exhibit No. 7 ‘made a part of this

record.)

} : COMMISSIONER DAY: With Velipiet to the. objection

é that it does not appear that it was before the Board, I am

. going to admit. any of these letters over that objection,

having in mind that you are going to agree to.or at least —

you have told:me that you are going to agree with respect

to precisely what letters were before the Board, so that

any that were not, obviously were not, -

MR. METZLER: The claimant said they were going to

establish. that. In so far as I can I will endeavor to agree,

but I am not going: to take the position at this time that I

,

- [fol. 46] can agree’to something without, proof. In so far ”

as the proof is known to -me I will admit it, but not .

was before the Board?

MR. METZLER: Well, Mr. Commissioner, this was ap- :

proximately eight years

ago.

COMMISSIONER DAY: Wasn't there a record made —

about what exhibits were before the Board? |

MR. METZLER: There was-a transcript of some

seventy-nineepages where reference was. made to various .

exhibits which were before the Board. -

COMMISSIONER DAY: ‘There is no o list of exhibits? «

. MR. METZLER: There was no list of exhibits,. no.

MR. -_KNOX: Mr, Commissioner, over a year ago I

‘spent 4 a — deal of time « on the we of ‘record,

en)

.

te

4

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oars eee Bion ee en nee ee a a i ye eS

bd ar : ‘ >

ihaiitha an lengthy letter to Mr. etsice Wenttiyiag” mere

all the ’Plaintiff’s ‘exhibits in the~transcript, including _

photographs. I submitted it to Mr.- Metzler and he re- .

ferred it to Mr. ‘Thompson in the Department of Justice,

and they had it for about two months and I was trying |

to get-them to stipulate what the record was because it

__isnot too clear in the’ transcript, because the way they —

“ identified some of the exhibits, some of the photographs

were just handed to ‘the administrative board, and that

is true of thé Government photographs and exhibits as

well as Plaintiff’s, and I teed to stipulate the -complete

[fol. 47] record but I was never successful in “getting: an, -

' agreement on it. You may recall that, Mr. Metzler.

MR.. METZLER: ‘We made some efforts to consider

- this and in so far as it was possible we did, but even at.-

the present time you apparently aren’t able to state

whether or not this letter of October 14, 1946 or October —

17; 1946: was before the . If it was then I will

-withdraw my objection, that is all.

COMMISSIONER DAY: If the Board did not make

some kind of record, you can understand, sufficiently to

determine that question quickly, well, I would overrule

your objection pretty rapidly on that.-: * : !

- MR. METZLER: e record before the Board 23 Pops

presented by the Plaintiff, which was represented by - sb

another counsel at that time, I think is reasonably clear.

However, in the records that I have of the numerous -

exhibits it does not appear. to me.af this time ¢that.these

specific documents were. before the Board; and: I am ~

quite confident that many of the others which have been

offered today were not before the Board, either.

te COMMISSIONER DAY: 8 is admitted. . ‘Let us move

to 23%

(The document, Lienrotiliere marked for identification

a eee ee See

” reco

MR. METZLER: The reason I say that, Mr. Com-

[fol. 48] missioner is because the exhibits that were be-

fore the Board were numbered A to N. And then several

exhibits were numbered | AA’ to EE, and there are far.

“

8 a il : \ 4

LA py vv XB oe} Hanah gan Pianen et ge age? ae

more than’ that offered here ‘today by counsel. But the =s

‘fecord is, I think, clear. 7

The same objection is made with respect ‘to Plaintiff's

Exhibit No. 9. - ae

COMMISSIONER DAY: Admitted. , aa!

| (The document heretofore nacho for identification

- Plaintiff's Exhibit No. 9 was made & part of this

_ record.) .

MR. METZLER: The : same objection with saa; to

Plaintiff’s Exhibit No. 10.

‘COMMISSIONER DAY: Admitted. _

(The document heretofore marked for identification |

‘Plaintiff’s Exhibit No. 10 was made a wert 5 .

record. )

MR. METZLER: Plaintiff's ibit, No. 11 appears to .

have been before the Board, but objection is made to

relevancy and materiality, Sandan unless that is

established. ° om.

COMMISSIONER DAY: It may be received. ©

(The document heretofore. marked for identification

Plaintiff's ae No. 11 was made a Lah of this

record.) | |

MR. METZLER: ‘If you will notice, Mr. Cisiniealenien

this is signed apparently by someone other than the wit-

ness by whom it was identified.

[fol. 49] COMMISSIONER DAY: Yes.

MR. METZLER: I mean I don’t think this witness is

in a position to testify with respect to the contents of

the document in so far.as it is offered to show that “it

was sent. I mean I have no objection to that.

COMMISSIONER DAY: That is all it could possibly :

be at this point.

MR.’ METZLER: If that’s the understanding, ‘it may

speed up my objection.

COMMISSIONER DAY: The witness has not testified |

with respect to the contents of the letter, Mr. Metzler.

MR. METZLER: All right.

, Plaintiff's Exhibit No. 12, no objection.

i ae

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. ; *

e -

COMMISSIONER DAY: Admitted. ON hab

(The document. isretofore -marked for identification

- Plaintiff's Exhibit ‘No. 12 ‘was made Pad -part ¢ this’

-record.

MR. METZLER: Mr. Sullivan, may od ah is it not ‘ies

-2 "true that ‘the appendages were not a part of the original

letter, Plaintiff’s Exhibit. No. 18?. -

- THE WITNESS: Thesame situation prevails here.

' There were various references in here, as yo note, to

‘Specifications, and: these simply facilitate - Gooding.

s a.

ee

"MR. METZLER: They were not part of the original?

THE WITNESS: They were not part of the original.

[fol. 50] .MR. KNOX: Mr. Commissioner, let’s remove

that and see if we can get along: We had one other the

_ Same\way'and we will check that;

Pe METZLER:. Let’s let it as ‘it is.. Don’t destroy.

e rd.

“tea ISSIONER DAY: ‘He if with awing the part

you had a question about. .

MR. KNOX: Here is the original exhibit as we had it

marked for identification. This is not part of it. -

MR. METZLER: I have a further objection that it does

_ not appear that Plaintiff’s Exhibit No. 13 was before the

-Appeals Board, either, Mr. Commissioner.

: COMMISSIONER DAY: It may be received.

re (The document heretofore marked for identification os

' Plaintiff's Exhibit No. 13 was made- a part of this

record.)

MR. METZLER: Same. objection with respect to Plain-

_ tiffs Exhibit.No. 14. .- : |

- COMMISSIONER DAY: Acdmitted.

