# Transcript of Record — United States v. Binghamton Construction Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0021%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1954 - **Citation:** 347 U.S. 171 ## Text 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 BLURRED COPY BLEED THROUGH-— POOR COPY 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- BLURRED COPY 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: BLEED THROUGH— POOR COPY 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- BLURRED COPY we te 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 BLEED THROUGH- POOR COPY 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. BLURRED COPY 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 —— BLEED THROUGH POOR COPY —_—_ 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 BLURRED COPY 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). BLEED THROUGH- POOR COPY > 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 BLURRED COPY _ — 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 BLEED THROUGH— POOR COPY — 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 BLURRED COPY 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 BLEED THROUGH— POOR COPY _—_ 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 BLURRED COPY 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- BLEED THROUGH— POOR COPY =_ 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 BLURRED COPY 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 BLEED THROUGH POOR COPY 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. BLURRED COPY —Y 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. BLEED THROU GH— POOR COPY ——— 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.” BLURRED COPY 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 BLEED THROUGH— POOR COPY _ — - 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 BLURRED COPY 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 BLEED THROUGH POOR COPY 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 BLURRED COPY 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 BLEED THROUGH— POOR COPY — 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 : BLURRED COPY 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 BLEED THROUGH— POOR COPY — 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 BLURRED COPY a 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 BLEED THROUGH— POOR COPY — 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.” BLURRED COPY a 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 BLEED THROUGH— POOR COPY , 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 BLURRED COPY 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).” BLEED THROUGH— POOR COPY — . 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 BLURRED COPY Ty 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: BLEED THROUGH— POOR COPY — 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 BLURRED COPY a 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. BLEED THROUGH=— POOR COPY —_ - 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 BLURRED COPY 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. BLEED THROU GH— POOR COPY 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. BLURRED COPY 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. BLEED THROUGH POOR COPY - 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. BLURRED COPY — , 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 BLEED THROUGH=— POOR COPY _— 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.” BLEED THR OUGH=— POOR COPY — 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 BLURRED COPY 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- BLEED THROUGH— POOR COPY 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0021%3A1. Public record. Not legal advice.