Transcript of Record — United States v. Binghamton Construction Co.
Supreme Court brief1954
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IN THE SUPREME COURT OF THE UNITED
STATES
OcToBER TERM, 1953
No. 65
THE UNITED STATES, PETITIONER
vs.
BINGHAMTON CONSTRUCTION CO., INC.
No. 78
BINGHAMTON CONSTRUCTION CO., INC., PETITIONER
vs.
THE UNITED STATES
ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED
STATES COURT OF CLAIMS
INDEX
Original Print
Record from the United States Court of Claims__-____-_-___- 1 1
EG navies Sane eStethverebensseerséecetenes ane 1 1
Exhibit—Contract dated May 14, 1941, bet ween
United States and Binghamton Construction Com-
atc acivwbtec ese Keeeum pene censoserneesseec 10 5
Exhibit—Specifications re above contract___.-_----- 14 8
General traverse__._...----.------------------------- 19 12
Report of Comimissioner___-_------------------------- 21 12
Proceedings following filing of Commissioner’ s report____- 49 36
First amended petition_-_-__-_---_-_-_-----_-----_--- 51 36
Contract and Specifications copies) (omitted in
DR cect we poenid un bese secrete sucnes Oneewus 60 41
Argument and submission of case___._________ .________- 71 41
Special findings of fact..___...._._________________--- 73 41
Conciusion of law__._-_----------_-----------_-.----- 100 65
Opinion, Whitaker, J.-...__._____-________-_-_-_-_-_- 100 65
Judgment. __..-.-.--------------- eee 109 72
Protedings after entry of judgment__________________- 111 73
Clerk’s certificate (omitted in printing)___._____._.______- 113 73
Orders extending time to file petitions for certiorari______- 114, 115 73, 74
264722—53——_1
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 1
1 In the Court of Claims of the United States
No. 48525
Brncuamton Construction Co., INc., PLAINTIFF
v.
Unrrep States or AMERICA, DEFENDANT
Petition
Filed January 22, 1948
To the Court of Claims of the United States:
The petition of the plaintiff respectfully represents that:
I
1. The plaintiff is, and at all times hereinafter referred to was,
a corporation organized and existing under the laws of the State
of New York, with its principal place of business in Binghamton,
New York.
2. The plaintiff has, at all times, borne true allegiance to the
Government of the United States and has not in any way volun-
tarily aided, abetted or given encouragement to rebellion against
the said government.
2 3. On or about March 29, 1941, the United States Army
Engineer Office at Binghamton, New York, invited bids
for the construction of Flood Protection Project (Section No. 1)
aleng the right bank of the Chemung River within the limits of
the City of Elmira, Chemung County, New York. The plain-
tiff, in response to such invitation, submitted a bid in the fixed
amount of $232,669.30 which, on April 29, 1941, was accepted.
Pursuant to such bid and acceptance, there was subsequently
executed Contract No. W-321-eng-261, dated May 14, 1941 (here-
inafter referred to as the “contract”), a copy of the material
portions of which is annexed hereto. Such contract was an au-
thorized and binding obligation of the defendant.
II
4. Under the provisions of the Act of August 30, 1935, 49 Stat.
1011—the so-called Davis-Bacon Act—the contract was required
to, and did, contain a provision obligating the plaintiff to pay
not jess than the wages determined by the Secretary of Labor to
be prevailing for the corresponding classes of laborers and me-
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2 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
chanics employed on projects of a character similar to the contract
work in the territoria! area in which such work was to be per-
formed. In the Specifications for the work covered by the con-
tract, which Specifications, dated March 29, 1941, were issued as
of the date thereof in connection with the advertisement for bids
as the basis upon which such bids were to be made, and which were
appended to and made a part of the definitive contract, the repre-
sentation was made that the Secretary of Labor had determined
the prevailing wage rates in the locality; and such rates were set
forth in Paragraph 1-1 of the Specifications. Among the rates
so given were the following:
3 Designation Wage rate, hourly
Carpenters, journeymen_____--~-~-- a oem A tnt $1. 00
* . * 7 *
Laborers, unskilled__-..---- ee ee 50
Laborers, concrete puddlers..................-...-... . 50
- ” * * 2
5. The plaintiff, acting on the basis of the wage rates stated in
the Specifications, as it was invited and entitled to do, computed
and submitted its bid. Subsequent to the acceptance of such bid
and after the execution of the definitive contract, the plaintiff
discovered that the wage rates for the classifications of labor re-
ferred to above in Paragraph 4 were not in fact the prevailing
rates for such labor as determined by the Secretary of Labor,
neither as of the time of the issuance of the Specifications, the
acceptance of the bid, nor the execution of the contract; and that
the Secretary of Labor in at least one instance, namely, on Feb-
ruary 25, 1941, had determined the prevailing wage rates in the
locality for these classifications of labor on a similar project to be
higher than those stated in the Specifications of March 29, 1941,
as follows:
Designation Wage rate, hourly
Carpentera, SenenegGheR....... 2. ene eee- $1. 125
* . : * *
ON . 55
EASE, GEES Be cncdnnencsemsneenee . 55
- . oe . .
Such determination of the Secretary of Labor was still in effect
and unmodified on March 29, 1941, and the Specifications issued
by the defendant on such latter date were defective and mislead-
ing in failing to reflect such determination.
t 6. Upon commencing work under the contract, the plain-
tiff was unable to procure labor of these classifications at the
rates stated in the Specifications, and was in fact obliged to pay
higher rates, as follows:
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 3
Designation Wage rate, hourly
Cospestens, OTN. ccwececcccwccecscccscoscoens $1. 125
* . . . .
Laborera, Guekilied......_.............-- “= - ~.625
Laborers, concrete puddlers . 625
- . * * *
7. The plaintiff was entitled to, and did, rely upon the wage
rates stated in the Specifications as being in accordance with the
most recent determinations by the Secretary of Labor of the wage
rates prevailing for the corresponding classes of workmen on
similar projects in the area; and was entitled to, and did, prepare
and submit its bid on this assumption. When, after the accept-
ance of its bid and the execution of the contract, it discovered the
error in the representations made to it, it was entitled to be reim-
bursed at the higher rates which it was required to pay in order to
perform the contract work, to the extent that such higher rates
were equivalent to the prevailing rates fixed by the Secretary of
Labor in her determination of February 25, 1941. The plaintiff
duly requested such reimbursement by appropriate adjustment in
the contract price, but the defendant wrongfully denied such
request.
8. The failure of the defendant so to adjust the contract price
has resulted injury and damage to the plaintiff in the amount of
$8,048.04, payment of which the plaintiff has duly demanded but
which the defendant has wrongfully refused.
5 Ill
9. The 6214¢ hourly wage rate with respect to laborers
(both unskilled and concrete puddlers) which the plaintiff was
obliged in fact to pay in order to procure labor to perform the
contract work was, in fact, the prevailing hourly rate in the locality
at the time of the issuance of the Specifications, the acceptance of
the bid, and the execution of the contract; and the 55¢ rate fixed
in the Secretary of Labor’s determination of February 25, 1941,
was less than the actual prevailing rate at such times. The failure
of the defendant to make an accurate representation in the Specifi-
cations to the plaintiff with respect to the hourly rate actually pre-
vailing at the time of the issuance of the Specifications, was a
breach of the defendant’s obligation to state such prevailing rates
correctly and not to mislead the plaintiff by representing that the
prevailing rates were lower than they were in fact. Because of
the fact that the plaintiff was obliged to pay the 6214¢ prevailing
rate in order to procure labor to perform the contract work, the
plaintiff was entitled, in addition to the claim hereinabove
described under Section II, to be further reimbursed for the dif-
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4 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
ference between the 55¢ rate for laborers fixed in the Secretary
of Labor’s determination of February 25, 1941, and the 621,¢
hourly rate actually prevailing at the time of the issuance of the
Specifications, the acceptance of the plaintiff's bid, and the execy-
tion of the contract, which 621¢ rate the plaintiff was required
to, and did, pay. Plaintiff duly requested such reimbursement
but the defendant wrongfully denied such request.
10. The failure of the defendant to make such reimbursemer,
has resulted in injury and damage to the plaintiff in the
6 amount of $5,863.79, payment of which the plaintiff has
duly demanded but which the defendant has wrongfully
refused.
lV
11. Paragraph 7-05 (d) of the Specifications contained a de-
tailed description of the manner in which, and the materials with
which, the concrete involved in the construction was to be finished,
In submitting its bid, the plaintiff was entitled to, and did, rely
upon the statements made in said Paragraph 7-05 (d) in com-
puting the cost to it of finishing such concrete. During the per-
formance of the contract, the defendant ordered and required the
plaintiff to finish the concrete in a manner and with materials not
specified in, or reasonably contemplated by, the Specifications,
with the result that plaintiff was subjected to unauthorized and
unanticipated costs, reimbursement of which was duly requested
by the plaintiff but wrongfully denied by the defendant.
12. The defendant’s wrongful conduct in this respect has
resulted in injury and damage to the plaintiff in the amount of
$7,082.74, payment of which the plaintiff has duly demanded but
which the defendant has wrongfully refused.
V
13. Under the provisions of Paragraph 3-06 of the Specifica-
tions, the plaintiff was required to furnish certain sheeting and
shoring. Subparagraph (c) of said Paragraph 3-06 provided
that such sheeting and shoring was to be measured “by the square
foot of protected area,” and subparagraph (d) of said Paragraph
3-06 provided that payment for sheeting and shoring would
7 be made at the contract unit price of Sixty-five Cents
($0.65) per square foot, as stated in the Schedule of Pay-
ments annexed to and made a part of the contract.
14. In computing its bid, the plaintiff was entitled to, and did,
rely upon the statements contained in Paragraph 3-06 as to the
measurement of sheeting and shoring by the square foot of pro-
tected area, and computed its bid on the basis of square footage
a
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 5
of the area required to be protected. During the performance of
the contract, however, the defendant refused to pay the plaintiff
for sheeting and shoring in accordance with the square footage
of the protected area, and, instead, followed an arbitrary and
unauthorized method of measurement, not in accordance with the
Specifications, which resulted in the underpayment of the plaintiff
for sheeting and shoring. Although the plaintiff duly requested
payment of the proper amount as contemplated by the contract,
such request was wrongfully refused by the defendant.
15. The wrongful conduct of the plaintiff in this respect resulted
in injury and damage to the plaintiff in the amount of $14,110.85,
payment of which the plaintiff has duly demanded but which the
defendant has wrongfully refused.
vi
16. Although the plaintiff duly and formally protested to the
Contracting Officer the wrongful actions complained of above, the
Contracting Officer refused to afford the plaintiff any relief, and,
upon appeal to the Chief of Engineers, was upheld by the latter.
Appeals by the plaintiff to the War Department Board of Con-
tract Appeals were, on January 14, 1947, dismissed for an
8 asserted lack of jurisdiction. Except as hereinbefore re-
ferred to in this Paragraph 16, no action on the claims has
been taken by Congress or by any department of the government.
17. The plaintiff is justly entitled to recover from the defendant
the aggregate sum of $35,105.22, after allowing all just credits
and offsets.
18. The plaintiff has made no assignment or transfer of the
claims or any part thereof, and no persons other than the plaintiff
are owners of the claims or of any interest therein.
Wherefore, it is respectfully prayed that judgment be granted
against the defendant and in favor of the plaintiff for the sum of
$35,105.22, together with such costs as may be properly allowable
to it in respect of this suit.
Dove.as, Procror, MacIntyre & Gares,
Attorneys for the Plaintiff, Office and Post Office Ad-
dress, 730 Southern Building, Washington 6, D. C.
9 [Duly sworn to by Malcolmn A. MacIntyre; jurat omitted
in printing. |
10 Exhibit to Petition
U. S. Standard Form No. 23—Rev.
Approved by the Secretary of the Treasury. Revised Sep-
tember 17, 1938. Contract No. W-321-eng-261. Dated May 14,
1941.
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6 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO.,, INC,
ConwrTracr
(Construction )
War DEPARTMENT
UNITED STATES ENGINEER OFFICE
Binghamton, New York
(Department)
BrncHamtTon Construction Co. Inc.
MARINE MIDLAND BANK BUILDING
Binghamton, New York
(Contractor)
Contract for Elmira Flood Protection Project (Section No. 1),
Amount, $232,669.30.
Place, Right Bank of Chemung River, Elmira, New York.
CONTRACT FOR CONSTRUCTION
This contract, entered into this 14th day of May 1941, by The
United States of America. hereinafter called the Government,
represented by the contracting officer executing this contract, and
Binghamton Construction Co., Inc., a corporation organized and
existing under the laws of the State of New York, of the city of
Binghamton, in the State of New York, hereinafter called the
contractor, witnesseth that the parties hereto do mutually agree
as follows:
ArrticLe 1. Statement of work.—The contractor shall furnish
the materials, and perform the work for construction of Flood
Protection Project (Section No. 1) along the right bank of the
Chemung River, within the limits of the City of Elmira, Che-
mung County, New York, for the consideration shown on Schedule
of Payments attached hereto, in strict accordance with the
11 specifications, schedules, and drawings, all of which are
made a part hereof and designated as follows: Specifica-
tions: No. 3821-41-15 War Department Appropriation: 21X3113
Flood Control, General Flood Protection Project (Section No. 1)
at Elmira, New York, dated U. S. Engineer Office, Binghamton,
New York, March 29, 1941, with Addendum No. 1, dated April
12, 1941, attached thereto.
Schedules: Payments, in three (3) sheets.
Progress chart marked “Major Operations of Elmira Flood
Protection Section #1 Submitted by Binghamton Constr. Co.”
Drawings: Maps and drawings marked “Southern New York
Flood Control Project, Elmira Flood Protection Project, Section
——
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—_—_
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 7
number one, Elmira, New York, in 32 sheets, designated in para-
graph 1-04 of the specifications cited, as modified by Addendurn
No. 1.
The work shall be commenced within ten (10) calendar days
after the date of receipt by the contractor of notice to proceed and
shall be completed within five-hundred and fifty (550) calendar
days after said date of receipt of notice to proceed.
Arricte 15. Disputes.—Except as otherwise specifically pro-
vided in this contract, all disputes concerning questions of fact
arising under this contract shall be decided by the contracting
officer subject to written appeal by the contractor within 30 days
to the head of the department concerned or his duly authorized
representative, whose decision shall be final and conclusive upon
the parties thereto. In the meantizwe the contractor shall
diligently proceed with the work as directed.
* * + * *
Articié 17. Rate of wages (in accordance with the act of
August 30, 1935, 49 Stat. 1011 (U.S. Code, title 40, sections
12 276a and 276a-1), this article shall apply if the contract is
in excess of $2,000 in amount and is for the construction, al-
teration, and/or repair, including painting and decorating, of a
public building or public work within the geographical limits of
the States of the Union or the District of Columbia).
(a) The contractor or his subscontractor shall pay all mechan-
ics and laborers employed directly upon the site of the work, un-
conditionally and not less often than once a week, and without
subsequent deduction or rebate on any account, the full amounts
accrued at time of payment, computed at wage rates not less than
those stated in the specifications, regardless of any contractual
relationship which may be alleged to exist between the contractor
or subcontractor and such laborers and mechanics; and the scale of
wages to be paid shall be posted by the contractor in a prominent
and easily accessible place at the site of the work. The contracting
officer shall have the right to withhold from the contractor so
much of accrued payments as may be considered necessary by the
contracting officer to pay to laborers and mechanics employed by
the contractor or any subcontractor on the work the difference
between the rates of wages required by the contract to be paid
laborers and mechanics on the work and the rates of wages re-
ceived by such laborers and mechanics and not refunded to the
contractor, subcontractors, or their agents.
(b) In the event it is found by the contracting officer that any
laborer or mechanic employed by the contractor or any subcon-
tractor directly on the site of the work covered by the contract
has been or is being paid a rate of wages less than the rate of
264722—53——_2
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8 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
wages required by the contract to be paid as aforesaid, the Goy-
ernment may, by written notice to the contractor, terminate his
right to proceed with the work or such part of the work as to
which there has been a failure to pay said required wages and
prosecute the work to completion by contract or otherwise, and the
contractor and his sureties shall be liable to the Government for
any excess costs occasioned the Government thereby.
