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

Supreme Court brief1963

Ask Donna

What actually matters in this document.

Text

"Supreme Court of the United pater

OCTOBER TERM, 1962

No. 529

“UNITED STATES, PETITIONER | _ .

“CARLO BIANCHI AND COMPANY, INC,

ON WRIT OF CERTIORARI TO THE UNITED wane

COURT_OF CLAIMS,

INDEX »

. es Original *\ Print |

Proceedings in the United States Court of Claims \

Petition : . eo oe | 1

Exhibit ‘A’ Schedule of plaintit's in- ;

creased costs .. .. 16 ib

Answ eee etiam x - As

Testimony of niaintift and de fe nt int on Se ‘p- :

terober 24, 1956...°........-- 0p it 25

Appearances ° ./... ......... iat 2..." 25

Opening statement by aiiaail for plaintiff i 26..

Opening stateme nt by counsel for defend- ee ©

EE So csschnavicepneantnsintviave ohoanies = 9 30

Cama between. " Conimissiorier a coun-, ~~ —

sel . Ssiciakceanaeiald ea ee .33

Testimony of Thomas <R. Setiin: direct 19 38

cross ..... 65 - 70

- uy Thomas A. Coyne, direct... 68 _&

ii : | INDEX

Proceedings in’the United Sttaes Court of Claims—

Continued -

Plaintiff's Exhibit 1—Rasiod of cuit before

the Corps of Engineers Claims and «ese

Board, held on June 17, 1948... abil etnies

-Statement by Mr. Fox...... i eS

Statement by ‘Mr. McCarron......... sine SPN

Testimony of Thomas A. Coyne, direct......

- cross ....

redirect..

recross .

- Elford H. Richardson, direct

: cross..

redirect

Everett Diehl, direct.............. ae

Cross.............. a.

irving. B. Crosby, direct........

David C. Congleton, direct...

C. B. McGavock, Jr., direct..

cross..

Plaintiff's rN 2—Decision of the. Corps

of Engineers Claims and Apepals Board,

aa dated December 9, ° 1948. ............ SF EARP

Plaintiff's Exhibit $—Denial of plaintiff's mo-

tion for reconsideratjon by the Corps of En-

gineers Claims and Appeals Board on Jan->

wa <n Mere

Plaintiff's Exhibit 71— Letter dated February

10, 1948 from R. C. Dunn, Colonel, Corps of

Engineers of the Chief of Engineers..............

* Plaintiff's Exhibit 72—Letter dated February

10, 1948 from J. P. Campbell, Lt. Col., Corps

. of Engineers, Acting District Engineer, Con-

tracting Office to the Chief of Engineers..:...

Plaintiff's Exhibit 115—Letter dated Décem-

-- ber 20, 1948 from Charles A. McCarron to

L. E. Mielenz, Col., — of Engineers,

Claims and Appeals Board EE Ree EE

Original

BRO RRGs a >

pes

179

183

184

190 -

_ INDEX:

3) Grietent

Proceedings in the United Sttaes. Court of Claims—-- _

Continued

Excerpts’. from transcript of testimony. of

September 25, 1956

Testimony of Leslie FP. W orsell, direct

‘ ee cross /

redirect

Excerpts from transcript of testimony, of Sep-

tember 28, 1956...

Colloquy between Commissioner. and coun-

I a oscacatda casas castinsdzctendemsifansinnreacncsabiganssn

Testimony of Charles A. McCarron, direct

cross..

2 redirect

olin: Madden, J. of Janfary 14, 1959...

Findings of. fact......... [rece plenseesseeepeeecseceneceneennecens a

Conclusion of law........../...2..--- Gn eeuntaes

Opinion, per curiam, of. “May 19, a

iene Oh Gai FB cana esn feces soentes

Conclusion of. A ERS ONE RU ere eRe

- Order overruling motions for rehearing, ete.,. ;

Clerk’s certificate (omitted i in printing). Lae

Order allowing certiorari:;.................----..0-04+. ee canannan

.~ J

4‘

[fol. 1] ,

IN THE UNITED STATES COURT OF CLAIMS

No. 466-54

“ CaRLO BIANCHI AND COMPANY, INC., PLAINTIFF

UNITED STATES OF AMERICA, DEFENDANT

PETITION—Filed December 2, 1954

To. the Honorable Judges of the United States Court

of Claims: ?

-. The petition of Carlo Bianchi. and Company, Ine...

respectfully represents: ; .

1. Plaintiff is a corporation duly organized and existing

under the laws of the Commonwealth of Massachusetts,

with its principal office and place of business in the Town .

of Framingham, Massachusetts.

2.The defendant is hereinafter referred to as the

- “Government”. At all times pertinent to this claim, the

War Department, the Army Corps of Engineers, their

officers and civilian employees, who -participated in the

[fol.2] acts set out herein, were the duly, empowered,

authorized officers and agents of the Government, and

‘for the purpose of this petition, plaintiff says’ that

wherever the term, “Government”, is used herein, said

term is intended to include the War Department, U. S.

Army Corps of Engineers, and/or. any of their: officers,

agents, civilian employees, as the particular matter re-

ferred to may apply to the. governmental subdivision, or

to the individual or individuals participating. * ie

3. On or about July 3,’ 1946 plaintiff entered into a-

competitive bid contract with the Government ‘and iden-

tified more particularly as the Corps of Engineers, U. S.

Army, Appropriation: Flood Control, for the construction

of an éarthen dam across Canacedea Creek in Almond,

Steuben County, New York, in accordance with the specifi-

cations, schedules and drawings prepared by the Govern-

ment and made a part of said contract. The contract

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

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

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

the estimated consideration of $3,330,330.00.

' 4 Said contract provided that the work under the —

contract was to be commenced within ten (10) calen-

dar days after date of receipt by contractor of notice

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

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

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

r days after receipt of notice to proceed. This time

was subsequently extended and the Government agcepted

the work as completed on August 22, 1949. he

ffol.3] 5. Upon receiving the invitation to bid for the

contract work above mentioned, the plaintiff made the

~ -etistomary reasonable investigation of the site of the work —

~~ _and“ carefully examined the- specifications, schedules and

drawings rélating to. a diversion tunnel included in the

contract work. The specifications and drawings provided

that the diversion tunnel be 710 feet long, horseshoe

shaped, 13 feet in diameter and completely lined with

concrete. The contract drawings and Par. TP4-03 of the .

speciehtinne Comal that prior to lining the tunnel with

concrete, permanent tunnel protection was to be installed

for 50 feet in from each portal, this protection consisting

- of steel’ arch ribs covered with corrugated steel liner

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

tions provided that the arch ribs and liner plates should

be placed in the tunnel section where tunnel protection -

is indicated-on the drawings or where directed by the

Contracting Officer. Nothing in the specifications and

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

tiff was able to make revealed conditions hereinafter de-

seribed. As a result of said conditions, plaintiff was

required to and did install steel arch ribs and liner plates

throughout the entire length of the tunnel. Plaintiff was

paid only for:the 50 foot permanent tunnel protection ©

installed at the inlet and outlet portals. F

compensation for the’ additional work done and reim-

bursement for: the ree Recmne costs occasioned by Govern-

“

laintiff seeks . .

3 .

ment delays and other increased costs hereinafter referred.

to. *

6. The specifications, schedules and drawings contem- ©

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

except for a length extending 50 feet from each portal,

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

through, the roof thereof would be sufficiently stable to

- -“ffol: 4] be self-supporting without the necessity of in-

stalling permanent tunnel protection before the installa-

tion of the concrete lining.

- . The provisions of the specifications pertinent to the

installation of permanent tunnel protection are as follows:

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

tection shall be furnished and placed as required for”

distances of approximately the first 50 feet at each

end of the tunnel which includes the underground

portion of the outlet transition. Such tunnel _

tection conforming to the cross sectional shape of. the

tunnel and transition, shall consist of steel arch ribs

and corrugated steel liner plates as indicated on the

drawings or required, including tie-rods and spread-

ers. Liner plates shall be placed before the setting

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

- spaced, set to the designated grade and alignment,

and in-.a position normal to the tunnel axis. Each

rib shall be connected to each successive one by seven

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

. formly spaced. The contractor shall submit detailed

drawings indicating fabrication, splicing of ribs and

erection methods of the propased tunnel protection.

No material delivery shall be made prior to receipt

of the Contracting Officer’s written approval but

such approval shal] not relieve the Contractor of his

sole responsibility for damage resulting from the

inadequacy or lack of such protection. Steel for arch ©

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

necessary to tunnel protection shall be commercial

products and shapes having the. necessary physica]

and chemical qualities for the intended purpose and

shall be fabricated according to the best standard

practice. The erection of such tunnel protection shall

{fol. 5] be carried as close to heading blasting as is

. feasible without undue damage to tunnel protection

in plaee—

* 6. Steel Tunnel Protection Supports. Steel arch

‘rib tunnel protection supports shall be erected in the

tunnel sections where tunnel protection is indicated

on the drawings or directed by the Contracting Offi-

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

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

ings. The maximum center to center spacing shal] be

as designated. Suitable dowels shall be provided at

the invert to maintain foot of ribs in proper position.

Tie rods and spreaders shall be installed at the same

time ribs are set. Blocking and other timber required

for erection shall be furnished by the Contractor.

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

develop the full strength of the rib. Steel ribs shal!

be left in place and embedded in the concrete tunnel

‘ lining,

-é. Steel Liner Plates. Steel liner plates for tunnel

protection shall be placed in the tunnel sections,

where such protection material is indicated on the

_ drawings or directed, to furnish coverage for the tun-

nel roof gection above the spring line. The ends of

plates in adjoining rows shall be staggered and half

plates furnished where necessary for this“ purpose.

Liner plates shall be left in place and have concrete

tunnel. lining placed against their inner surfaces.

Liner plates shall be fabricated corrugated steel

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

the designated radius and pressed into the required

shape consisting of integral side with square corners

and the elongated holes for connecting bolts, similar

-and equal'to Armco Type 18-inch section.

TP4-08. b. Tunnel Protection. Payment for all

costs of furnishing and placing liner plates, and

tunnel ‘supports, including tie rods and pipe spread-

ers, ‘specified hergin or directed by the Contracting

{fol.6] / Officer’, will be made at the applicable con-

t unit price for ‘Steel Liner Plates’, Item No.

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

pa ts will be made according to paragraph TP

11-14.” (italics ours) .

The drawings also specify where the permanent tunnel

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

placed.

8. From the foregoing data pertaining to permanent

tunnel protection the plaintiff contends that the Govern-

ment designers must have concluded, on the basis of their

sub-surface and other investigations, that the nature of

the rock which would be encountered in the boring of the

tunnel was such that permanent tunnel protection con- .

sisting of steel ribs and liner plates would not be required

beyond the 50 foot limits specified. Had the conclusion

en otherwise, permanent tunnel protection would have

n specified throughout the length of the tunnel.

‘9. Contrary to what would reasonably be expected from

the data furnished by the Government, indicated in the

contract specifications, schedules and drawings. it was

found by the plaintiff in performing the contract that

the rock actually encountered was unstable and caused

vy rock falls quite generally distributed throughout the

unnel, thereby requiring the plaintiff, to install perma-

t tunnel protection of the type designated in TP4-03

the specifications in arder to place the concrete lining

complete the tunnel in accordance with the contract.

10. The sub-surface conditions encountered, hereinafter

re particularly described, created a changed condition

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

Conditions”, which reads as follows: \

\ “ARTICLE 4. Changed conditions.—Should. the con-

tractor enocunter, or the Government discover, dur-

pb, progress of the work subsurface and or latent

conditions at, the site materially differing from those

shown on the drawings or indicated in the spécifica-

tions. or unknown conditions of an unusual nature

differing materially from those ordinarily encoun-

tered and generally recognized as inhering in work

See

o fe.

é. ee Sa ‘| ee ° ~: f . a "a

of the characte 'provided: for inthe plans and specifi- ¥ —-

‘cations,. the jattention of: the contracting ‘officer shall -

. be calied immediately to such-conditions before they

- . are disturhed: -The. Contracting Officer shall there-

upon promptly, investigate the conditions, and if he . |

finds that they do so materially differ the contract .~

"shall with the written approval of the Secretary of

War or his duly authorized representative, be modified

_ to provide for ‘any increase or decrease of cost and/or’.

‘from such conditions.”

11. The driving’ of the dive

in ‘October 1946,:in open cut excavation for the outlet

“works and stilling basin, vertical intersecting fractures in

the rock had been exposed containing clay or mud: seams

which were. later found: throughout. the funnel. These

charactetistics indicated the probability that the roof

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

tained in the data supplied |\in. the contract, specifications, * —

schedules or drawings to indicate the presenée of vertical

\s intersecting’ fracturessin the sub-surface rock, nor did _

- plaintiff's: examination conducted ‘at the site disclose any ©

—s the same unsuitable -charac-

; ', [fol. 8] teristics as that. uncovered in the stilling basin ‘

_ was encounteréd in the:area of tunnel excavation. as the -

such condition. Rock' of

'. work progressed. The rieed for additional permanent tun-

- nel protection or_aecount of this anforeseen condition -was ~ ae

promptly called to. the attention’ of. the Government - ©

through its Resident Engineer: Pail

Permission ‘to install permanent tunnel: protection was.

\ refused. However, tempofary tunnel protection was au-

. tection. specifically. provided .for in the contract. When -

‘ . this additional’ temporary protection was later removed,

" ‘thorized beyort 50 feet at'the,infét portal by the utiliza-

. ch later Were to be ‘removed ~\

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

tion of four ‘steel ribs’ whi

proceeded with the boring of the tunnel. The four ‘steel

ribs’ were installed: and afforded 16 feet of additional -

protection beyond the 50 feet of permanent portal pro-

substantial rock falls from’ the roef occurred.

5 rsion tunnel began at the

"outlet :end, on December 12, 1946... Prior to this. time, -

—

-12. The tunnel was completely haled- through by March

10, 1947 and cleanup work commenced immediately: Be- |

tween March 12th and April 25th there were substantial

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

_° Many places. in the’ tunnél where there ‘were intersecting

‘... fractures in the rock. Subsequent to April 25th additional

- rock falls occurred. et Rae es

13. After plaintiff discovered thé substantial ‘rock falls

- . that-had occurred: on aecount of the unstable condition

of the sub-surface rock, plaintiff by letter dated April 23,

1947 called this condition to the attention of the Gov-

ernment and again requested authorization to install

-” permanent tunnel protecfion throughout the tunnel at the —

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

{fol. 9] sult of the failure ofthe Government to authorize

_the installation of permanent tunnel protection during the

progress of excavation, there had developed large areas

where the tunnel roof had failed and that such authoriza-.

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

which were unforeseen by either party at the time the

_ contract was entered into. The Contracting: Officer,. upon

. “ni@pttention being called as aforesaid; to such unforeseen, - .

unstable sub-surface: conditions, advised the plaintiff by |

‘sHetter dated May 5, 1947 thateno further turinel protection

- ‘would .be placeg-at the expense of the Government. . The’

Contracting Officer based his denial of the request of the

plaintiff for’ permanerit tunnel protection at the expense

of the Governrhent- upon findings which were conclusions

- of law involving construction of the provisions: of the

_- eontract and specifications relating to permanent tunnel

protection to be installed, to temporary. tunriel protection

to be providgd by plaintiff and to the fact that’ plaintiff,

by. acceptance’ of the contract, indicated that it had.

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

- 7

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

tiff of its rights to appeal from his decision as provided

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

determination of the Contracting Officer plaintiff filéd .a

timely appeal, hereinafter referred to, urder Article 15

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

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

Be er

a :

. ing-Officer and Resident Engineer entered into conferences.

and extensive correspondence with plaintiff with respect

to the minimum permanent tunnel protection required

before installation of the concrete lining. At the first’

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

_ quest of plaintiff that the Contracting Officer give it an -

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

protection required, the Contracting Officer requested that

plaintiff submit for approval. a description of the min- -

imum tunnel protection. which it would recommend. In

accordance with this request, plaintiff consulted with in-

dependent engineers and advised the Contracting Officer

that in its considered. opinion and that of its consultants

_ the miniinum permanent tunnel protection which would

- overcome the falling roof.of the tunnel would be the

installation of steel ribs and liner plates, such as: were

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

Several weeks thereafter the Contracting officer submitted |

_ to plaintiff for its consideration an alternative tunnel pro-.

tection which he termed temporary tunnel protection, as- -

serting that it would be adequate to support the falling

rock load as well as the material used in backpacking.