(The document heretofore marked for identification

— Exhibit No. 14 was made a -_ of this

record.) —

MR. METZLER: Same objection with respect to Plain- ©

tiff’s Exhibit No. 15. «

COMMISSIONER. DAY: Admitted.

ee

e .

. E >: > 2

60 ee * “i

. * \

. . a

4 ; ; % F

id . £ “ bd

[fol. 51] (The document heretofore marked for iden-

tification Plaintiff’s Exhibit N8. 15 was made a a

of this record.)

MR. METZLER: ‘Same objection with “respect to No.

16.

COMMISSIONER DAY: Admitted. tay

(The ‘document heretofore marked for identification

_ Plaintiff’s Exhibit No. 16 was made a bart of this

_ record.)

MR. METZLER: Same ehdestion with respect to -

RY. -

‘COMMISSIONER ‘DAY: Admitted.

(The document heretofore marked for identification

' Plaintiff’s Exhibit ™ 17 was made a part of this

‘record.).

MR. METZLER: No. objection to 0. 18, with ‘the

re understanding that the various additions made to the

portion did not appear on the original.

"COMMISSIONER DAY: _ Admitted with that under-

a

_ (The document heretofore marked for identification

a pho ay Exhibit No. 18 was made a = of this

record. )

_ MR. METZLER: The same objection with seibeias to :

_Plaintiff’s Exhibit No: 18-A, namely, that: = does not

appear to have been before the Appeals Board,)Mr. Com-

‘missioner.

COMMISSIONER DAY: It may’ be receive. _/

_ (The document: heretofore’ marked for identification

3 uk) Exhibit No. 18-A was made a part of this

reco ,

. [fol. 52] MR. METZLER: ‘aie objection with respect

to Plaintiff's. Exhibit No. 19. oO

COMMISSIONER DAY: Admitted. .

(The document heretofore marked for identification

Plaintiff’s Eppihit No. 19 was made a part of this

Q)

61

“MR. METZLER: ‘We an the vealed of Plaintiff's -

: Exhibit No. 20 in that it was before the Appeals Board.

COMMISSIONER, DAY: It may be received.

(The document: heretofore marked for identification

. Plaintiff’s: Exhibit No. 20 was made a asi of this -

record.) .

Mi. METZLER: No. tie to No. 21.

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff’s Exhibit No. 21 was made | a part of this

record. )

_ MR. METZLER: Iti is understood that in all cases, Mr.

Commissioner, where there is a copy that we will have the

: opportunity. to make a comparison or verification of the

original.

COMMISSIONER DAY: Oh, certainly.

MR. KNOX: Where the original is in your possession.

MR. METZLER: That’s right, yes.

We admit the ‘receipt of No. 22 and that it was before

_ the Appeals Board.

[fol. 53] COMMISSIONER: DAY: Admitted,

(The document heretofore marked for identification

Plaintiff’s Exhibit No. 22 was made a part of this

record.) -

MR. METZLER: The same is also true with ee to

No. 23. —:

_ COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff’s ‘Exhibit No. 23 was made a part of this

record.) - -

MR. METZLER: Also No. 24.

COMMISSIONER DAY: “Admitted.

(The document heretofore marked for identification

rie ay Exhibit No. 24 was made a wc of this

reco ¢

MR. METZLER: We admit the receipt of No. 25 and

, that it was before the Appeals Board is also a

.

leniumes

Se awe eS Og eal

.

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

‘Plaintiff's Exhibit No. 25 was made a part ‘of this”

record. )

MR. METZLER: No objection to No. 26. —

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff’s Exhibit No. ‘26 was made a part. of this

record. )

MR. METZLER: No objection to No. 26-A.

- [fol. 54] COMMISSIONER DAY: Admitted.

‘(The document heretofore marked for identification

Plaintiff’s Exhibit No. 26-A. and was made a part of

. this record. )

MR. METZLER: Objection, to Plaintiff's. ‘Exhibit No.

27 in so far as it does not appear that it was before the

Appeals Board and, of course, no relevancy or no ma--

teriality has been established. ,

COMMISSIONER DAY: Let me see it. (Desmnint

handed to the Commissioner) —~

-- It may be received.

(The document hepetofore marked for identification

Plaintiff’s ean No. 27 was made a part of this

record.)

* MR. METZLER: No objection to No. 28.

COMMISSIONER DAY: Admitted. .

_ (The document heretofore marked for identification -

—— Exhibit No. 28 was made a part of this

record.)

MR. METZLER: No objection to No. 29.

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

a Exhibit No. 29 was made a cared of this

reco

MR.. METZLER: No. objection to Plaintiff’s Exhibit

No, 30 in so far as the receipt or the fact that it was

before the Appeals Board.

‘[fol. 55] COMMISSIONER DAY: Admitted. °

(The document heretofore marked for identification

Plaintiff's. Exhibit No. 30 was made a Pert of this

‘record. ) |

_ MR. METZLER: No. 31 is ahjected to on.the ground

that it does not appear that this was before the Appeals

Board and on — grounds of relevancy previously

stated.

COMMISSIONER DAY: Let-me see it. Whenever you

object to relevancy I will have to see it.

MR. METZLER: I understood, Mr. Commissioner, that

this ruling was based solely on the question of whether ~

these documents were received, it being understood in all

cases that the witness on the ’stand who identified these

documents was: not established to be competent to testify .

with respect to the contents. _

COMMISSIONER DAY: That is. right. If you are

going to.make any other objection then I have. to take a

look at it.

MR. METZLER: I merely put that in. Mr. Commis- ;

sioner, it has a reservation so our position would be as

clear as I could make it.

COMMISSIONER DAY: Whenever you make it I have-

to see the exhibit so I can rule | on it.

It may be received.

(The document heretofore marked for identification |

Plaintiff’s Exhibit. No. 31 was made a part of this

- record.)

-[fol. 56] MR. METZLER: We siete the receipt. of No.

32 and that it was before the Appeals Board.

- COMMISSIONER DAY: Admitted.

(The document heretofore marked ‘for identification

; cio Exhibit No, 32 was made a part of this

record.)

MR. METZLER: No. 33 is objected to as not being

. — the Appeals Board.

64 .

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff's Exhibit No. 33 was made a part of. this

record. ) .

MR. METZLER: The same objection with respect to

No. 34...

COMMISSIONER DAY: Admitted.

. (The document heretofore marked for identification

Plaintiff’s, Exhibit No. 34 was made a part of this ~

record.)