* ~ * » a
13 In witness whereof, the parties hereto have executed this
contract as of the day and year first above written.
Approved June 3, 1941.
Tue Unirep States oF AMERICA,
Bv (S) J.C. Marshall,
J. C. MarsHat,
Major, Corps of Engineers,
District Engineer (Official Title).
(S) J. N. Hodges,
J. N. Hopees,
Colonel, Corps of Engineers,
Division Engineer, North Atlantic Division.
BincuamTon Construction Co. Inc.,
Contractor.
[CORPORATE SEAL | By (S) Donaup G. Davis,
Pres., Marine Midland Bank Bldg., Binghamton, New
York (Business Address).
Two witnesses:
(S) Heren G. Cameron.
(S) Joan Minnow.
I, Joseph J. Cox, certify that I am the secretary of the corpora-
tion named as contractor herein; that Donald G. Davis who signed
this contract on behalf of the contractor, was then President of
said corporation; that said contract was duly signed for and in
behalf of said corporation by authority of its governing body,
and is within the scope of its corporate powers.
[CORPORATE SEAL | (S) Joseru J. Cox,
Secretary.
Exhibit to Petition
14 This project is authorized by the act of June 22, 1936
(Public No. 738, 74th Congress (as amended by the act
approved June 28, 1938 (Public No. 761, 75th Congress).
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>
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 9
No. 321-41-1%
U. S. Enoerneer Orrice,
Binghamton, New York, March 29, 1941.
War Department
Appropriation: 21X3113 Flood Control, General Flood Pro-
tection Project (Section No. 1) at Elmira, New York.
SPECIFICATIONS
Section I. General Provisions
1-01. Location.—The site of the proposed work is along the
right bank of the Chemung River within the limits of the City
of Elmira, Chemung County, New York.
1-02. Work to be Done.—(a) The work provided for herein is
authorized by the act approved June 22, 1936 (Public No. 738, 74th
Congress) as amended by the act approved June 28, 1938 (Public
No. 761, 75th Congress).
(b) The work to be done consists of furnishing all plant, labor,
equipment, and materials, and performing all work required for
the construction of Flood Protection Project (Section No. 1) at
Elmira, New York, and all appurtenant works, complete in strict
accordance with these specifications and maps and contract draw-
ings forming a part hereof. It will consist of the following
major items:
(1) Construction of levee embankments.
(2) Construction of new concrete walls.
(3) Raising an existing wall.
(4) Construction and alteration of sewers, culverts, drains, and
manholes.
* * * * *
15 1-31. Wage and Labor Provisions.—(a) The Secretary
of Labor has determined the minimum wage rates applica-
ble in the locality for the labor classifications anticipated to be
used on the work. In accordance with Article 17 of the contract,
employees at the site shall be paid not less than these wages as
listed below :
Designation Wage rate, hourly
Carpenters, journeymen______ ‘ _.. $1.00
Cement finishers, structures___._.......---_----- 1. 50
Electricians ___- — . 1.12%
Laborers, unskilled__.._._.__.____-__- ae
Laborers, concrete puddlers____--- aa.
Mechanics, heavy equipment_____-_ ee
Oilers, heavy equipment Selb eamiaistacaediip aes ae: |
Operators, air compressors, 160 cubic feet and under SE aren . 85
Operators, air compressors, over 160 cubic feet 1.00
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10 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
Designation Wage rate, hourly
Operators, batcher plant__........-.--------~------~-----------«. $0. 60
Operators, bulidozers_.......--.---......----~---------------... 1.00
Operators, cranes and draglines_-__-.....-..-..-.----~---------.- 1.5
Operators, clamshellis_.........-.......-.---------------------- 1.50
Operators, hand held reck drill_._....._...--.-------------.~--~- 1%
Operators, mixers, under 21E_-.._------ sid aeshididiesehinataatapaioiaanals 1.00
Operators, mixers, 215 and over_.._.......--------.---.----~=--. 1.50
Operators, pet, 4 te. ald GnGer..... - nn nn snes .75
Operators, pump, over 4in-_....-.....--.----~-----------------.. 1.00
Operators, piledrivers.._.......-.....--..--~----=~--~----=----- 1.50
Qperatets, spvels <<. n eevee eee) eC 1.50
Operators, tractors.__.....------------------------------------ 85
Operators, ‘wagon drill, pneumatic i craehgegnsatandigveillaistenteseieghgitdgilleaapintehddials 90
eo | Se ee ee ene ee ee jusbhaeee abeaeanienannesiaie 1
Rieteteertet CPG ok sic cece oon caccenssnnnmereiemabionenge 1.5
DV Qiao occ ici ee bdiraitiin adnan aibamannnbenaeiapin . 55
Welders—Receive the rate prescribed for craft performing opera-
tion to which welding is incidental.
The above list of wages shall be posted by the contractor in a
conspicuous place on the work.
16 (b) In the event that it becomes necessary to employ any
laborer or mechanic whose work is not covered by any of
the classifications in the schedule, he shall be paid not less than
the prevailing rate of wages in the locality where the work is done
for the class of work done by him. Such rate shall be determined
by the contracting officer. In case any dispute arises as to what
are the prevailing rates of wages for work of a similar nature that
cannot be adjusted by the contracting officer, the matter shall be
referred to the Secretary of Labor for determination, and his
decision shall be conclusive on ail parties hereto.
* * * * *
1-38. Approval.—This contract shall be subject to the written
approval of the Division Engineer, North Atlantic Division, and
shall not be binding until so approved.
* * * * *
3-06. Sheeting and Shoring—(a) General—The contractor
shall furnish and place such sheeting, shoring. bracing, or other
approved supports as are indicated on the contract drawings or
directed by the contracting officer for the protection of the work
or adjoining property. The right is reserved to order the installa-
tion of sheeting and shoring where its use is considered advisable
for the safety of the work, and to require such sheeting and shoring
to remain in place when its removal is considered inadvisable.
(b) Procedure.—All sheeting and shoring shall be designed by
the contractor and approved by the contracting officer prior to
installation, but such approval by the contracting officer shall not
relieve the contractor of sole responsibility for damages resulting
from the inadequacy or lack of any sheeting and shoring. The
sheeting and shoring shall be built to provide adequate clearances
ST
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—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 1]
for minimum interference with construction operations, proper
bracing for stability, and safe conditions around the work. If, in
the opinion of the contracting officer, any methods or meas-
17 ures of the contractor constitute a hazard in any way or are
otherwise improper or inadequate, the contracting officer
will notify the contractor of that fact in writing. If the con-
tractor fails to provide immediately such remedial measures as
are deemed necessary by the contracting officer, such measures
will be provided by the contracting officer at the expense of the
contractor. When sheeting and shoring have served their pur-
and their removal is approved by the contracting officer, they
shall be removed and disposed of. Whether sheeting and shoring
are removed or left in place, all cavities shall be adequately filled.
When approved by the contracting officer, sheeting and shoring
may be used in lieu of excavation to full pay lines.
(c) Measurement.—Sheeting and shoring will be measured by
the square foot of protected area.
(d) Payment.—Except as specified below, payment for all costs
of furnishing and placing sheeting and shoring indicated on the
contract drawings or directed by the contracting officer, and of its
removal and disposal when not left in place, will be made at the
contract unit price for “Sheeting (Including Shoring),” Item
No. 7. Where sheeting and shoring are used at the contractor’s
option and with the approval of the contracting officer, separate
payment will not be made for the sheeting and shoring, but pay-
ment will be made for excavation to the pay lines shown on the
contract drawings as though the cut had been made to such pay
lines.
a » * * *
7-05. Details of Construction.—
(d) Finishing.—Immediately following removal of forms, all
form tie holes shall be filled, protruding fins or other surface ir-
regularities removed by carborundum stone and all other defects
repaired. Where necessary to obtain a suitable surface finish, the
contractor shall remove the form and finish the surfaces when and
as directed by the contracting officer at no additional cost to
18 the Umited States. The curing specified in subparagraph
7-05 (e) following shall be temporarily suspended during
such repairing or finishing as directed. The finished surfaces
shall be free from sand streaks or other defects and the plaste».
ing over of such surfaces will not be permitted. Defective con-
crete shall be repaired by cutting out the unsatisfactory material
and placing new concrete which shall be formed with keys, dove-
tails, and anchors to attach it securely to the other work. This
concrete shall be drier than the usual mixture and shail be thor-
oughly tamped into place. All surfaces of concrete, not covered
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a
12 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
by forms, that are not to be covered by additional concrete or
backfill shall have a wood float finish without additional mortar,
and shall be true to elevations as shown on contract drawings,
Striking-off and finishing shall follow closely the placing opera-
tion in order to insure completion before the initial set has taken
place. The contractor will not be permitted to start a pour unless
a sufficient number of qualified finishers are available to fulfill
the above requirements. Care shall be taken to see that all excess
water is removed before making the finish. Other surfaces shall
be brought to the specified finished elevation and left true and
regular as approved by the contracting officer. Where consid-
ered necessary by the contracting officer, or where indicated on the
drawings, joints shall be made carefully with a jointing tool.
Every precaution shall be taken by the contractor to protect fin-
ished surfaces from stains or abrasions. No fire shall be per-
mitted in direct contact with any concrete at any time. Concrete
surfaces or edges likely to be injured during the construction
period shall be properly protected by leaving the forms in place
or by erecting covers satisfactory to the contracting officer.
* * * * *
19 General traverse
Filed March 2, 1948
And now comes the Attorney General, on behalf of the United
States, and answering the petition of the claimant herein, denies
each and every allegation therein contained; and asks judgment
that the petition be dismissed.
(S) H. G. Morison,
Acting Assistant Attorney General.
ETF, JJS.
21 In the United States Court of Claims
[ Title omitted]
Report of commissioner
Filed June 5, 1951
To the Honorable the Chief Judge and Associate Judges of the
United States Court of Claims:
Pursuant to the order of reference in the above-entitled case, the
undersigned Commissioner makes the following report of his
findings of fact:
1. Plaintiff is, and at all times material herein has been, a cor-
poration organized and existing under the laws of the State of New
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 13
York with its principal office and place of business at Bingham-
ton, New York. Since its formation in 1929, it has been engaged
in business as a general contractor.
2. On March 29, 1941, defendant acting by and through the
War Department’s Corps of Engineers’ Office at Binghamton,
New York, invited bids for the construction of Flood Protection
Project (Section No. 1) along the north bank of the Chemung
River, within the limits of the city of Elmira, Chemung County,
New York. In response to said invitation, plaintiff submitted a
bid based upon a unit price applied to the various operations in-
volved in the performance of the work in the total sum of $232,-
669.30. This bid was accepted by defendant on May 14, 1941.
On that date plaintiff and defendant entered into a written con-
tract, No. W-321-eng-261, which was approved June 3, 1941.
On June 5, 1941, defendant gave plaintiff a formal notice to pro-
ceed with the work. Actual work commenced on the site of the
job on June 3, 1941.
3. The contract was performed by plaintiff, and it has been paid
the contract price, as adjusted, for change orders with
22 ~=—the exception of $100 which plaintiff instructed the District
Engineer to withhold, and plaintiff has refused to accept
said $100 from defendant on advice of its counsel.
4. Plaintiff sues for the sum of $35,105.42, the total of three
separate claims, as follows:
Claim for reimbursement of wage rates paid to carpenters,
laborers, and concrete puddlers___-- $13, 911. 83
Claim as regards measuring of sheeting and shoring____________ 14, 110. 85
Clinton Tee GeReREns OF CONCTOUO.. 2.2 ecco cnn nas-- 7, 082. 74
SE ddbvumianttardccsbodeerdaneremmarminnmenmeine 35, 105. 42
Each claim will be discussed separately.
WAGE RATES
5. Before bidding, plaintiff had a copy of the specifications.
Section 1-31 of such specifications reads, insofar as here pertinent,
as follows:
“1-31. Wage and Labor Provisions.—(a) The Secretary of
Labor has determined the minimum wage rates applicable in the
locality for the labor classifications anticipated to be used on the
work. In accordance with Article 17 of the contract, employees
at the site shall be paid not less than these wages as listed below:
Designation wen
Carpenters, journeymen-___-_-_ $1. 00
a & a * *
Laborers, unskilled 50
Laborers, concrete puddlers. .50
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14 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
6. Article 17 of the contract reads as follows:
“Arricte 17. Rate of wages (in accordance with the act of
August 30, 1935, 49 Stat. 1011 (U. S. Code, title 40, sections 276a
and 276a-1), this article shall apply if the contract. is in excess of
$2,000 in amount and is for the construction, alteration, and/or
repair, including painting and decorating, of a public building
or public work within the geographical limits of the States of the
Union or the District of Columbia).
“(a) The contractor or his subcontractor shall pay all mechanics
and laborers employed directly upon the site of the work, un-
conditionally and not less often than once a week, and without
subsequent deduction or rebate on any account, the full amounts
accrued at time of payment, computed at wage rates not less than
those stated in the specifications, regardless of any contract-
23 —ual relationship which may be alleged to exist between the
contractor or subcontractor and such laborers and mechan-
ics; an the scale of wages to be paid shall be posted by ‘the con-
tractor in a prominent and easily accessible place at the site of the
work. The contracting officer shall have the right to withhold
from the contracter so much of accrued payments as may be con-
sidered necessary by the contracting officer’ to pay to laborers and
mechanics employed by the contractor or any subcontractor on the
work the difference between the rates of wages required by the
contract to be paid laborers and mechanics on the work and the
rates of wages received by such laborers and mechanics and not
refunded to the contractor, subcontractors, or their agents.
“(b) In the event it is found by the contracting officer that any
laborer or mechanic employed by the contractor or any subcon-
tractor directly on the site of the work covered by the contract
has been or is being paid a rate of wages less than the rate of
wages required by the contract to be paid as aforesaid, the Govern-
ment may, by written notice to the contractor, terminate his right
to proceed with the work or such part of the work as to which
there has been a failure to pay said required wages and prosecute
the work to completion by contract or otherwise, and the con-
tractor and his sureties shall be liable to the Government for any
excess costs occasioned the Government thereby.”
7. On January 31, 1941, the Secretary of Labor furnished to the
Corps of Engineers at its request, for inclusion in the contract
specifications, the schedule of minimum wages in the Elmira area.
Such schedule was included in the specifications and is set out in
finding 5.
8. On June 16, 1941, plaintiff advised the District Engineer
(who was the contracting officer) that the minimum wage rates
provided in the contract specifications were less than the rates
currently prevailing in the Elmira locality for carpenters, labor-
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 15
ers (unskilled), laborers (concrete puddlers), and truck drivers.
9. The District Engineer replied on June 27, 1941, stating that
the minimum wage rates were determined in strict accordance with
the applicable law and regulations, and that he could not afford
relief for any differences between wage rates then prevailing in
the area and the minimum rates required by the contract
specifications.
24 10. Plaintiff protested this decision to the Chief of Engi-
neers under date of July 10, 1941, and on August 5, 1941,
plaintiff's appeal was denied by the Chief of Engineers in part
as follows:
“There is no authority in law for this office to question the
correctness of any determination made by the Secretary of Labor
pursuant to the provisions of the above cited act [49 Stat. 1011].
Therefore, I find that the wage rates as established by the Secre-
tary of Labor, and incorporated in the contract specifications,
were the minimum wage rates applicable in the locality for the
labor classifications anticipated to be used on the work.”
11. Plaintiff under date of February 20, 1943, asked defendant
to reconsider its appeal regarding minimum wage rates, and this
was responded to by letter dated April 13, 1943, from the Chief
of Engineers, in part as follows:
“A determination as to the accuracy of the specified wages is
not necessary to a decision in thiscase. The contract by Article 17
and by paragraph 1-31 of the specifications provides that wages
not less than those specified shall be paid. The contract makes no
representation as to the availability of labor nor as to the actual
wage scales that would be in effect. The alleged increased costs
did not result from your contract obligation but from economic
conditions which are ordinary contingencies contemplated under
the terms of the contract. No reason has been shown which would
warrant modification of the previous decision dated August 5,
1941.”
