Petition for Writ of Certiorari — United States v. Fehlhaber Corp. (No. 472)

Supreme Court brief1957

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: CITATIONS, a

Edison Co. v. Labor Bewd. 305 U. “ier esas phy

Kiklbery v.-United States, 97 U.S. 398_..--.-.----- ae 5 |

L. W. Foster Sportswear Co. v.- United-States, 145 ..

2:4 MMS act is Tectaatah hel mactahaons nana mx. RS.

. Langoma Lumber Corp. v. United States, 140 F. Supp. “J

460; affirmed, 232 F. 2d 886... ..-..---:------2. : 7, 12 |

O’ Leary v. Brown-Pacific-Mazon; 340 U.S. 504__.-- 5 i= |

Ripley v. United States,-222 U.S. 144__--.----- Tevet 9 7

~ United States ¥. Gleason 475-E-S-588—— meee —_9

United States v. Moorman, 338 U. S. 457-~-- -- ake al: ae

. United States v. Wunderlich, 342 U. Sere a a

. Universal Camera Corp. v. Labor Board, 340 U.S. a

r Volentine and Littleton v. United States, 145°F. Supp.

ee Laie iiineeaans 6, 8, 10

PB cers bee, eas

Act of May 11, 1954, 68 Stat. 81 (Ww underlich Preven

Sec. 321 (41 U.S. C., Supp. IV, ie erg 2, 5, 6-

: See.-322. {41 U.S. c. Supp. IV, a

20: 1.8 C. 1368) @)..;.: 2.:.-~5-.-.+.---,. Tee:

Miscellaneous: he =

H: R. 6214, 82d Cong., Wie, |. 2h ee : Bre

H. R. 6301, 82d Cong., 2d Sess - - - - - re ee po, A : |

H.R. 6338, 82d Cong., 2d Sess. ---------.4g------- . =e

H. R. 1839, ‘83rd Cong:, _Ist Sess_*__-» aneee Ee Deseo

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H. R. 3634, 83rd.Cong., Ist Seas. -.— ....----------- s

H. R. 6046, 83rd Cong., 2d Seas... .....--..-..---- 8

Hearings before a Subcommittee of the Seriate Judi-

~ ciary Committee on S. 2487, 82d Cong., 2d Sexs., ee

Feb. 15, 1952; — 3 i . a

Pp. 33... ---|...----------- ee er es es wai 9

po ee oe hncnedtdapgnadnpans Ce

H- Res. No. 1380, 3rd Cong., 2d Sess., pp. 4-5... 9, 10-11

Letter*from t. Judge Advocate General of the | |

- Army to A ey General dated June 28, 1957s...

S. 2432, 824 Cone., “2d Sess... .-. AR bap abe at SE Ca gem \ 8

S. 2487, 82d Cong., 2d Sess... .....:--------------- ‘$s

S. 24, 83rd Cong, 1st onsale Lcngwaanebe | 8

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THE UNtTep STATES, PETITIONER

FEHLHARER CoRPORATION ~

» - ~

peririos FOR A WRIT OF CERTIORARI TO THE UNITED STATES

: COURT OF CLAIMS

“The Solicitor General, on behalf of the—United —

3 , prays that a writ of certiorari issue to review

. the judgment of the Court of Claims. entered in. the

above case on June 5, 1957.

| OPINION BELOW

- The opinion of the Court of Claims (App., infra, pp.

‘ 14-28) is reported at 151 F. Supp. 817. aes

+> : JURISDICTION ints

The Gudgment- of the Court of. Claims was entered

- on June 5, £4957 (App. 28). On August 27, 1957,

Mr. Justice Black extended the time for filing a peti-

‘tiori for certiorari to and including September 18, -

1957... The jurisdiction of this Court is invoked un-

"der 28 U. 8.C. 1285 (2). - : .

a .*.

oe: ff

° . ¥ .

"Whether, ahawe a oudauiien’ had specifically agreed”

that the- ‘administrative deeision on a factual dispute _

arising out of a Goveriment contract was to be “final :

and conclusive’’ and the Act of May 11, 1954, similarly _

proyides that “such decision shall be final and con-

"elusive unless * * * net supported by substantial evi-

: dence,” the Court of Claims may upset such a de\

cision without regard to the substantiating evidence .