MR. METZLER: No objection to No. 35.

- COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff's Exhibit No. 35 was made a part. of this

record. )

' MR. METZLER: We admit the. vecaipt of No. 36 and

that it-was before the Appeals Board. |

COMMISSIONER DAY: It may be received.

(The document heretofore marked for identification

. Plaintiff’s Exhibit No. 36 was made a maa of this

record.) ~-

[fol. 57] COMMISSIONER DAY: We will recess at this

time until 2:00 o’clock.

(Whereupon, at 12:40 o idiots p. m., the hearing was

adjourned until 2:00 o’clock p.m.)

AFTERNOON SESSION. (2: 00 o’clock p.m.) —

' COMMISSIONER DAY: You may proceed, gentlemen.

.THOMAS R. SULLIVAN, resumed the witness-stand, .

- having been previously sworn by said’ Commissioner, and

testified further as follows: @ ,

DIRECT EXAMINATION (Cont'd)

MR. KNOX: I would like to have this document

marked for identification as Exhibit No. 37, Mr. Reporter.

\ 7 , .o- 8 65

(Order iesued by Department of Labor of the State

of New York, Bureau of Mines, Tunnels, Quarries

and Explosives was marked for identification: as

Plaintiff's Exhibit No. 37.)

BY MR. KNOX:

Q. Mr. Sullivan, I ‘tana you Plaintiff’s Exhibit No. 37

marked for: ‘identification. Will you state what it consists

of?

A. This Exhibit No. 37 is an order issued by. the De-

partment of Labor of the State-of New York, Bureau

of Mines, Tunnels, Quarries and Explosives, on ‘their .

Form No. 407 which directs Carlo Bianchi & Company,

Inc.—

MR. METZLER: I object to the witness testifying to

[fol. 58] any document not in evidence.

COMMISSIONER DAY: Sustained. -

BY MR. KNOX:

Q. Mr. Sullivan, was that order received i in your office?

A. That is right. camel

MR. KNOX: I now. offer‘as Plaintiff's Exhibit No. 37° |

7 the document referred to by the witriess.

_ MR. METZLER: No objection to the receipt of the.

document in evidence, showing it was one received by

_ the plaintiff. We do object to it, in so far as the contents -

are concerned, unless the person who wrote the document .

is available for cross-examination. :

MR. KNOX: Mr. Commissioner, this is. shown to be an

official order of the Department of Labor of the State of

New York, and I think it speaks for itself.

-~ COMMISSIONER DAY: I think that Mr. Metzler’s

_ objection is good as to the contents. He is willing to.

concede.that you received this,“but when you want to

prove— .

MR. KNOX: We will introduce it on that basis.

_ COMMISSIONER DAY: It may be received on that

. (The document heretofore marked for identification |

cauat Exhibit. No. 37 was made a part of this

reco

— 6

MR. KNOX: That it is not proof of the contents?

COMMISSIONER DAY: Yes, sir.

[fol. 59] _MR. KNOX: Will you mark this document foe

identification, please, Mr. Reporter? |

(Letter dated August 7, 1956 from J. Harrington, .

Vice President of National Shawmut Bank of Boston

in re Almond Dam Contract was marked for iden-

tification as Plaintiff’s Exhibit No. 38. e) '

BY MR. KNOX:

Q. Mr. Sullivan, I now hand you: Plaintiff’s Exhibit No.

a: marked for identification. Will you describe this &. eae

hibit, please? - :

A. This Exhibit No. 38 is an original letter ea

on August 7, 1956 by J.:Harrington, Vice President. of

the National s wmut Bank of Boston to:T. R. Sullivan,

Assistant Treasurer of Carlo Bianchi & Company, Inc.,

with reference to Contract W-30-180-eng-397, which is

the Almond Dam Contract.. -

Do you want the contents of the letter? ©

Q. That letter was addressed to yout

A. That is right. ©

Q. Was there a condition described therein?

MR. METZLER: I object to that.

COMMISSIONER DAY: Sustained.

MR. KNOX: Mr. Commissioner, we submitted this

under Rule 28 to Mr. Metzler, to show the genuineness

thereof, and I would like to have you look at it.

COMMISSIONER DAY: I may ‘have seen it before.

(Examining document) Yes, I have seen it. -

{fol.60] MR. KNOX: Mr. Commissioner, as I under-

stand it now, the objection as to the contents of the

letter has been sustained. Is that right?.

COMMISSIONER DAY: Merely with respect to this

witness’ testimony concerning the contents.

MR. KNOX: I see. We will offer the exhibit with

that. understanding. :

MR. METZLER. I accept the Commissioner’s: ruling.

COMMISSIONER I DAY: The offer: of the document has

been made.

\ w)

Nae ‘eo ay

BO eo

‘MR. METZLER: I have no objection to it, with the

’ reservation stated; namely, that the witness is competent: ©

to testify that he received it but as to the contents, we

objett to that, unless the witness is present to be cross-.

examined on the contents of it.

COMMISSIONER DAY: I will have to pera ey that

_ objection. He is willing to admit the letter, that you got

- the letter, but that‘is all.

MR. KNOX: I am marking it it with that eect |

« the objec tion.

_+~€0 MISSIONER DAY: It may be received..

(The document heretofore marked for identification -

Plaintiff’s Exhibit No. 38 was made a part of this

. record.)

, COMMISSIONER DAY: You can get testimony from |

this. witness with@respect as to whether or not the debt

to the bank had been extinguished.

[fol.61] MR. KNOX: I am 1 going to ask him that ques-

tion now. = «

- BY MR. KNOX:

- Q. Mr. Sullivan, at one time did Carlo Bianchi & Com-

- pany execute an assignment to the National Shawmut

Bank of Boston in connection with the Almond Dam and

-Tunnel Contract? .

A. Yes.

Q. Would you give us some inkling with respect to the

nature of that assignment, and explain it, please?

A. In ‘connection with our financing the contract, we

‘made an assignment to the National Shawmut Bank of

Boston in October, I believe it was, but that would have

to be verified as to the exact date, in 1946, of all moneys

due or to become due, which then thereupon were cleared

by the Government paying agency ‘to the National Shaw-

mut Bank of Boston.

There came a point, which was just prior to the is-

_suance of the last estimate, the final estimate by the

. or when we were no longer indebted to the

Pee Be rags pan eae ARN SEE EN or a Feeley kt NET ee Nl Ranges RCE EER esa Oe oe eer a AON SES Ege WN bee SY OURS

. : x ee > tea ae: Se X - . Peg ree ee eS See pt Rete s.