12. On March 4, 1941, the Secretary of Labor furnished to the
Public Buildings Administration of the Federal Works Agency a
schedule of minimum wages in the Elmira area for inclusion in
the bidding specifications and contract for a Federal Housing
Project in Elmira, New York. The prevailing wage rates shown
therein as far as here material were as follows:
Classification Hourly rate
Carpenters, journeymen $1. 125
Laborers, unskilled . 55
13. At the time plaintiff began work on the site, which as indi-
cated in finding 2 was June 3, 1941, it had to pay $0.625 per
25 _— hour for laborers and $1.125 per hour for carpenters. This
264722533
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16 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
was the union rate effective April 1, 1941, and the plaintiff
employed only union members. metime in 1942, there was an
increase in union rates for carpenters from $1.125 to $1.25 per
hour, and for laborers from $0.625 to $0.75 per hour. Although
plaintiff paid such increased wage rates, it is not claiming in this
suit any excess over the laborers’ rate of $0.625 and the carpenters’
rate of $1.125 except such overtime as related to the latter rates,
14. Although the plaintiff’s president denied that he had any
knowledge of the prevailing rates for wages in Elmira at the time
of the submission of plaintiff’s bid, and states that he relied upon
the schedule of minimum wage rates included in the bidding speci-
fications, he could have, with very little effort and the exercise
of reasonable prudence, ascertained not only the prevailing rates,
but the impending increase in union rates for carpenters and
laborers which was effective on April 1, 1941.
15. Since plaintiff has lost some of its original payroll records
(which would identify the class of work performed by an em-
ployee), it is not possible to verify plaintiff's claim for $13,911.83
from its books and records. It will be possible, however, in the
event that the Court should conclude that plaintiff is entitled to
recover, to reconstruct such payrolls for carpenters and laborers
and to establish with reasonable accuracy the amount of such
recovery. For the foregoing reason, no finding is made as to the
amount of plaintiff's damage on the claim for reimbursement of
wage rates for carpenters and laborers over and above the
minimum wage rates set out in finding 5.
SHEETING AND SHORING
16. The contract specifications provide in part as follows:
“Section I
“1-14. Work Areas.—* * *
“(b) The contractor shall be responsible for trespassing upon, or
damage to, public and private lands and roads, bridges, buildings,
chimneys, and utilities in or adjacent to the work and access areas
resulting from any act or omission on his part, including damage
caused by disturbance of foundations while conducting any
26 operation within the work area. The contractor shall take
special precautions to prevent injury to existing structures
while working in the vicinity of the Hygeia plant, Brand build-
ing, greenhouse, gas regulation house, private dwellings, and
all other buildings and structures located at or close to the edge
of the work area. He shall take similar precautions in the vicinity
of the pole line crossing the levee at West Hudson Street, the water
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 17
main at approximate Station 176+37, all power facilities at the
Hygeia plant, and any other utilities which will not be relocated.
* ” * * a
“(d) The garage and other property of the Hygeia Refrigerat-
ing Company are within the work area, and the activities of this
company will be carried on during construction of the project.
The contractor shal] cooperate with this company during all con-
struction operations in order to preserve its access and permit
its operations to be conducted with a minimum of interference
by the contractor. The contractor shall perform the necessary
construction on the company’s property in the least practicable
time. He shall provide bracing or other protection satisfactory
to the contracting officer for the garage wall against which the
new wall is placed. The garage and other property within the
work area shall be restored to a condition satisfactory to the con-
tracting officer upon completion of the permanent work in that
area.
* * a * *
“Section III
“3.03. Excavation—Common. * * *
“(b) Procedure—(1) General—Excavation—Common shall
be performed in accordance with subparagraph 3-01 (c). Exca-
vation around bridge piers and abutments, existing walls, build-
ings, chimneys, transformers, power lines, utilities, sewers, cul-
verts, and other existing structures shall be executed with all due
precautions, satisfactory to the contracting officer, for safe-
guarding the structures. (See paragraphs 1-14.) Where special
work is required to prevent undermining existing structures, it
shall be done in accordance with detailed plans prepared by the
contractor and approved by the contracting officer, but such
approval shall not relieve the contractor of responsibility for
damages which may result from the failure of the temporary pro-
tection. Where excavation operations endanger the stability
of existing or new structures, sheeting and shoring shall
27 __— be installed at the locations indicated on the drawings or
directed by the contracting officer. The contractor shall
be responsible for safety of such structures. (See subparagraph
(3) below and paragraph 3-06.) * * *
* * * * *
“(3) Sewers, Culverts, and Drains.—The contractor shall fur-
nish and install sheeting and shoring in all trenches where the
depth exceeds 6 feet. * * *
bd * * * 7.
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18 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
“3-06. Sheeting and Shoring—(a) General—The contractor
shall furnish and place such sheeting, shoring, bracing, or other
aproved supports as are indicated on the contract drawings or
directed by the contracting officer for the protection of the work
or adjoining property. The right is reserved to order the instal.
lation of sheeting and shoring where its use is considered advisable
for the safety of the work, and to require such sheeting and shor-
ing to remain in place when its removal is considered inadvisable.
(b) Procedure.—AlJ sheeting and shoring shall be designed by
the contracter and approved by the contracting officer prior to
installation, but such approval by the contracting officer shall not
relieve the contractor of sole responsibility for damages resulting
from the inadequacy or lack of any sheeting and shoring. The
sheeting and shoring shall be built to provide adequate clearances
for minimum interference with construction operations, proper
bracing for stability, and safe conditions around the work. If, in
the opinion of the contracting officer, any methods or measures
of the contractor constitute a hazard in any way or are otherwise
improper or inadequate, the contracting officer will notify the con-
tractor of that fact in writing. If the contractor fails to provide
immediately such remedial measures as are deemed n
the contracting officer, such measures will be provided by the con-
tracting officer at the expense of the contractor. When sheeting
and shoring have served their purpose and their removal is ap-
proved by the contracting officer, they shall be removed and dis-
posed of. Whether sheeting and shoring are removed or left in
place, all cavities shall be adequately filled. When approved by
the contracting officer. sheeting and shoring may be used in lieu
of excavation to full pay lines.
“(c) Measurement.—Sheeting and shoring will be measured by
the square foot of protected area.
28 “(d) Paymeni.—F.xcept as specified below, payment for
all costs of furnishing and placing sheeting and shoring
indicated on the contract drawings or directed by the contracting
officer, and of its removal and disposal when not left in place, will
be made at the contract unit price for ‘Sheeting (Including
Shoring),’ Item No. 7. Where sheeting and shoring are used at
the contractor's option and with the aproval of the contracting
officer, separate payment will not be made for the sheeting and
- shoring, but payment will be made for excavation to the pay lines
shown on the contract drawings as though the cut had been made
to such pay lines.”
17. The schedule of payments incorporated into the contract
in suit provided in item 7 that the plaintiff was to be paid for
sheeting (including shoring) on a quantity of 9,200 square feet
at the rate of 65 cents per square foot, or a total of $5,980.
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 19
18. Section I, paragraph 1-05, provides in pertinent part as
follows:
“1-05. Quantities—The following estimate of quantities is
given only to serve as a basis for comparison of bids and for de-
termining the amount of consideration of the contract. Within
the limits of available funds, the contractor will be required to
perform the entire quantity of work necessary to complete the
work specified in paragraph 1-02 hereof, be it more or less than
the amounts herein estimated.
* * * * *
“Item No. 7 Sheeting (Including Shoring) 9,200 Sq. Ft.”
* * * . .
19. As the work progressed, the plaintiff placed sheeting and
shoring necessary for the protection of the work as well as that
necessary for the protection of existing buildings and structures.
Payment was made on account of such sheeting and shoring, as
well as the other work performed by the plaintiff, on monthly
estimates prepared by defendant’s resident engineer and given to
plaintiff’s superintendent together with a payment voucher for
execution on behalf of plaintiff. The plaintiff executed such pay-
ment vouchers and forwarded them along with each monthly esti-
mate for payment by the defendant’s paying office. On the second
such monthly estimate forwarded with a payment voucher by
plaintiff, an item of 438 square feet of sheeting, including
29 + shoring, appears under item 7. On subsequent monthly
estimates supporting payment vouchers, under item 7 ap-
pears a figure covering additional sheeting, including shoring.
The plaintiff accepted monthly payments on such payment vouch-
ers without question as to the manner of computation of the sheet-
ing (including shoring) item until the final estimate was
received by the plaintiff showing a total of 10,152 square feet.
20. After all of the work under the contract had been performed,
the defendant, through the resident inspector, forwarded proposed
final estimate on January 21, 1943. On January 28, 1943, plain-
tiff’s superintendent, Mr. Bernard Gabriel, went to the office of
the District Engineer at Syracuse, New York, and conferred with
a representative of thut official concerning claims for additional
payments on various contract items including sheeting and shor-
ing. Following this conference, the plaintiff received a letter
dated February 1, 1945, from the District Engineer in which it is
stated that:
“In computing pay quantities the following methods were used
by this office.
“Sheeting—Computations based on field measurements of
length and height of sheeting placed.”
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20 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
21. The plaintiff was paid at the rate of 65 cents per square foot
for 10,152.1 square feet of sheeting and shoring. Of this amount
6,738.2 square feet was for the protection of the work, and 3,413.9
square feet was for the protection of property. The plaintiff
claims that it should have been paid for 32,899 square feet, 8,094
square feet for the protection of the work, and 24,805 square feet
for the protection of property.
As to the sheeting and shoring required for the protection of
the work, it is plaintiff’s position that the protected area was the
area of side walls of trenches excavated where sheeting was placed.
The difference between the quantity of sheeting and shoring for
the protection of the work claimed by the plaintiff and that al.
lowed by the defendant is shown by defendant’s Exhibit 22, which
is in evidence and made a part hereof by reference, to relate to
items Aland A2. Onall other items concerning sheeting placed
for protection of the work, the allowance was as great or greater
than that claimed, except for 50 square feet of sheeting claimed at
the Walnut Street Bridge, which the defendant allowed
30 under sheeting placed for the protection of property. The
evidence is not satisfactory as to the measurements by
which either the amount claimed or allowed was computed.
As to the sheeting and shoring required for the protection of
the property, plaintiff's claim is based not upon the amount of
sheeting or shoring placed, but rather upon the ground area cov-
ered by the buildings and structures so protected. The ground
area of the buildings and structures which was protected by sheet-
ing and shoring is shown below:
Ground area of buildings and structures as to which sheeting and shoring
was provided
Square feet
MIA TNA acai cncctecn aa clases pee ranma ana aaiten 175x 68 11,906
WEIL. WEI este i ete ae BEER SESE eee NE 315x 6 1,890
BR RARE ONE Sele tvs Sak ee Se ene aE Te eg 54x60 3,240
Ua I a 35 x 25 875
ine! Rk 5 Renee > Cnn oes 30 x 30 900
Geesnews ([Wam 6a). ....... 240x245 = 6, 000
TONE eee ee ag cenit bes Ae ee 24, 805
22. The plaintiff on February 9, 1943, wrote to the District
Engineer requesting that the defendant recompute the allowance
for sheeting and shoring.
“* * * by ascertaining the square footage of the area protected
by the work performed under this item, pursuant to paragraph
3-06 subdivision (c) and that we be paid therefor at the unit price
of said item. * * *”
The defendant reviewed plaintiff protests and on February 18,
1943, wrote plaintiff that the item had been measured and com-
puted in strict accordance with the provisions of the contract
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 21
specifications, and the contractor was invited to present additional
facts or computations for consideration.
23. The plaintiff failed to accept this invitation but rather by
letter dated February 24, 1943, returned a final release of claims
wherein was listed an exception to the method of computing the
final quantity of sheeting and shorting.
24. Receipt of the release was acknowledged by letter dated
March 5, 1943, and the plaintiff was advised of his further rights
of appeal under Article 15 of the contract.
25. On March 19, 1943, plaintiff appealed the decisions of the
contracting officer to the Secretary of War, and on July 31, 1944,
the appeal was denied. This denial reads in part as follows:
31 “You allege that the method used by the contracting
officer in computing the pay quantities for sheeting (in-
cluding shoring) was incorrect. Paragraph 3-06 (c) of the con-
tract specifications states that sheeting and shoring, ‘* * * will
be measured by the square foot of protected area.’ The record
shows that the pay quantities of sheeting placed adjacent to exist-
ing structures were determined by measurements to specific
payment lines where such lines are shown on the drawings. Where
specific payment lines were not indicated, the quantities were
computed by using the length of the area actually sheeted and the
difference in elevation between the top of the sheeting and the
bottom elevation of the adjacent structures. The pay quantities
for sheeting not placed adjacent to any existing structure were
computed by multiplying the difference in elevation between the
ground surface and the bottom elevation of the trench by the
length of the area sheeted. You assert that because of the
liability imposed by paragraph 1-14 (b) of the specifications
for damages to structures in or adjacent to the work, including
damages caused by disturbance of foundations, that the term
‘protected area’ as used in paragraph 3-06 (c) must be construed to
mean the ground area occupied by the adjacent structures and that
the computation of pay quantities for sheeting placed to protect
such structures must be based on the area thereof. As noted above
the payment lines shown on the drawings for sheeting and shoring
placed adjacent to the structures clearly indicate that the parties
did not intend that payment should be made on the basis of the
ground area of the buildings. Furthermore, the estimates [sic]
pay quantity of sheeting was only 9,200 square feet, approximately
10% less than the quantity of 10,152 square feet for which payment
was made and only about 30% of the quantity for which payment
is claimed. The contract does provide, as contended by you, that
the quantities specified are only estimates. However, the build-
ings which were to be protected were clearly indicated on the
contract drawings. The combined ground area of the buildings
asics icaiahieasietbaiestisasi
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a ieee
22 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
alone, aside from the other locations where the plans indicated
sheeting was to be placed, is about 214 times the total area for
which it was estimated sheeting would be required. The payment
lines indicated on the drawing and the discrepancy between the
ground area of the buildings and the estimated quantity of the
sheeting should have put you on notice that the Government did
not intend that the pay quantities of sheeting and shoring placed
adjacent to existing structures would be computed on the
32 __ basis of the ground area of such structures. No objection
has been made of the method employed by the contracting
officer in computing pay quantities for sheeting not placed ad-
jacent to structures. As the ground area occupied by a structure
has no direct relation to the cost of placing sheeting and shoring
adjacent to it, there would appear to be no reason to compute the
pay quantities of sheeting placed adjacent to such structures on
the basis of the ground area occupied and to compute the pay
quantities of sheeting not so placed on an entirely different basis,
Under paragraph 1-14 (b) of the specifications you are liable
for damages to land as well as to structures. If your contention
that the pay quantities of sheeting placed adjacent to existing
structures must be computed on the basis of the ground occupied
by said structures were to prevail, it would logically follow that
the pay quantities for sheeting not placed adjacent to any existing
structure should be computed on the basis of the land area pro-
tected, even though such area might conceivably comprise many
acres. Such as [sic] interpretation is obviously absurd. It is
my finding that the methods employed by the contracting officer
for computing the pay quantities of sheeting and shoring were
correct.”
CONCRETE FINISHING
26. Article 15 of the contract provides as follows:
“Article 15. Disputes—Except as otherwise specifically pro-
vided in this contract, all disputes concerning questions of fact
arising under this contract shall be decided by the contracting
officer subject to written appeal by the contractor within 30 days
to the head of the department concerned or his duly authorized
representative, whose decision shall be final and conclusive upon
the parties thereto. In the meantime the contractor shall
diligently proceed with the work as directed.”
Section i-20 of the general provisions of the contract specifica-
tions provides:
“1-20. Claims, Protests, and Appeals.—(a) If the contractor
considers any work demanded of him to be outside the require-
ments of the contract or if he considers any action or ruling of the
a
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 23
contracting officer or of the inspectors to be unfair, the contractor
shall without undue delay, upon such demand, action, or ruling,
submit his protest thereto in writing to the contracting officer,
stating clearly and in detail the basis of his objections.
33 The contracting officer shall thereupon promptly investi-
gate the complaint and furnish the contractor his decision,
in writing, thereon. If the contractor is not satisfied with the
decision of the contracting officer, he may, within thirty days,
appeal in writing to the Chief of Engineers, whose decision shall
be final and binding upon the parties to the contract. Except for
such protests or objections as are made of record in the manner
herein specified and within the time limit stated, the records,
ruling, instructions, or decisions of the contracting officer shall
be final and conclusive.