. before the administrative authority*and solels? on the .

basis of the evidence presented to that. court.

._ STATUTORY .AND CONTRACT PROVISIONS INVOLVED/ -

1. The Act of May 1 11, 1954, 68 Stat. 81 (Wunderlich

= * Statute) (41 U. S.C., Supp. IV, 321-322) prov ides :

§ 321. Limitation on pleading contract- -piovi-

sions relating to ss ac standards. of 3

review ;

No provision of any. sositiiial ated into by.

the United States, relating to the. finality -er

conclusiveness -of any decision of the héad of

any department or agency or his duly ‘dathor-

_ized. representative or .board in a dispute in- .

volving a question arising ufider such contract,

shall ‘be pleaded:in any suit now filed or to be

filed’as limiting judicial review of any such

decision to’ cases ‘where fraud by such official.

or his said: representative or board is alleged:

"Provided, however, That any such decision shall ©

be final and conclusive unless the same is fraud-

ulent or capricious or arbitrary or so grossly

erroneous as necessarily to imply bad faith, or

‘is not phi tere ~ substantial evidence. |

Rs ie.

3 , 7

§ 322. Confract-provisions making cisions «final

on questions of law

No Government contract all contain a pro-

vision making final on a question’ of law the .

decision of any. administrative official, —

| sentative, or board. =

2. The “Disputes” or “Finality Clause” Article of |

the contraet om. involved / espa’ (. App.” infra,

. &

pe): :

Disputes. teins as aes

ic provided in this contract, ‘all disputes concern-

+ Ing questions of fact arising-under this contract. .

—~+ shall be decided by the Contracting Officer sub-.

_ ject to written appeal by the Contractor-within ~

30 days to ‘the. Head - of Department con-* .

wa ‘cerned or his duty: ‘alti | representative,

® - whose decisign shall be final and ‘eonclusive upon

the parties hereto. In the meantime: the Con- __

= tractor shall diligently - —, with the hectares

as directed. par atae Ss oe

re | « STATEMENT Honiky SV/

This action arises out of the respondent, s élaim for.

certain unanticipated costs allegedly incurred by it. in

performance of a government contract. The Court

_. of Claims’ findings disclose the following pertinent =

facts: Las Y

In. May 1946, the siciaahend entered into a. eonieurt

. with the United States for the: ‘building of a substruc- .

,ture for a bridge over the Chesapeake and Delaware

"Canal at- Chesapeake ‘Gity, Maryland (App. 28, 32).

For this work the total contract. price agreed to by =~ :

‘both parties was $1,134,887 (App. le -

The? present action concerns, a claim by the re-.

alleged to be mgterially different from. those described

ile in the contract drawings and specifications. On De-

_cember 3, 1947, the contracting officer denied the re- ff

_-spondent’s claim (App. 18). It: was then forwarded

to the district. engineer, the contracting officer’s supe- _

rior, who, on Marcel 1, 1948, prepared and transmitted —

‘to the respondent detailed “‘findings of fact denying

ie “changed conditiogs relief” (App. 18, 75-81).

The respondent appealed under the “Dispites” _

_Article of .the con ef? (supra, p.. 3) and was given

a hearing by thé Corps of “Engineers Claims. and °

Appéals (App. 81). At this hearing, the .

respondent presented its evidence -and contentions at

“Jengthc’ In a writteh? opinion dated February 15, |

1949, the Board denieé th the respondent’s claim (App. -

‘19, 81-86). “Ten days dater, “the Chief of Engineers,

‘whe Was-.the duly authorized appellate authority”

under the’ contraet, approved the - Board’s action’ ir

4 App. 81). | \

This action was then filed by the respondent in the- °

court below) The government’s “initial defense’’ was

that the adiniiniettetive, denial was supported by sub-

stantial evidence when ‘the ‘entire administrative

1 The. transcript of the entire proceedings before the Board—~-

including the respondent’s case and the government’s. case—

contains over 175 typewritten pages: See Commissioner's

Exhibit No. 1. In addition, there were several exhibits pre-_.

sented to - Board. caring. the Tearing.