2 bs :

_ COMMISSIONER DAY: He can certainly testify with

respect to the payment made.

MR. KNOX: The witness is the assistant treasurer.

. He can testify, as to what his corporation did. —

COMMISSIONER DAY: Objection overruled. . |

[fol.62] MR. METZLER: Then I do not think this

witness’ testimony is the best evidence, and I think there:

should be some direct evidence to show it. *

COMMISSIONER DAY: He can certainly testify as |

‘to whether he paid the bank. Overruled. |

-.- MR. METZLER: Exception.

THE WITNESS: Our "indebtedness to the bank was .

completely wiped out some time prior to the issuance

of the final estimate by the Government.

COMMISSIONER DAY: By that you mean you paid

_the bank?

THE WITNESS: Yes, sir. .

_ COMMISSIONER DAY: All right.

THE WITNESS: It went though: ‘the bienk in the

usual routine and they forwarded it to our local bank .

‘in Framingham, in accordance , with instructions ‘from a

us. So we owed the bank nothing whatever.

- » BY MR. KNOX: |

' Q. Mr. Sullivan, when you refer to the final estimate,

do you recall. when that was issued? ’

A. The final estimate? I can get that and present it

later, in precise terms, but I believe it was the latter part

of the year 1949, but I am not sure.’ I can verify it by

_ my records.

Q. Mr. Sullivan, referring to certain exhibits which

_ have been introduced, which consisted of various pieces of __ :

-[fol. 63). correspondence, a number of these pieces .of

correspondence, namely, Exhibits Nos.'7, 9, 14, 18-A, 20,

22, 28 and 33, they bear at the bottom of the letter ‘the

typewritten notation “T. R. Sullivan.”

he you state whether these letters were prepared by

you

A. ‘Yes, I wrote them. .

LA LMMOLER ON M MNM IN AI TOES LPP EINE: | “ ——— _ 5 ? aati

‘MK. METZLER: T object to that as not the best evi-

dence. All we ask is that they show that the assignment —

- 2 Was paid or. cancelled.

MO Diae ie Bes omen naions’

° .

e .

Q. So that every letter bearing that notation i As a letter

cs prepared by you, is that right? —

A. That is correct.

Q. Mr. Sullivan, I ‘understand you have checked your

“records?

A. Yes, sir. .

Q..Can you state now ‘hat was the date . final

estimate on the Almond Dam and Tunnel Contract?

A. The final estimate No. 37-A was dated Februaty 8,

1950, and it was paid, and the Army’s check was received

by the National Shawmut Bank on—

‘MR, METZLER: I object again to the witness testify-

ing from documents not in. evidence, as to the s source of

his information. .

THE WITNESS: This is in evidence. :

’ MR: METZLER: This is not in evidence.

COMMISSIONER DAY: He can use it to refresh his -

recollection, I believe. .

. [fol. 64] MR. KNOX: That is what he i is doing.

MR. METZLER: I will concede that, Mr. Commnts-

_ sioner, if that is what he is doing. ©

THE WITNESS: This is the facts.

MR. METZLER: I want the facts. I am not quibbling

about technicalities. If you have some document which ©

shows the facts, let us have it and get it over with.

THE WITNESS: I don’t know whether we want to’

introduce this or not.

MR. KNOX: Off the record for a minute, Please, Mr.

Commissioner.

_ COMMISSIONER DAY: Off the record.

(Discussion off the record.)

COMMISSIONER DAY: Back on he record. Read the -

answer, Mr. Reporter.

(Answer read.)

“BY MR. KNOX:

Q. Will you continue? :

A. It was cleared through the National Shawmut: Bank

from Baltimore on March 14, 1950. The amount of the

check was $12,736.56.

Fe

ce

_, ee git AE

Q. So at the time that this check was cleared all. |

payments had been made to -" Shawmut Bank; -is' that

correct? | .

A. Previously. .

Q. Previously?

[fol. 65]. A. All of this, so there was nothing to be

applied by the Shawmut Bank against any indebtedness

of ours. It simply went through the mechanics of trans-.

ferring the funds. =

MR. METZLER: Same objection.

COMMISSIONER: DAY: *I am going to sustain that.

objection. What happened to the check?

THE WITNESS: The Shawmut: Bank cleared the

check through our local bank at Framingham, the Fram-

ingham. National Bank, as a routine procedure.

COMMISSIONER DAY: In other words, it was. de-

posited to the account of the Bianchi firm by Shawmut?

OTHE WITNESS: Yes, air, because Shawmut had no

claim on.- it.

COMMISSIONER DAY: In full? a

- THE WITNESS: That is right.

MR. KNOX: Mr. Metzler, I have concluded iny ex-

amination of Mr. Sullivan.

| CROSS-EXAMINATION

BY MR.. METZLER:

~—Q Mr. Sullivan, do you have any documentary record

in your possession, showing that the assignment which

was made by the Carlo Bianchi Company to the National

Shawmut Bank of Boston was cancelled? -Do you have

any documentary record?.

A. I have this here, which we:just submitted, which is

a letter from Mr. Harrington of the National Shawmut,

[fol. 66] confirming the. fact that the assignment was .

terminated on March 14th..

°Q. Just answer the question, Mr. Sullivan, and’ don’t :

testify about various documents unless you are asked.

~ . Tasked you, do you have any document of the Carlo

Bianchi Company? . ;

' A. Right in my possession here?

\..

3

Q. Yes... -

A. ‘No. }

‘Q. Does such a document exist?

A. I believe we have documentary evidence as to the

status, because we would have a record back in our

safe of the termination of the assignment.

-MR<METZLER: I ask that that-be’ produced. Other-

wise, I ask. you to strike the testimony of the witness.

because it is not the best evidence. It should be a very

simple matter, Mr. Commissioner. 3

MR. KNOX: Mr. Commissioner, the witness has testi-

fied, in -his official capacity as Assistant Tredsurer, of ©

his own knowledge, as. to what transpired, and I think |

under those conditions the testimony should be considered.

COMMISSIONER DAY: There are two factors, He is

asking you to produce —. if it is available. Is it

available?

MR. KNOX: If it is’ available, we haven’t any objec-

tion to that, if the document is in existence. ,

THE WITNESS:. There is evidence of the termination

[fol. 67] of the assignment. —

MR. KNOX: Off the-record for a minute, please.