“(b) The Chief of Engineers has been designated by the Secre-
tary of War as his duly authorized representative to make final
decision and to take other action where the terms of the contract
require that such decision or action shall be ‘by the Head of the
Department concerned or his duly authorized representative.” Al]
appeals from decisions of the contracting officer authorized under
the contract shall, therefore, be addressed to the Chief of Engi-
neers, U. S. Army, Washington, D. C. The appeal shall contain
all the facts or circumstances upon which the contractor bases his
claim for relief and should be presented to the contracting officer
for transmittal within the time provided therefor in the contract.”
Pertinent provisions of the contract specifications, Section VIT,
dealing with the subject “Concrete” are quoted below:
Section VII. Concrete
* * * ok *”
“7,03. Proportioning and Mixing.—* * *
“(b) Proportioning. * * *
“(2) Control.—The exact proportions of all material entering
into the concrete shall be as directed by the contracting officer.
The contractor shall provide all equipment necessary to positively
determine and control the actual amounts of all material entering
into the concrete. The proportions will be changed whenever, in
the opinion of the contracting officer, such change becomes neces-
sary to obtain the specified strength and the desired density, uni-
formity and workability, and the contractor will not be
compensated because of such changes, except for an increase in
the specified minimum unit paste content, as provided herein as
follows: In the event it is determined by the contracting officer
that concrete of the desired quality cannot be obtained with the
264722—53__-4
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a
24 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
specified gradation of aggregates conforming fully to the specifi-
cations and the specified minimum unit cement content,
34 he may direct an increase in the unit paste content by the
addition of Portland cement, in which case compensation
will be made therefor at the cost to the contractor of the cement
delivered f. o. b. carrier at the site of the work, plus $0.40 per
barrel. *
* * x * *
“7-05. Details of Construction.—(a) Forms.—* * *
“(4) Removal.—Forms shall not be removed without the ap-
proval of the contracting officer, and al] removal shall be accom-
plished in such manner as will prevent injury to the concrete.
Forms shall not be removed from walls and vertical faces before
the expiration of 2 days, except when specifically authorized by the
contracting officer. When, in the opinion of the contracting offi-
cer, conditions on the work are such as to justify it, forms may be
required to remain in place for longer periods.
* * * * *
“(d) Finishing—Immediately following removal of forms, all
form tie holes shall be filled, protruding fins or other surface
irregularities removed by carborundum stone and all other defects
repaired. Where necessary to obtain a suitable surface finish, the
contractor shall remove the forms and finish the sufaces when and
as directed by the contracting officer at no additional cost to the
United States. The curing specified in subparagraph 7-05 (e)
following shall be temporarily suspended during such repairing
or finishing as directed. The finished surfaces shall be free from
sand streaks or other defects and the plastering over of such sur-
faces will not be permitted. Defective concrete shall be repaired
by cutting out the unsatisfactory material and placing new con-
crete which shall be formed with keys, dovetails, and anchors to
attach it securely to the other work. This concrete shall be drier
than the usual mixture and shall be thoroughly tamped into place.
All surfaces of concrete, not covered by forms, that are not to be
covered by additional concrete or backfill shall have a wood float
finish without additional mortar, and shall be true to elevations
as shown on contract drawings. Striking-off and finishing shall
follow closely the placing operation in order to insure completion
before the initial set has taken place. The contractor will not be
permitted to start a pour unless a sufficient number of qualified
finishers are available to fulfill the above requirements. Care
shall be taken to see that all excess water is removed before
35 making the finish. Other surfaces shall be brought to the
specified finished elevation and left true and regular as
approved by the contracting officer. Where considered necessary
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 25
by the contracting officer, or where indicated on the drawings,
joints shall be made carefully with a jointing tool. Every pre-
caution shall be taken by the contractor to protect finished surfaces
from stains or abrasions. No fire shall be permitted in direct
contact with any concrete at any time. Concrete surfaces or
edges likely to be injured during the construction period shall be
properly protected by leaving the forms in place or by erecting
covers satisfactory to the contracting officer.”
27. Section 1, paragraph 1-11, Work Covered by Contract
Price, provides as follows:
“1-11, Work Covered by Contract Price.—The contractor shall,
under the contract prices, furnish and pay for all materials, equip-
ment, and labor for all permanent, temporary, and incidental
work, furnish all accessories, and do everything which is necessary
to carry out the contract in good faith, which contemplates every-
thing comy ieted, in proper working order, of good materials with
skillful workmanship, accurately fitted, properly assembled, and
connected.”
28. The placement of concrete began on August 20, 1941, and
placement was made from time to time during that construction
season until October 24, 1941. During this time monoliths Nos.
1 through 17 were poured. The first concrete which was placed
above the foundation and as to which the plaintiff’s claim for
finishing relates was commenced on September 5, 1941.
29. From the time that the forms were stripped from the ex-
posed concrete lifts above the foundation, the defendant’s field
representatives complained to Mr. Gabriel, plaintiff’s superin-
tendent, of the poor faces on the exposed concrete. After mono-
liths Nos. 1 through 17 had been poured and the forms stripped
from the concrete, there were rust stains showing from the water
pipes used in curing, and the concrete faces showed numerous
blemishes, pockmarks and honeycombs. Protruding fins had not
been removed, and the form tie rods holes had not been filled.
30. Prior to October 29, 1941, defendant complained to plain-
tiff regarding the tie holes not being plugged as re-
36 quired by paragraph 7-05 (d) of the contract specifications.
31. Under date of July 28, 1941, plaintiff transmitted to
defendant some revised prints covering certain form details in the
construction of the wall and which made reference to the proposed
use of certain porcelain tubes or cylinders for the purpose of
putting bolts through said porcelain cylinders which could act as
spreaders and thereby increase or lessen the width of the forms.
32. Defendant, by letter dated August 4, 1941, approved plain-
tiff's revised prints subject to certain provisions which in part
provided :
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a
26 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
“(e) The approval as indicated above is predicated on produc-
ing a finished concrete surface as contemplated in contract speci-
fications, and the right is reserved to require necessary revisions
in your form construction to provide uniform finished surfaces on
all exposed faces.”
33. On October 15, 1941, defendant objected to the further use by
plaintiff of visible porcelain tubes which gave the appearance of
an unfinished job.
34. Under date of November 15, 1941, defendant wrote plaintiff
regarding the unused porcelain tubes and therein stated that plain-
tiff would be allowed to use these tubes on unexposed concrete
wall surfaces and would be paid for the remaining unused
porcelain tubes.
35. The defendant has allowed payment for porcelain tubes
which were delivered by plaintiff to defendant but not used on the
job.
36. On October 20, 1941, the contracting officer addressed and
forwarded the following letter to the plaintiff:
“Reference is made to Par. 7-05 (d), Finishing of Concrete
Surfaces, of your Contract No. W-321-eng-261 for the construe-
tion of the Elmira Flood Protection Project, Section 1.
“I have examined the concrete work constructed to date under
your contract and find that it has not been finished in accordance
with the provisions of the contract specifications. You are di-
rected to correct these deficiencies at once. My field representa-
tives will indicate the defective work and furnish details of the
required corrective measures.”
37 37. By letter dated October 29, 1941, defendant’s Resi-
dent Engineer forwarded a detailed statement of corrective
measures to be taken by the contractor in two parts, the first
relating to the treatment of monoliths Nos. 1 through 17 which
had then been placed, and the second relating to the treatment
of concrete which had not then been placed. The detailed state-
ment of corrective measures provides as follows:
“METHOD OF TREATING EXISTING WORK
“The surface to be treated will be scrubbed with a wire brush
where necessary to clean out defective areas.
“Mix one part portland cement with two parts fine sand (sim-
ilar to that used on the project from which particles retained
on the No. 16 sieve has been removed) with water sufficient to
produce a grout having the consistency of very thick paint. If
necessary, white portland cement shall be added, replacing an
equal quantity of standard cement, in a quantity sufficient to give
a color equal to the concrete in the project. A test of the pro-
cedure and color will be made on a panel which is to be covered
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—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 27
with backfill. This mixture shall be carefully worked out so that
no difference in color will result from the grout. This mixture
shall be allowed to set for 45 minutes before being used. The
surface of the concrete to be treated shall be thoroughly wet, after
which the grout shall be applied with a brush or cloth completely
filling air bubbles and holes. Immediately after applying the
out scour the wall vigorously with a cork or wood float. The
grout shall then be allowed to set partially for an hour or two,
depending on the weather, until it has hardened sufficiently so
that it can be scraped from the wall with the edge of a steel trowel
without removing the grout from the small air holes. Next allow
the surface to dry thoroughly one to two hours or more depending
on the weather until the initial set occurs and rub it vigorously
with a burlap bag to completely remove any dried grout. There
shall be no visible film of grout remaining after this rubbing.
The entire cleaning operation for any monolith shall be completed
the same day it is started. The entire exposed surface of the
monolith shall be treated in this manner. If any dark streaks
or spots remain after this operation they shall be rubbed lightly
with a fine carborundum stone. This rubbing must be carefully
done to avoid changing the texture of the concrete.
38 “After the grout has become thoroughly set (24 hours
in warm weather and 48 hours in cold weather) curing will
commence and continue for at least seven days. Curing shall be
accomplished by covering finished surfaces promptly with damp
burlap or cotton quilts. (Heating will not be necessary on old
walls.)
“METHOD OF TREATING NEW CONCRETE WORK
“The forms on work that is to be exposed shall be removed
as soon as it is possible to do so without injury to the concrete.
In warm weather (minimum 65° F., average 75° F.) this will
be approximately 24 hours after the completion of placing. In
colder weather the forms should be allowed to remain in place
approximately 48 hours.
“Immediately after the forms have been removed all fins or
other projections shall be broken off with a carborundum stone or
other suitable tool which will remove the projections without
marring the surrounding surfaces. Filling of form tie holes shall
be concurrent with the removal of fins, etc. This operation shall
be separate from general finishing and shall be accomplished
with retempered mortar. This mortar shall have the same sand-
cement ratio as the concrete in the original work. Sufficient water
shall be added to make a dry mixture. This mortar shall be
thoroughly mixed, allow to set for one hour and then remixed
before being used. The material shall be thoroughly tamped
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28 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
into the tie holes and care shall be taken not to smear or deface
the surrounding surfaces. Other patching of honeycomb or sim-
ilar defects shall also be accomplished with sand-cement mortar
as described above. All patches shall bond witk the steel rein-
forcement and shall, if feasible, be dovetailed to the existing work.
Dish shaped patches with sloping sides shall not be permitted.
“Upon completion of repair work as outlined above, the entire
exposed surface shall be treated as follows:
“A thin sand-cement mortar shall be applied to the entire sur-
face with a steel trowel. This mortar shall be composed of one
part cement and two parts sand to which water shall be added until
the mortar has the consistency of very thick paint. If necessary,
white cement shall be used replacing an equal quantity of regular
cement so that the dry mortar will have the same color as the
concrete in the structure. Panels shall be experimented with on
concrete surfaces which will be covered in order to assure this
similarity in color. This application shall be sufficiently
39 vigorous to insure the complete filling of all pock marks
or other blemishes. The sand for this mortar shall be the
sand as regulaly [sic] used in the concrete work except that the
sizes retained on a No. 16 sieve shall be removed. The mortar
applied to the concrete surface shall be allowed to set for one hour
and the surplus shall then be removed by scraping the surface
lightly with the edge of a steel trowel or steel float. After the
lapse of sufficient time to allow initial set or hardening of the
mortar, the surface shall be vigorously rubbed with Clean Dry
Burlap which shall entirely remove the mortar on the surface
of the concrete. Initial curing shall be commenced immediately
after this operation and shall consist of covering the finished sur-
face with Clean Wet Burlap. Normal water curing will com-
mence 12 hours jater. Finishing of concrete surfaces shall be
completed in the minimum possible time and in no case shall the
finishing be extended over more than a 12 hour period. (This is
specified because the color of the finished surface may vary with
atmospheric conditions and make blending with adjacent finished
surfaces difficult.) ”
38. Upon receipt of the letter and its enclosure referred to in
the foregoing finding, the plaintiff on October 31, 1941, addressed
the following letter to the contracting officer :
“Receipt is acknowledged of your letter of October 29th relative
to certain finishing which you desire us to do on the concrete al-
ready placed on this project. It seems wise at this time to review
briefly, for the record, the procedure which has previously taken
place and which must therefore be responsible for the appearance
of these concrete walls. Before reviewing this procedure, let me
state that we are already proceeding to do as directed in your
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—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 29
letter of October 29th, and that we will at all times proceed with
any of your instructions, our desire, however being, of course,
that we be protected insofar as the matter of reimbursement to us,
for any expenses plus normal profit incurred in carrying out any
such instructions, is concerned.
“The aggregates used in the Elmira work, gravel, sand, and
cement, were all previously approved by your representatives and
accepted for this work. The water is the same as that used by the
people of Elmira for drinking water and has also been approved by
your representatives. The characteristics of the mixture, insofar
as the porportion [sic] of the component parts, was set by your
representatives after exhaustive tests on their part. The
40 form lining used was approved by your representatives and
the forms themselves compare in construction very favor-
ably as to strength, appearance, etc., with any used in the district,
and this we have on the authority of the Acting Chief of Opera-
tions. We come, therefore, to the mixing and placing of the con-
crete, and at all times these procedures have been directly and
completely under the control of your representatives. No latitude
has been allowed us for the carrying out of any opposing ideas we
may have had in this work, ideas which may or may not have se-
cured a better result, but in any event we were not allowed to try
them out. We must, therefore, in view of all the above, respect-
fully suggest that the responsibility for any result which may not
appeal to you, does not lie on our shoulders.
“It is our understanding that costs are being kept by your repre-
sentatives as well as by ourselves on the additional expense that is
now accruing because of the finishing operations which you have
directed, and that on the conclusion of these operations a satis-
factory settlement will be reached to reimburse us for this expense.
If this understanding is not in accordance with yours, we should
appreciate being advised at once.
“Your consideration and advice on all the above will be ap-
preciated.”
39. After monoliths Nos. 1 through 17 were treated in accord-
ance with the procedure outlined for existing work, the plaintiff
submitted on November 27, 1941, a request for the payment of the
sum of $864.07 covering the cost of such work. This sum resulted
after an allowance of $111.75 had been deducted as the cost of
filling form tie rod holes.
On December 10, 1941, the contracting officer by letter acknowl-
edged receipt of the above letter and stated as follows:
“TI find that the finishing treatment required on your job is
well within the intent of paragraph 7-05 (d), and I cannot con-
sider additional payment for this work.”
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30 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
Following receipt of the above letter, Mr. Fred Davis, vice
president of plaintiff, conferred with the District Engineer on
December 15, 1941. After this conference, the plaintiff addressed
the following letter to the contracting officer :
“Asa result of a conference held this morning with the District
Engineer, Mr. Samples, and myself, my understanding of the con-
clusions reached at this conference is outlined below.
“1. I understand that our company is not giving up any of
41 _—our rights to future consideration of our claim for the cost
of the treatment of the walls constructed during 1941 by
reason of not appealing at this time the decision of the District
Engineer outlined in his letter of December 10th.
“2. That consideration will be given to payment by the United
States for any increase in our costs because of any change in the
kind of aggregates composing the concrete mixtures or because
of any change that may be prescribed in handling the concrete.
“3. That the treatment of the walls in the future will be modi-
fied, in that treatment will be required only on the land side of the
walls except that at bridge approaches where treatment shall be
on both sides of the walls for a distance of three or four monoliths
from the bridge approach; such treatment shall immediately fol-
low the removal of the forms and shall consist of rubbing the con-
crete with carborundun [sic] stone and brushing with a light
coat of mortar if required. It will also, of course, be necessary
for us to block the holes at the form tie rods.
“We would appreciate knowing as to whether your understand-
ing is in general accordance with the above.”
40. The contracting officer replied by letter of December 29,
1941, as follows:
“Reference is made to your letter dated December 15, 1941,
regarding your understanding of conclusions reached at a con-
ference in my office on December 15, 1941, on concrete construction
at the Elmira Flood Protection Project, Section No. 1, Contract
No. W-321-eng-261.