Plaintiff, after consideration of the alternative design and

consultations with independent engineers with respect .

** thereto, advised the Contracting Officer that in their -

‘opinion the alternative design was inadequate and that

_ the minimum protection required throughout the tunnel

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

reiterated its request that the Contracting Officer—give-

' consideration and approval of such design for permanent © —

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

Contracting Officer informed plaintiff that there was no

objection to the installation throughout the tunnel of the

steel ribs and liner plates proposed by plaintiff, but that

the costs of such installation were to be borne by plaintiff

who was required to furnish temporary tunnel protection .

in accordance with the ialanaae i of Paragraph TP4-02

of the specifications. alt Soa? oe Pera

_ {fol. 11] 15. Plaintiff, while protesting by letter: dated

cAugust 15,-1947 the Government’s refusal to bear the costs -

<—~f permanent tunnel’ protection, nevertheless promptly

he —

a ; ce

" a .

: ~ > °

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

upon receipt, of the Contracting Officer’s letter of Au-

liner plates. Such installation was completed in Decem-

ber, 1947 and the plaintiff thereupon proceeded to line

the tunnel with conerete in accordance with the terms of

the contract. The concrete lining -was completed ‘in May, .

: 1948.

from the Government’s protracted negotiations in connec- -

tion with the determination of the necessary minimum

nat permanent tunnel protection. required. As @ consequence

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

tract was delayed, impeded and hindered so that the

~ eoncrete work was required to. be ‘done in the winter

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

tional increased costs and loss to vlaintiff hereinafter

specified. - ©

17. On account of the changed sub-surface conditions

_ encountered by plaintiff-requiring the installation of per-

- manent tunnel_protection and other- matters heretofore

‘alleged plaintiff claims reimbursement for the additional

expenses incurred by it in installing such permanent

tunnel protection by the use. of steel arch ribs and steel

liner plates’ throughout the entire length of the turinel

and the additional costs occasioned by the delays .caused

by the Government. iy

18. Plaintiff further in the alternative -alleges ‘that .

the provisions in the-speeifications set forth in Paragraph .

-[{fol.12] 7 hereof, particularly the italic

thereof, contemplated that the Contracting Officer would

and should order and pay for permanent tunnel protection, .

beyond that shown on the drawings if conditions encoun-

tered were such. that good engineering - practice. required

such protection to permit the concrete lining to be in-

stalled@Without substantial risk of injury or damage to

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

teetion which the contractor was required -to provide by

- Paragraph. TP4-02 of the specifications entitled “TUN- -

NEL EXCAVATION.” as. properly: interpreted. is re-

yim

" a

- 16;. Under the terms of the“ontract, all of the work . |

was to be completed by- January 15, 1949. The actual .

‘ completion date was June 30, 1949. Such delay resu ted

movable supports of the character required to safeguard

workmen during the excavation of the tunnel, and does

not “include steel supports needed to permit installation

of the permanent concrete lining, which must necessarily

be left -permanently in place. Dates. ;

19. .The faylty nature of the rock encountered and

the rock falis resulting therefrom required: the installa-

tion of steel arch ribs and liner plates throughout the

_entire length ofthe tunnel, and by virtue ‘of the facts

‘and circumstances heretofore ‘alleged the Government

was obligated to.order and pay ‘for such permanent tun-

nel protection under Paragraphs TP4-03 and TP4-08

of the specifications, as good engineering practices re-

the tunnel be accomplished.’ ~The Contracting Officer un-

reasonably and unlawfully withheld permission for plain-

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

ernmient. ;

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

pealed within the time limits prescribed by the contract:

from: the adverse decision of the Contracting Officer.

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

neers Claims and Appeals Board, the duly authorized

representative of the Secretary of War. Hearing was

? ep such installation in order that the concreting of

-held June 17, 1948 and an adverse decision was rendered ©

in connection therewith on December 13, 1948. A motion

for rehearing of the determination by the Board denying

plaintiff’s appeal was filed on or about December 7 .

1948. ~The motion, for a rehearing was denied by the

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

exhausted its administrative remedies. Neither the Con-

tracting Officer. nor the said Appeals Board has correctly

_ evaluated the evidence, and no appropriate relief was’ .

granted plaintiff. for the additional work performed under

the contract, occasioned either by the changed conditions

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

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

installation of permanent tunnel protection throughout. ;

_ the entire length of the tunnel at Government expense

in conformity with good engineering practice. The deci-

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

= 3

8, -

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

War Department, were capricious! or arbitrary or so

grossly erroneous as necessarily to imply bad faith, or

were not supported by substantial evidence. ee

91. -As alleged in Paragraph 13 hereof, the adverse de-

cision of the Contracting Officer was based on. questions

’ of law. Many issues raised in this complaint, particularly »

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

late to questions of law involving interpretations of the

contract and specifications and breach of implied -obliga--

tions of the Government under the contract with respect

to which Article 15:of the contract does not provide for

any appeal or any finality. |. ) S

(fol. 14] 22. There‘is set forth -in Exhibit A, attached

hereto, and made a part hereof, a schedule of plaintiff's

increased. costs, totaling $233,429.70, which increased —

- eosts were occasioned by the changed conditioss referred

to in Article 4 of the contract requiring the installation ~

. of permanent tunnel. protection throughout the entire

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

ernment: or occasioned by the Government's failure and

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

lation of permanent tunnel protection at Government ex-

pense under the circumstances ‘heretofore alleged. Plain-

tiff has been damaged by nonpayment of: its aforemen-

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

an allowance for profit on Items 1 ‘to & inclusive listed in. -

Exhibit “A” attached hereto totaling $175.307.50, gr

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

_reasonable and proper, making the aggregate claim of

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

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

of defense, which ‘amount plaintiff is justly entitled- to

recover from the United States of America, the defendant

herein. a

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

the only party interested therein, and the_ plaintiff says -

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

part thereof or of any interest therein; has ever been

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

recover from the United States of America the entire

amount of its claim as set forth above. -

WHEREFORE, the plaintiff prays judgment against the

United. States of America in the sum of $259,721.87,

{fol. 15] with interest thereon as may be provided by law,

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

case May ‘require and to the Court may seem just and

. proper. :

Rosert W. KNox . |

- $21 15th Street, N. W.

Washington 5, D.C: «©

Attorney for Plaintiff

| RoBert F. BRADFORD

WiLiiaMs H. MATTHEWS

Of Counsel fom

Duly Sworn to by Robert W. Knox :

Jurat Omitted in Printing

(fol.16] |~«-EXuusiT A TO PETITION |

Schedule of Plaintiff's Increased Costs _

1. Cost of Removing Extra Overbreak During Oriz-

inal Tunnel Driving LAepabre Bes “+ & 1,092.75

2. Cost of Removing Fallen Rock and Extra Rock

to Invert Subsequent to Completion .of Tunnel

_ Driving (March 25, 1947)... we 9,018.00

3. Permanent Tunnel Supports Installed After

~ ‘March 26, 1947... 29,354.51 -

4. Backpacking Installation . . 24.979.15 —

5. Additional Concrete Placed . . 11,200.00

4. Heating Costs—Winter Concrete .. 45,853.08

7. Loss of Efficiency—Winter Concrete _ . + 18,566.00

8. Excess Supervisory, Engineering and Adminis-

trative Labor—period 1-16-49 thru 6/30/49... 35,250.01 -

9. Cost of principal Items of Plant and Equipment

used and Maintained on Contract after 1-16-49 58.118.25

$233.425.75

[fol.171 - . INTHE 3 ae

~ "UNITED STATES COURT OF CLAIMS

No. 466-54

‘CARLO BIANCHI & Co., INC., PLAINTIFF

, et 7

THE UNITED’ STATES, DEFENDANT

DEFENDANT'S ANSWER- -Filed May 31, 1959

1. Denied for lack of knowledge or information suffi-

cient to form a belief, except that it is admitted that

plaintiff represented itself to. and. contracted with de-

fendant, as the corporation described.

9 The material allegations are denied except as here-

-inafter admitted or admitted with qualifications.

3. Admitted. ae | , : ‘

4. Admitted, except the allegation that the Government

accepted the work as completed on August 22, 1949,

which is denied. A ce.

5. First sentence: Denied for lack of knowledge or in-

formation sufficient to form a belief, but it is admitted

that the Invitation for Bids required bidders to care-

fully examine the drawings and specifications, to visit

the site of the work, and to fully inform themselves

with respect to all conditions affecting the work and the

cost thereof. es

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

Fifth and sixth sentences: Denied. - ‘ooh

Seventh sentence: Denied, except that it is admitted

that plaintiff was paid the contract price which included

temporary tunnel protection and was not paid extra. for

installing permanent tunnel protection beyond the con-

tract. requirements, approximately the first: fifty feet at

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

wise agreed to. na

1“

Eighth sentence: All material allegations are denied.

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

cations, schedules, and drawings required the installa-

tion of permanent tunnel protection extending approxi-

mately fifty feet from each portal only, as described in

paragraph TP4-03 of the specifications, and also re-

quired temporary tunnel protection where needed.

_ 1. Admitted, except that it is denied that alk the per-

tinent specifications are quoted or that the quotations

_ were italicized as set forth.

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

contention calling neither for affirmation or denial.

Second sentence: Denied.

9. Denied.

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

tract contained Article 4, on “Changed Conditions”.

11. First sentence: Admitted. -

Second sentence: Admitted except that it is denied

that vertical intersecting fractures in the rock containing

_ Clay or mud ‘seams were found throughout the tunnel.

In making the rock cut for the tunnel outlet and stilling

basin plaintiff's rock excavation disclosed mud seams.

' “No claim was made that this was a changed condition

- under Article 4. In December! 1946 the Contracting Of-

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

_ dicated the same type of materials described in the con- |

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

peal. . |

Third sentence: Denied. | :

Fourth sentence: Denied, except the allegation per-

taining to plaintiff's examination which is denied for

ack of knowledge or information sufficient to form a

belief. Fractures and joints in nearby outcroppings were

apparent upon proper examination of the site.

_ Fifth sentence: Denied except as elsewhere admitted.

Sixth sentence: Denied.

- Seventh sentence: Admitted that permission to in-

stall permanent tunnel protection at defendant’s expense

was refused. '

_ Eighth and ninth sentences: Denied. Temporary tun-

nel protection was required by the contract and utilized

- four steel ribs for this purpose. :

. Tenth and eleventh sentences: Denied, except that it is

‘admitted that four steel ribs were installed and afforded -

16 feet-of temporary protection beyond the fifty feet of

permanent protection, and that when said temporary pro-

tection was removed, some rock fall occurred.

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

was completely holed through by March 10, 1947 and

that cleanup work was in progress shortly thereafter.

‘It is also admitted that ‘rock falls occurred between

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

at places where there were intersecting ‘fractures in the —

rock. Defendar:t denies that this constituted a changed |

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

_{ fol. 20] would have occurred if plaintiff had complied

with the contract requirements. 7

13. Denied, except as admitted herein. Many months

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

_respondence between plaintiff's and defendant's repre-

sentatives relative to tunel protection and’ sub-surface

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

that permanent tunnel protection be extended

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

cause of possible hazards to its workmen, and requested

payment therefor. The Assistant Resident Enginéer

promptly called plaintiff's attention to the Resident En-

gineer’s decision and to ‘the .contractor’s responsibility

for temporary tunnel protection and for the safety of the —

workmen and the work, and declined to authorize in-

stallation of permanent protection at defendant’s ex-

pense. Ls ,

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

ident Engineer as follows:

We have received a letter dated April 15, 1947,

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

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

above subject. a.

We wish to point out that the request contained

in our letter of April 10 does not concern itself

with the matter of temporary tunnel protection:

it is concerned wholly with. the permanent type of

tunnel protection as described.in the contract speci-

fications paragraph TP4-03. -

The specifications clearly indicate that the Gov-

ernment intended installation of permanent steel

supports and liner plates to a distance of 50 feet

[fol. 21} in from each end of the tunnel and for such

additional distance as conditions would require.

Ever since the start of rock ‘excavation work on-

- this project, and even prior to the time when the

actual tunnel excavation was started, the question.

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

countered in the tunnel has been the subject of dis-

cussions with the Resident Engineer. and his staff.

These discussions were participated in by our sub-

contractor, Cabot Construction Corporation, as well

as ourselves. We consistently mairttained the posi-

‘tion that the character of the rock within the tunnel

was such that provision should be made for per-

manent tunnel protection. The Resident Engineer —

took the position that the permanent tunnel pro-

tection would be authorized. only for 50 feet from

each end.

In view of the position taken by the Govern-

: ment, the subcontractor was required to proceed-

with the excavation of the ‘tunnel without the in-

stallation of permanent tunnel protection, employ-

ing temporary tunnel protection of its own devising

in order to afford the necessary protection for its

workmen.

As a result of the failure of the Government to

authorize the installation of permanent tunnel. pro-

tection during the progress of excavation, there

have now developed large areas where the tunnel

roof has disintegrated or failed, and there are piles”

of dislocated material on the floor of the tunnel.

In view of the now known facts with reference

to the dislodgment or failure of large areas of the

tunnel roof, a condition which could have been an-

ticipated and prevented had the Government ac-

{ fol. 22]. ceded to our request’ for permanent tunnel

protection, we now again request that the Govern-

ment authorize the installation of the permanent

tunnel protection, together with the necessary and

- obvious corrective measures incidental thereto, at

the Government’s expense. -

May we. have the courtesy of a prompt reply -

’ granting to us the above-requested authorization?

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

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

‘gineer, at Baltimore, Maryland. a

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

tiff as follows: |

Reference is made to your contract number W-

30-180-eng-397, providing for construction of Al-

mond Dam at Almond, New York, and to your

letter dated 23 April 1947 inclosing for my consid-

eration your letter of even date addressed to my

Resident Engineer requesting * an authorization to

_ place at contract prices additional permanent pro--

téction in the tunnel.

‘J have caused an examination to be made of the.

contract documents and the circumstances and

events that have preceded your request and I have

found. as follows: R

' a. Contract drawing sheet No. 7 shows founda-

tion exploration data that indicates the type and

character of the material that would be encountered

during the tunnel driving and lining operation.

pb. Paragraph SC-7a of the specifications notified

all parties interested in this project that samples

of the materials removed from the foundation ex-

ffol.23] _ ploration holes were available for inspection

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

New York. ‘ |

C. Paragraph GC-3 of the specifications anno-

tated for the information of prospective bidders,

certain items of consequence: with respect to site

. and job conditions. Your acceptance of the con-

tract indicates that you have satisfied yourself as

to those conditions including subsurface conditions. -

18 -

d. ii bowing sheet No. 24 clearly indi-

cates tiinel protection 50 feet back from the face

of each porta! of the tunnel.

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

Be ttn also describes: and indicates the limits of

tunnel protection “as required for distances of

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

‘This limitation to hold ‘unless directed otherwise.

f. Paragraph TP4-02 of the specifi¢ations con-

tains a statement that “temporary tunnel protec-

tion shall be provided where required for safety

- of the workman.” =, ¢

Under the terms of the contractual requirements

cited above, I consider that the Government clearly

and in a very exact manner indicated the extent to

‘which the Government would require and assume

payment for permanent tunnel lining. I also con-

sider that sufficient data: was available for you to

make a proper consideration of the tunnel protec-

tion which would be necessary for you to install in

_ order.to provide adequate protection against damage

to completed work as well as the safety of your

i workmen. |

[ fol.

_ periodically

A review of t the records of my Resident Engineer

indicates that -he consulted with your ' representa-

24] tive prior to the commencement of the tunnel

work and advised you fully and correctly as to the

extent of both the Government's responsibility and

your’ responsibility in placing tunnel lining beyond

the. limits required and indicated for payment.

Interim co espondence indicates that you were

ware of the gradual deterioration of

the rock in the tunnel which did not commence un-

1 was completely holed out, yet you

apparently took no action to protect either yourself

or the interes of the Government.

‘cision, in view of the above finding,

that no further tunnel lining will be placed at the

expense of the Government. Furthermore, my Resi-

dent» Forces .will be instructed to require that ade-

quate-precautions be taken to insure the safety of

all personnel when your tunnel operations: are

resumed. . .

If you wish to appeal my decision in the matter.

you-are advised of your rights of appeal within 30

days from date of receipt of this letter as provided

under the terms of Article 15 of the contract.