COMMISSIONER DAY: Off the record. oN

(Discussion off the record. oe

COMMISSIONER DAY: Back on the record. Is the

i Shawmut Bank here in town?

MR. KNOX: Yes, they are right across the street.

COMMISSIONER DAY: . They have got records, too.

MR. METZLER: This was the proposition raised in

connection with. the collection of documents sent to the

- Plaintiff.

- COMMISSIONER DAY: You know what the situation |

is with respect to the assignment, do you not?

‘MR. -METZLER: No, sir.. We have ‘a copy of the

assignment originally made which was. pleaded in the.

answer, but as to what went on after that, we do =

know. -

COMMISSIONER DAY: You do not know? ©

MR. METZLER: No, that would not be Tasities of.

which the Government would have papn oa

7 :

-

j

%

é

¢

COMMISSIONER -DAY: Yes, you would.

MR. METZLER: Not.of a cancellation. - .

- COMMISSIONER DAY: Yes, you would. If they have

it,. they will produce it, but I am going fo overrule the

motion to strike the testimony...

Go ahead with your cross-examination.

MR. KNOX: Mr. Commissioner; we may produce the

[fol. 68], Vice President of the National Shawmut Bank. ©

If you want him, he is right across the street.

COMMISSIONER DAY:. All a...

: MR. METZLER:. That is up to you. My question is

simple. .I am trying to get the best evidence of what

transpired. No further uestions of this witness.

COMMISSIONER DAY : You may step aside, Mr.

Sullivan. |

(Witness nels fos

-- MR. KNOX: Mr.: Thomas A. Coyne.

THOMAS A. COYNE, a witness produced. on behalf

of the Plaintiff, having ‘been. first duly. sworn by said

Commissioner, was examined, and in answer to interroga- —

: tories testified as follows: . Nese

oe DIRECT EXAMINATION |

/ . BY.MR. KNOX:

Q. Mr. Coyne, will you give your full name and

address?

A. Thomas A. Coyne, Belknap Road, Framingham,

Massachusetts.

Q. Did you give the address?

. A. Belknap Road.

Q. Will you state your occupation. or preheater?

A. I am a civil engineer..

Q. Are you employed: by Carlo Bianchi and Company,:

+ Ine?

A. Yes, sir.

Q. In what capacity? -

A. General Superintendent. :

- [fol.69] Q. For what period: of time have you = me

vr by this —

“A. Since 1937. . - |

Q. In the same capacity? — ;

A. In the. capacity. of Superintendent and General

Superintendent. EN |

Q. Will you state the nature of your training and

rience as a civil engineer? o, ! ;

-MR. METZLER:. Mr. Commissioner, so that the record

will be as clear as I can make it with respect to the ob- __

jection, it appears that this witness’ previous testimony

before the Corps of Engineers Clainis and Appeals Board

was taken, and I submit that no evidence, other than

what was given before the Engineers Claims and Appeals

Board, is admissible unless it is directed to show that in

some way that Board acted arbitrarily, capriciously or in.

a grossl¥:erronéous manner, or that the record before

- that Board was not supported by’ substantial evidence.

_ I submit that the witness is not permitted to testify. as

to this matter de novo. sae, |

COMMISSIONER DAY: As I indicated earlier, if we

had a little more direction from the Court in this matter,

I would be in: a better position to make an intelligent

ruling. However, I am going to admit any testimony.

that is relevant or material, and I will keep your objection

in mind. oe - |

[fol.70] MR. METZLER: So that I donot have to-

repeat it, may my objection go to the testimony of other

witnesses ‘as well as to Mr. Coyne’s testimony?

COMMISSIONER DAY: Yes, sir.

MR. METZLER: All right.

* * .* . *

‘[fols. 71-126] ** *

74

[fol A]. PLAINTIFF’s EXHIBIT #1

HEARING ON THE APPEAL |

of

CARLO BIANCHI AND CoMPANY, INC.

C&A NO. 14

i June 1948 —

‘[fol. 1] ‘The meeting was ontwentl i Colonel Sides |

Chairman of the Board, at 10:00 a.m. on 17 June 1948

in the Office of the Chief of Engineers.

BOARD MEMBERS:

Colonel L. E. Mielenz -

Mr. F. T. Johnson

Mr. H. H. Rice

GOVERNMENT REPRESENTATIVES:

_ Mr. W. H. Fox, Trial Attorney ©

Mr. R. H. Trites, Engineer

Mr. C. B. McGavock, Jr., Geologist, Baltimore DO

Mr. D. E. Mather, Residdat Engineer, Almond Dam

Mr. Dale A. Losey, Assistant Resident Engineer

Mr. David C. Glnaiitin, Chief;;Dam _—— Section,

Baltimore DO .

Mr. Deland, Baltimore DO

APPELLANT'S REPRESENTATIVES:.

Mr. Peter’ M. Bianchi

Mr. Fermo A. Bianchi

Mr. Thomas R. Sullivan

' Mr. Thomas A. Coyne, General Superintendent

Mr. Elford H. Richardson, Civil Engineer

Mr. Walter Dunham, Cabot Construction Company

_ Mr. Everett Diehl, Engineer, Cabot Construction

. Company

Mr. Irving B. Crosby, Geologist

"Mr. Miles N. Clair :

Mr. Charles A. McCarren, Counsel

TB

MIELENZ: The meeting will please come to order.

This is a meeting of the Claims and Appeals Board ap-

pointed /by the Chief of Engineers to hear such cases

- as ‘may ‘be brought before it. The meeting will be in-

formal. in nature. The Government attorney will pre-

sent the pertinent facts in the case after which the ap-

pellant. will have an opportunity to produce his evidence ~

and make his arguments. Are there. any’ questions? If

not, the meeting will proceed. - )

STATEMENT By MR. Fox.

FOX: May it please the Board. This morning you .

are concerned with C&A Board Appeal No. 14 which is

the Aappedt of Carlo Bianchi & Company, Inc., of Fram-

ingham, Massachusetts; having to do with contract No.