.- :*

to the: su-ealled Wunderlich. tute, ‘

decision was therefore

clusiv®" on thé parties ‘(App. 19). However, the

court below refused. to review the - administrative

record to determine whether it contained adequate

19). Instead, after embarking’ upon a. de- novo

ence so adduced did not support the admiinistra-

tive decision. The administrative denial was accord-

ingly. set aside and judgment entered’ in favor .of

—— (App. 28).

| RRABONS. FOR GRawTINd” “THE WRIT

{

ministrative decision was based ‘and overturning it

‘at a*de novo hearing, ealls for review and reversal

erally to government <contract cases in the Court of

_ sional admonition in the Act of May. li, 1954, that

} alles and {2) the Act’s legislative history, which

fully confirms what the text.of the law shows. The

ruling is also in direct conflict with decisions of other

pee

" supporting evidence for the Board’s decision (App.

easing of the evidence, the court. concluded that the

“The holding below, - deliberately and. expressly —

ignoring the administrative record on which ‘the’ ad-.

solely on the basis of. evidence presented to the court.

by this Court. The holding, which is Applicable gen--

Claims, flies in, the’ face of (1) the explicit: congres- . |

such administrative decisions shall~be ‘final and-

‘\conelusive’’. when ‘‘supported by substantial evi- |

courts which have given proper. effect to the con- .

gressional mandate. Moreover, the detrimental effect

of the ee below on military and other ‘govern- .

Laon

mnital procirement ‘emphasizes the need for review

and reversal here.’ :

mae: Only three years nik Dongiee in the! Wunder- |

lich statute,’” defined -the scope of judicial. review. of

administrative determinations of factual disputes un-.

“ders the “finality” clause of stindard form goyern-

ment contracts. Act of May 11, 1954, “supra, p. 2.

In_ prescribing limited judicial review, the pertinent.

language unéquivocally declares that the administra-

‘tive ‘decision shall be final and __ conclusive’ un-

less * * * not: supported by substantial ; evidence.’’*

_ The “substantial evidence’? referred to’ would cer-

tainly appear to mean the evidence developed in: the

record before he’ administrative. agency. - This, as

has been ‘held in other decisions under the Wunder-

y lich statute, ‘the retewing-court’s function, is ex-

‘shausted whén, ‘‘after careful consideration of the evi-

“dence before .the Board?’ or other. administrative 9

agency, it. becomes evident that the administrative *

“conclusion , has. substantial support: in the evidence,

"in its’ opinion the Court of Claims ‘stated that it. was fo

' lowing its earlier decision in Volentine and’ Littleton v. Unitéd.

States, 145 F. Supp. 952. That opinion, which we believe té be

_ . erroneous also, was in support of the denial of the government’s

-motion to dismiss and was ‘therefore not -in ‘a. posture to be

__. Peviewed on certiorari. |

*In addition, under the statute, conclusive effect is “not to.

: be given any administrative determination which is. “fraudulent

or capricious or arbitrary or-so grossly erroneous as necessarily

to imply bad faith * * *.” See supra, p. 2. This part of the.

statute is not involved here. The court below, in refusing to ac-

- cord finality to the administrative decision, relied exclusively on

an alleged lack of substantial evidence to support the decision.

“Langoma Lumber Corp. N. United States, 140 F.

Supp. 460 (E. D. ‘Pa. ), affirmed, 232 F! 2d 886 (C. A.

3). :

‘The statufte, in effect, reiterates the traditional rule

of. administrative finality, ‘It is well settled that, ae

der the .“*substantial-evidence’’ rule, a. reviewing court

is. precluded from embarking upon a reappraisal of

the. evidence presented to the agency. Edison Co. Vv.