“Using the same numerical index as used in your letter you are
advised that conclusions reached in the conference were as follows:
“1. Your right of appeal from my decision on payment for
wall treatment is established in Article 15 of the contract.
“2. Any redesign of concrete mixtures or required changes in
methods of handling concrete not within the scope of specifications
which causes increased cost will be cause for consideration of
increased payments to you.
“3. Treatment of walls will be required on the landside of all
walls and on the streamside of walls approximately 100 feet up-
stream and downstream of all bridges, approaches, or other sim-
ilar places where relatively close scrutiny is easily attained. In
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, a
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 3]
addition to the above treatment regular patching of tie rod holes,
replacing unsatisfactory spots, repair of honeycombs, etc.,
42 will be required on all surfaces in accordance with specifica-
tion requirements.”
41. On February 9, 1943, the plaintiff filed a protest with the
contracting officer listing five items of claim but not including
the claim for concrete finishing. This was replied to by letter
of February 18, 1943, by the contracting officer, in which the fol-
lowing statement is made:
“In view of the fact that your letter and this reply are repeti-
tions of previous protests and decisions, and that no progress is
apparent in the settlement of this dispute, it is suggested that, in
event you elect to prosecute this matter further, you arrange to
present detailed facts, computations, etc., either by letter or at a
conference in this office.”
On February 24, 1943, the plaintiff forwarded an executed copy
of a release dated February 19, 1943, a copy of which is in evidence
as plaintiff’s exhibit 7 and made a part hereof by reference. In
this release, the plaintiff excepted a claim by reason of concrete
finishing operations
“* * * in a manner and to an extent not required by the con-
tract plans and specifications. * * *”
The plaintiff suggested in the letter transmitting the release
that $100 be withheld from payment due it on its final estimate.
In this letter the plaintiff also discussed the concrete finishing
claim and protested the sums allowed for the concrete items
in the final estimate and requested an opportunity to submit
detailed data as to the cost of performing this “additional” work.
42. The contracting officer on March 5, 1943, sent the following
letter to plaintiff :
“Receipt is acknowledged of your letter dated February 24,
1943, transmitting executed copies of standard release form for
Contract No. W-321-eng-261, and an application for reconsidera-
tion of a previous appeal, addressed to the Chief of Engineers,
relative to minimum wage rate.
“Reference is made to the exceptions listed in your formal re-
lease to Contract No. W-321-eng-261, and you are advised, as
follows, as to the action taken by this office relative to the various
claims.
“(a) The decision relative to additional payment for
43 work in connection with treatment of concrete surfaces, was
given in letter from this office dated December 10, 1941.
Reference is made to letter from this office dated December 29,
1941, informing you of your right to appeal the decision of this
office as established in Article 15 of the contract. As no appeal
264722585
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mr
32 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
was made as per Article 15 of the contract, it is considered that
your right to appeal has been forfeited.
“(b) A decision relative to the other exceptions to the release;
namely, payment of Sheeting (Including Shoring) Contract Item
No. 7; payment of Copper, Contract Item No. 28, and payment of
Contract Item No. 6, Removal—Walls, Slabs, Paving, Building
Foundations (Concrete or Masonry) was given in letter from this
office dated February 18, 1943.
“Your right of appeal from my decision on payment of the
items covered in paragraph (b) above is established in Article 15
of the contract. The time allowed for appeal will expire thirty
days from date of this letter.
“You are further advised that a voucher is being prepared for
your signature for the partial estimate now due, less $100.00, as
requested in your letter of February 19, 1943.”
43. The plaintiff on March 19, 1943, appealed the decision of
the contracting officer of February 18, 1943, and claimed in addi-
tion to the sheeting and shoring item and other items not here
material, a concrete finishing item of $7,082.74 of which $862.42
was claimed for the finishing of monoliths Nos. 1 through 17 as to
which the detailed statement of corrective measures related to the
Method of Treating Existing Work, and $6,220.32 was claimed for
the finishing of all other work as to which finishing was performed
pursuant to the Method of Treating New Concrete Work con-
tained in such detailed statement.
The contracting officer on June 2, 1943, forwarded his findings
of fact on the plaintiff's claim to the Chief of Engineers. So far
as here material, this finding of fact provides as follows:
“4. With reference to finishing concrete surfaces (paragraph
3a above), the contractor was required, in accordance with the
contract specifications, to finish exposed concrete wall surfaces.
The contractor offered verbal] and written protests all of which
were duly considered prior to the District Engineer’s decision
dated December 10, 1941 (Exhibit F), which denied the contrac-
tor’s request for additional payment. After a conference in
44 the District Engineer’s office on December 15, 1941, the
contractor forwarded the letter of the same date which he
quotes on page 8 of his appeal. The District Engineer in turn
with letter dated December 29, 1941 (Exhibit G), replied to the
contractor’s letter of December 10, 1941, and denied his request
for additional compensation. The contractor was advised of his
further rights of appeal under Article 15 of the contract. Records
of this office do not disclose any further correspondence on this
item of complaint prior to receipt of the final release (Exhibit Q),
which was returned with letter dated February 24, 1943 (Ex-
hibit D).”
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— .
UNITED STATES V8. BINGHAMTON CONSTRUCTION CO., INC. 33
On April 29, 1944, the contracting officer forwarded a supple-
ment to his findings of fact dated June 2, 1943, to the Chief of
Engineers. It provided as follows:
“1, The following facts concern that portion of the contractor’s
appeal pertaining to the finishing of concrete surfaces and is sup-
plementary to the facts presented in paragraph four of Findings
of Fact, dated 2 June 1943.
“2, Operations under the subject contract were commenced on
3 June 1941. Placement of concrete commenced on 19 August
1941 and a total of 955 cubic yards of Class A concrete, Item 20,
wes placed through 24 October 1941, the date concrete operations
were suspended for the winter season. During the first season
the contractor after the removal of forms did not attempt to patch
holes or remove surface irregularities from the exposed concrete
surfaces as required by paragaph 7-05d of the contact specifica-
tions. The District Engineer on 15 October 1941 inspected the
site of the work and verbally directed that immediate action be
taken to remedy the unsightly condition presented by the unfin-
ished concrete surfaces. The contractor was formally directed by
letter dated 20 October 1941 (attached as Inclosure No. 1) to cor-
rect the surface deficiencies in a manner to be indicated by the
resident engineer. The resident engineer by letter dated 29 Octo-
ber 1941 (see page 10 of contractor’s appeal) furnished the con-
tractor a complete set of instructions for the guidance of the
contractor. Two procedures were outlined ; the first pertained to
finishing concrete placed and cured under the contract prior to the
issuance of said instructions, the second procedure outlined a more
timely method of finishing to be applied on subsequent work. The
contractor complied with the instructions as outlined and by letter
dated 27 November 1941 (attached as Inclosure No. 2) pre-
45 sented a bill in the amount of $864.07 for finishing 5,330
sq. ft. of concrete surface. The District Engineer by letter
dated 10 December 1941 (Exhibit F of Findings of Fact) denied
the contractor’s request for additional payment on the grounds
that the work performed was within the intent of the specification.
The subsequent history is as outlined in paragraph 4 of the original
Findings of Fact dated 2 June 1943.”
44. Thereafter on June 19, 1944, the plaintiff filed with the
yom Engineers a memorandum in further support of its
appeal.
45. The Acting Chief of Engineers by letter of July 31, 1944,
forwarded to plaintiff his decision denying the plaintiff’s appeal
which provided in pertinent part as follows:
“You claim additional compensation in the amount of $7,082.74
for finishing concrete in a manner allegedly not required by the
contract specifications. It is not now contended by you that an
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34 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
appeal was taken within thirty days from the date of the contract-
ing officer’s decision denying your claim in the amount of $862.42
for finishing concrete erected in 1941 as required by paragraph
1-20 of the contract specifications. Thus further consideration of
this item is precluded. In regard to the item of $6,220.32 for
finishing concrete erected in 1942, the only question involved is
whether instructions issued by the Contracting Officer for said
work exceed the requirements of the contract. An examination
of the applicable provisions of the specifications and the instruc-
tions issued by the contracting officer clearly show that the claim
for this item was properly denied. Paragraph 7-05 (d) of the
specifications requires you to finish the concrete surfaces, ‘* * * as
directed by the contracting officer * * * without any compensa-
tion in addition to that provided in the contract unit prices for
concrete. This provision does not obligate you to comply with
arbitrary instructions issued by the contracting officer. It does
require you, however, to comply with any reasonable instructions
of the contracting officer and to finish the concrete in a sightly
and workmanlike manner. The instructions issued by the con-
tracting officer for finishing ‘new concrete work’ are reasonable
and represent the minimum requirements for a workmanlike job.
Your appeal for additional compensation for finishing concrete is
therefor denied.”
A reconsideration of the appeal was thereafter requested on
behalf of the plaintiff and on October 1, 1946, the Chief
46 of Engineers reaffirmed the action by the Acting Chief of
Engineers of July 31, 1944, referred to above.
46. The plaintiff appealed the decision of the Chief of Engineers
to the War Department Board of Contract Appeals. The presi-
dent of this Board on January 10, 1947, as the Authorized Rep-
resentative of the Secretary of War, dismissed the appeals follow-
ing the decision of the Board which found that it had no jurisdic-
tion to entertain them.
47. On monoliths Nos. 1 through 17, 5,330 square feet of con-
crete surface was treated in accordance with the direction of the
contracting officer. The plaintiff by its letter of November 27,
1941, claimed a total of $864.07 for such surface treatment, item-
ized as follows:
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—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 35
Labor
Oct. 27/41 to and incl. Nov. 18/41
mn
FS ap ESSee
SSRERaS
124 hours @ $1.50 per hour
127 hours @ $1.25 per hour
522.5 hours @ $0.75 per hour.
20 hours @ $1.87 per hour
5 hours @ $2.25 per hour
6 hours @ $0.80 per hour
4 hours @ $1.125 per hour
Total labor 57
Less clean and plug form tie rod holes, 149 hrs, @ $0.75
| ee —111. 75
Balance due a/c labor. 682, 82
Rent of scaffold (swinging) ah 18. 00
Material of built scaffold______ 15. 00
2 carborundum stones 2. 50
2 trowels. 1.70
8 wire brushed [sic] 1.80
2 plaster brushes 2.10
2 bags cement 1.19 |
1 bag cement (white) 2. 50 |
0.2 ton sand 0. 40 |
Compension [sic] and other insurances @ $8.423 per hundred |
dollars of pay roll 57. 51
Total labor, material and accessories 785. 52 |
10% on the above to allow for overheads and profit 78. 55 |
IE 864. 07 |
47 No proof of damages relating to the claim was made
other than the claim itself.
48. The plaintiff claims as the extra cost to it of the concrete
finishing during 1942, in accordance with the directions of the con- |
tracting officer relating to new work, the sum of $6,070.19 itemized
as follows:
| SES eee $5, 934. 64
| | eee " 100. 00
Small tools______- 50. 00
Compensation, P. L. & P. D., $7.24 per H. of P. R 429. 67
State unemployment, 2.7% Ps 160. 24
Social Security, 1% 59. 35
| pate 6, 733. 90
Profit, 10%-_--_-_ aes ae 673. 39
Total 7, 407. 29
Chargeable to work as called for in the specifications, 27,944 S. F.
@ $.05 per S. F., incl. all insurances, bonds, profit, etec.._.__.__-- 1, 397. 20
Balance __ ™ 6, 010. 08
det achanietsnchinch 60. 10
Total Claimed, 1942 6, 070. 19
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36 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
It is noted that in the computation above a credit of five cents
per foot is allowed by plaintiff as the cost which it feels is properly
chargeable to it for the finishing according to the contract specifi-
cations.
Excepting such credit shown, the entire claim is based upon
labor cost and other costs in turn based upon the cost of labor
with the further exception of $150 for material and labor. Since
as the secretary of the plaintiff testified, certain original pay roll
records have been lost due to some cause beyond his knowledge, it
is not possible to verify the extra cost of concrete finishing in 1942
relating to new work.
Respectfully submitted.
Wut E. Day,
Commissioner.
49 Proceedings following filing of Commissioner's report
On August 24, 1951, plaintiff filed a motion for leave to amend
the petition.
On September 4, 1951, the court entered the following order on
said motion:
“Motion to amend petition allowed insofar as it modifies or
increases the amounts claimed, and overruled otherwise.”
On December 5, 1951, plaintiff filed its first amgnded petition,
which is as follows:
51 In the Court of Claims of the United States
[Title omitted. ]
First amended petition
Filed December 5, 1951
To the Court of Claims of the United States:
The amended petition of the plaintiff respectfully represents
that:
I
1. The plaintiff is, and at all times hereinafter referred to was,
a corporation organized and existing under the laws of the State
of New York, with its principal place of business in Binghamton,
New York.
2. The plaintiff has, at all times, borne true allegiance to the
Government of the United States and has not in any way volun-
tarily aided, abetted or given encouragement to rebellion against
the said government.
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 37
52 3. On or about March 29, 1941, the United States Army
Engineer Office at Binghamton, New York, invited bids for
the construction of Flood Protection Project (Section No. 1)
along the right bank of the Chemung River within the limits of
the City of Elmira, Chemung County, New York. The plaintiff,
in response to such invitation, submitted a bid in the fixed amount
of $232,669.30 which, cn April 29, 1941, was accepted. Pursuant
to such bid and acceptance, there was subsequently executed Con-
tract No. W-321-eng-261, dated May 14, 1941 (hereinafter re-
ferred to as the “contract”), a copy of the material portions of
which is annexed hereto. Such contract was an authorized and
binding obligation of the defendant.
II
4. Under the provisions of the Act of August 30, 1935, 49 Stat.
1011—the so-called Davis-Bacon Act—the contract was required
to, and did, contain a provision obligating the plaintiff to pay not
less than the wages determined by the Secretary of Labor to be
prevailing for the corresponding classes of laborers and mechan-
ics employed on projects of a character similar to the contract
work in the territorial area in which such work was to be per-
formed. In the Specifications for the work covered by the con-
tract, which Specifications, dated March 29, 1941, were issued as
of the date thereof in connection with the advertisement for bids
as the basis upon which such bids were to be made, and which were
appended to and made a part of the definitive contract, the repre-
sentation was made that the Secretary of Labor had determined
the prevailing wage rates in the locality; and such rates were set
forth in Paragraph 1-31 of the Specifications. Among the rates
so given were the following:
Designation Wage rate, hourly
Carpenters, journeymen aati las linia $1. 00
s + t * a
Laborers, unskilled a - 50
Laborers, concrete puddlers me . vo
s * * e te
5. The plaintiff, acting on the basis of the wage rates stated
in the Specifications, as it was invited and entitled to do, com-
puted and submitted its bid. Subsequent to the acceptance of such
bid and after the execution of the definitive contract, the plaintiff
discovered that the wage rates for the classifications of labor
referred to above in Paragraph 4 were not in fact the prevailing
rates for such labor as determined by the Secretary of Labor,
neither as of the time of the issuance of the Specifications, the
Sin isieinisigbonbiemninnatci
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38 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
acceptance of the bid, nor the execution of the contract; and that
the Secretary of Labor in at least one instance, namely, on March
4, 1941, had determined the prevailing wage rates in the locality
for these classifications of labor on a similar project to be higher
than those stated in the Specifications of March 29, 1941, as
follows:
Designation Wage rate, hourly
Coapemiets, FOO MOG.. 2.0. 212i niin ows $1. 125
* * + &
Laborers, unskilled______---_- . 55
Laborers, concrete puddlers . 55
+. * os a es
Such determination of the Secretary of Labor was still in effect
and unmodified on March 29, 1941, and the Specifications issued
by the defendant on such latter date were defective and misleading
in failing to reflect such determination.