W 30-180 eng-397 dated 3 July 1946. The contract has

for its purpose the construction of Almond Dam. It is

a unit price contract consisting of 66 various units. The —

estimated cost consisting of these unit prices was $3,-

330,330. It contains the usual standard provision found

in all. Government contracts. For the benefit of the

Board, I have had prepared copies of certain pertinent

contract provisions so that you may -be able. to follow

[fol.2] the facts more closely as we proceed with the

- factual history of the appeal. At this time I would like ©

to distribute these copies. A very important part of this

contract was the construction of a tunnel. You will be

concerned with that portion of the contract having to do

with the tunnel construction. For that purpose,\I would

like to call your special -attention first to page ng the

contract provisions .which I have’ distributed where you

will. find: Item 11 in the estimated quantity. of 35,500

pounds of steel liner plates and Item 12 for 26,500 pounds _ |

of steel tunnel supports. I have quoted the whole of

section 4 of this contract for your convenience’ which is

the Tunnel Section. This section tells in minute detail

how this tunnel is to be built. In order that you may

have a more visual idea of this claim, I have here pic-

tures taken of the actual tunnel during construction. I

would like to show counsel ‘for the appellant these pic-

6

tures and ask whether he has seen these pictures which

purport to be actual pictures of the tunnel.

McCARRON: I think we agreed, Mr. Fox, that either |

party could introduce photographs and they would be

used. While I may not have seen all the photographs

, to which you refer, I understand they purport to show —

--. the Almond Dam at various stages of construction.

FOX: This tunnel is approximately 13 feet in diam-

eter. From a construction standpoint itis materialistic

that they were to bore through to 710 feet. After bor-

ing through, they were to construct a concrete tunnel.

‘How they were to construct that is the subject of the

_ controversy. Coming to that part of the contract pro-

visions contained in Section 4, I believe it sufficient at

this- time to tell the Board that those provisions contain

in minute manner how this tunnel shall be constructed.

In all probability when the Government purchased the

- site of the construction. they referred back again to

those contract provisions. At the time this contract

was originally entered into, this contractor submitted.

to the Government a progress schedule which indicated _

his proposed method of operation. Item 10 indicates that’

for tunnel (a) driving the value was $122,000. He had

proposed to start Rison about 15 October and to

complete the tunne eling in February of 1947. As for the

concreting, he hadoriginally proposed to do that soon

thereafter; that is, on April 15, 1947,.to commence the

concreting and to complete the concreting on or about

August 30, 1947. -This was his original plan. As a

matter of fact, the tunnel operations commenced on De-

cember 11, 1946, and were completed on March 11, 1947,

on an over-all basis. However, on the concrete ‘lining ee

part of the tunnel, you will recall that the original plan ~

was to commence concreting on or about April 15, 1947.

Due to reasons unknown at this time, the concreting

in this tunnel was not commenced until 17 December

1947, or approximately eight months after he had orig-

inally planned commencing, and was completed along

about May of 1948. Concreting was completed this year,

as a matter of fact. The contract provisions are very

specific on that point. They. provide that on is ©

a

77

to. commence soon after the timnel i is bored. They provide

that that is when the concreting is to be done. It was

' eight months after the tunnel was bored that this con-

[fol. 3]. crete was actually placed. You will be concerned

specifically with the tunnel protection in this appeal. The.

contract provision relating to tunnel protection and the

drawings themselves as contained on page 24 of the

contract drawings are very specific. Page 24 is the

tunnel -section— ofthis particular tunnel. It explains

in very minute detail the design features of the tunnel,

the entrance,- outlet and length of the tunnel. This -

tunnel has an over-all length of some 710 feet. You

will notice that at the entrance of the tunnel for the.

first 50 feet tunnel protection is to be furnished and at

the outlet end for 50 feet protection is to be furnished.

By tunnel protection is meant liner plates, steel ribs,

including tie rods and spreaders. I have what I believe

is a picture of the liner plates and steel ribs. The 50

feet showed here is these various liner plates and ribs.

Here are the ribs and the steel liner plates going in be-.

tween the ribs. Here is another excellent picture of this

tunnel protection. It is not only a contract drawing’.

requirement but it is also a contract specifications re-

quirement that the first 50 feet be lined with perma-

nent tunnel protection. That provision is contained in |

paragraph TP 4-03, Tunnel —, Scope, | and I

quote:

“Tunnel protection shall be furnished and vleced

as required for distances of approximately the first

50 feet of each end of the tunnel which includes the

underground portion of the outlet transition. ‘Such

tunnel protection conforming to the cross sectional

shape of the tunnel and transition, shall consist of

steel arch ribs and corrugated steel liner plates as

indicated on the drawings or required, — tie ©

rods and spreaders.," * *.” |

Calling your specific attention to sitet TP-4-02,

Tunnel Excavation, Scope, the first two sentences there-

of provided:

78

% “The tunnel bore mr ‘be driven from dither or

both ends by any of the usual methods of tunneling,

—— provided the. driving is continuous and progress is

_consistent with that indicatéd’ on—the-progress _

schedule. . Temporary . tunnel protection shall be 7

_ provided where required for safety of the work-.

men and shall be placed: progressively after each

heading blast and prior to resumption of excavation Noisy vache

‘and drilling operations. * * *”.

It is a fact and your records show that early in Decem-

ber 1946 before the tunnel had been bored possibly 30

feet, the Cabot Construction Company, who was the sub-

contractor on the project, requested permission of the

Resident Engineer, Mr. Mather, to continue placing the

tunnel protection throughout the length of the tunnel.

Your records will show, and we will be more specific

[fol.4] on that point when the Government presents -

the. ease, that in answer to that request the Cabot Con-

struction Company was. advised that at that time it was

impossible for the Resident Engineer to determine

whether this type of protection was necessary. With

that information the tunnel operation would proceed as

originally planned with protection for the first 50 feet

and continue on through the whole 710 feet. It is a

fact that for the first 50 feet this tunnel protection, a

picture of which you have seen, was placed, On March

11, 1947, or about four months after the tunnel opera-

tions commenced, they. advised they had bored through.

The Cabot Construction Company did not at any time

between these 50-foot areas at the beginning or end

place during the construction any temporary or perma- |

- nent tunnel protection for its workmen. They just

bored through without any protection. It seems that

about April 1947, about a month after the tunneling was.

’ through, this contractor again requested the Resident

Engineer for. permission to place this tunnel lining

throughout .the whole length of the tunnel.. This re-

quest was reviewed with the result that much corre-

spondence took place between the parties with the end

result that some time in October 1947. the contracting

officer in a formal opinion denied permission to the -

daha A An LI

OPP RARE.

contractor to place this permanent tunnel protection the

whole length of the tunnel, ie., he denied it to the ex-

tent that it would be at the Government’s expense. .