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

plaintiff's representatives conferred at ‘Baltimore, and

thereafter by letter dated May 29, 1947 laintiff ap-

pealed to the Secretary of War.

14. Denied, for lack of knowledge or information

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

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

conferred with Gol. Seybold at Baltimore and endeavored

to obtain authdrity to install permanent tunnel protec-

tion throughout] at Government expense. May 26, 1947,

plaintiff also te to Contracting Officer that it con-

(fol. 25] sideretl the mininfum permanent tunnel pro-

_ tection necessagy was that the protection installed at.

the portals be /extended throughout the tunnel. Under

. date of June 14, 1947, Col. Seybold replied as follows:

Referenée-is-made to your letter dated 26 May

1947 whesein you submit a proposal for the safe

protection |of your workmen in the tunnel at Al-

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

Your. request refers to “Permanent Tunnel Pro-

tection”. You are advised that no permanent. tun-

nel protedtion will .be required to be installed in

Almond Dam Tunnel in atidition to that protection

already irjstalled and paid for under contract pay-

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

_ vised that! “Permanent Tunnel Protection” - required

under thif contract is at the portals only_and is

protection |designed to withstand earth pressures.

Tem ry tunnel protection as required under

_ the provisions of paragraph TP4-02 of the contract

specifications is temporary in that its only furiction

is to suppprt a falling rock load and prevent injury

to your workmen. The greatest load to which it.

: will be sida will be. the dead load’ of te back ae?

- packed materials. :

. In paragraph 3 of your letter, you state. ‘that you —

are of the opinion that. the sniniteuth permanent |

’. tunnel protection that will meet the requirements of

_the situation adequately and for which you request

‘ approval are the same ribs and liner plates used at -

‘the portals.. If you desire to use this’ design of -

tunnel protection throughout the tunnel length,* its

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

that this type of installation is considered as an over -

design for the purpose required and will be a more

. costly installation to you'that is considered necessary.

“It i8 suggested and recommended to you that ade-

quate temporary protection.may be obtained by using

_. I-beain ribs of about 3 inches and 6 pound. weight

-. gpaced 4 to 8 feet apart (deperiding on the over-

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

the arch would then be uniformly .packed with shale

_or bank run gravel in a manner to insure a uniform . ©

- load ‘distribution. Protection of this kind will be . ~

; adequate to support the falling rock load as well as

the material used: in back packing. Favorable can- —

sideration will be green: toa proposal of comparable |

design.”

. It might be called to your attention that: a scheme. 7 ;

_ - similar to the above was proposed to my Resident

Engineer by a representative of your subcontractor,

the Cabot Construction Company, at the time tunnel _

excavation was commenced.

‘It is to be understood that. the contents of this

_ letter aré not .to be construed as a reversal: of my -.

decision to- you dated 5 May 1947 to the affect that

no payment ‘would be-made by the Government for

the additional tunnel protection required to com- —.

-plete work under your contract.

Wander date of June 23, 1947 plaintiff by’ Peter. M.

- Bianchi wrote Col. _ Seybold as follows:

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

ours of May: 26, 1947 -on the subject of toned |

:; Protection... \ |

Pp -

SS ee

[f61.27] ~ ° You are advised that nowhere in our letter -

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

“ tion of workmen in. relation to Tunnel Protection..

_We understand that you . have decided. that .no. .

Tunnel Protection ‘will ,be required, and , to this

position we have taken ‘exception. by our. ‘letter of

| appeal to the Secretary of War, Washington, D. C., -

_ -. dated May 29,1947. * ee Sate a ae

"We assume ‘that your reference is to eartl pres-

sures‘ resulting from rock or other materials sur-

rounding the tunnel bore. ea ese oe

We cannot agree. with the statement in regard to .

temporary. Tunnel Protection: in the third para-

‘graph of your letter., at ON eek as.

ae cannot agree with your position in regard to

“the design of Tunnel Protection as we are of the.

- opinion that the conditions require an installation _

at least of such strength as used at the portals. .

We. are procéeding to order this material and. will

\dnstall it’ at the earliest possible -mo on the

assumption that this procedure is acceptable as'stated .

- in the-fourth. paragraph of your letter of June 13.

In reference to the next to the last paragraph of

your letter. to: the effect/that a scheme for tempo-

rary protection similar to that suggestéd by your.

~ létter was proposed to the Resident Engineer. by a

‘representative of the Cabot Construction Corpora-

tion, ‘please be advised that this is not consistent

with -the statement made to us by the Cabot. Con-

struction’ Corporation, to’ whom the matter was

referred. © © 7 ee eds

. It is understood that -the contents of this ‘letter

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

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

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

trict. Engineer that plaintiff intended. to install tunnel.

protection of its design as an extra under the -contract. .

Under date of August 11, 1947, the Acting District

_ Engineer replied to plaintiff as follows:

Reference is made to your letters dated 25 July ?

1947 and 1 August 1947 relative to the temporary

7 tunnel protection whieh you. propose to install under

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

vides for the construction of Almond Dam‘ at Al-

mond Dam, New York. —

By letter dated 5 May 1947. you were “furnished

a decision by Colonel J. 3. Seybold, then District

Engineer, to the. effect, -that the. tunnel .protection _

‘ remaining “under your contract would ‘consist of -_

temporary protection placed in accordance with para- ‘

graph TP4-02- of the contract spécifications as a

_ safety precaution for the workmen at no additional”

, cost to the Government. You have appealed this

decision of the District Engineer in accordance with .

~~—-the-terms. of the contract. Subsequent to your ap- i

_offered—for- a

of protection,’ the merits and necessity for whicty

.wWere clearly discusséd in’ a letter to you from the

District, Engineer dated 13 June 1947.

- Your letter dated. 25 July 1947. outlines again the ©

. plan of. protection which you are electing to use. |

\ You also express your views with respect to prob-

. able differences in cost between your proposed plan

and the scheme hevested by this office as adequate__

4401.29) Your letter cites the interests of the Govern-

4 ment in erly oo re a liability

- for costs on the part of the Gove t._It becomes

___Mecessary, _ theref 7 =

—=— ofthe _District_Engineer—and—your—subsequentap- ©

~ peal wil be reviewed and a final’ ¢ decision ae

~ ing. of your. appeal can. te accomplishat In the

meantime, severe inexcusable delays to the work:

are resulting from your failure to proceed and it is -

not. believed that your. interests will be furthered |

by continuing correspondence on the. matter.

‘The Government position has been made clear in |

the previous correspondence and is summarized

briefly as follows: —

a. In accordance with eiconvints TP4-02 of the ©

contract specifications “temporary: tunnel. protec-

_tion shall be provided where required for safety of

23°

the workmen”. The installation of this temporary

protection is not ..structurally necessarv to insure.

the safety of the completed tunnel structure and

need be designed only to Support a falling: stone

load and backfilled material in the tunnel over-

break area. The design suggested. by this office is.

fou 7 Comm rwee,

-eonsidered adequate for that purpose and will be -°

approved for use if you wish te reconsider our

plan. However, since the safety of your workmen

is your responsibility you must, of course, provide

a protection which you ‘consider adequate for their

safety, therefore, no objection will be made to the

protection plan which you propose to use. Under,

) . =contract all costs will be accrued

to you unless found otherwise by higher authority. |

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

and completion of the concrete tunnel lining during all of

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

commencement until: December 1947. | .

15. Admitted, except the allegations that plaintiff pro-

ceeded proniptly, and completed the installation of ‘the

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

are denied.” eae a, : a

. 16. Denied, except as adntitted herein.” The contract

requirement of: completion by January 15, 1949 was

extended to June 30,. 1949. to a oars

17. All material allegations are denied.

18. Denied. i OC

19. Denied... Meh ee Tete es ; |

20: First, second ‘and: thifd .sentences: Admitted.

Fourth and fifth sentences: Admitted except that de-

‘fendant avers that a motion for. rehearing was. enter-

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

Sixth sentence: ‘This is.a conclusion of law, but is

otherwise denied.

Seventh sentence: Denied.

Eighth sentence: Denied. :

21. The allegations in this paragraph are argumenta-.

tive. All material allegations of fact are denied. —

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

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

cient to form a belief, except the allegation that plaintiff

is fully entitled to recover, which is denied. Defendant

- alleges on information and belief that plaintiff assigned

‘ all moneys due or, to become due under the contract to

the National Shawmut Bank of Boston, Massachusetts

on September. 26, 1946. .

» 24. Defendant specifically denies that plaintiff com-

'. [fol. 31] plied with Article 4 of the contract entitled

'“Changed Conditions”. Denies liability for any increased

costs incurred by any sub¢ontractor of plaintiff for which

plaintiff was not itself obligated to the subcontractor:

- 25. Denies each and every allegation of the petition

not herein expressly admitted, or admitted with quali-

fications. ty

WHEREFORE defendant demands judgment that the peti- |

tion be dismissed with all costs taxed against plaintiff.

WARREN E. BuRGER, .

Assistant Attorney General,

” Civil Division.

EDWARD L. METZLER, |

Attorney, Civil Division,

Department of Justice.

fol. 11 IN THE

UNITED STATES COURT OF CLAIMS

No. 466-54

{CaRLO BIANCHI AND COMPANY, INC., PLAINTIFF

rs.

UNITED STATES OF AMERICA, DEFENDANT

Boston, Massachusetts,

Monday, September .24. 1956,

10:00 o’clock a.m.

TESTIMONY FOR PLAINTIFFS AND DEFENDANT

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

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

Floor, Federal Building, Boston. Massachusetts

Present: Hon. William K. Day, Commissiore*: °

APPEARANCES © *

Robert W. Knox, Esq., \

William H. Matthews, Esq., and

Rubert F. Bradford, Esq., counsel for plaintiff:

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

Mr. Kenneth K. Johnston.and Mr. D. F. King, re- |

porters, were thereupon sworn by the Commissioner to

well and truly take down and transcribe the questions

. -propeunded to and the answers given by the witnesses,

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

missioner. ist

Pursuant to the order of reference by the Honorable,

the United States Court of Claims, in the above-entitled |

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

taken as follows: —

TESTIMONY FOR PLAINTIFF

COMMISSIONER DAY: You may proceed, gentle-

men. —- ¥ - . : = th

MR. KNOX: Mr. Commissioner, with your permis-

sion I- would like to make an opening statement outlining

as briefly as possible the issues involved inthis suit and:

the Plaintiff’s position and contentions in connection there-

with.

OPENING STATEMENT By COUNSEL FOR PLAINTIFF

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

pany, Inc., a’ Massachusetts corporation, bid and was

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

‘eng-397 by the Corps of Engineers, US. Army Appro-_

priation Flood Control for the construction of an earthen

dam and diversion tunnel .at Almond, Steuben County,

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

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

_tract provided that-the work was to be commenced within

ten calendar days after date of receipt by the: Contractor

of notice to proceed. . Notice to proceed was received

July 30, 1946 and Plaintiff complied therewith. The con-

. tract provided that the work was to be completed not

later than 900 calendar days after receipt of notice to

proceed. This time. was subsequently extended and the

work was completed on June 30,1949. - |

_. The issues involved in this suit concern solely the

diversion tunnel, The Plaintiff upon receiving the invita-

(fol. 3] tion to bid made an investigation of the site, ex-

"amined the specifications, the logs of the borings,- the

schedules and drawings relating to the dam and. the

diversion tunnel. These specifications and drawings pro-

vided that the diversion tunnel would be 710 feet long,

horseshoe shaped, 13 -feet in diameter, and completely

lined with conerete after the tunnel ‘was bored through.

The specifications, drawings and logs represented to

the Plaintiff that subsurface conditions in the excavation -

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

would be stable and would not require permanent tun-

nel protection beyond 50 feet at the inlet and @itlet por-

tals. The specifications provided that for 50 feet in from

each portal steel arch ribs and steel liner plates were to

be installed and that such tunnel protection should be

7 27

installed ‘elsewhere as directéd bv the Cortractin’ OF -

cer. The condition ae rene red de "Des endant- Wes he

found rh due toe the uestitle roef.ef che unel whe:

completely bored throuli:s tie Plas dib wa. ‘atin bs

and did i stall steel arch ribs ard the 1 liner plates through- —

out the entire length of the tunse. Tt was: not possible

for the Plaintiff. to install the concrete lining without

‘first installing permane>t turrel protection. The roo?

of the tunnel was urstable primarily due ‘o vertical ft -

tersecting fractures with clay lining found in the sha‘e

of the tunnel. Nothing in the specificatiens, Jogs or

drawings, or the investigation of the site as the P'ain-.

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

The Plaintiff's position’ is that the conditions which

were found during the course of. the excavation of -the

Almond Dam Tunnel and when the tunnel was “holed |

”

through” materially differed from those shown on phe

— drawings or indicated in the specifications and corstitued

changed conditions within Article 4 of the Contract. The

subsurface latent conditions Which materially differed

from those represented were promptly called to the at-

tention of the Resident Engineer and the Contracting

- Officer. In fact, such conditions were ealled to the.

Resident Engineer’s attention during the excavation of

the stilling basin by pointing out the possibility that the

vertical intersecting fractures with clay lining fourd

therein might reasonably. be expected to be found in the |

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

“dent Engineer took the’ position that the rock that would

‘be féund during the excavation of the ture! would be

more sound and that the roof of the tunnel would be

stable. When the tunnel was completely “holed through”

the entire: roof of the tunnel was unstable and required

permanent tunnel protection. The tunnel was comnle: ely

driven ‘through by March 1947:-the clean-up work was

completed in the same month: Immediately theredfter

there were substantial rock falls ‘from the roof of the

tunnel occurring at many places where the intersecting

fractures existed. It. then became apparent that the

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

without permanent tunnel protection, be concreted suc-

cessfully and the contract completed. This condition was

called to the attention of the Resident Engineer and the

. Contracting Officer. The Contracting Officer on May 5,

1947 denied the existence of this condition and refused

to permit the Contractor to install permanent tunnel pro-

tection at the Defendant’s expense. Subsequently and

within the period of time provided in the Contract, the

Plaintiff appealed from this decision.

Despite the decision of May 5 and the subsequent ap-

peal the Contracting Officer and the Resident Engineer

entered into numerous conferences and extensive corres-

pondence with the Plaintiff with respect to minimum per-

manent tunnel protection to be installed before the in-

stallation of the concrete lining. These conferences and

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

_ proposal was submitted by the Contracting Officer to the

Plaintiff as to what he considered would be proper tunnel

protection. He requested the Plaintiff to consider and ad-

vise him whether the alternative design was adequate or

inadequate. The Plaintiff engaged several consulting

engineers to determine whether or not the proposed tun-

nel protection submitted by the Contracting Officer was

sufficient so that the tunnel could be safely lined with

concrete. The opinion of the various consulting engineers

{fol.6! was that the Contracting. Officer’s proposed plan

_ was inadequate and that the minimum requirement for

permanent tunnel protection prior to the lining with con-

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

tracting Officer was: promptly advised of this decision by

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

ing Officer informed the Plaintiff that there was no ob-

jection to the installation throughout the tunnel of the

steel ribs and liner plates proposed by the Plaintiff but.

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

the Plaintiff. The Plaintiff while protesting this action by

. letter nevertheless promptly proceeded to order and re-

ceive delivery and install the steel arch ribs and liner

plates. This installation was completed in December 1947

and the Plaintiff thereupon proceeded to line the tunnel

with concrete in accordance with the terms of the Con-

tract. The concrete lining was completed in May ‘1948.

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

ditions found in the tunnel materially different from those

represented in the contract drawings, specifications and

logs, but also that under the provisions contained in the

specifications the Contracting O‘ficer; in aceordarice with

good engineering practice, should have authorized the in-

stallation of the permanent tunnel protection such as

was installed by the Plaintiff and that under the terms of

the Contract Plaintiff should have been compensated for

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

ing Officer to authorize such tunnel protection. was arbi-

trary and unwarranted and contrary to good engineer-

* ing practice. Apparently the basis for the position taken -

by the Contracting Officer was predicated solely upon his

interpretation of the Contract and specifications which is

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

nel protection to be installed beyond the 50 feet at the ©

outlet and inlet portals: would be temporary protection

even though it had to stay in place permanently and that

the expense of such protection had to be borne by the

Contractor. The only reference to temporary tunnel pro-

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

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

nel support referred to therein is support to safeguard

workmen during the excavation of the tunnel. Such sup-

port would be removable and could not embrace per-

manent tunnel protection required to be installed and

remain: in place permanently in order that the concrete |

lining could be installed and the Contract completed.