Labor Board, 305 U. S. 197,229. If the ‘evidence so

presented reasonably ‘supports the administrative de- —

‘eision,\ that decision must stand and | cannot be dis-

placed *‘even though the court would justifiably have —

made a different elioice had the matter been before it

de novo.’’: Universal Camera ‘Corp. v. Labor Board,

340 U- $s. 474, 4885 O'Leary v. Brown-Pacific-Mazon,

340 U. S. 504, 508-509. Plainly, if the ourt, after ©

‘reviewing the administrative record, is barred from

sm substituting its own conclusions for. those of the agen-

‘cy, it follows that a: court cannot substitute its/own —

conclusions derived from: a record entirely new and_

different from ‘the one developed before the a; seney,

The contrary view followed by the court helow, by re-

_ fusing to relate the decision of the départnient head to.

‘the record before him, impairs the weight which the —

statute expressly requires ‘to be given to a decision :

made with the specialized knowledge of the govern-

ment officials designated by the contracting parties. a

The result is that the administrative decision. may | be

overturned, after a de novo trial, on the basis ey

evidence which was. never laid before the adminis-_

trators, or may he found “supported”? by ‘wabstantinl

e°

._ eonsidered and rejected proposals to expand the scope.

ry ; . 8

fe 4 r “ . :

evideinen” which was. likewise never considered when .

- the initial decision was made.‘ ‘.

2. Nothing in the legislative Ristory of the Wunder.

lich statute: warrants the procedure employed below.-

~ On the contrary, ‘it is clear that Congress meant what

vit said when it adopted the substantial evidence rule.

The legislative history demonstrates that Congress -

of review.by substituting for the substantial evidence

rule ‘tests which would have accorded the-

.. court the broader latitude 6f a de: novo review arid

which cohceivably - would thereby. have furhished the

Court‘of Claims with Somé } juntification for ignoring

the administrative record.

‘Shortly after this Court, ig United States v. Wun-

-derlich, 342 U. S. 98; 100, held that ‘‘absent fraudu-

‘lent cMfjuct” the administrative decision on a gov- ©

- ernment contract dispute ‘‘must stand under the plain

meaning of the contract;” a number of bills were in-

troduced into Congress to permit ‘judicial review in>

cases other than those involving fraud.’ At-the con- _

/aIn the Volentine case, supra, 145 F. Supp. 952, 954, the

Court of Claims refers to the procedural difficulties and delays

arising from the two trials which it believes would be required

by .the _government’s position. But this fear is groundless. A

second tfial is no more necessary now than it was prior to the

Wunderlich statute. If it is more convenient for the ‘court, a.

commissioner may take “all the evidence offered, but the court

should not consider evidence outside the administrative record if

that record provides career support for the a. ca

decision.

*S. 9432 and 2487, 82d Cong., 9d. Seset; H. R. 6214, 6301,

and 63:8, 82d Cong., 2d Sess. S. 24, 83rd Cong., Ist Sess. ;

H. R. 1839 and 3634, 83rd Cong., Ist, Sess.: H. ‘R. 6946, 83rd

- Cong. 2d Sess.

EA Se ee

a 1 ht ect ; x a

Se 9 ~s

* gressional Danii Congress was ana yn pass: one

of ‘the bills which contained no reference to thg sub-

stahtial‘evidence rule but which provided, instead. for ‘*a

de nov ‘o-review.”’ Hearings before a Subcommitteg of

the Senate Judiciary Committee‘on S. 2487, 82d Cong.,

2d Sess., Feb. 1, 1952, at. page 33. As already noted,

~sueh a bill, if passed, might have. justified a review not .

based on the administrative evidence. In commenting

om the insertion of a clause w hich MW ould empower the —

~ reviewing courts to set aside the administrative deci-,

sion only where it was arbitraty; capricious, or grossly

erroneous Or “not supported by substantial evidence,”

one of the witnesses testified (id. at p. 35) :

That is not<in conformity: with my recom-

mendation that there ‘should be a. de novo

veview, but such language would_I think, ade-

- quately take care of the situation-if the com-

mittee wanted to return, to: the state-of-the-law ~

’ situation that existed prior to the. Wunderlich

oe and go no further." ,

. ©There is no- ;doubt that < Congress passed’ the ‘Wunderlich

statute in order to make certain that judicial review of an

administrative decision under the disputes clause would” not

- be limited to the sole ground of fraud but. would also be avail-

able where. the contractor establishes “arbitrariness and ee

~-ciousness.” \H. Rep. No. 1380,° 83rd. Cong., 2d Sess., p. 4. In

this régpect, Congress can be said simply to have seated the

view many times reiterated by this-Court, prior to its decision

in. Wunderlich, that the administrative resolution of a factual -

question under the dispates clause must be sustained unless it is .