Prior to that time the appellant, to his inquiry as to

whether or not he would be permitted to place the tun-

nel protection in the whole length of the tunnel, was

‘advised that in the Government’s opinion that, first,

it was not necessary, and second, that if he did place

it, it would be at his own expense. With that’ informa-

tion, it is a fact that the contractor did place through-

out the whole length of the tunnel this tunnel pro-

tection which you see here. It is a fact that the tunnel,

and here is an excellent picture of it, is completely lined

with the tunnel protection. This appellant asks you to

reimburse him for the cost of that tunnel lining. The

contracting officer has denied liability and you are now

called upon to sit in judgment as to whether or not under

the terms of the contract this appellant is entitled to

payment for placing this tunnel protection the whole

' length of the tunnel. Those are the facts as the Gov-

ernment sees them at this time.

ceed. 7

STATEMENT By Mr. McCarron |

MIELENZ: The counsel for the appellant may pro-

McCARRON: For the purpose of the record, I am >

Charles A. McCarron, counsel for appellant. Perhaps a

brief statement, may it please the Board, of the posi--

tion of the appellant may be helpful in following the -

evidence as we propose to present it. In many. respects

there are no substantial differences ‘between the Gov-

ernment and the contractor on certain of the basic .

facts that will develop in this case. Mr. Fox has clear-

ly- stated the position of -the appellant .to this extent

that the appellant has lined this entire tunnel with steel

liner. plates and appears before this Board asking in

equity and good conscience that it be reimbursed by the

Government for the installation of these steel liner

plates which the contractor felt were absolutely neces-.

sary in order to line this tunnel and complete the tun-

nel job because of the character of. the rock that was

80

[fol. 5] encountered in the course of boring this tunnel,

rock which could not be determined by the information

available on the contract drawings and cores that were

taken by the Engineers prior to award of this con-

tract.- It is our contention that as the excavation for

‘the stilling basin, which was the. first rock excavation,

. I believe, began, it became apparent that: the character

of the’ rock was of such nature that there existed a

real possibility, if not a danger, that trouble would be

encountered in the boring of the tunnel, or more spe-

cifically, in the lining of the tunnel. That fact: was

called to the attention of the Resident Engineer and I

want to preface that remark by saying that I have no

‘intention to indulge in personalities or level ‘criticism

_ but to state the facts as I understand them. That. fact

was called to the attention of the Resident Engineer

and it was suggested to him that there did exist a real

possibility that the rock inside the tunnel, ffom what

was then apparent, would present a serious condition.

_The Resident Engineer said he did not think that was so,

and there would be no need for additional steel liner

plates or permanent protection. He referred at the time

to.the job of the Arkport Dam which is less than four

miles from this job and with which he had considerable

to do and which, I understand, was holed out and lined

without any serious trouble. . The work‘of boring the |

tunnel began and the conditions which ‘were anticipated

rapidly made themselves manifest. Under the terms of

the specifications referred to by Mr. Fox, it does not pro-

vide specifically for steel liner plates for a distance of.

50. feet at both ends—both inlet and outlet.. During

the course of this controversy as the correspondence be-

tween the parties develops, you will see. that there has

been quite a distinction made between the use of the .

words .“temporary protection” and the words “perma-

nent protection.” An examination of the specifications

will disclose that the only. place that the words “tem-

porary protection” are used is in connection with pro-—

viding temporary protection for workmen during the

course of the work. It is the contention of the con-

tractor that protection to the tunnel roof which is not

‘removed in the finished tunnel. cannot by any stretch

of the imagination be called temporary. That is per-

_ manent, and that type of protection which was. installed -

. in this instance is .permanent and not temporary. In

- other words, as Mr. Fox has stated, it is there as long

as*the tunnel remains. After about 50 feet of this .

tunnel has been bored—oh, in that connection, I will call

attention to one phase of the specifications that had been

referred to by Mr. Fox, namely, TP 4-03 c., Steel Liner ~

a Plates, which provides for tHe placing of steel liner

plates for.tunnel protection in the tunnel sections where

such ‘protection material is indicated on the drawings,

or as directed, to furnish coverage for the tunnel roof —

section above the spring line. No mention is made in ©

that section or anywhere else of protection of workmen

as temporary. The 50 feet specifically provided at inlet .

and outlet sections were for the purpose of furnishing |

coverage for the tunnel section above the spring line,

and it is our contention that: direction from the Gov-

ernment to the contractor to install this permanent tun-

_ [fol.6] nel protection under the conditions that existed

‘was unreasonably withheld. As I said, it will appear . 7

that after the first 50 feet of the tunnel had been exca-

vated and the installation of these’steel liner plates more

or less completed, permission was given by the Resident

“Engineer: to extend the liner plates ‘further, but the con-

tractor was to replace those steel plates which* might

be damaged. The matter was again taken up with the ~

Resident Engineer—and I may be skipping some of these

numerous conferences because this was a constant dis-

cussion—the Resident Engineer stated that he did not

inténd to order in any more steel on this tunnel. There

was a visit to the job some time early in January by

representatives of the Baltimore Office, at which time I

think the first 50-feet. had been completed, and there

was exposed beyond that perhaps six feet not protected.

The opinion was expressed that the oe pretty

good, and they thought the contractor could get through

all right, but if conditions changed as the ‘tunnel was

bored they would have to give further consideration to

the matter. At no time has the Resident Engineer con-

°

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ceded that the contractor is entitled to. be paid for the .

installation of permanent tunnel protection, or protec- —

tion in the form of these steel plates, or any other pro-

tection that. was to remain permanently: in- the tunnel

- beyond the 50 feet I have described. The tunnel was

bored through and almost immediately after that large -

_ failures of rock occurred. As a matter of fact, it will

_ appear here that since the steel liner plates installed

beyond the 50 feet were removed as directed there was

/ a substantial ‘fall of rock in the very early stages of

the construction of this tunnel. Then, after the tunnel

was holed out, within the first 30 days, very substantial

falls of rock occurred. I have here three photographs.

taken April 25, 1947, which is about six weeks after the

tunnel had been holed: out and about a month after

it had been cleaned out. These pictures show condi-

tions as taken from the inlet and outlet ends, taken

at that time. I think you have seen these, Mr. Fox.

Those are the ones I showed you before. (Shows pictures

to Board members who examine them).- Now, the

Board will have in mind that under the terms of these |

specifications no concreting could be done in this tunnel

‘until the tunnel had been completely holed out. The

Resident Engineer, in the exercise of his judgment, as

_ I see the picture develop, came to the conclusion ap-

parently that some form of tunnel protection was going .

to be required, and his views could be crystallized from

the conversations that took place as follows: “If tunnel

protection is to be’ required, you, the contractor, put it

in, but you put it in at your own expense.” I refer the.