The Plaintiff will establish that the tunnel protection

which was installed and .remained permanently in place

had for its purpose the protection of the unstable roof

in order that the Contract could be performed by com-

pletely lining the tunnel with concrete.

As I have previously stated, the- Plaintiff duly ap-

pealed to the Corps of Engineers Claims and Appeals .

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

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

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

ary * #49. Plaintiff has exhausted its administrative

rem:'-2 and takes the position that neither the Contract-

ing Officer nor the Appeals Board has correctly evaluated

30 .

the evidence and that the Plaintiff should have been

granted relief by reason of the changed conditions pur-

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

Government’s failure to authorize the installation of the

permanent tunnel protection throughout the entire length

of the tunnel at Government expense in conformity with

good engineering practice. Thus it is the position of the

Plaintiff that the decision of the Contracting Officer and

in turn that of the Claims and Appeals Board were

capricious or arbitrary, or so grossly erroneous as neces-

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

stantial evidence.

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

position that many of the issues relate to questions of

law involving interpretations of the Contract and breach |

of implied obligations ofthe Defendant. Plaintiff. is

seeking in this suit ‘to recover judgment against the De-

_fendant for its increased costs which were incurred

through no fault of its own but solely attributable to the

actions and inaction of the Defendant.

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

~ Mr. Metzler? 4

” es .

OPENING STATEMENT By COUNSEL FoR DEFENDANT

MR. METZLER: Mr. Commissioner, I think the

pleadings have substantially indicated’ the issues, and [

presume the Commissioner is familiar with them.

The claim as presented to the Engineers Claims and:

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

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

the Disputes Clause; was considered under Article 4,

the Change Conditions Clause, and that was ‘the basis of

the contractor’s claim, although there was a disclaimer

of intention under Article 4 at the time that the hearing

was held before the Engineers Appeal Board. -

The contractor seems now, to some extent, to have

shifted slightly from its fundamental position taken both

before the Appeals.Board; and even to some extent in

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

representation rather than a claim based strictly on Ar-

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

| 31

Claims and Appeals Board had been authorized to hear

under Article 15, the Disputes Article. ;

We believe that the law is certainly. definitely settled

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

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

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

cious or not. established by substantial evidence. That

question has been reviewed by the Court of Claims and by

the Supreme Court in many cases.

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

be a determination made as to whether that decision. of

the head of the department, acting through the Claims ©

Appeals Board, was established by substantial evidence

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

Court, if that record before the Appeals Board and that

decision on which it was based was one where there was

substantial evidence which. leads to the fact that that -

conclusion was reasonable. We believe that is the thres-

hold of the determination.

COMMISSIONER DAY: By whom?

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

sioner.

' COMMISSIONER DAY: Of course I have been con-

scious that there was potential argument, and I believe

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

care of at pre-trial, because, obviously, the record sthat _

was made before the Appeals Board and before the con-

tracting officer is one that I should rev iew before I con- -

sider the taking of’ testimony:

MR. METZLER: As the Commissjoner knows, we

suggest that the issue was one which could be well limited

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

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

a letter to the Commissioner, also. ‘.

COMMISSIONER DAY: The matter of dividing the

case between liability and damages is apart from the

matter under consideration here.

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

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

trial and raising that i issue at’ any time.

COMMISSIONER DAY: You are making the sug-

gestion now that we should have a determination, first,

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

_ ported by substantial evidence and was not arbitrary?

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

“determination for the Commissioner to make.

‘COMMISSIONER DAY: I am suggesting that that

should haye been done earlier than the date upon which

- trial has been set. ;

MR. METZLER: I think it would have been advisable,

and \we certainly had no objection to that procedure.

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

- is properly receivable, unless it is established that that

decision was not supported by substantial evidence. I

think that the Plaintiff's case before the Court must go

only to the question of whether or not that decision was

‘ arbitrary, capricious, grossly erroneous, or not supported

- by substantial evidence. ‘mee he 6 OP

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

- record may .be opened up and the issues of damages, and

so forth, considered.

It seems to me that the Plaintiff wishes to go beyond

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

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

‘acter or description.

~T.. will call the Commissioner's attention that it says

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

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

_ sentation article. It is a contract article and provides for

_ adjustment under the contract. |

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

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

tiff predicated its claim on a ¢hanged condition. That is

exemplified by the -conduct of the Plaintiff in presenting

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

where an Article 4 claim was considered.

Now I raise the question whether Plaintiff can now,

after having that considered as an Article 4 claim, come

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

‘is a. misrepresentation claim.”

| believe that the evidence’ will establish conclusively —

however, if the Commissioner permits that type of evi-

dence—that there was no misrepresentation of any char-

acter whatsoever. In the entire record I do not believe

there is any evidence whateter that the Government in

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

way misrepresented one matter which was untrue in any

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

{fol. 13} misrepresentation under the decisions of the

‘Court of Claims and under numerous decisions of the

Supreme Court.

That is the basic position which the Governsnent takes

with regard to what we consider to be the real issues -

presented in this case, aside from the issues which arise

from questions of damages.

3} .

COLLOQUY BETWEEN COMMISSIONER AND COUNSEL

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

statement, I think perhaps we could clarify this situa-

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

tentional misrepresentation. In other words, our position

relates to changed conditions, materially different from

those in accordance with Article 4, the subsurface, latent

- conditions.

We believe there are questions of law involved as to

the interpreting of what constituted temporary and per-

manent tunnel «protection, and that the contraciing of- - -

ficer and the resident engineer, ‘aside from the factual

situation, interpreted the ntract so that there would be

no provision for any type of protection other than tem- |

porary protection, which under the terms of the contract

had to be borne by the contractor.

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

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

to go forward with the evidence make the determina- -

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

not there was substantial evidence before the Appeals and

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

[fol. 14| question of the weight of the evidence. I have’

in mind the Williams case before the Court of Claifns.

COMMISSIONER. DAY: This very issue is up before

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

ridence that may- be offered. . . '

bart: off with the administrative determination

antecedents -and the decision thereunder, as a

starti ‘point for putting the evidence. .in.

MR. METZLER: Off the record, please.

"(Discussion ‘off the record. )

- COMMISSIONER DAY: Back on: the record. =

MR. KNOX: Mr. Corgmissioner, ‘it is my understand-’

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

we introduce - the record of. the Appeals and Review -.

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

COMMISSIONER DAY: \ 1. think you should. That is

what-you: are attacking. .

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

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

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

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

sion, as part of our case.

COMMISSIONER DAY: I will amend my statement

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

| You may pfoceed and I. will make each- ruling as Jit: is

indicated. ©

MR. KNOX: “We were - only thinking of the. sequence

: of our presentation. in other words, we can introduce the .

record of the Appeals and Review Board decision. We | |

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

_ ing.

COMMISSIONER DAY: Is there any objection t to that |

_procedare being followed? ~

MR. METZLER: Mr. Commissioner, Iam not anxious

- to prolong this trial or to interrupt the presentation by

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

“ introduction of ev idence. which. was not before the Ap- .-

be a trial de novo or as to whether the - «-~

’ Plaintiff is Jimjzed to what is shown by the agmiiistra--

: tive ‘record. -‘Uftil the Court comes down with something.

ive. than. ey have heretofore, Iam going, ito ~.-

: me Board, as a basis for shila that the findings of

the Board were arbitrary and capricious. I- do pot see

that you can impeach a Distr ict Court, for example, or an

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

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

_ the type of issue which we have. :

~ | We have no objection to«the Commissioner and the

- Court fully consideririg and ‘studying the entire record .

before the co sae Claims and Appeals Board. We are

__ perfectly. will :

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

| documents and so forth, he must show: that.that- record -

would. have been different if they had _presented that

[ fol. 16]- evidence and those witnesses, and I.am going to

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

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

. betieve is his thought-—that it will’ go into evidence. »

-, COMMISSIONER DAY: _ Go ahead.

. MR, METZLER:. Off the record, please.

(Diseussion off: the record.)

- COMMISSIONER DAY: Back on ‘the sink

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

we may pore a AG

COMMISSIONER DAY: - All right. ;

.MR.‘ KNOX: The first wjtness will be Pieiaias R.

Sullivan. ,

COMMISSIONER DAY: Very well.

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

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

. this ‘would help, the record of the | Appeals and ‘Review

Board decision, ‘but the entire record of exhibits is not

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

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

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

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

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

all those exhibits in. that Appeals and Review Board

hearing were Government property, ahd we do. not have

: those docuntents, but Mr. Metzler does. .

{

6 2 20 : i

f x . ee _

. . °

g that’ the whole matter go in, but if the -

‘ :

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

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

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

exhibits. When I’ say ‘returned to you,” I mean they

val

were returned to the Plaintiff or its prior counsel.

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

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

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

time... . as i oa | roe

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

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

"of photographs which you did. allow us to examine, but .

they are in your possession. They were exhibits in that

re ‘eC a ee

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

‘. go far as I know, the situation is this: ar.

“There were. thirty-nine or forty photograplis, which

_were apparently. before the Engineers Claims: dnd Ap-

peals Board: In sé far as I know, however, the photo- |

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

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

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

gave those. photographs to you for the purpose of making

copies. | i bt Ate ae

MR. KNOX: That is right. — pe ie,

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

make of them.

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

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

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

original exhibits, becaise they were never returned to ~

us. ere ee re eer ar

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

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

hibits before the Appeals Board. They might have been. .

identified in,some way. Hf that is the only probiem, and

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

to introducing those as an exhibit so as to avoid that

roc aaeains mee, .

. ~ COMMISSIONER DAY: All right:

Se Waeeepee 37

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

int: --.. Sr eee ones

~ MR. KNOX: Mr. Commissioner, .I would like to Yre-

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

standing, that we stipulate that the Appeals and Review

‘Board record, and submit it to the Commissioner in its °

_ entirety. You also have some Government pictures or

photographs which were introduced, which we do not have.

| MMISSIGNER.DAY: ‘Let us go off the record for

at minute, Mr. Reporter: ~ .

(Discussion off the record.)

COMMISSIONER DAY: Back.on the record. ,

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

subsequent to this there was a motion for reconsideration,

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

cember. I understand we have got that here. —

COMMISSIONER DAY: Verywell, ak

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

- documents be Marked for identification as Plaintiff's Ex-

_ hibits Nos. 1, 2 and 3. i rots,

- . COMMISSIONER DAY: . Very well.

(Decision. of ‘the Appeals and Review Board was

marked' for identification as Plaintiff's Exhibit No.

— (Record of hearing before the Appeals and Review.

- Board was marked for identification as Plaintiff’s

Exhibit No. 2.) | ,

(Motion for reconsideration, denied J anuary 4 by Ap-

~peals and Review Board, was’ marked for identifica- _

tion as Plaintiff’s Exhibit No. 3.) ) '

MR. KNOX: We ask léave -to substitute photostatic

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

COMMISSIONER DAY: . Very well.

THOMAS R. SULLIVAN, a witness produced on behalf

of the Plaintiff; having been first duly sworn by said

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

_rogatories testified’ as follows:

DIRECT EXAMINATION

BY MR. KNOX:

Q. Mr.. Sullivan, will you state your full mame and ~

residence?

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

Framingham,. Massachusetts.

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

Bianchi and Company, Inc. of Framingham, Massachu-

setts?

A. Yes.

Q. In what capacity? ig

A. I am assistant treasurer.

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

= with-Carlo Bianchi and Company, Inc.?

A. Since 1940.

_|_____Q. Will you state whether or not Carlo Bianchi wl

_ Company, Inc., is a Massachusetts corporation?

A. It is.

-Q. When was it organized?

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

wealth of Massachusetts in 1912.

_Q..Mr. Sullivan, are you familiar with the proceed-

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

neers Appeals and Review Board of the Army. Corps of

- Engineers?

. . A. Before the Appeals Board, yes.

soe nsec oveca der AIO. SOM. keep the records of Carlo Bianchi and. Com-

pany, Inc.?

A. I have over-all responsibility of them and omperve-

e. sion.

Q. I now hand you Plaintiff's Exhibits Nos. 1, 2-and

3, marked for identification, and request that you identify

‘these documents.

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

ceedings of ‘the hearing on the appeal of Carlo Bianchi

~..-and-Gempany, Inc., before the Engineers Claims and

' * Appeals~Board,—under Case No. 14, which took place in ©

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

i oe = seal 1 to Carlo Bianchi

ard C pany, a ‘Recorder-of that Claims and

~*~

Appeals Board on December 14, 1948, appended to which

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

Engineers Claims and Appeals Board, ‘relatirig) to. the .

appeal that I have just mentioned. That was. dated

December 9, 1948. gee .

Exhibit No. 3 is a letter addressed to Carlo Bianchi

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

Engineers Claims and Appeals Board on January 14).

1949, appended to which is a ‘supplementary opinion a

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

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

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

: MR. METZLER: No objection, subject: to compari-

son and verification. Se wa : eh

COMMISSIONER DAY: Admitted.

(The documents heretofore marked for identificu-

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

made a part of this record) :

MR. KNOX:- We uest with respect to Plaintiff's

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

static copies. : ee,

{fol. 22; MR. METZLER: No objection.

COMMISSIONER: DAY: Very well. 5.

' MR. KNOX: Will you identify this document as

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

'(Contractor’s: copy of original contract agreement

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

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

was marked for identification as Plaintiff's Exhibit.

No. 4-A.) SPipplaeency tee, 7

‘Bound set of the contract diawings applicable to

said contract, enclosing-copy of Addendum No. 1

was gnarked for identification as Plaintiff’s Exhibit

No. 4-B.). :

¢ BY MR. KNOX: _

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

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

\ | =

wise marked for identification, and request that you : ;

identify ‘those documents.

A. Exhibit No. 4-A consists of the Contractor’ 8 copy

of the original contract agreement with the Department

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

Enclosed in the same folder is a set of the contract\

‘specifications, — with Addenda No.-1 and 2 there-

of.

_\ Exhibit. No. 4-B is composed of a ‘head set of the

(fol. 23]: contract drawings, applicable to that contract.

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

_ together with an additional set of eight drawings, re-

vised, which accompanied Addendum.No. 1.

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

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

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

. jection to the introduction of Plaintiff's Exhibits Nos.

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

_ However, attention is called to the fact that the contract

counsel offered is incomplete, and that there were numer-

ous changes. subsequent to the time that it was entered

. into. /

COMMISSIONER DAY: If: they do not ee A ;

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

MR. METZLER: I am (just calling attention right

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

is an incomplete copy of the icontract which was entered

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

Plaintiff and not on the Government to introduce the com- -

plete contract.

COMMISSIONER DAY: Off the record, Mr. Re-

porter, please.

( Discussion off the record.)

COMMISSIONER DAY: Back on the record. Is

your objection satisfied now, Mr. Metzler?

MR. METZLER: If these documents as offered in

clude the complete contract and the modifications, I think

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

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

Oe egy

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

COMMISSIONER DAY: They will be subject to veri-

fication.

MR. METZLER: Very well.

MR. KNOX: Always.

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

) marked as Piaintiff’s Exhibits Nos. 4-A' and 4-A*.:

(Modifications and changes of contract was marked

Plaintiff's Exhibit No. 4-A’*.) ;

MR. METZLER: That is ‘satisfactory,

MR. KNOX: I aant to offer these documents subject

to substitution. of the change orders because these are

the originals, and we would like to have _— back, and

they can always be verified. pe

COMMISSIONER DAY: Very well. They will be

received.

MR. KNOX: Off the record.

( Discussion | off the record.)

COMMISSIONER DAY: Back on the record.

BY MR. KNOX: ‘

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

4 for identification, I now hand you Plaintiff's Exhibi:

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

will you state what these consist of?

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

_ [fol. 25] series °of: change order modifications officially

made by the Corps of Engineer: to the contractor. There

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

signed copiés. No. 4-A* consists of a'ty pewritten facsimile |

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

rs 1956 with the War Department, he Engineers Of-

ce.

| KNOX: Mr: Commissioner, I now offer into evi-

dence as Piaintiff’s Exhibits 4-A', 4-A*, and 4-A" the

documents described by the witness, with leave to .sub-

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

copies of the change of ‘orders and modifications.

MR. METZLER: I have no objection to substituting

a wee copy. if that is what you mean.

a2 en ' ti

MR. KNOX: Photostatic copies will be furnished.

THE WITNESS: They are not photostatie copies.

One is. Most of them are ditto copies representing an

extra copy furnished to us by the Corps of Engineers.