54 6. Upon commencing work under the contract, the plain-
tiff was unable to procure labor of these classifications at
the rates stated in the Specifications, and was in fact obliged to
pay higher rates, as follows:
Designation Wage rate, hourly
Carpenters, journeymen_._._-_-_---- = $1. 125
* * - - .
eS, re ssbesmsiarenninnninnesioninn ee . 625
Laborers, concrete puddlers " a
* o * 2 e
7. The plaintiff was entitled to, and did, rely upon the wage
rates stated in the Specifications as being in accordance with the
most recent determinations by the Secretary of Labor of the wage
rates prevailing for the corresponding classes of workmen on
similar projects in the area; and was entitled to, and did, prepare
and submit its bid on this assumption. When, after the acceptance
of its bid and the execution of the contract, it discovered the error
in the representations made to it, it was entitled to be reimbursed
at the higher rates which it was required to pay in order to per-
form the contract work, to the extent that such higher rates were
equivalent to the prevailing rates fixed by the Secretary of Labor
in her determination of March 4, 1941. The plaintiff duly re-
quested such reimbursement by appropriate adjustment in the
contract price, but the defendant wrongfully denied such request.
8. The failure of the defendant so to adjust the contract price
has resulted in injury and damage to the plaintiff in the amount of
$9,525.44, payment of which the plaintiff has duly demanded but
which the defendant has wrongfully refused.
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 39
55 Ill
9. The 6214¢ hourly wage rate with respect to iaborers (both
unskilled and concrete puddlers) which the plaintiff was obliged
in fact to pay in order to procure labor to perform the contract
work was, in fact, the prevailing hourly rate in the locality at
the time of the issuance of the Specifications, the acceptance of
the bid, and the execution of the contract; and the 55¢ rate
fixed in the Secretary of Labor’s determination of March 4, 1941,
was less than the actual prevailing rate at such times. The
failure of the defendant to make an accurate representation in
the Specifications to the plaintiff with respect to the hourly rate
actually prevailing at the time of the issuance of the Specifications,
was a breach of the defendant’s obligation to state such prevailing
rates correctly and not to mislead the plaintiff by representing
that the prevailing rates were lower than they were in fact.
Because of the fact that the plaintiff was obliged to pay the 6214¢
prevailing rate in order to procure labor to perform the contract
work, the plaintiff was entitled, in addition to the claim herein-
above described under Section II, to be further reimbursed for
the difference between the 55¢ rate for laborers fixed in the Secre-
tary of Labor’s determination of March 4, 1941, and the 6214¢
hourly rate actually prevailing at the time of the issuance of the
Specification, the acceptance of the plaintiff's bid, and the execu-
tion of the contract, which 6214¢ rate the plaintiff was required to,
and did, pay. Plaintiff duly requested such reimbursement but
the defendant wrongfully denied such request.
10. The failure of the defendant to make such reimbursement
has resulted in injury and damage to the plaintiff in the amount of
$6,071.94, payment of which the plaintiff has duly demanded but
which the defendant has wrongfully refused.
56 IV
11. Paragraph 7-05 (d) of the Specifications contained a de-
tailed description of the manner in which, and the materials with
which, the concrete involved in the construction was to be finished.
In submitting its bid, the plaintiff was entitled to, and did, rely
upon the statements made in said Paragraph 7-05 (d) in com-
puting the cost to it of finishing such concrete. During the per-
formance of the contract, the defendant ordered and required the
plaintiff to finish the concrete in a manner and with materials not
specified in, or reasonably contemplated by, the Specifications,
with the result that plaintiff was subjected to unauthorized and
unanticipated costs, reimbursement of which was duly requested
by the plaintiff but wrongfully denied by the defendant.
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a
40 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
12. The defendant’s wrongful conduct in this respect has re-
sulted in injury and damage to the plaintiff in the amount of
$6,934.26, payment of which the plaintiff has duly demanded but
which the defendant has wrongfully refused.
V
13. Under the provisions of paragraph 3-06 of the Specifica-
tions, the plaintiff was required to furnish certain sheeting and
shoring. Subparagraph (c) of said Paragraph 3-06 provided
that such sheeting and shoring was to be measured “by the square
foot of protected area”, and subparagraph (d) of said Para-
graph 3-06 provided that payment for sheeting and shoring
would be made at the contract unit price of Sixty-five Cents
($0.65) per square foot, as stated in the Schedule of Payments
annexed to and made a part of the contract.
57 14. In computing its bid, the plaintiff was entitled to,
and did, rely upon the statements contained in Paragraph
3-06 as to the measurement of sheeting and shoring by the square
foot of protected area, and computed its bid on the basis of square
footage of the area required to be protected. During the perform-
ance of the contract, however, the defendant refused to pay the
plaintiff for sheeting and shoring in accordance with the square
footage of the protected area, and, instead, followed an arbitrary
and unauthorized method of measurement, not in accordance with
the Specifications, which resulted in the underpayment of the
plaintiff for sheeting and shoring. Although the plaintiff duly
requested payment of the proper amount as contemplated by the
contract, such request was wrongfully refused by the defendant.
15. The wrongful conduct of the plaintiff in this respect resulted
in injury and damage to the plaintiff in the amount of $14,785.55,
payment of which the plaintiff has duly demanded but which
the defendant has wrongfully refused.
VI
16. Although the plaintiff duly and formally protested to the
Contracting Officer the wrongful actions complained of above, the
Contracting Officer refused to afford the plaintiff any relief, and,
upon appeal to the Chief of Engineers, was upheld by the latter.
Appeals by the plaintiff to the War Department Board of Con-
tract Appeals were, on January 14, 1947, dismissed for an asserted
lack of jurisdiction. Except as hereinbefore referred to in this
Paragraph 16, no action on the claims has been taken by Congress
or by any department of the government.
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-
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 41
58 17. The plaintiff is justly entitled to recover from the
defendant the aggregate sum of $37,317.19, after allowing
all just credits and offsets.
18. The plaintiff has made no assignment or transfer of the
claims or any part thereof, and no persons other than the plaintiff
are owners of the claims or of any interest therein.
Wherefore, it is respectfully prayed that judgment be granted
against the defendant and in favor of the plaintiff for the sum of
$37,317.19, together with such costs as may be properly allowable
to it in respect of this suit.
JEROME BEAvupRIAs,
Attorney for Plaintiff, Office and Post Office Address,
83-85 Warburton Avenue, Yonkers 2, New York.
59 [Duly sworn to by Jerome Beaudrias; jurat omitted in
printing. ]
60 [Contract omitted. Printed side page 10 ante.]
64 [Specifications omitted. Printed side page 14 ante.]
71 Argument and submission of case
On April 8, 1952, the case was argued and submitted on merits
by Mr. Jerome Beaudrias for plaintiff, and by Mr. James J.
Sweeney for defendant.
73 Special findings of fact, conclusion of law and opinion of
the court by Whitaker, J.
Filed October 7, 1952
Mr. Jerome Beaudrias for the plaintiff.
Mr. James J. Sweeney, with whom was Mr. Assistant Attorney
General Holmes Baldridge, for the defendant.
The Court, upon the evidence, the report of Commissioner Wil-
liam E. Day, and the briefs and argument of counsel, makes the
following
Special findings of fact
1. Plaintiff is, and at all times material herein has been, a
corporation organized and existing under the laws of the State
of New York with its principal office and place of business at
Binghamton, New York. Since its formation in 1929, it has
been engaged in business as a general contractor.
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— , a
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
2. On March 29, 1941, defendant, acting by and through the
War Department’s Corps of Engineers’ Office at Binghamton,
New York, invited bids for the construction of Flood Protection
Project (Section No. 1) along he north bank of the Chemung
River, within the limits of the city of Elmira, Chemung County,
New York. In response to said invitation, plaintiff submitted a
bid based upon a unit price applied to the various operations in-
volved in the performance of the work in the total sum of $232,
669.30. This bid was accepted by defendant on May 14, 1941,
On that date plaintiff and defendant entered into a written
contract, No W-321-eng-261, which was approved June 3,
74 1941. On June 5, 1941, defendant gave plaintiff a formal
notice to proceed with the work. Actual work commenced
on the site of the job on June 3, 1941.
3. The contract was performed by plaintiff, and it has been paid
the contract price, as adjusted, for change orders with the excep-
tion of $100 which plaintiff instructed the District Engineer to
withhold, and plaintiff has refused to accept said $100 from de-
fendant on advice of its counsel.
4. Plaintiff sues for the sum of $37,317.19, the total of three
separate claims, as follows:
Claim for reimbursement of wage rates paid to carpenters la-
borers, and concrete puddlers_____-__---------------------- $15, 597. 38
Claim as regards measuring of sheeting and shoring__.._______ 14, 785. 55
Claim for finishing of concrete 6, 934. 26
Total 37, 317. 19
Each claim will be discussed separately.
WAGE RATES
5. Before bidding, plaintiff was furnished a copy of the specifi-
cations. Section 1-31 of such specifications reads, insofar as
here pertinent, as follows:
“1-31. Wage and Labor Provisions—(a) The Secretary of
Labor has determined the minimum wage rates applicable in the
locality for the labor classifications anticipated to be used on the
work. In accordance with Article 17 of the contract, »mployees
at the site shall be paid not less than these wages as listed below:
Designation Wage rate, hourly
Carpenters, journeymen $1. 00
* s e e e
Laborers unskilled 0. 50
Laborers, concrete puddlers_ 0. 50
> * s s eo
ee
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_—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 43
6. Article 17 of the contract reads as follows:
“ArTicLeE 17. Rate of wages (in accordance with the act of
August 30, 1935, 49 Stat. 1011 (U. S. Code, title 40, sections 276a
and 276a-1), this article shall apply if the contract is in excess of
$2,000 in amount and is for the construction, alteration, and/or
repair, including painting and decorating, of a public building
or public work within the geographical limits of the States of the
Union or the District of Columbia).
75 “(a) The contractor or his subcontractor shall pay all
mechanics and laborers employed directly upon the site
of the work, unconditionally and not less often than once a week,
and without subsequent deduction or rebate on any account, the
full amounts accrued at time of payment, computed at wage rates
not less than those stated in the specifications, regardless of any
contractual relationship which may be alleged to exist between
the contractor or subcontractor and such laborers and mechanics;
and the scale of wages to be paid shall be posted by the contractor
in a prominent and easily accessible place at the site of the work.
The contracting officer shall have the right to withhold from
the contractor so much of accrued payments as may be considered
necessary by the contracting officer to pay to laborers and me-
chanics employed by the contractor or any subcontractor on the
work the difference between the rates of wages required by the
contract to be paid laborers and mechanics on the work and the
rates of wages received by such laborers and mechanics and not
refunded to the contractor, subcontractors, or their agents.
“(b) In the event it is found by the contracting officer that any
laborer or mechanic employed by the contractor or any subcon-
tractor directly on the site of the work covered by the contract
has been or is being paid a rate of wages less than the rate of
wages required by the contract to be paid as aforesaid, the Govern-
men* may, by written notice to the contractor, terminate his right
to proceed with the work or such part of the work as to which there
has been a failure to pay said required wages and prosecute the
work to completion by contract or otherwise, and the contractor
and his sureties shall be liable to the Government for any excess
costs occasioned the Government thereby.”
7. On October 22, 1940, the Elmira business agent of the United
Brotherhood of Carpenters and Joiners of America, Local 532,
wrote to the United States Engineer’s Office in Binghamton,
New York, to inform it that the wage scale for carpenters would
be increased as of January 1, 1941, from $1 per hour to $1.125 per
hour. On October 29, 1940, the District Engineer acknowledged
receipt of this letter.
a
44 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC,
8. On January 31, 1941, the Secretary of Labor furnished to
the Corps of Engineers at its request, for inclusion in the contract
specifications, the schedule of minimum wages in the Elmira area,
Such schedule, which is set out in finding 5, was included
76 ‘in the specifications which were furnished to plaintiff prior
to the computation of its bid. As stated in finding 2, in-
vitations for bids were issued on March 29, 1941, and plaintiff’s
bid was accepted on May 14, 1941.
9. On March 4, 1941, the Secretary of Labor furnished to the
Public Buildings Administration of the Federal Works Agency a
schedule of minimum wages in the Elmira area for inclusion in
the bidding specifications and contract for a Federal Housing
Project in Elmira, New York. The prevailing wage rates shown
therein, in pertinent part, were as follows:
Classification Hourly rate
Carpenters, journeymen____----------~-------------- $1. 125
Laborers, unskilled_____._----_--_-- 55
10. Plaintiff employed only union labor on this project. At
the time plaintiff began work on the site on June 3, 1941, it had
to pay $U.625 per hour for laborers and $1.125 per hour for car-
penters. The carpenter wage rate had been put into effect by the
union on January 1, 1941, and the laborer wage rate on April
1, 1941.
11. On June 16, 1941, plaintiff advised the District Engineer
(who was the contracting officer) that the minimum wage rates
provided in the contract specifications were less than the rates
currently prevailing in the Elmira locality for carpenters, laborers
(unskilled), laborers (concrete puddlers), and truck drivers.
12. The District Engineer replied on June 27, 1941, stating that
the minimum wage rates were determined in strict accordance
with the applicable law and regulations, and that he could not
afford relief for any differences between wage rates then prevailing
in the area and the minimum rates required by the contract
specifications.
13. Plaintiff protested this decision to the Chief of Engineers
under date of July 10, 1941, and on August 5, 1941, plaintiff's
appeal was denied by the Chief of Engineers in part as follows:
“There is no authority in law for this office to question the cor-
rectness of any determination made by the Secretary of Labor
pursuant to the provisions of the above cited act [49 Stat. 1011].
Therefore, I find that the wage rates as established by the Secre-
tary of Labor, and incorporated in the contract specifica-
77 ~—‘ tions were the minimum wage rates applicable in the
locality for the labor classifications anticipated to be used
on the work.”
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 45
14. Plaintiff under date of February 20, 1943, asked defendant
to reconsider its appeal regarding minimum wage rates, and this
was responded to by letter dated April 13, 1943, from the Chief
of Engineers, in part as follows:
“A determination as to the accuracy of the specified wages is
not necessary to a decision in this case. The contract by Article
17 and by paragraph 1-31 of the specifications provides that wages
not less than those specified shall be paid. The contract makes no
representation as to the availability of labor aor as to the actual
wage scales that would be in effect. The alleged increased costs did
not result from your contract obligation but from economic con-
ditions which are ordinary contingencies contemplated under the
terms of the contract. No reason has been shown which would
warrant modification of the previous decision dated August 5,
1941.”
15. Paragraph 1-12 of the Standard Government Form of In-
vitation for Bids, a copy of which was furnished to plaintiff, pro-
vides as follows:
“Investigation of Conditions.—Bidders are expected to visit the
locality of the work and to make their own estimates of the facili-
ties needed, the difficulties attending the execution of the pro-
posed contract, including local conditions, availability of labor,
uncertainties of weather, and other contingencies. In no case
will the Government assume any responsibility whatever for any
interpretation, deduction, or conclusion drawn from the examina-
tion of the site. At the bidder’s request, a representative of the
Government will point out the site of the proposed operations.
Failure to acquaint himself with all available information con-
cerning these conditions will not relieve the successful bidder of
responsibility for estimating the difficulties and costs of success-
fully performing the complete work.”
16. If plaintiffs president had investigated wage rates, he
could have ascertained that the prevailing wage for carpenters
was $1.125 per hour, and that the prevailing rate for unskilled
labor was $.55 per hour, with an advance to $.625 per hour, effec-
tive as of April 1,1941. Also, before inviting bids on this project,
the District Engineer could have ascertained that the Sec-
78 retary of Labor had made a new determination of the pre-
vailing wage rates for Elmira on March 4, 1941.
17. Because plaintiff was required to pay $1.125 per hour to
carpenters instead of $1 per hour, as shown in the bid proposal and
contract wage schedule, its labor costs were increased $3,786.68.
Similarly, plaintiff's labor costs for unskilled laborers and con-
crete puddlers were increased $3,576.54 as the result of the pay-
ment of the $0.55 per hour rate instead of the $0.50 per hour rate
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46 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
specified in the contract wage schedule. The total of these
amounts, which includes plaintiff’s increased payroll insurance
and taxes, is $7,363.22.