Board specifically to a letter from the Resident Engineer

dated 10 January 1947, which is Engineer Exhibit “E” .

of the contracting officer’s statement of fact, and to an-

other letter by the Assistant Resident Engineer dated

15 April 1947, Engineer Exhibit “J.” We don’t agree

with some of ‘the conclusions stated in those letters, but.

we do submit that from an engineering standpoint the —

letters are strong evidence of the fact that the Engineers.

recognized that conditions within the tunnel required a —

form of protection in order to line the tunnel, and you

will mene, gentlemen of the Board, that in those letters

3

ores, 2

se < SE

reference is still made to temporary protection, although

the talk is all about the installation of a type of pro-

tection that is to remain in the tunnel for eternity.

(fol. 7] Now, briefly, as I have stated, the position of

- the contractor is not one of seeking to come in here

to put a distorted meaning on the specifications or ask-

ing to be paid for something that he hasn’t done. We

ask that we be paid for work which we say was abso-

lutely necessary and. without which this tunnel could

not have been lined with concrete as required. With

reference to the comments made by Mr. Fox relative

to, the apparent delay in holing out the tunnel and

commencement of the concreting, the correspondence

and evidence will show that there were a number of

conferences and a series of correspondence between the

Engineers and the.contractor with reference to the mat- -

ter of this form of protection and later over the type of -

design that was to be put into the tunnel, it being con-

tended by the Resident Engineer—although in: letters

of 10 January and 15 April they seem to give approval,

but later take the position that it is over-design. They -

could have enlarged the bore of the tunnel and put up

some wood posts or wood lagging as protection. We are

not concerned with protecting workmen. The only ques-

tion is whether or not the conditions found in the proc-

ess of boring this tunnel, or the condition of this rock

..’ was such that good engineering required that some form |

of tunnel protection must be installed, and whether the

Resident Engineer and his associates acted reasonably

in withholding that direction, although. in substance

approving tthe action of the contractor in installing’ it, —

‘but saying that it would be at his own expense. Sub- -

stantially, that is the position of the contractor, and we

will show -by photographs that pictures taken. in Septem-

ber, 1947, compared with those pictures taken in April,

1947, show substantially the same-condition. In other

words, there was no material increase:in the fall of that

rock. The Government has suffered no damage as a re-

sult of this so-called delay, and the contractor has been

‘paid for his concreting. Mr. Coyne, I think we will

ask you to tell us something about this. .Your full

“name, Mr. Coyne?

ae

«

84 “e . | ; ®

7 - Direct EXAMINATION -

COYNE: Thomas A. Coyne. cu

McCARRON: And you live where?

COYNE: Framingham, Massachusetts.

McCARRON: Your business, sir? -.

COYNE: General Superintendent for Carlo Bianchi

‘and Company, Inc. |

*McCARRON: You have been in the construction busi-

ness for how many years?

»COYNE: Thirty-five. | .

“McCARRON: What has been the general nature of

‘your experience? —

COYNE: I have been in the construction business— |

connected with it—since 1914, first as Assistant City

-[fol, 8] Engineer, Marlboro, Mass., in charge of all city

installations; later as Engineer for the Water and Sewer

’ Department in the City of Marlboro; and after the war

as City Engineer and Superintendent of Streets in Marl-

boro, Mass., for eight years between 1922 and.1930. From

1930. to 1937, Superintendent of Public Works in the

Town of Framingham, and since 1937 as Superintendent

for Carlo Bianchi and Company, Inc. My experience

“-. goes through all phases of construction—heavy construc-

‘tion, sewer and water installations, bridge construction,

dam*cgnstruction, and what is generally met in the con-

structiot:.industry.

McCARRON:; You were the Soe qn this

Almond Dam project?

COYNE: _ Yes, sir. <.., :

‘McCARRON: Prior to the submitting of the bid by

the contractor, did you visit the site of the job?

COYNE: Tdid. -

McCARRON: Accompanied by whom?

- COYNE: I was accompanied by Mr. Peter Bianchi,

President of the Company, and Elford H. Richardson,

the Chief Engineer for the company. __

McCARRON: And briefly, just what did you do by

way of examination of the site?

COYNE: .We spent the better part ‘of two days ex-

‘amining the site. previous to the .submission of ‘the bid.

_ We went to the location and familiarized ourselves with

7

awe 8

. all the surface conditions that existed. We went up

on to the railroad; went up and down the railroad for

a half a mile on each side of the proposed work, and

on the railroad protection. embankment. We visited the

_various borrow areas and exarhined at that time the

test pits and borings as shown on the drawings. We

visited the tunnel inlet, the location of the diversion

channel, and in general ‘looked over the whole area for

everything that a survey, superficial as it was, would

indicate, plus whatever. information we gleaned from

the contract drawings, particularly in: regard. to the test

pits.

McCARRON: Was is the intention of the Bianchi

Company, Mr. Coyne, to do the work of driving this

tunnel. itself or by subcontract?

‘COYNE: It was our intention to employ a subcon-

tractor.

McCARRON: “Had the Bianchi aaa done tun-

neling work? )

‘COYNE: No, we had not.

McCARRON: Had you discussed the driving of the

tunnel -with a subcontractor prior to the placing of -

your bid?

{fol.9] COYNE: Yes, we had.

McCARRON: Who was the concern? Was that the

Stieffel Company?

COYNE: Yes, the Stieffel Company’ of New York

City.

McCARRON: Mr. Stieffel was subsequently killed in

an automobile accident visiting the job? —

COYNE: Yes, sir, that. is true.

McCARRON: And it was carried on as Cabot Con-

struction Company?

COYNE: Yes.

McCARRON: And the Cabot Construction nia

was given the subeontract?

COYNE: Yes, that is co visit

McCARRON: Did you it meeery New York, to

examine the cores? ._

COYNE: No, we did not.

McCARRON: The information you had as to the

character of the rock in the tunnel—was that contained

_primarily on the contract drawings? Is that correct?

COYNE: That is correct.

McCARRON: The details with reference to the mat-

ter of driving of the tunnel and what should be done

_ so far as the construction of the tunnel was concerned

you left to your tunnel subcontractor?

COYNE: We discussed it with them previous to sub-

mitting our bid and discussed all pertinent phases of

- the contract which we were to sublet to them regarding

‘the driving of the tunnel.

.. McCARRON: . As Mr. Fox. has stated, the contract

_ price was 3,300,000 some: odd dollars. Approximately

This text is long and has been trimmed here. Open the source document for the complete record.