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

see,

MR. KNOX: They are all subject to verification.

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

parison and: verification and prov ided that legible copies

are furnished.

_ “COMMISSIONER DAY: There is no point in giving

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

_ anyway.

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

MR. KNOX: With the exception of the first two

_ Sheets.

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

(The documents heretofore marked for identification

Plaintiff's Exhibits Nos. 4-A', 4-A* and 4-A* were

made a part of this record.) > .

MR. KNOX: Off the record. .

(Discussion off the record.)

COMMISSIONER DAY: Go ahead, Mr. Knox.

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

please.

tres (Letter addressed by Col. A. €. -Welling, District

Engineer of the Baltimore District of Corps of

" Engineers, dated July 20, 1919 to Carlo Bianchi &

- Co., Ine.-was marked Piaintiff's Exhibit No. 5 for

identification. )

BY MR. KNOX: ;

Q. Mr. Sullivan, I now hand you Plaintiff's a> A

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

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

. District Engineer of the Baltimore District of the Corps

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

Company, Inc., informing the contractor that all work

‘and services in connection with. Contract W-30-180-eng-

397 was satisfactorily comp!cted in accordance with the

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

accepted.

‘COMMISSIONER DAY: You may be. seated while

you are testifying, if you like.

{ fol. 27| THE WITNESS: Thank you.

-_—MR. KNOW: I now offer Plaintiff's Exhibit No. 5

for identification in evidence.

MR. METZLER: No objection.

COMMISSIONER DAY: Admitted.

-(The document heretofore marked for identification

Plaintiff's Exhibit No. 5 was made a part-of this

record. )

MR. KNOX: Mark this document” Plaintiff's Exhibit

No. 6 for identification, please. ae

(Climaticalogical data from “LYS. Weather Bureau.

Albany, New York, for December 1916 through May

1947 was marked. for identification Plaintiff’s Ex-

hibit No. 6.) .

BY MR. KNOX:

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

No. 6 marked for identification, consisting of . certain

printed documents, and ask you to identify this exhibit.

A. This exhibit consists of the climaticalogical data

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

‘ covering the months of December 1946 through May 1947,

_ together with a certification by Harold J. Smith, Acting

Meteorologist in chafge at Albany, that the six publica-

tions are. official publications of the United States

Weather Bureau.

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

have referred show the precipitation and temperatures at

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

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

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

Alfred University, and the data ates, daily precipi-

_ tation is shown in detail.

Q. For’ what —_—

A. For: all: those months that I named, from Decem-

ber 1946 through May 1947.

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

tiff’s Exhibit No. ‘6 for identification into evidence.

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

ports being received, subject to —- evancy being

later established.

COMMISSIONER DAY:* ‘They may be received.

(The document heretofore marked | for identification

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

record. )

COMMISSIONER DAY: Suppose we take about a

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

minutes.

(Short recess. )

COMMISSIONER: DAY: Proceed.

BY MR. KNOX:

—Q. Mr. Sullivan, I now hand you a document marked

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

identify it?

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

‘. {fol. 29] October 14, 1946 addressed te Mr. D. E. Mather,

Resident Engineer.

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

Mather, Resident Engineer, was marked for identifi-

cation Plaintiff's Exhibit No. 7.)

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

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

_ cation Plaintiff’s Exhibit No. 8.)

BY MR. KNOX:

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

fication. Will you briefly describe it so we can identify

it? -

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

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

1946. This is an original letter.

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

for identification.

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

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

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

BY! MR. KNOX:

Q. Will gr please tell us what that is? |

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

dressed to no District Engineer at Baltimore, Maryland

on December 12, 1946.

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

-to Carlo Bianchi &. Co., “Inc., dated December 18,

1946, was marked | ffor identification Plaintiff’s Ex-

hibit No. 10.)

BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit. No. 10 ideas

for identification, and ask you what that is?

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

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

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

(Contractor’s file copy of letter to Resident Engineer

on December 18, 1946 was’ marked for identification

Plaintiff’s Exhibit No. ae.

. BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 11 marked

for identification.

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

dressed to Resident Engineer on December. 18, 1946.

(Original letter from Resident . Engineer to Carlo

~< Bianchi & Co., Inc., on December 20, 1946 was

. marked for identification as Plaintiff's Exhibit No. |

12.)

BY MR. KNOX:

Q. I now hand you Plaintift's Exhibit No. 12 marked

for identification.

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

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

December 20, 1946.

‘(Original letter written by the District Engineer to

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

" marked for identification Plaintiff's Exhibit No. 13.)

_BY MR. KNOX: . |

:-Q: I now hand you Plaintiff's Exhibit No. 13 marked

for identification. A

A. This is an original letter written by the District

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

20,1946. °° - .

_ (Copy of letter to District Engineer on December

27, 1946 was marked Plaintiff's Exhibit No. 14 for

identification. }

BY MR. KNOX:

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

r identification. : "s

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

ten to the District Engineer on December 27,186.

S - ‘ : 2 : - Z

(Original letter from District Engineer to Carlo

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

Plaintiff's Exhibit No. 15 for identification.)

. BY MR. KNOX:

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

identification. , ae

- A. No. 15 is an original letter written by the

3 District neér to Carlo Bianchi & Company, Inc. on

January 3, 947.

(Contractor’s file copy of letter to Resident Engineer

on January 14, 1947 was marked for identification

Plaintiff’s Exhibit No. 16.)

BY MR. KNOX:

_ / Q I now hand you Plaintiff's Exhibit No. 16 marked

for identification. : |

a | | 47

a the 0 to thf cictenstar's Ole cnn of ia bauer ot-

dressed to the Resident Engineer on January 14, 1947.

(Contractor’s file copy of letter to Resident Engineer

on January 14, 1947 was marked for identification

Plaintiff's Exhibit No. 17.)

’ BY MR: KNOX:

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

for identification.

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

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

(Original letter from Resident Engincer on January

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

for identification Plaintiff’s Exhibit No. 18.) .

BY MR. KNOX:

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

fication, and ask you what that is.

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

' [fol, 33) Engineer on January 20, 1947 to Carlo Bianchi

& Company, Inc.

Contractor’s file copy of letter to District Engineer

on January 24, 1947 was marked for identification

Plaintiff's Exhibit No. 18-A.)

BY MR. KNOX:

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

for identification. —

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

- copy of a letter addressed to the District Engineer on

January 24, 1947.

(Original letter from District ae to Carlo

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

for identification Plaintiff's Exhibit No. 19.)

BY MR. KNOX:

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

for identification.

i , . ~ ‘ ‘ . : ‘ ; ‘ % 4

a) . P . . : ‘> :

‘ -e ‘ P :

a i % . 5 : j

: - 3 ‘ e 6 . : .‘ - |

« . ; ~ . - -;

vt No. 19 is an ériginal. letter ‘erie by. ithe. Distri <i).

_ Engineer to Carlo Bianchi. & oe Inc.,’ by ne a

8, 1947. ,

(Copy. of letter ‘dated- April’ 10, 1947, to Reside t - > ;

_. |. «Engineer was. marked for identification —

Sas _ Exhibit No. 207) i Ba i

“py. am KNox: 8 TO

— ~Q, IT now hand you” ‘Plaintiff's Exhibit No, 20 marked ie

a “for identification.

ie A. No. 20° is. a. edritractor’s file copy of a letter’ dated

[fol. 34] April 10, 1947. addressed to ber Resigns Engi

weet? i

(Original sia oie Ajsistant Resident Engineer to

— * ~~ Carlo Bianchi & Co., Inc. “on April'14, 1947. was .

- marked for identification Plaintiff's Exhibit a 21.

= BY MR.. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 21 marked — -

tor identification, -.

A. Nov. 21 is an- original letter written by Dale

arom Resident’ Engineer, -on.,April 14, 1947, to Carl oy

Bianchi & ‘Company, Inc. ;

cei (Photostatic-copy. of letter from Cailo Bianchi & Co.,

BY MR. KNOX;

Inc. to Resident Engineer. on~ April 23, “1947 was. _

marked for — Plaintiff's Exhibit No. 22. ae

Q. I now fand ; you 1 Plaintiff's Exhibit ree 22 marked _ ¥

‘for identification.

—° AYNo. 22 is a stininaibte copy :of rhe etter shhisaeadl

_° by Carlo, Biarichi: & Company, Ine: to t, Reagent Engi- te

~ meer on April 23, 1947. .

-(Photostatic copy of letter tro sre & Co. ,

was marked |

Inc. to District Engineer, Ap

fe identification- Plaintf?s-Exhibit, 7 23.), rs

“BY MR. .KNOX: ~ Be 3 aes

ar you Plaintiff's Exhibit . No, 23. marked ae ;

Aes 35) for —,. ces yo eth , Se

. ; Xe 7

- (Original letter’ from District aateliais to Carlo

Fi try ‘& Co., Inc., May 5,°1947 was marked for

tification Plaintiff's Exhibit ee al

|. BY MR. KNOX: | - eee

Q. I now harid you “Plaintiff's Exhibit No. 24 marked

for identification. .

‘A. No. 24 is an original - letter from the, District a

. neer to’ Carlo Bianchi & —_ Ine., “dated May 5

1947, ‘ & ‘,

(Contractor's file copy ‘ofa letter to District. Engi:

ie ‘No. 23 is a photostatie copy of a letfe dressed -

°° .by Carlo Bianchi & “ear Ine. to the District i

. Neer on April 23, 1947. -:

» .

— eee a

aaw

neer on May 26, 1947 was marked for —— ;

Plaintiff's Exhibit No. 25.) 5.

BY “MR. meee ge * OX

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

- for identification. iB

‘A. No. 25 is the contrgctor’s file copy of a letter writ.

= i : ten to the District Engineer on May 26, 1947,

- (Con: ractor’s file \ copy, of -a’ letter to Secretary of ©

War, Washington, D. @..from Carlo Biagchi & Co.,

: Inc., on May 29, 1947). was marked. for Adentifica-

tion Plaintiff’s. Exhibit. No, Pe oe:

_» [fol. 36] BY MR: KNOX: | ~~

_Q. I now hand you Plaintif’s Exhibit No. 26 marked |

for identification. -" .

A..No. 26.is the contractor's: file copy of a letter prs

dressed to the Secretary of War, Washington, D.-C., 7

the Car > Bianchi & Company, \ Ine., on, May 29, 1947:

(Contractor’s file copy of ihedar addressed to Distiiet .

Enzineér on May 29, 1947 was marked for identifi-

cation Plaintiff's Exhibit. No iil -

BY MR.. KNOX: ee

Q T now hand. you Plaintiff’ s Exhibit No. 26- A marked

, for identification. ;

—_

are oe oe |

A. 26-A is ‘the contractor's file copy..of a letter ad-

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

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

tion Division, Corps of Engineers, to Carlo Bianchi

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

fication Plaintiff’s Exhibit No. 27.) |

.BY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 27 for iden 7

_. tification. :

.No. 27 is an original letter. addressed by B. Cc

Chief Construction Division, Corps‘ of Engi-

neers, to Ca ianchi & Company, Inc., on — 2,

iid. 2h; (idahid tether vo Catt Btanshd & Ca, tne.

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

Claims and Appeals Board, June 5, 1947, was marked-- one: o

for identification. Plaintiff's Exhibit No. 28.) a

BY MR. KNOX:

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

for identification. es re

-A. No. 28 is an original communication addresséd to

Carlo Bianchi & Company, Inc., by. W. H. Fox, Recorder a

_of the Corps of Engineers, Claims and Appeals Beard,

' Washington, D: C., dated June , 1947. *

(Original letter from Distotes Engineer to Carlo

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

_ identification Plaintiff's "Exhibit: beaut 29.) - |

/BY. MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 29 ‘marked 2

for identification.

- KO No. 29 is an original letter written by the District :

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

Ine.

; (Contractor's file copy|“of a letter sddressed tothe /. J

District Engineer on June 23, 1947 was marked for ah

identification Plaintiff's Exhibit No. 30. y i .

/N\

BY “MR. KNOX:

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

for identification. ..

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

—_ addressed to . the District — on _— _ 23,

194

(Contractor’s file « copy of a jviter to Resident Engi- |

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

was marked for identification Plaintiff's Exhibit No. .

3),

PY MR. KNOX:

Q. I now hand you Plaintiff's Exhibit No. 31 marked

for identification.

‘A. No. 31 is the contractor’s file copy of a letter ad-

‘dressed to the Resident Engineer -by Carlo Bianchi &

Company, Inc., on June 23, 1947.

_(Contractor’s file -copy- of: a etter to District Engi-

.. neex, ‘July 25, 1947- was: marked’ for “ia

a8 Plaintiff's: muniblt “a 32.) nee

BY MR. KNOX:

/ > @. Isnow hand you Plaintiff s Exhibit No. 32 marked

for*identification. 7

A. No. 32 is the contractor's file copy of a letter ad-

dressed to_the District Engineer on July® 25,1947:

| {Contractor's file. copy’ of a Jetter addressed to the.

Resident Engineer on July 30;°1947, was marked

for identification, Plaintiff's Exhibit No. 33.)

BY MR.KNOX: | a4

Q. I now -hand you Plaintiff's Exhibit No. 33 for

Af fol. 39) identification.

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

__dressed to the Regident Engineer on July 30, 1947.

(Contfactor’s file. copy of a letter addressed to th =

/ District Engineer on August'1, 1947 was marked for

-identitieation as Plaintiff’s. E xhibit dees 3400 /

52 ie

BY MR. KNOX:

for identification.

dressed to the District Engineer on August 1, 1947.

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

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

District Engineer, August 11, 1947, was marked for

b wesgehng as Plaintiff’s Exhibit No. 35.)

‘BY MR, KNOX:

@ I hand. you Plaintiff's Exhibit No. 35 naan for —

identification. °

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

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

1947 by J. P. Campbell, Lt. Col., Corps of Engin rs, Act-

ing District Engineer.

(Contractor’s file ‘copy of a letter dated iii Ip,

1947 to District Engineer was marked for identi-

. fication Plaintiff’s Exhibit No. 36.)

(fol. 40]. —siBY MR. KNOX:

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

for identificati ion.

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

copy of a’ batten: dated August 15, 1947 addressed to the

District Engineer.

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

offer into evidence Plaintiff’s Exhibit No. 7 through

Plaintiff’s’ Exhibit No. 36, inclusive. —

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

_ examine the exhibits, Mr.. Commissioner, before taking

any position with respect to them.

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

you prefer to do that?

MR. KNOX: ‘It is perfectly all ,right. I will sit down

for a-few minutes.,

OMMISSIONER DAY: Mr. Metzler, I don’t mind |

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

yon are making a lot of notes.

Q. th hand you Plaintiff’s Exhibit No. 34 nasted

0, 34 i the contractor’s file copy of a letter ad-.

a eas : 53

. ‘ -

MR. METZLER: I am merely making a check, Mr. -

Commissioner, to ascertain whether or not I have a valid :

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

checking of several records. For example, I am trying

not to make objections which will just clutter up the

record.

With respect to Plaintiff’s Exhibit No. 7, for example,

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

least, from Ahe information I have presently examined,

this was before the hoe Appeal Board. If that is

the situation then I would object to it as a document

which was not preyi fiously submitted to. the. —

Appeals Board. ;

‘COMMISSIONER DAY: You can male objection with ;

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

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

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

to do that it takes some time to examme these some

‘twenty-nine documents. *~°

-_ COMMISSIONER LAY: These twenty-nine doctiments

obviously dre all leiters that. were ‘either sent to one

‘of your people or received by one of your people, and

you can determine that by looking at the documents.

/MR. METZLER: That ‘doesn’t make them admissible

in evidence, Mr. Commissioner, the M¥¢re fact that they ©

were an exchange of correspondence.

COMMISSIONER DAY: The only observation I have

is I am not going to sit here while you make a_iot of

extensive notes*about each one of the papers’ before you

state, your’ position with- respect to each one of them.

You can make your records as you go aleng. : ;

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

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

but two minutes to examine ‘them. .

{fol.42] COMMISSIONER DAY: We are not calling

upon you to state your objection with respect to all

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

to sit here while you make extensive notes about ‘each

document so you can determine what objection, if. any,

you-may have. > ~

MR: METZLER: Well, all that I am trying to do is”

not to make objections here unnecessarily. If I must

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

these documents unless. it were established that they were

before the Appeals Board. Otherwise, I do not believe

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

I must make an objection to any of the documents unless

it is established that they have something to do with

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

changed between the parties does not make them ad-

_ miasible in evidence. I think that many of these docu-

ments were before the Appeals Board and I think perhaps

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

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

to do the best I can.