capricious, so grossly erroneous as to necessarily imply bad _

faith, or fraudulent. See, e. g., Kihi v. United States, 97

> U. S. 398) 402; United States 4 won, 175 U.S. 588,

- €02, 609; apleh. v. United States, 29 U. S. 144, 148; United

- States v.. Moorman; 388 U. S. 457, 461. But these pre- Wunder,

lich decisions in no way phoee the type of thinltiare *

10 - & |

‘Congress, of ‘course, did not want to go further.

It accordingly: rejected the “de novo’’ test, and the

bill, as passed, imposes upon the reviewing court the

limitations inherent in the substantial evidence. rule.

This action -by Congress ¢an hardly be squared with

the view expressed by ‘the court below to the effect -

that the statute permits it to embark upon a “de novo

hearing”? notwithstanding the existence of Substantial

evidence {ii the administrative record to support the

administrative decision... aes %

The pertinent - committee reports. furnish still

further support for the view that the. reviewing court,

in determining the substantiality of evidence, is lim-

‘ited to a consideration of the” record before the admin-

istrative agency. Thus, in reporting the Wunderlich

bill out favorably, the House Judiciary Committee

Report explained the role-of the substantial ev vidence, y

rule as follows:

The proposed ‘amendment also adopts the ©

additional standard that the. administrative

decision must be supported by substantial evi-

dence. The ‘requirement that administrative

action be supported by substantial evidence is.

>. found in the Administrative Procedures ‘Act,

.supra. As understood, by the ¢ommittee and

as interpreted by the’ Supreme Court in Edison. .

Company v. National Labor Relations Board

(305 U. S. 197, 229), *‘substantial: evidenée”’

means “such relevant evidencé as a reasonable

mind might accept as*adequate to support a

‘eonclusi on.” ae oe ee :

de novo review ieatininn by ‘the court below in ‘its decision

in the present case and in. Volentine and Littleton v._ United

States: 145 F. Supp. 952. ee , ate

a ee

The inclusion of the sygndan “not supported >

by substantial evidencé”’. should also ¢or rest I

another condition arising out: of the lack of J.

uniformity between -the various . departments

-_ and agencies. concerned in the appellate hearing

procedures under the dis;utes clause. It has —

been brought to light in. _public hearings that it

is the exception rather than the rule that con-

tractors in the presentation of their disputes.

are. afforwed -an opportunity to ‘become

acquainted with the: ‘evidence in support of the-

~ Government’ $ position. It is. believed that if

the standard of: substantial evidence is adopted

this condition, will be corrected and that the ©

records of hearing officers will hereafter con-—

"tain all of the testimony and evidence upons

whielt they. have relied. in making their. de-

cisions. Tt would not be possible to justify the

retention: of: the finality. clauses in Government

contracts wnleks~ the hearing. procediires.. were

conducted in such away as te require. each

party to present. openly ‘its side of the con-—

troversy and. afford an opportunity of rebuttal.

[Emphasis added.] [H. Rep. 1580, 83rd Cong.,

2d Sess., pp. 49.) :

“

This’ congressional concern with the’ need | for a full

administrative reeard ccomtamning “all, ‘of the test?

mony and evidence” underlying the sdiabehes ative

‘decision manifests, we submit, a tlear congressional

purpose to limit judiciakreview ‘to sueh testimony

and evidence. Certainly, it weuld have been an empty -

- gesture for Congress to Insist on-development..of a

full administrative record and at the same time per-

mit "that record to be completely ignored by the .

reviewing court, as it Was in the present’ ease.

eee

uo -

3. Centralization of most government contract liti-

_ gation in the Court of Claims" frequently éliminates

the possibility\of a conflict in decisions. It is highly

significant, therefore, that a conflict -has already de-

veloped on: the- precise issue here involved. Langoma

Lumber Corp. v. United States, a district court de-

cision affirmed by the Court of Appeals for the Third

' Cireuit, flatly holds that, for the purpose of the sub-

stantial ‘evidence test iyhe Wunderlich statute,’ the

"reviewing court: is limited to the record and evidence

hefore the administrative board or agency, 140 F.