SHEETING AND SHORING
i8. The contract specifications provide in part as follows:
SEOTION I
“1-14. Work Areas.—* * *
“(b) The contractor shall be responsible for trespassing upon,
or damage to, public and private lands and roads, bridges, build-
ings, chimneys, and utilities in or adjacent to the work and access
areas resulting from any act or omission on his part, including
damage caused by disturbance of foundations while conducting
any operation within the work area. The contractor shall take
special precautions to prevent injury to existing structures while
working in the vicinity of the Hygeia plant, Brand building,
greenhouse, gas regulation house, private dwellings, and all other
buildings and structures located at or close to the edge of the work
area. He shall take similar precautions in the vicinity of the pole
line crossing the levee at West Hudson Street, the water main at
approximate State 176+37, all power facilities at the Hygeia
plant, and any other utilities which will not be relocated.
* oJ s * a7
“(d) The garage and other property of the Hygeia Refrigerat-
ing Company are within the work area, and the activities of this
company will be carried on during construction of the project.
The contractor shall cooperate with this company during all con-
struction operations in order to preserve its access and permit its
operations to be conducted with a minimum of interfer-
79 ence by the contractor. The contractor shall perform the
necessary construction on the company’s property in the
least practicable time. He shall provide bracing or other protec-
tion satisfactory to the contracting officer for the garage wall
against which the new wall is placed. The garage and other prop-
erty within the work area shall be restored to a condition satis-
factory to the contracting officer upon completion of the permanent
work in that area.
& * * * s
“SEOTION III
“3.03. Excavation—Common. * * *
“(b) Procedure. (1) General. Excavation—Common shall
be performed in accordance with subparagraph 3-01 (c). Exca-
vation around bridge piers and abutments, existing walls, build-
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 47
ings, chimneys, transformers, power lines, utilities, sewers, cul-
verts, and other existing structures shall be executed with all due
precautions, satisfactory to the contracting officer, for safeguard-
ing the structures. (See paragraph 1-14.) Where special work
is required to prevent undermining existing structures, it shall
be done in accordance with detailed plans prepared by the con-
tractor and approved by the contracting officer, but such approval
shall not relieve the contractor of responsibility for damages
which may result from the failure of the temporary protection.
Where excavation operations endanger the stability of existing or
new structures, sheeting and shoring shall be installed at the
locations indicated on the drawings or directed by the contract-
ing officer. The contractor shall be responsible for the safety of
such structures. (See subparagraph (3) below and paragraph
3-06.) **_* *
* * * * *
“(3) Sewers, Culverts, and Drains.—The contractor shall fur-
nish and install sheeting and shoring in all trenches where the
depth exceeds 6 feet. * * *
* * ” * of
“3-4. Sheeting and Shoring.—(a) General—The contractor
shall furnish and place such sheeting, shoring, bracing, or other
approved supports as are indicated on the contract drawings or
directed by the contracting officer for the protection of the work or
adjoining property. The right is reserved to order the installa-
tion of sheeting and shoring where its use is considered
8) advisable for the safety of the work, and to require such
sheeting and shoring to remain in place when its removal is
considered inadvisable.
“(b) Procedure.—All sheeting and shoring shall be designed by
the contractor and approved by the contracting officer prior to
installation, but such approval by the contracting officer shall not
relieve the contractor of sole responsibility for damages resulting
from the inadequacy or lack of any sheeting and shoring. The
sheeting and shoring shall be built to provide adequate clearances
for minimum interference with construction operations, proper
bracing for stability, and safe conditions around the work. If,
in the opinion of the contracting officer, any methods or measures
of the contractor constitute a hazard in any way or are otherwise
improper or inadequate, the contracting officer will notify the
contractor of that fact in writing. If the contractor fails to pro-
vide immediately such remedial measures as are deemed necessary
by the contracting officer, such measures will be provided by the
contracting officer at the expense of the contractor. When sheet-
ing and shoring have served their purpose and their removal is
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48 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
approved by the contracting officer, they shall be removed and
disposed of. Whether sheeting and shoring are removed or left
in place, all cavities shall be adequately filled. When approved by
the contracting officer, sheeting and shoring may be used in lieu
of excavation to full pay lines.
“(c) Measurement.—Sheeting and shoring will be measured by
the square foot of protected area.
“(d) Payment.—Except as specified below, payment for all
costs of furnishing and placing sheeting and shoring indicated on
the contract drawings or directed by the contracting officer, and of
its removal and disposal when not left in place, will be made at the
contract unit price for “Sheeting (Including Shoring) ,” Item No.
7. Where sheeting and shoring are used at the contractor’s option
and with the approval of the contracting officer, separate payment
will not be made for the sheeting and shoring, but payment will
be made for excavation to the pay lines shown on the contract
drawings as though the cut had been made to such pay lines.”
19. The schedule of payments incorporated into the contract in
suit provided in item 7 that the plaintiff was to be paid for sheeting
(including shoring) on a quantity of 9,200 square feet at the rate of
65 cents per square foot, or a total of $5,980.
81 20. Section 1, paragraph 1-05, provides in pertinent part
as follows:
“1-05. Quantities—The following estimate of quantities is
given only to serve as a basis for comparison of bids and for de-
termining the amount of consideration of the contract;. Within
the limits of available funds, the contractor will be required to
perform the entire quantity of work necessary to complete the
work specified in paragraph 1-02 hereof, be it more or less than
the amounts herein estimated.
* + + * *
“Item No. 7 Sheeting (Including Shoring) 9,200 Sq. Ft.”
. * * * *
21. As the work progressed, the plaintiff placed sheeting and
shoring necessary for the protection of the work as well as that
necessary for the protection of existing buildings and structures.
Payment was made on account of such sheeting and shoring, as
well as the other work performed by the plaintiff, on monthly esti-
mates prepared by defendant’s resident engineer and given to
plaintiff's superintendent together with a payment voucher for
execution on behalf of plaintiff. The plaintiff executed such pay-
ment vouchers and forwarded them along with each monthly esti-
mate for payment by the defendant’s paying office. On the second
such monthly estimate forwarded with a payment voucher by
plaintiff, an item of 438 square feet of sheeting, including shoring,
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_
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 49
| "appears under item 7. On subsequent monthly estimates sup-
porting payment vouchers, under item 7 appears a figure covering
additional sheeting, including shoring. The plaintiff accepted
monthly payments on such payment vouchers without question as
to the manner of computation of the sheeting (including shoring)
item until the final estimate was received by the plaintiff showing
a total of 10,152 square feet.
92. After all of the work under the contract had been performed,
the defendant, through the resident inspector, forwarded pro-
d final estimate on January 21, 1943. On January 28, 1943,
plaintiff’s superintendent, Mr. Bernard Gabriel, went to the office
of the District Engineer at Syracuse, New York, and conferred
with a representative of that official concerning claims for addi-
tional payments on various contract items including sheet-
82 ingand shoring. Following this conference, the plaintiff
received a letter dated February 1, 1943, from the District
Engineer in which it is stated that:
“In computing pay quantities the following methods were used
by this office.
“Sheeting—Computations based on field measurements of
length and height of sheeting placed.”
23. The plaintiff was paid at the rate of 65 cents per square foot
for 10,152.1 square feet of sheeting and shoring. Of this amount
6,738.2 square feet was for the protection of the work, and 3,413.9
square feet was for the protection of property. The plaintiff
claims that it should have been paid for 32,899 square feet, 8,094
square feet for the protection of the work, and 24,805 square feet
for the proptection of property.
As to the sheeting and shoring required for the protection of the
work, it is plaintiff's position that the protected area was the
area of side walls of trenches excavated where sheeting was placed.
On many items concerning sheeting placed for protection of the
work, the allowance was as great or greater than that claimed, ex-
cept for 50 square feet of sheeting claimed at the Walnut Street
Bridge, which the defendant allowed under sheeting placed for
the protection of property. The evidence is not satisfactory as to
the measurements by which either the amount claimed or allowed
was computed.
As to the sheeting and shoring required for the protection of the
property, plaintiff’s claim is based not upon the amount of sheet-
ing or shoring placed, but rather upon the ground area covered
by the buildings and structures so protected. The ground area
of the buildings and structures which was protected by sheeting
and shoring is shown below:
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—
50 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
Ground area of buildings and structures as to which sheeting and shoring
was provided
Square
eet
rent TI 65 iene sin oe secnneneensecnen 175 x 68 11, 900
NN i oan resign ppeerespa elmo beeeen ener saan 815 x 6 1, 890
Ge CE FEF nk cin ss eens 54 x 60 3, 240
House (Connolly Ave.) ...........---~--~-~------..-- 35 x 25 875
Florist Shop (Walnut St.) ------------- See EEA 30 x 30 900
eI 0 WR TIE oe atc kienmrnawc ou 240 x 25 6, 000
| ean ee 24, 805
83 24. The plaintiff on February 9, 1943, wrote to the Dis-
trict Engineer requesting that the defendant recompute the
allowance for sheeting and shoring.
“* * * by ascertaining the square footage of the area protected
by the work performed under this item, pursuant to paragraph
3-06 subdivision (c) and that we be paid therefor at the unit price
of said item. * * *”
The defendant reviewed plaintiff's protests and on February 18,
1943, wrote plaintiff that the item had been measured and com-
puted in strict accordance with the provisions of the contract
specifications, and the contractor was invited to present additional
facts or computations for consideration.
25. The plaintiff failed to accept this invitation but rather by
letter dated February 24, 1943, returned a final release of claims
wherein was listed an exception to the method of computing the
final quantity of sheeting and shoring.
26. Receipt of the release was acknowledged by letter dated
March &, 1943, and the plaintiff was advised of his further rights
of appeal under Article 15 of the contract.
27. On March 19, 1943, vlaintiff appealed the decisions of the
contracting oflicer to the Secretary of War, and on July 31, 1944,
the appeal was denied. This denial reads in part as follows:
“You allege that the method used by the contracting officer in
computing the pay quantities for sheeting (including shoring)
was incorrect. Paragraph 3-06 (c) of the contract specifications
states that sheeting and shoring, ‘* * * will be measured by the
square foot of protected area.’ The record shows that the pay
quantities of sheeting placed adjacent to existing structures were
determined by measurements to specific payment lines where such
lines are shown on the drawings. Where specific payment lines
were not indicated, the quantities were computed by using the
length of the area actually sheeted and the difference in elevation
between the top of the sheeting and the bottom elevation of the ad-
jacent structures. The pay quantities for sheeting not placed
adjacent to any existing structure were computed by multiplying
the difference in elevation between the ground surface and the bot-
tom elevation of the trench by the length of the area sheeted. You
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 51
assert that because of the liability imposed by paragraph 1-14
(b) of the specifications for damages to structures in or
84 adjacent to the work, including damages caused by dis-
turbance of foundations, that the term ‘protected area’ as
used in paragraph 3-06 (c) must be construed to mean the ground
area occupied by the adjacent structures and that the computation
of pay quantities for sheeting placed to protect such structures
must be based on the area thereof. As noted above the payment
lines shown on the drawings for sheeting and shoring placed adja-
cent to the structures clearly indicate that the parties did not. in-
tend that payment should be made on the basis of the ground area
of the buildings. Furthermore, the estimates [sic] pay quantity
of sheeting was only 9,200 square fee approximately 10% less
than the quantity of 10,152 square feet for which payment was
made and only about 30% of the quantity for which payment is
claimed. The contract does provide, as contended by you, that the
quantities specified are only estimates. However, the buildings
which were to be protected were clearly indicated on the contract
drawings. The combined ground area of the buildings alone,
aside from the other locations where the plans indicated sheeting
was to be placed, is about 214 times the total area for which it was
estimated sheeting would be required. The payment lines indi-
cated on the drawing and the discrepancy between the ground
area of the buildings and the estimated quantity of the sheeting
should have put you or notice that the Government did not intend
that the pay quantities of sheeting and shoring placed adjacent to
existing structures would be computed on the basis of the ground
area of such structures. No objection has been made of the
method employed by the contracting officer in computing pay
quantities for sheeting not placed adjacent to structures. As the
ground area occupied by a structure has no direct relation to the
cost of placing sheeting and shoring adjacent to it, there would
appear to be no reason to compute the pay quantities of sheeting
placed adjacent to such structures on the basis of the ground area
occupied and to compute the pay quantities of sheeting not so
placed on an entirely different basis. Under paragraph 1-14 (b)
of the specifications you are liable for damages to land as well as
tostructures. If your contention that the pay quantities of sheet-
ing placed adjacent to existing structures must be computed on
the basis of the ground occupied by said structures were to prevail,
it would logically follow that the pay quantities for sheeting not
placed adjacent to any existing structure should be computed on
the basis of the land area protected, even though such area
might conceivably comprise many acres. Such as [sic]
85 interpretation is obviously absurd. It is my finding that
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=,
52 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
the methods employed by the contracting officer for computing
the pay quantities of sheeting and shoring were correct.”
CONCRETE FINISHING
28. Article 15 of the contract provides as follows:
“ArticLte 15. Disputes—Except as otherwise specifically pro-
vided in this contract, all disputes concerning questions of fact
arising under this contract shall be decided by the contracting
officer subject to written appeal by the contractor within 30 days
to the head of the department concerned or his duly authorized
representative, whose decision shall be final and conclusive upon
the parties thereto. In the meantime the contractor shall dili-
gently proceed with the work as directed.”
Section 1-20 of the general provisions of the contract. specifi-
cations provides:
1-20. Claims, Protests, and Appeals.—(a) If the contractor
considers any work demanded of him to be outside the require-
ments of the contract or if he considers any action or ruling of
the contracting officer or of the inspectors to be unfair, the con-
tractor shall without undue delay, upon such demand, action, or
ruling, submit his protest thereto in writing to the contracting
officer, stating clearly and in detail the basis of his objections. The
contracting officer shall thereupon promptly investigate the com-
plaint and furnish the contractor his decision, in writing, thereon.
If the contractor is not satisfied with the decision of the contract-
ing officer, he may, within thirty days, appeal in writing to the
Chief of Engineers, whose decision shall be final and binding upon
the parties to the contract. Except for such protests or objections
as are made of record in the manner herein specified and within
the time limit stated, the records, ruling, instructions, or decisions
of the contracting officer shall be final and conclusive.
“(b) The Chief of Engineers has been designated by the Secre-
tary of War as his duly authorized representative to make final
decision and to take other action where the terms of the contract
require that such decision or action shall be ‘by the Head of the
Department concerned or his duly authorized representative.” All
appeals from decisions of the contracting officer authorized under
the contract shall, therefore, be addressed to the Chief of Engi-
neers, U. S. Army, Washington, D.C. The appeal shall contain
all the facts or circumstances upon which the contractor
86 bases his claim for relief and should be presented to the
contracting officer for transmittal within the time provided
therefor in the contract.”
Pertinent provisions of the contract specifications, Section VII,
dealing with the subject “Concrete” are quoted below:
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—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 53
SECTION VII. CONCRETE
* * * ~ *
“7.03. Proportioning and Mixing.—* * *
“(b) Proportioning. * * *
“(2) Control.—The exact proportions of all material entering
into the concrete shall be as directed by the contracting officer.
The contractor shall provide all equipment necessary to positively
determine and control the actual amounts of all material entering
into the concrete. The proportions will be changed whenever, in
the opinion of the contracting officer, such change becomes neces-
sary to obtain the specified strength and the desired density,
uniformity and workability, and the contractor will not be com-
pensated because of such changes, except for an increase in the
specified minimum unit paste content, as provided herein as
follows: In the event it is determined by the contracting officer
that concrete of the desired quality cannot be obtained with the
specified gradation of aggregates conforming fully to the specifi-
cations and the specified minimum unit cement content, he may
direct an increase in the unit paste content by the addition of
Portland cement, in which case compensation will be made there-
for at the cost to the contractor of the cement delivered f. o. b.
carrier at the site of the work, plus $0.40 per barrel.
* * * * *
“7_05. Details of Construction.—(a) Forms.—* * *
“(4) Removal.—Forms shall not be removed without the ap-
proval of the contracting officer, and all removal shall be accom-
plished in such manner as will prevent injury to the concrete.
Forms shall not be removed from walls and vertical faces before
the expiration of 2 days, except when specifically authorized by
the contracting officer. When, in the opinion of the contracting
officer, conditions on the work are such as to justify it, forms may
be required to remain in place for longer periods.