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

these documents, these exhibits which we have offered,

sixteen pot those letters were called to the attention of

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

sixteen letters are’ letters from the contractor to the

’ Resident Engineer, the contracting officer and various

branches of the Army Corps of Engineers. Those letters,

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

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

as I gathered from a conversation, you indicated that you

had no objection to those sixteen copies where the

originals reposed in your possession.

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

oe are the original letters from the War Department.

' Now, I have introduced, for various reasons, in order

to make your record complete, the appeal notice and the

‘Engineers’ Appeals and Review Board, the acknowl-

edgment of it, and in addition the correspondence with

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

relevant and material. ay

COMMISSIONER DAY: , The only observation I had

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

while extensive notes are being made about each docu-

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

time and let you look at them and give you reasonable

time to look: at each one. :

‘ , ; : : 55

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

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

documents. I didn’t, have the opportunity because they

were introduced a yak, to even correctly identify them.

‘I am sorry. .

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

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

What is your position with respect ‘to Plaintiff's Ex-

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

MR. METZLER: Mr. Commissioner, with respect to

[fol. 44] No. 7,.it is not established that this document

was before the Appeals Board, at least at the present

time.

COMMISSIONER DAY: Do you have any further ob-

jection?

MR. METZLER: I don’t think that this witness has

been qualified to testify with respect to the contents of .

the letter. We will admit the receipt of them.

COMMISSIONER DAY: I-am here to hear whatever

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

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

state it. ——-

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

jection.

COMMISSIONER DAY: Do you k-ve any. further

objection? I want to know if you are through.

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

COMMISSIONER DAY: Then paneer

MR. METZLER: It is clear, ‘Mr. Commissioner, that

. I have objected on the ground the witness has not been

qualified to testify to the contents of this letter of October

. 14, 1947, Plaintiff's Exhibit No.7. ©

COMMISSIONER DAY: I suppose the Reporter got

. your objection. :

MR. METZLER: With respect to Plaintiff’s Exhibit

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

Engineers Claims and Appeals Board. There is no ob-

jection to the document otherwise except that I would ©

like to ask Mr. Sullivan whether or not this appendage

[fol. 45]' was affixed to the original document when’ it’

was received or whether that was subsequently added?

-}- Ls

- v

6 es

56 pee

, ¥) »* -«

THE WITNESS: The appendage is a transcript of

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

cations.

COMMISSIONER Day: ‘Was it on there when’ you got

the letter?

THE WITNESS: it ‘onal on there when we got it.

I had it put on there in order to properly study the letter

itself.

MR. METZLER: It will be so \esttared, ‘then, that

this is not a part of the comunication? —

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

Preeneeeremaaay DAY: It may be received. .

- (The document heretofore marked for identification |

Plaintiff’s Exhibit No. 7 Avas made a part of this:

record. )

COMMISSIONER, DAY: With fespect to the objection

that it does not appear that jt was befor§ the Board, I am

going to admit any of these letters over that objection,

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

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

to precisely what letters: were before the. Board, so that

any that were not, obviously were not.

MR. METZLER: The claimant said they v were going to.

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

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

” {fol. 46] can agree to something without proof. In so far

as the proof is known to me I wiil admit it, but not

~ beyond that. -

COMMISSIONER. DAY: Well, don’t you know what

was before the Board?

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

‘ proximately sight years ago. —

COMMISSIONER DAY: Wasn’t there a record made

about what exhibits were before the Board? ,

MR. METZLER: . There was a transcript of some

seventy-nine pages where reference was made to various

exhibits which were before the Board. —

COMMISSIONER DAY: There is no list of exhibits?

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

MR. KNOX: Mr. Commissioner, over a year ago I

spent a great deal of time on the transcript of record, ©

Q. 87

prepared a very lengthy letter to Mr. Metzler identifyi ing

all the Plaintiff’s exhibits in the transcript, including

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

oo.

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

and thev.had it for about two months and I was trying

to get them to stipulate what the record was because it

is not too clear in the transcript, because the way they

identified some of the exhibits, some of the photographs.

were just handed to the administrative board, and that |

is true of the Government photography and exhibits as

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

_ [fol. 47] record but I was never successful in getting an.

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

MR. METZLER: We made some efforts to consider

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

the present time you apparently aren’t able to state _

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

17, 1946 was before the Board. If it was then I will

- withdraw my objection, that is all.

COMMISSIONER DAY: If the Board did not make -

some kind of record, you can understand, sufficiently to

determine that question quickly, well,:I would overrule

your objection pretty rapidly on that.

‘MR. METZLER: The record before the Board as

presented by the Plaintiff, which was represented by.

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

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

exhibits it does not appear to me at this time that these

specific documents wefe before the Board, and I am

quite confident that many of the others which have been

offered today were not before the Board, either. ;

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

to 9.

(The document. ali sharked for identification

Plaintiff's Exhibit’ No. 8 was made a part of this °

record.) | ' ms

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

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

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

exhibits " were numbered AA to EE, and I aii are far

more than that offered here olen by counsel. But the

record is, I.-think, clear.

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

- Exhibit No. 9.

COMMISSIONER DAY: Admitted.

‘(The document heretofore marked for identification

Plaintiff's — No. 9 was made a part bas this

/: record.) .

MR. METZLER: The same objection with respect to

Plaigtiff’s Exhibit No. 10.

_ COMMISSIONER DAY: Admitted.

(The document heretofore marked for. identification

Plaintiff’s Exhibit No. 10, was made a part of this

record:).

MR. METZLER: Plaintiff's Exhibit No. 11 appears to

have been before the Board, but objection is made to |

‘ relevancy and materiality, otherwise, unless’ that is .

established.

. COMMISSIONER DAY: It may be received.

(The document heretofore. marked for identification

_ Plaintiff's Exhibit No. 11 was made a part of this

record,) -

MR. METZLER: If you wilt notice, Mr. Commissioner,

this is signed apparently by someone other than the wit-

ness by whom it was identified.

[fol. 49] COMMISSIONER DAY: Yes. ,

MR. METZLER: I mean,I don’t think this witness is

in a position to testify with respect to the-contents of

\ the document in so far as it is offered to show that it

was sent. I mean I have no objection to that.

‘COMMISSIONER DAY: That is all it could possibly

‘be at this point.

MR. METZLER: If that’s the understanding, it may

speed up my objection.

COMMISSIONER DAY: The witness has not testified

with respect to the contents of the letter, Mr. Metzler.

MR. METZLER: All right.

Plaintiff's Exhibit No. 12, no objection.

COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

nieve aly Exhibit No. 12 was made a part of this

recorfl. ) :

MR. METZLER: Mr. Sullivan, may I ask is it not also

true that the appendages were not a part of the,original.

letter, Plaintiff’s. Exhibit No. 13?

THE WITNESS: The same situation prevails here.

There were various referencés in hereyas you will note, to

specifications; and these simply facilitate the reading.

MR. METZLER: They were not part of the original?

THE WITNESS: They were not part of the original.

[fol.50}] MR. KNOX: Mr. Commissioner, let’s remove

that and see if we can get along. We had one other the

same way and we will check that. .

‘MR. METZLER: Let’s let it as it is. Don’t destroy

COMMISSIONER DAY: He is withdrawing the part

you had a about. i Le

“ MR. KNOX: Here is the original exhibit as we had it

marked for identification, This is not part of it. _

MR. M ER: I have a further objection that it does .

, not appear that iff's Exhibit No. 13 was b fore the.

— . Mr. Commissioner. ~

- COMMISSIONER DAY: It may be received.

—.

(The document heretofore marked for identification

a Exhibit No. 13 was made a part of this

record. }

MR. METZLER: Same objection with respect to Plain-

tiff's E-' ibit No. 14. “5

COMMISSIONER DAY: Admitted. ;

(The document heretofore marked for/Adentification

Plaintiff's Exhibit No. 14 was made a part of this

record. )

“MR. METZLER: Same objection with respect to Plain-

tiff’s Exhibit No. 15.

COMMISSIONER DAY: Admitted.

(fol. 51) » (Bhe docteneit ‘tendiakie vendtied for iden- :

" tification Plaintiff’s Exhibit No: 15. was rao a part)

of this record: )

16. xs

COMMISSIONER DAY: ‘Admitted: 7

(The' document heretofore, marked for dentification :

; K

MR. YMerd.er: Same. gbjection with respect to to ae. 7

Plaintiff's Exnibit No. 16 was $ made a ‘Paes: of : this |

: record: )

MR. METZLER: ‘Sante objection : with respect to No.

17.

"COMMISSIONER DAY: Admitted. Ao

| Plaintiff's. Exhibit ' No. 17° was made

record.): °° 4.

(The document heretofore marked at identification

MR. METZLER: No. shijection to. Ne. 18, with. the. :

understanding that the various additioris’ made to the ae

typed portion did not appear on''the original.:

COMMISSIONER DAY: Admitted. with that die’

ie.

part: of this .

: (The docussent heretofore marked for tdentifiesiton og

. Plaintiff's Exhibit No. 18 was made a- 5 ahd of. dyes

record. }

MR: METZLER: The same ciileittaal | with.’ feapect, to -

‘ Plaintiff's Exhibit No. 18-A, namely, that this does not

appear ‘to: have, been before the ——- Board, oes) Com:, |

missioner. . *.

co {MISSIONER DAY: Tt may ‘be received.

: "(The document’ heretofore marked: “for ‘identificatiqn 2

record. )

a (fal. 52] |. MR. METZLFR» Same objection with eee ‘

- COMMISSIONER DAY: Admitted. 5 ihc ~

, (The. docisment: her tofore maiked en. identification

‘Plaintiff's: Exhibit. 0. 19 was made a part-of this -,

. record.) — ea

MR. scths ac adimit the receipt of Plaintiff's

' . Exhibit No. 20 in that it was before the. Appeals Board.

COMMISSIONER DAY: It may be received. oe

* 1The document heretofore marked for identification

Plaintiff’s Exhibit No. 20 was.made a part of this —

_* MR. METZLER: No dbjection to No.°21,

COMMISSIONER DAY: Admitted.

(The document heretofore marked. for identification

_Plaiatiff’s Exhibit No. 21 was made a part of this

.~ record.) °5— Aa te ees

__ MR. METZLER: It.is understood that in all cases, Mr.

Commissioner, where there is a copy that we will-have the’

opportunity to make“a_ comparison or. verificatior of the

original. ~ ns os ; eae

* . + COMMISSIONER DAY:. Oh, certainly. So ih? a

; MR. KNOX: Where the original is in your possession.

. «MR. METZLER: That’s right, yes. ane

_ We admit-the receipt of No. 22 and. that it was before

the Appeals Board. oat SS, Ga eee eats :

(fol. 53]; COMMISSIONER DAY: - Admitted.

(The document heretofore marked for: identification |

Plaintiff’s Exhibit No. 22 was made a part of this

record. ) HON Ba me ,

- MR. METZLER: “The same_ is alsd true with respect to .

2 eo

> ae

- COMMISSIONER DAY: Admitted. oe

. (The document heretofore marked for identification

‘s Plaintiffs Exhibit’ No. 23 was made a part of this

. oo. Yeérd.) ier. ae os

"MR. METZEER: Also No. 24. .

COMMISSIONER DAY: Adnfitted.

(8. - (The document heretofore marked for. identification.

.:, Plaintiff’s Exhibit No. 24 was made a part of this -

~: record.) a ee ene oes eae ieee

MR: METZLER: We admit the receipt of No. 25 and

_ . that it was before: the Appeals Board is also admitted. - ‘—

| ee

-C MISSIONER: DAY: "Admitted.

Plaintiff's Exhibit- ‘No. 25° ‘was made a part of this

rd.) .

MR... ETZLER: ‘No objection to No. 26. | a

COMMISSIONER DAY: Admitted. . “a

(The \document : heretofo re marked for identification

record.

MR. METNZLER: No obj tion to. No. 26-A.

[fol 54]. COMMISSIONER DAY: Admitted.

- (The d

~ Plaintierh

- this record. 5)

MR. METZLER:

__ teriality has been estab

. COMMISSIONER DAY: Let mie see it. (Document

handed to the Commissioner) =. - =

It may be received. | :

(The document’ heretofore pa ae for ‘identifigation

Plaintiff's Exhibit No. #1 was made a part of this -

record. )

~" MR, METZLER: No objection. to No. 28. |

‘. COMMISSIONER DAY: Admitted.

(The document heretofore ‘marked tie identification

Plaintiff's Exhibit No. 28 was. made a part of this

record. ) -

~ MR. METZLER: No ae ma No. 29.

~ COMMISSIONER DAY: Admitted.

(The document heretofore marked for identification

Plaintiff’s Exhibit No. 29 was made a _— of this

: record.)

e document heretofore marked for identification “

ent heretofore marked for identification -

hibit No. 26-A and was made a part of

jection to. Plaintiff’s ‘Exhibit No. °

_ 27 in so far as it-does not appear that it -was before the

Appeals Board and, een no relevancy.or no ma-

lish

a S

* . .

‘ : 63

— 5 . °

- .

MR. METZLER: No objection jo Plaintiff’s Exhibit

' No. ‘30 in so‘far as the receipt or the fact that it was.

. before the Appeals Board. . ;

| fol. 55] COMMISSIONER DAY: Admitted. . ee a te

'. (The document heretofore marked for identification

. Plaintiff's Exhibit No. 80 was made a part of. this °

.MR. METZLER:’'No. 31 is objected to on the ground. °

that it does not appear that this was before the: Appeals”

Board and on other grounds of relevancy: previously.

‘stated. 7 he Seco sah eaee

_ ‘COMMISSIONER DAY: Let mé see it.. Whenever you

- object _to_relevaricy I will have to see it. : ;

MR. METZLER:/I understood, Mr. Commissioner, that. *.

_ this ruling was based solely ‘on the question of whether:

these documents/were received, it being understood in all

cases that the ‘witness on the stand who identified, these —

documents was not established to be competent to testify

with respect to the contents.) ? Ren al a

COMMISSIONER DAY: That is right. If you are

- going to make any other objection then I have to take a

look at it. -° | ¥-8 Go ee | |

MR. METZLER: I merely put that in. Mr. Commis- .

sioner, it -has‘a reservation so our position would be as

"| clear as Qcould make it, \

COMMISSIONER DAY: Whenever you make it I have - *

-to see the exhibit so I can rule on a: : re

It may be received. Spr oe

(The document heretofore marked for. identification

_ Plaintiff's Exhibit No:°31 was made a part of. this

c record. ) | . ; az,

[ fol. 56] MR. METZLER: -We admit the receipt of No.

32 and that it\was before the Appeals Board. 7

COMMISSIONER DAY: Admitted... « --

(The document heretofore marked for identification

2 Plaintiff’s Exhibit No. 32 Was made a part of this ve 7

‘record. )-

before the Appeals he oe Wi ec

COMMISSIONER DAY: Admitted. .

(The document heretofore marked for identification

Plaintiff’s Exhibit No, 83 was made a part of this

"record. aes

MR. METZLER: The same objection’ with respect to

: No. 34.

COMMISSIONER DAY:' Admitted.

(The document heretofore marked for identification. se

Plaintiff’s Exhibit No. 34 was made a part of this

record.) —

MR. METZLER: No objection to No. 35.

COMMISSIONER DAY: Admitted.

(The document. heretofore marked for identification

Plaintiff’s Exhibit No. 35 was made a part of this

record. )-

MR. METZLER: We admit the receipt of No. 36 and

that it was before the Appeajs Board.

COMMISSIONER DAY: It-may. be received.

(The document heretofor marked for identification

Plaintiff’s Exhibit No. 36\ was made a part of. this

record. =

[fol. 57]: COMMISSIONER DAX: We will recess at this

_ time until 2:00 o'clock.

(Whereupon, at 12:40 o’clock p'm., the hearing was

adjourned until 2:00 o'clock p.m.) \ ’

AFTERNOON SESSION (2: 0 o’clock p.m.)

‘COMMISSIONER DAY: You may proceed, gentlemen.

“THOMAS R. SULLIVAN, resumed the witness-stand,

having been previously sworn by said eit Sig and

testified further as follows:

DIRECT EXAMINATION ’ Cont'd)

ap | MR. “KNOX: I would like to have . this document

marked for identification as Exhibit No. 37, Mr. Reporter.

(Order issued by Department of Labor of the State

of New York, Bureau of Mines, Tunnels, Quarries

and Explosives was ‘marked. for identification as

Plaintiff's Exhibit No. 37.) a Ae

"BY MR. KNOX:

* }

Q. Mr. Sullivan, I hand you Plaintiff's Exhibit No. 37.

: re. ms

__ A. This Exhibit No. 37 is an order issued ‘by the De-

‘partment of Labor of the. State of New York, Bureau

of Mines, Tunnels, Quarries and Explosives, on their

Form No. 407 which directs Carlo Bianchi & Company,

Ine.— 5 Ee a . os

_ MR. METZLER: I object to the witness testifying to

[fol. 58] any document not in-evidence. . |

COMMISSIONER DAY: Sustained.

BY MR. KNOX: -

_ Q. Mr. Sullivan, was that order received in your office?

A. That is. right. :

marked for identification. Will you state what it consists

MR. KNOX: I now offer as Plaintiff's Exhibit No. 37.

the document referred to by the witness.

MR. METZLER: “No objection to the receipt of the

document in evidence, ahowsng it was one received by

the plaintiff. We do object to it, in so far as the contents

are concerned, unless the person who. wrote the document

is available for cross-examination.

MR. KNOX: Mr. Commissioner, this is shown to be an °

official order of the Department of Labor of the State of

New York, and I think it speaks for itself.

- COMMISSIONER DAY: I think that: Mr. Metzler’s

objection is good as to the contents. He is willing to

* concede that you received this, but when you want to x

prove—

MR. KNOX: We will introduce it on that basis.

COMMISSIONER DAY: It may be received on that

basis. - \.

| .

(The document heretofore marked for identification

Plaintiff’s Exhibit No. 37 Was made a part: of this

record.)

MR. KNOX: That it is not proof of the contents?

- COMMISSIONER DAY: Yes, -sir. )

(fol. 59] MR. KNOX: Will you mark this document for

identification, please, Mr. Reporter?

. (Letter dated August 7, 1956 from J. Harrington,

Vice President of National Shawmut Bank of Boston

in re Almond Dam Contract was marked for iden-

tification as Plaintiff's Exhibit No.. 38. )

BY MR. KNOX: |

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

38 marked for identification, Will you describe this ex-

hibit, please?’

A. This Exhibit No. 38 is an original letter addressed

on August 7, 1956 by J. Harrington, Vice President of

thé National Shawmut Bank of Boston.to T. R. Sullivan,

Assistant Treasurer of Carlo Bianchi & Company, Inc.,

with reference to Contract W-30-180-eng-397, which is

the Almond Dam Contratt.. .

Do you want the contents of the letter? _

Q.. That letter was addressed to you?

A. That is right.

Q. Was therea condition described therein?

MR. METZLER: I object..t to that. i

COMMISSIONER DAY} Sustained. . ;

MR. KNOX: Mr. Commissioner, we submitted ‘this

under Rule 28 to Mr. Metzler, to show the genuineness

- thereof, and I would like to have you look at it.

COMMISSIONER DAY: I may have seen it before.

(Examining document) Yes, I have seen it.

[ fol. 60] MR. KNOX: Mr. Commissioner, as I under-

stand it now, the objection as to the contents of the

letter haS been sustained. Is-that right?

COMMISSIONER DAY: Merely with respect to this

witness’ testimony concerning the contents.

MR. KNOX: I see. | We will offer the exhibit with

that understanding.

MR. METZLER: I accept the’ Commissioner’s ruling.

COMMISSIONER DAY: The offer of the dotument has

been made.

ail

; the letter, but that is all. rar nie st

MR. KNOX: Iam marking it with that unders nding

.to the bank had been extinguished.

- MR. METZLER: I have no objection to it, with the

reservation stated, namely, that the witness is competent

‘to testify that he received: it but as to the contents, we

examined on the contents of it. . .

COMMISSIONER DAY: I ‘will have to sustain that -

objection. He is willing to admit the letter, that you got

object to that;-unless the witness is present: to be cross-

of the objection. /

_ COMMISSIONER DAY: It may be received.

(The document heretofore marked for identification

. /

Plaintiff's Exhibit No. 38 was made a Jet of this

* record.) | a

COMMISSIONER DAY: You can get testimony ‘from

this witness with respect as to whether or not the debt

{fol.61] -MR. KNOX: I am going to ask him that ques-

ition now. .

BY MR. KNOX:

Q. Mr. Sullivan, at one time did Carlo. Bianchi &-Com-

pany execute an assignment to the National Shawmut

Bank of Boston in connection with the Almond Dam and

‘Tunnel Contract?

A. Yes. ae

Q. Would you give us some inkling with respect to the

nature of that assignment, and explain it, please? |

A. In connection with our finaneing the contract, we

made an assignment to the National Shawmut Bank of

Boston in October, I believe it was, but that would have

to be’ verified as to the exact date; in 1946, of all moneys

due or to become due, which then thereupon were cleared

by the Government paying agency to the National Shaw-

mut Bank of Boston. . _ at # |

There -came a point, -which was just prior to the is-

suance of the last estimate, ‘the final estimate by the

Government, when we were no. longer indebted to the |

bank, 7 :

MK. METZLER: I object to that as not the best evi-

dence. 'All we ask is that they show that the assignment

was paid-or cancelled.

_ COMMISSIONER DAY: He can certainly testify with

respect to the payment made. :

MR. KNOX: The witness is the assistant treasurer.

He can testify, as to what his corporation did.

_ COMMISSIONER DAY: Objection overruled.

[fol.62]: MR. METZLER: Then I do not think this

-witness’ testimony is.the best evidence, and I think there

should be some direct evidence to show it. ~

COMMISSIONER DAY: He can certainly testify as

to whether he paid the bank. Overruled..

MR. METZLER:. Exception. .

THE WITNESS: Our indebtedness to the bank was

completely wiped out some time prior to the issuance

of the final estimate by the Government.

__ COMMISSIONER DAY: By that you mean you paid

the bank? Pia

-: THE WITNESS: Yes, sir. . au

COMMISSIONER DAY: All right.

THE WITNESS: It went through the bank in the

_ usual routine and they forwarded it to our local bank.

in Framingham, in accordance with instructions from -

us. So we owed the bank nothing whatever.

' -. BY MR. KNOX: eau

_ _ Q. Mr. Sullivan, when you refer to the final estimate,

do you recall when that was issued? /

__ A. The final estimate? I can get that and present it

later, in precise terms, but I believe it was the latter part

of the year 1949, but I am: not sure. J can verify it by

my records. | . aa / ;

~ Q. Mr. Sullivan, referring to certain exhibits which

have been introduced, which consisted of various pieces of

(fol. 63] correspondence, a number of* these pieces of

- correspondence, namely, Exhibits Nos. 7, 9, 14, 18-A, 20,

‘22, 23 and 33,:they bear at the bottom of the letter the

typewritten notation “T, R. Sullivan.”

‘” . Will you state whether these letters were prepared by

you? eRe ae ra,

A. Yes. I wrote them.

se 69

Q. So that every letter bearing that notation is a letter

prepared by you, is that right? |

A. That is correct.

Q. Mr. Sullivan, I understand you have checked your

records?

A. Yes, sir. . Bis ary

Q. Can you state now what was the date. of. the final

estimate on the Almond Dam and Tunnel Contract?

A. The final estimate No. 37-A was dated February 8,

1950, and it was paid, and the Army’s check was received

by the National Shawmut Bank on— ~

MR. METZLER: I object again to the witness testify-

ing from documents not in evidence; as to the source of

his information. y

THE WITNESS: This is in evidence.

MR. METZLER: This is not in evidence. -

. COMMISSIONER DAY: He can use it to refresh his

‘recollection, I believe.

[fol.64] MR. KNOX: That is what he is doing.

| MR. METZLER: I will concede that, Mr. Commis-

' sioner, if that is what he is doing.

+ THE WITNESS: This is the facts. ;

MR. METZLER: I want the facts. I-am not quibbling .

about techniealities. If you have some document which

shows the facts, let us have it and get it over with.

introduce this or not.

MR. KNOX: Off the record for a minute, ‘please, Mr. .

Commissioner. ‘

COMMISSIONER DAY: Off the record.

(Discussion off the record.)

answer, Mr. Reporter. er

‘Answer read.) : ) aah

_BY.MR. KNOX:

Q. Will you continie? .

A. It was cleared throuch the National Shawmut Bank

from Baltimore on March 14, 1950." The amount of the,

check was $12,736.56. '

70 , . a, ; . °

Q. So at the time that this check was cleared all

— payments had been made to the Shawmut Bank; _is that

correct?

A. Previously. | )

Q. Previously?

[fel. 65] A. All of ere was nothing to be |

applied by the Shawmut Bank against any indebtedness

of ours. - It simply went through the gaagyen of trans-

ferring the funds. :

MR. METZLER: Same objection.

COMMISSIONER DAY: I am_-going to eustain that .

objection. What happened tothe check?..

THE WITNESS: ' The Shawmut Bank~ cleared the

‘check through our local bank at Framingham, the Fram-

ingham National Bank, as a routine procedure.

_ COMMISSIONER DAY: In other words. it was de-

posited to the account of the Bianchi firm by Shawmut?

THE WITNESS: Yes, sir, because Shawmut had. no

claim on it.

COMMISSIONER DAY: In full?

THE WITNESS: That is right...

MR. KNOX: Mr. Metzler, I have concluded my ex-

amination of Mr.. Sullivan. |

CROSS-EXAMINATION “|

BY MR. METZLER:

Q. Mr. Sullivan, do you have any documentary record

in- your ‘possession, showing that the assignment which

was made by the Carlo Bianchi Company to the Nationai

Shawmut Bank of Boston was cancelled? Do you have

any documentary record?

A. I have this here, which we just submitted, which is

a letter from Mr. Harrington of the National Sha

{fol. 66] confirming the fact that the assignment) was

terminated'on March 14th.

Q. Just answer the question, Mr. Sullivan, and don’t

testify about various documents unless you are ‘asked,

I ask you, do you have any document of the Carlo

Bianchi. pany?»

A. Right ‘in my possession. here?

Q. Yes.

A. No. : |

Q. Does such a document exist?

A. I believe we have documentary evidence as’ to the

Status, because we would have a record back in our

. Safe of the termination of the assignment.

MR. METZLER: I ask that that be produced. Other-

wise, I ask you to strike the testimony of the witness

because it is not the best evidence. It should be a very

simple matter, Mr. Commissioner.

MR. KNOX: Mr. Commissioner, the witness has testi-

fied, in his official capacity as Assistant Treasurer: of

_his own knowledge, as to what transpired, and I think

. under those conditions the testimony should be considered.

COMMISSIONER DAY: There are two factors. He is

asking you to produce something, if it is available. Is it

available? -

MR. KNOX: If it is available, we. haven’t any objec-

tion to that, if the document is in existence.

THE WITNESS: There is evidence of the termination

(fol. 67] of the assignment. __

MR. KNOX: Off the record for a minute, please.

COMMISSIONER DAY: Off the record.

(Discussion off the record.)

COMMISSIONER DAY: Back on the record. Is the

Shawmut Bank here in town? 7 ,

MR. KNOX: Yes, they are right across the street.

COMMISSIONER DAY: They have got records, too.

MR. METZLER: This. was the proposition raised in

connection with the collection of documents sent to the

Plaintiff.

COMMISSIONER DAY: You know what the situation

is with respect to the assignment, do- you not?

MR. METZLER: No, sir. We have 2: copy of the

assignment originally made which was pleaded in the

answer, but as to what went on after that, we do not

know.

COMMISSIONER DAY: You do. not know?

MR. METZLER: 'No,:that would not be something of

which the Government would have knowledge.

«*

‘COMMISSIONER DAY:. Yes, you would. -

MR. METZLER: Not of a cancellation.

COMMISSIONER DAY: . Yes, you would. If they have

it, they will produce it, but I am going to overrule the

‘Motion to strike the testimony. | ;

Go ahead with your cross-examination.

- MR. KNOX: Mr. Commissioner, we may produce the

[fol. 68] Vice President of the National Shawmut Bank.

If you want him, he is right across the: street.

COMMISSIONER DAY: All right.

MR. METZLER: That>is up to you. My question is

- simple. I am trying to get the best evidence of what

transpired. No further questions of this witness.

COMMISSIONER DAY: You may step aside, Mr.

Sullivan. — ash anen Oe ne

(Witness excused.) :

MR. KNOX: Mr. Thomas A. Coyne.; eet

THOMAS A. COYNE, a witness produced on behalf

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

- Commissioner, was examined, and in answer to interroga-

tories testified as follows: :

DIRECT EXAMINATION

BY MR. KNOX:

Q. Mr. Coyne, will you give your full name and

address?. _ ite |

A. Thomas A. Coyne, Belknap Road,’ Framingham,

Massachusetts. ‘ )

. Q. Did you give the address?

A. Belknap. Road. ~ :

Q. Will you state your occupation or profession?

_ A. I am a civil engineer..

_ Q. Are you employed by ‘Carlo Bianchi and Company,

Inc.? 5 en pg Ate a

- A. Yes, sir, |

-Q. In what capacity?

A. General Superintendent.

([fol.69] Q. For what period of time have you been

employed by this company? — ;

/ . .

{ . /

“

/ had a little more direction, f

A. Since 1937.

Q. In the same capacity?

A. In the capacity of Superintendent and General

Superintendent. ‘

Q. Will you state the nature of your training and

experierice ak a civil engineer? -

MR. METZLER: Mr. Commissioner, so that the record

will be as clear as I can make it with respect to the ob-

jection, it appears that this witness’ previous testimony

_ before the Corps of Engineers Claims and Appeals Board

was taken, and I submit! that no evidence, other than

what was given before the Engineers Claims and Appeals

Board, is admissible unless it is directed to show that in

some way that Board actéd arbitrarily, capriciously or in

a grossly erroneous manner, or that the record before

that Board was not supported by substantial evidence.

I submit that the wit is not permitted to testify as

to this matter de novo.

“~ COMMISSIONER DAY: As I indicated earlier. if we

rom the Court in this matter, .

ition to make an intelligent

ruling. However, I am

ing to admit any testimony

that is relevant or material, nd I will keep your objection

in mind. \s

I would be in a better

[fol.70] MR. METZLER:\ So that I do not have to

repeat it, may my objection to the testimony of other

witnesses as well as to Mr. Coyne's testimony?

COMMISSIONER DAY: Yes, sir.

MR. METZLER: Al) right. \

[fols. 71-1261°* * *

~ Chairm

. 74 ‘ot . : : . Be +. te : Se : o ~ a pads |

‘[fol. Al" ¥ ‘Prhintiri's EXHoT +1 ‘a

2 > APPELLANT'S REPRESENTATIVES: .

eo. "HEARING. ON THE! APPEAL |

aos of «

Canto BIANCHt AND COMPANY, INC.

° .

a. i a ae CE ENO s

attal 8a 17 June 1948.

{ fol. 1] “The meeting \ was eolivetied by ‘Colonel Mielenz, ae

n of the Board, at -10:00 a.m. on 17.June 1948 Se

in the, Office of the: ‘Chief of Engineers. .

Colonel L. E. Mielenz

‘BOARD MEMBERS! . -* | tei

Mr. F. T. Johnson _ aw pe See |” BS gat

' Mr. H. SS ee ee \.. lead

GOVERNMENT REPRESENTATIVES:| | aa

| Mr. W:H. Fox; Trial Attorney |

_ Mr. R. H. Trites; Engineer

“Mr. GB. McGavock, Jr., Geologist, . Bhitimore DO.

_.! “Mr..D. E. Mather, Resident ‘Engineer, ‘ Almond Dath .

Mr. Dale A. Losey, ,. ssistant Resident Engineer

; og Mr. David €. Congleton, Chief, Dam as Section,

. Baltimore DO rr

Mr, Deland, Baltimore DO ef ne

—

; oh

Mr. Peter M: Bianchi ; 3 :

Mr.-Fermo A. Bianchi — —

‘Mr. Thomas R. Sullivan oie

Mr. Thomas A. Coyne, General Supdsiniendent

- Mr. Elford H. Richardson, .Civil: Engineer

-Mr. Walter Dunham, Cabot’ Construction Company

j ~ Everett ‘Diehl, Engineer, Cabot Construction

ompany — Mg

- Mr. Irving B. Crosby, Geologist .