* * * a *
“(d) Finishing.—Immediately following removal of forms, all
form tie holes shall be filled, protruding fins or other surface irreg-
ularities removed by carborundum stone and all other de-
87 fects repaired. Where necessary to obtain a suitable surface
finish, the contractor shall remove the forms and finish the
surfaces when and as directed by the contracting officer at no
additional cost to the United States. The curing specified in sub-
paragraph 7-05 (e) following shall be temporarily suspended
during such repairing or finishing as directed. The finished sur-
faces shall be free from sand streaks or other defects and the
plastering over of such surfaces will not be permitted. Defective
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54 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
concrete shall be repaired by cutting out the unsatisfactory mate-
rial and placing new concrete which shall be formed with keys,
dovetails, and anchors to attach it securely to the other work. This
concrete shall be drier than the usual mixture and shall be thor-
oughly tamped into place. All surfaces of concrete, not covered
by forms, that are not to be covered by additional concrete or
backfill shall have a wood float finish without additional mortar,
and shall be true to elevations as shown on contract drawings.
Striking-off and finishing shall follow closely the placing opera-
tion in order to insure completion before the initial set has taken
place. The contractor will not be permitted to start a pour unless
a sufficient number of qualified finishers are available to fulfil]
the above requirements. Care shall be taken to see that all excess
water is removed before making the finish. Other surfaces shall
be brought to the specified finished elevation and left true and
regular as approved by the contracting officer. Where considered
necessary by the contracting officer, or where indicated on the
drawings, joints shall be made carefully with a jointing tool.
Every precaution shall be taken by the contractor to protect fin-
ished surfaces from stains or abrasions. No fire shall be per-
mitted in direct contact with any concrete at any time. Concrete
surfaces or edges likely to be injured during the construction
period shall be properly protected by leaving the forms in place
or by erecting covers satisfactory to the contracting officer.”
29. Section 1, paragraph 1-11, Work Covered by Contract Price,
provides as follows:
“1-11. Work Covered by Contract Price.—The contractor shall,
under the contract prices, furnish and pay for all materials, equip-
ment, and labor for all permanent, temporary, and incidental work,
furnish all accessories, and do everything which is necessary to
carry out the contract in good faith, which contemplates every-
thing completed, in proper working order, of good materials with
skillful workmanship, accurately fitted, properly assembled, and
connected.”
88 30. The placement of concrete began on August 20, 1941,
and placement was made from time to time during that con-
struction season until October 24, 1941. During this time mono-
liths Nos. 1 through 17 were poured. The first concrete which
was placed above the foundation and as to which the plaintiff’s
claim for finishing relates was commenced on September 5, 1941.
31. From the time that the forms were stripped from the ex-
posed concrete lifts above the foundation, the defendant’s field
representatives complained to Mr. Gabriel, plaintiff’s superin-
tendent, of the poor faces on the exposed concrete. After mono-
liths Nos. 1 through 17 had been poured and the forms stripped
from the concrete, there were rust stains showing from the water
ee
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_—
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 55
pipes used in curing, and the concrete faces showing numerous
blemishes, pockmarks, and honeycombs. Protruding fins had not
been removed, and the form tie rod holes had not been filled.
32. Prior to October 29, 1941, defendant complained to plaintiff
regarding the tie holes not being plugged as required by para-
graph 7-05 (d) of the contract specifications.
33. Under date of July 28, 1941, plaintiff transmitted to defend-
ant some revised prints covering certain form details in the con-
struction of the wall and which made reference to the proposed
use of certain porcelain tubes or cylinders for the purpose of
putting bolts through said porcelain cylinders which could act
as spreaders and thereby increase or lessen the width of the forms.
34. Defendant, by letter dated August 4, 1941, approved plain-
tiff’s revised prints subject to certain provisions which in part
provided :
“(e) The approval as indicated above is predicated on pro-
ducing a finished concrete surface as contemplated in contract
specifications, and the right is reserved to require necessary revi-
sions in your form construction to provide uniform finished sur-
faces on all exposed faces.”
35. On October 15, 1941, defendant objected to the further use
by plaintiff of visible porcelain tubes which gave the appearance
of an unfinished job.
36. Under date of November 15, 1941, defendant wrote plaintiff
regarding the unused porcelain tubes and therein stated that
89 plaintiff would be allowed to use these tubes on unexposed
concrete wall surfaces and would be paid for the remaining
unused porcelain tubes.
87. The defendant has allowed payment for porcelain tubes
which were delivered by plaintiff to defendant but not used on the
job.
38. On October 20, 1941, the contracting officer addressed and
forwarded the following letter to the plaintiff:
“Reference is made tu Par. 7-05 (d), Finishing of Concrete
Surfaces, of your Contract No. W-321-eng-261 for the construction
of the Elmira Flood Protection Project, Section 1.
“TI have examined the concrete work constructed to date under
your contract and find that it has not been finished in accordance
with the provisions of the contract specifications. You are di-
rected to correct these deficiencies at once. My field representa-
tives will indicate the defective work and furnish details of the
required corrective measures.”
39. By letter dated October 29, 1941, defendant’s Resident
Engineer forwarded a detailed statement of corrective measures
to be taken by the contractor in two parts, the first relating to
the treatment of monoliths Nos. 1 through 17 which had then been
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a is
56 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
placed, and the second relating to the treatment of concrete which
had not then been placed. The detailed statement of corrective
measures provides as follows:
“METHOD OF TREATING EXISTING WORK
“The surface to be treated will be scrubbed with a wire brush
where necessary to clean out defective areas.
“Mix one part portland cement with two parts fine sand (similar
to that used on the project from which particles retained on the
No. 16 sieve has been removed) with water sufficient to produce
a grout having the consistency of very thick paint. If necessary,
white portland cement shall be added, replacing an equal quantity
of standard cement, in a quantity sufficient to give a color equal
to the concrete in the project. A test of the procedure and color
will be made on a panel which is to be covered with backfill. This
mixture shall be carefully worked out so that no difference in color
will result from the grout. This mixture shall be allowed to set
for 45 minutes before being used. The surface of the con-
90 crete to be treated shall be thoroughly wet, after which the
grout shall be applied with a brush or cloth completely
filling air bubbles and holes. Immediately after applying the
grout scour the wall vigorously with a cork or wood float. The
grout shall then be allowed to set partially for an hour or two,
depending on the weather, until it has hardened sufficiently so
that it can be scraped from the wall with the edge of a steel
trowel without removing the grout from th: small air holes.
Next allow the surface to dry thoroughly one or two hours or more
depending on the weather until the initial set occurs and rub it
vigorously with a burlap bag to completely remove any dried grout.
There shall be no visible film of grout remaining after this rub-
bing. The entire cleaning operation for any monolith shall be com-
pleted the same day it isstarted. Theentire exposed surface of the
monolith shall be treated in this manner. If any dark streaks or
spots remain after this operation they shall be rubbed lightly
with a fine carborundum stone. This rubbing must be carefully
done to avoid changing the texture of the concrete.
“After the grout has become thoroughly set (24 hours in warm
weather and 48 hours in cold weather) curing will commence and
continue for at least seven days. Curing shall be accomplished
by covering finished surfaces promptly with damp burlap or cot-
ton quilts. (Heating will not be necessary on old walls.)
“METHOD OF TREATING NEW CONCRETE WORK
“The forms on work that is to be exposed shall be removed as
soon as it is possible to do so without injury to the concrete. In
iiciissisittsieatanimsiiesiataaisl
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.
UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 57
warm weather (minimum 65° F., average 75° F.) this will be
approximately 24 hours after the completion of placing. In
colder weather the forms should be allowed to remain in place
approximately 48 hours.
“Immediately after the forms have been removed all fins or
other projections shall be broken off with a carborundum stone or
other suitable tool which will remove the projections without
marring the surrounding surfaces. Filling of form tie holes shall
be concurrent with the removal of fins, etc. This operation shall
be separate from general finishing and shall be accomplished with
retempered mortar. This mortar shall have the same sand-cement
ratio as the concrete in the original work. Sufficient water shall
be added to make a dry mixture. This mortar shall be thoroughly
mixed, allowed to set for one hour and then remixed before being
used. The material shall be thoroughly tamped into the tie
91 _ holes and care shall be taken not to smear or deface the sur-
rounding surfaces. Other patching of honeycomb or simi-
lar defects shall also be accomplished with sand-cement mortar as
described above. All patches shall bond with the steel reinforce-
ment and shall, if feasible, be dovetailed to the existing work.
Dish shaped patches with sloping sides shall not be permitted.
“Upon completion of repair work as outlined above, the entire
exposed surface shall be treated as follows:
“A thin sand-cement mortar shall be applied to the entire sur-
face with a steel trowel. This mortar shall be composed of one
part cement and two parts sand to which water shall be added
until the mortar has the consistency of very thick paint. If
necessary, white cement shall be used replacing an equal quantity
of regular cement so that the dry mortar will have the same color
_. as the concrete in the structure. Panels shall be experimented
with on concrete surfaces which will be covered in order to assure
this similarity in color. This application shall be sufficiently
vigorous to insure the complete filling of all pockmarks or other
blemishes. The sand for this mortar shall be the sand as regulaly
[sic] used in the concrete work except that the sizes retained on a
No. 16 sieve shall be removed. The mortar applied to the concrete
surface shall be allowed to set for one hour and the surplus shall
then be removed by scraping the surface lightly with the edge of
a steel trowel or steel float. After the lapse of sufficient time to
allow initial set or hardening of the mortar, the surface shall be
vigorously rubbed with Clean Dry Burlap which shall entirely
remove the mortar on the surface of the concrete. Initial curing
shall be commenced immediately after this operation and shall
consist of covering the finished surface with Clean Wet Burlap.
Normal water curing will commence 12 hours later. Finishing
of concrete surfaces shall be completed in the minimum possible
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58 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
time and in no case shall the finishing be extended over more than
a 12 hour period. (This is specified because the color of the fin-
ished surface may vary with atmospheric conditions and make
blending with adjacent finished surfaces difficult.) ”
40. Upon receipt of the letter and its enclosure referred to in
the foregoing finding, the plaintiff on October 31, 1941, addressed
the following letter to the contracting officer :
“Receipt is acknowledged of your letter of October 29th relative
to certain finishing which you desire us to do on the concrete —
already placed on this project. It seems wise at this time
92 to review briefly, for the record, the procedure which has
previously taken place and which must therefore be respon-
sible for the appearance of these concrete walls. Before reviewing
this procedure, let me state that we are already proceeding to do
as directed in your letter of October 29th, and that we will at all
times proceed with any of your instructions, our desire, however
being, of course, that we be protected insofar as the matter of
reimbursement to us, for any expenses plus normal profit incurred
in carrying out any such instructions, is concerned.
“The aggregates used in the Elmira work, gravel, sand, and
cement, were all previously approved by your representatives and
accepted for this work. The water is the same as that used by the
people of Elmira for drinking water and has also been approved
by your representatives. The characteristics of the mixture, inso-
far as the porportion [sic] of the component parts, was set by
your representatives after exhaustive tests on their part. The
form lining used was approved by your representatives and the
forms themselves compare in construction very favorably as to
strength, appearance, etc., with any used in the district, and this
we have on the authority of the Acting Chief of Operations. We
come, therefore, to the mixing and placing of the concrete, and at
all times these procedures have been directly and completely under
the control of your representatives. No latitude has been allowed
us for the carrying out of any opposing ideas we may have had in
this work, ideas which may or may not have secured a better
result, but in any event we were not allowed to try them out. We
must therefore, in view of all the above, respectfully suggest that
the responsibility for any result which may not appeal to you,
does not lie on our shoulders.
“It is our understanding that costs are being kept by your
representatives as well as by ourselves on the additional expense
that is now accruing because of the finishing operations which you
have directed, and that on the conciusion of these operations a
satisfactory settlement will be reached to reimburse us for this
expense. If this understanding is not in accordance with yours,
we should appreciate being advised at once.
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 59
“Your consideration and advice on all the above will be
appreciated.”
41. After monoliths Nos. 1 through 17 were treated in accord-
ance with the procedure outlined for existing work, the plaintiff
submitted on November 27, 1941, a request for the payment
of the sum of $864.07 covering the cost of such work.
93 This sum resulted after an allowance of $111.75 had been
deducted as the cost of filling form tie rod holes.
On December 10, 1941, the contracting officer by letter ac-
knowledged receipt of the above letter and stated as follows:
“T find that the finishing treatment required on your job is well
within the intent of paragraph 7-05 (d), and I cannot consider
additional payment for this work.”
Following receipt of the above letter, Mr. Fred Davis, vice
president of plaintiff, conferred with the District Engineer on
December 15, 1941. After this conference, the plaintiff addressed
the following letter to the contracting officer :
“As a result of a conference held this morning with the District
Engineer, Mr. Samples, and myself, my understanding of the
conclusions reached at this conference is outlined below.
“1, I understand that our company is not giving up any of our
rights to future consideration of our claim for the cost of the
treatment of the walls constructed during 1941 by reason of not
appealing at this time the decision of the District Engineer out-
lined in his letter of December 10th.
“2. That consideration will be given to payment by the United
States for any increase in our costs because of any change in the
kind of aggregates composing the concrete mixtures or ecause of
any change that may be prescribed in handling the concrete.
“3. That the treatment of the walls in the future will be modi-
fied, in that treatment will be required only on the land side of the
walls except that at bridge approaches where treatment shall be
on both sides of the walls for a distance of three or four monoliths
from the bridge approach; such treatment shall immediately
follow the removal of the forms and shall consist of rubbing the
concrete with carborundum [sic] stone and brushing with a light
coat of mortar if required. It will also, of course, be necessary
for us to block the holes at the form tie rods.
“We would appreciate knowing as to whether your understand-
ing is in general accordance with the above.”
42. The contracting officer replied by letter of Decembr 29, 1941,
as follows:
“Reference is made to your letter dated December 15, 1941, re-
garding your understanding of conclusions reached at a confer-
ence in my office on December 15, 1941, on concrete construc-
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60 UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC.
94 tion at the Elmira Flood Protection Project, Section No. 1,
Contract No. W-321-eng-261.
“Using the same numerical index as used in your letter you
are advised that conclusions reached in the conference were as
follows:
“1. Your right of appeal from my decision on payment for wall
treatment is established in Article 15 of the contract.
“2. Any redesign of concrete mixtures or required changes in
methods of handling concrete not within the scope of specifications
which causes increased cost will be cause for consideration of in-
creased payments to you.
“3. Treatment of walls will be required on the landside of all
walls and on the streamside of walls approximately 100 feet up-
stream and downstream of all bridges, approaches, or other simi-
lar places where relatively close scrutiny is easily attained. In ad-
dition to the above treatment regular patching of tie rod holes,
replacing unsatisfactory spots, repair of honeycombs, etc., will be
required on all surfaces in accordance with specification require-
ments.”
43. On February 9. 1943, the plaintiff filed a protest with the
contracting officer listing five items of claim but not including the
claim for concrete finishing. This was replied to by letter of Feb-
ruary 18, 1943, by the contracting officer, in which the following
statement is made:
“Tn view of the fact that your letter and this reply are repetitions
of previous protests and decisions, and that no progress is ap-
parent in the settlement of this dispute, it is suggested that, in
event you elect to prosecute this matter further, you arrange to
present detailed facts, computations, etc., either by letter or at
a conference in this office.”
On February 24, 1943, the plaintiff forwarded an executed copy
of a release dated February 19, 1943. In this release, the plaintiff
excepted a claim by reason of concrete finishing operations.
“* * * in a manner and to an extent not required by the con-
tract plans and specifications. * * *”
The plaintiff suggested in the letter transmitting the release
that $100 be withheld from payment due it on its final estimate.
In this letter the plaintiff also discussed the concrete finishing
claim and protested the sums allowed for the concrete items
95 in the final estimate and requested an opportunity to submit
detailed data as to the cost of performing this “additional”
work.
44, The contracting officer on March 5, 1943, sent the following
letter to plaintiff:
“Receipt is acknowledged of your letter dated February 2,
1943, transmitting executed copies of standard release form for
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UNITED STATES VS. BINGHAMTON CONSTRUCTION CO., INC. 61
Contract No. W-321-eng-261, and an application for reconsider-
ation of a previous appeal, addressed to the Chief of Engineers,
relative to minimum wage rate.
“Reference is made to the exception
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