_- Mr.-Miles N- Clair 7

_ Mr. Charles A. MeCarren, ‘Counsel’ 7

‘ , ° ‘

. : e

" .

a ” .

‘ Pad

. 7 . ® °

MIELENZ: The meeting will please come to order.

This is a meeting of the Claims and Apyfeals Board ap-

pointed by the. Chief: of Engineers to hear such cases

as may™be brought before it. The meeting will be in-

. formal in nature. The Government. attorney will pre-

_ sent the pertinent facts in the. case after which the ap- -

pellant will have’ an opportunity to produée his. evidence

_ and make his arguments. .Are there any questions? If

not, the meeting will proceed. . ‘8

ma a . i

~ STATEMENT By Mr. Fox ie |

FOX: May it’ please the Board.: This morning you: —

are concerned with_C&A Board Appeal No. 14 which is

the appeal of Carlo Biarichi & Company, Inc., of. Fram-

x ingham, Massachusetts, having to do with contract No. .

W 30-180 eng-397 dated 3 July 1946. The contract has

_ for ‘its purpose the construction of Almond Dam. It is’

a unit.price contragt consisting of 66 various units. The

ee ge consisting .of these unit prices: was 35,-

330,330. It contains thé usual. standard provision found

in all Government contracts. For the -benefit of -the

Bc ssuth have‘had prepared copies of -certain pertinent

“ont

ract provisions so, tRat you may be able to follow

~~ ffol. 2) the ‘facts more closely as we proceed. with the

factyal history of the appeal. At this time I would like

to distribute these copies. A very important part of this

contract was the construction of a tunnel. You_will be

concerned with that portion of the contract-having to do

with the tunnel coristgyction. Forithat purpose, I would |

like to call your spécial attention first t¢@ page 3 of the

eontract provisions which I have distributed’ where you

will find Item 11 in the estimated quantity of 35,500

- pounds of’steel liner plates and Item 12 for 26,500-pounds —

paar

tures and ask whether he has seen these pictures which

purport to be actual pictures: of the tunnel. —

-McCARRON: I think we agreed, Mr. Fox, that either

party could introduce photographs and they would be

used. While I may not have. seen all the photographs

. to which you refer, I understand they purport to show

the Almond Dam-at various stages. of construction.

~ FOX: This tunnel is approximately 13 feet in diam-

eter. From a construction standpoint. it is materialistic -

that they were to bore through to 710 feet. _ After bor-

ing through; they were to construct a concrete tunnel...

How they were to-construct- that is the subject of the

- controversy. . Coming to that part of the contract pro-

. visions contained in Section. 4, I ‘believe it sufficient .at

_ this timé to tell the Board that those provisions contain

_ in minute manner how this tunnel shall be constructed.

‘In all probability. when the Government purchased the -

site of the construction they referred back again to.

those:-contract provisions. At the. time this contract

’ was: originally entered into, this contractor submitted

- . to the Goverriment: a progress schedule which indicated:

his. proposed method of operation. Item 10 indicates: that

for tunnel (a) driving the value was $122,000. He had

‘proposed to’ start tunneling about 15 October and to

‘complete the tunneling in, February of 1947: As for the

concreting, he had: originally proposed to do that soon .

thereafter; that is,.on April 15, 1947, to commence the

—eoncreting and to ‘complete the concreting on or about

August 30, 1947. . This was his. original plan, As a

matter of fact, the tunnel operations commenced on De-

“cember 11; 1946,-and were completed on March 11, 1947,

> onan ‘over-all basis, However; on the -concrete lining

_part of the tunnel, you will recall that the original plan

was to commence concreting on or about April 15, 1947.

Due to reasons unknown at this time, the concreting

in this: tunnel cwas not: commenced until -17. December

1947, ‘or.approximately eight months: after he had orig-

inally planned cémmencing, and was completed along

about May of\1948. Concreting was completed this year, .

as a matter of fact. The contract provisions are. very

specific on that point. They provide that ‘concreting: is

. a hog 8 : \ . . “ -

- to.commence soon after. the tunnel is bored. They provide

that that is when the concreting is to be done. . It. was

eight’months after the tunnel was bored that this con-

- ..[ fol. 3] crete was actually placed, Yoti will be concerned

specifically with the tunnel protection in this appeal. The

‘contract provision relating to tunnel protection and_ the

drawings themselves as contained on: page 24 of the

contract drawings are very specific. -Page 24 is the

“tunnel section of this particular tunnel... It explains -

in very minute detail the design features of the tunnel, .

-the entrance, outlet and length of the tunnel. > This

will notice that at the entrance of the tunnel for the |

first 50 feet tunnel protection is to be furnished and at -

the outlet end for 50 feet protection is to be furnished.

By tunnel protection is meant liner plates, steel nibs,

' including tie rods and spreaders. I have what I believe

is q picture of the liner plates and steel: ribs. The 50

feet showed here-is these various liner plates and ribs.

‘Here are the ribs and the steel liner plates going in be-

tween the ribs. Here is another excellent. picture of this

tunnel protection. .It is not only a contract-drawing

requirement but it is. also a contract specifications re-

quirement that.'the first.50 feet be lined with ,perma-

nent tunnel protection. ‘That provision is ‘contained in -

_ . paragraph TP 4-03, Tunnel Protection,-Scope, and I |

mee ee Ee , : .

“Tunnel protection shall be furnished and placed

as' required for distances of approximately. the first:

50 feet of each end-of the tunnel which includes the

underground portion of the outlet transition. Such .

‘tunnel protection pet to the cross sectional

shape of the tunnel and transition, shall. consist of

steel arch ribs and corrugated steel liner plates as

indicated on the drawings or réquired, including tie

- rods and spreaders. * * *.” sate

_: Calling your specific attention to paragraph -TP-4-02,

Tunnel Excavation, Scope, the first two sentences there- .

of provided: | Wee eee ae

: . \ \ . ; > : in

: sf i

“The tunnel bore may be: driven from either, or

both ends by any of the usual methods of tunneling,

provided the driving is continuous and progress is

consistent. with that. indicated on the progress

‘schedule. Temporary -tunnel protection - shall: be

provided where required for safety of the work-

men and shall be placed progressively after each

heading blast and prior to resumption of excavation

and drilling operations. * .* *”

— It'is a fact ‘and your records show that early in Decem-

ber 1946 before the tunnel had been bored possibly 30

feet, the Cabot Construction Company, who was the sub-

contractor ‘on the project, requested permission of the

Resident Engineer, Mr. Mather, to continue placing the

tunnel protection throughout the length of the tunnel.

Your records will show, and we will be more specific

-[fol.4] on: that point when the Government presents

the case, that in answer to that request the Cabot Con-

- struction Company was advised that at that time it was

impossible for thé Resident ‘Engineer. to determine

whether this type of protection was necessary. With

that information the tunnel operation would proceed as

originally: planned with protection for the first 50 feet

and continue on through the whole 710 feet. It is a

fact that for the first 50 feet this’ tunnel protection, a

picture of which you have seen, was placed. On March

11, 1947, or about four months after the tunnel opera-

‘tions commenced, they advised they had bored through.

The Cabot Construction Company did not at any time

between these 50-foot:areas at the beginning or end

place during the construction any temporary or perma-

nent tunnel protection for its workmen. They just

bored through without any protection. It seems that

about April 1947, about a month after the tunneling was ,

through, this contractor again requested the Resident

Engineer for permission to place this tunnel lining

throughout the whole length of: the tunnel. This re-

quest was reviewed with the result that much corre- -

spondence : took, place between the parties: with the end

result that.some time in October 1947 the contracting

officer in a formal opinion denied permission to_ the

: 79

contractor to place this permanent tunnel pr otection the

whole length of the tunnel, ie., he denied it to the ex-_

tent that it would be at. the Government's expense.

Prior to that time the appellant, ‘to his inquiry-as to

whether or not he would be permitted to place the tun-

nel ‘protection in the whole length of the tunnel, was.

advised that in -the Government's opinion that, first,

_ it was not necessary, and Second, that if he did place

it, it would be at his own expense. With that informa-

tion, it is a fact that the contractor did place through-

out the whole length of the tunnel -this tunnel pro-

tection which you see here. It is a fact that the tunnel,

and here is an excellent picture of it, is;)completely lined

with the tunnel protection. This appellant asks you to

reimburse-him for the cost of that tunnel lining. The

contracting officer has denied liability and you are now

called upon to sit in judgment as to whether or not under .

the terms of the contract this appellant is entitled to

payment for placing this tunnel protection the whole

length of the tunnel. Those are-the facts as the Gov-

ernment sees them at this time. :

MIELENZ: , The counsel for the appellant may pro-

ceed.

STATEMENT By Mr. MCCARRON

McCARRON: For the purpose of the record,- J am

Charles A. McCarron, \counsel for appellant. Perhaps a

brief statement, may it please the Board, of, the posi-

tion of the appellant may be helpful in. following the

ev idence as we propose to present it. In many réspects

there are no substantial differences between the Gov-

ill develop‘in this case. _Mr. Fox has clear-

the position of the appellant to this extent

p appellant has Jined this entire tunnel with.stee!

er plates and appears before this Board asking in

Squity and good conscience that it be reimbursed by the

‘Government for the installation of these steel liner

plates which the contractor felt were absolutely neces-

sary in order to line this tunnel and complete the tun-

nel job because of the character of the rock that Was |

d the contractor on certain of the basic.

—

(fol. 5] encountered in the course of boring this tunnel, |

- rock which could not be determined by the information

available on the contract drawings and cores that were

taken by the Engineers prior to award of this con-

tract... It is our contention that as the excavation for

the stilling basin, which was the first rock excavation, |

I believe, began, it became apparent that the character

of the rock was of such nature that there existed a’

_real possibility, if not a danger, that trouble would be

“encountered in the boring of the tunnel, or more spe- |

- ¢ifically,. in the lining of the tunnel. That fact was

called to the attention of the Resident Engineer and I.

want to preface that remark by saying that I have no

intention: to indulge.in personalities or level criticism

but tu state the facts as I understand them. That fact

was called to the attention of the Resident Engineer

- and it was suggested to him that there did exist a real

possibility. that the rock inside the tunnel, from what.

was.then apparent, would present a ‘serious condition.

The Resident Engineer said he did not think that was so, .

and there would be no need for. additional steel liner

plates or permanent protection. He referred at the time —

to the job of the Arkport Dam which is less than four

miles from-this job and with which he had considerable

to do and which, I understand, was holed out and lined

without any serious‘trouble. The work of boring the

tunnel began and the conditions which were anticipated

rapidly made themselves manifest. Under the terms of

the specifications referred to by Mr. Fox, it does not pro-

vide specifically for steel liner plates for a distance of

50 feet at both ends—both inlet and outlet. - During

the course of this controversy .as the correspondence be-

tween the parties develops, you will see that there has —

been quite a distinction made between the use of the .

words “temporary protection” and the words “perma-

nent protection.” An examination of the specifications ~

will disclose that the only place that the words “tem-

porary protection” are used is’ in connection with pro-

viding temporary protection for workmen during the

course of the work. It is the contention of the con-

tractor that protection to the tunnel roof which is not .

: 81

removed in the finished tunnel cannot by any stretch

of. the imagination be called’ temporary. That is per-

manent, and that type of protection which was installed

in this instance is permanent and-not temporary. — In

other words, as Mr. Fox has stated, it is there as long

as the tunnel remains, After about, 50 feet of this

tunnel has been bored—oh, in that connection, I will call

attention to one phase of the specifications that had been

_ referred to by Mr. Fox, namely, TP 4-03 ¢., Steel Liner

Plates, which provides for the placing of steel liner

plates for tunnel protection in the tunnel sections where |

‘such protection material is indicated on the drawings,

or as directed, to furnish coverage for the tunnel roof

sectién above the spring -line. No mention is made in

that section or anywhere else of protection of workmen,

as temporary. The 50 feet specitically provided at-inlet

and outlet sections were for the purpose of furnishing |

coverage for the tunnel section above the spring line,

and it is our contention that direction from the Gov-

ernment.to the contractor to install this permanent tun-

|fol.6| nel protection under the conditions that existed

was unreasonably withheld. As J-said, it will appear

that after the first 50 feet of the tunnel haa been exca-

vated and the installation of these steel liner plates more

or less completed, permission. was given by the Resident

Engineer to extend the liner plates further, but the con-

tractor was to replace those steel plates which might

be damaged. ‘The matter was again taken up with the

Resident Engineer—and I may be skipping some of these

numerous conferences because this was a constant dis-

cussion—the Resident Engineer. stated that he did not

intend to order in any more steel on this tunnel. There

was a Visit to the job some time early in January by

represéntatives of the Baltimore Office, at which time I

think the first. 50 feet had been completed, and there

was exposed beyond that perhaps six feet not. protected.

The opinion was expressed that the rock looked pretty

_ good, and they_thought the contractor could get through

all right, but if conditions changed as the tunnel was

bored they would have to give further consideration ‘to

-the matter. - At no time has the Resident Engineer ¢on-

o- ' .

ceded that the contractor is entitled to be paid for the

installation of: permanent tunnel protection, or protec-

tion in.the form of these steel plates, or any other pro-

tection that was to-remain permanently in the tunnel

beyond the 50 feet I have described. The tunnel. was

‘bored through and almost immediately after that large

failures of rock occurred. As a matter of fact, it will

ppear here: that since the steel liner plates installed

beyond the 50 feet were removed as directed there was

a \substantial fall of rock in the very early stages of

- the\ construction of this tunnel. Then, after the tunnel

was holed out, within the first 30 days, very substantial

-. falls of rock occurred. I have here three photographs

taken April 25, 1947,-which is about six weeks after the

tunnel had been holed out and yee a month after

it had been cleaned out. These pictures show condi-

tions as taken from the inlet and outlet ends, taken

at that time. I think you have seen these, Mr. Fox.

Those are the ones I showed you before. (Shows pictures

to Board members who examine them'!. Now, the

Board will have in mind that under ‘the terms of these

‘specifications no concreting could be done in this tunnel

until the tunnel had been completely holed out. The

Resident Engineer, in the exercise of his judgment, as

I see the picture develop, came to the conclusion ap-

parently that some form of tunnel protection was going

“to be required, and his views could be crystallized from

the conversations that took place as follows: “If tunnel

protection is to be required, you, the contractor, put it

in, but you put it in at your own expense.” I refer the

- Board specifically to a letter from the Resident Engineer

- dated 10 January 1947, which is Engineer Exhibit “kh”

‘of the contracting officer's statement of fact, and to an-

other letter by the Assistant- Resident Engineer dated

15 April 1947, Engineer Exhibit “J.” We don't agree

with some of the conclusions stated in those letters, but

\ we do submit that, from an engineering standpoint the

letters are strong evidence of the fact that the Engineers

recognized that conditions within the tunnel required a

form of' protection in order to line the tunnel, and you

- _.will note, gentlemen of the Board. that in those letter:

reference is still made to temporary protection, although

the talk is all about the installation of a type of: pro-

tection that is to remain in the tunnel for eternity.

| fol.7| Now, briefly, as I have stated, the position of

. the contractor is not one of seeking to come in here

to put a distorted meaning on thé specifications or ask-

ing to be paid for something that he hasn't done. We

ask that we be paid for work which we say. was abso-

lutely necessary and without which this -tunnel could

not have been lined with concrete as required. With

reference to the comments made by Mr. Fox relative

to the ‘apparent delay in holing out the tunnel and

commencement .of the concreting, the correspondence

and evidence will show that there were a number of -

conferences and a series of correspondence between the

Engineers and the contractor with reference to the mat-

ter of this form of protection and later over the type of

design that was to be put into the tunnel, it being con-

tended by the Resident Engineer—although in letters

of 10 January and 15 April they seem to give approval,

but later take the position that it is over-design. They

could have enlarged the bore of the tunnel and put up

some wood posts or wood lagging as protection. We are .

not concerned with protecting workmen. The-only ques-

tion is whether or not the conditions found in the proc-

ess of boring this tunnel, or the condition of this rock

was such that good engineering required that some form

_ of tunnel protection must be installed, and whether the

Resident Engineer and ‘his associates acted reasonably |

in withholding that direction, although, in. substance

. approving the action of the contractor’ in installing it,

stantially, that is the position of the contractor, and we

will show by photographs that pictures taken in Septem—

ber, 1947, compared with those pictures taken in April,

1947, show substantially the same cenditivn. In other

words, there was no material increase in the fall of that

rock. T

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.