Supp. 460, 461, 462 (E. D.. Pa.), affirmed 232 F. 2d

886. Accord: L. W, Foster Sportswear Co. v.. United -

States, 145 F. Supp. 148,149 (E. D. Pa.). |

- 4. The vast majority .of formal: government con-

struction amd prov urement contracts contain a “dis-

putes” clause comparable to the one involved here, and

both the Wunderlich statute and the decision below

will apply to all suits in the Court of Claims arising

out*of such ‘contracts. . The issue is therefore suffi-

~_. elently. important and. general to be resolved by this .

Court... More than that, the decision below, if allowed .

to stand, would undoubtedly burden the entire mass -

of military: and other governmental procurement in

_- Serious’ fashion. It would.strip the administrative

hoards; which facilitate and expedite such procure- —

- ment by avoiding ‘the expensive and. time-consuming

. litigation of technical factual disputes, of power to

' function’ effectively. The Assistant Judge Ady yocate

728 0. S.C. 1346 (a) (2) imposes a $10,000 ceiling on die-

; trict court: jurisdiction -over ‘government contract claims.

———

13 aks

General of the Arny, in noting the adverse éffeet of

. the decision below, has stated :*

by alleging there was not substantial evidence.

For . the foregoing | reasons, it is respectfully sub-_

- The importance of. this decision to the De-

~ _ partment of the Army and its far-reaching i im-°

plications upon governmental procurement in —

general cannot be overemphasized. The Corps ~

of Engineers. Claims and Appeals Board, the.

Armed Services) Board ‘of Contract Appeals

Board and for that matter all governmental ap--

peal boards, would be adversely affected if this

decision is allowed to stand.. If every decision

ef the Armed’ Services Board of Contract Ap- _

peals were subjected to a trial de novo in the

Court of Claims-on the merits, tee utility of the

-Board as an administrative body, would be

greatly impaired. No decision unfavorable to

the contractor would be afforded finality. Con- .

tractors soon would appeal virtually every ad-

verse decision of the Board to the court merely

This would result in a far greater ease burden

upon the courngas well as a ne | in the util-

ity Of the Board.

CONCLUSION

mitted that the petition for a writ of certiorari should’

be oe. .

SEPTEMBER 1957.

< J. LEE Raxtnns, :

Solicitor General.

Georce CocHRraN Dovs,

Assistant Attorney meee...

Pau. A. SWEENEY

Morton HOLLANDER,

* Letter to the Attorney General, dated June 28, 1957.

Attorneys.

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APPENDIX

ary

| = the t Wied Sates Gourt g asin :

"No. 49316 .

(Decided June 5, 1957)

_FEHLHABER CORPORATION v. THE UN sis

STATES

hes

& as

Mr. John W. Gaskins “a ne plaintift.. King & King

were on the briefs. © .

_ Mr. John F. Wolf, with whom was Ar. ‘Aisibtend Attorney

General George Cochran Doub, for the defendant. Mr.

Herbert M. Canter was on the brief. :

ol ib naic

“LARAMORE, Judea delivered the opinion. of e court :

. This suit arises as the result of a contract entered into by

plaintiff, Fehihaber Pile Co:, Inc.,!_a New-York Corpora re

_. tiorm; withthe defendant, acting through the War Depart-

ment, for the construction of the substructure tor the Chesa- ;

_ peake City Highway. Bridge. located. at Chesapeake City,

_ © Maryland.-<Plaintiff alleges that during operations under

‘the contract it encountered subsurface con@itions which dif-

fered materially from those contained in the Specifications

and as a-result thereof incurred additional expenditures in

driving interlocking. steel sheet piles fora cofferdam needed

in the construction; in excavating for the pier designated

Pier 1 N which was constructed within the cotferdam ; and

‘in driving. steel H piles to support’the pier. Plaintiff con-

tends it is entitled to payment fot the added expenditures in

" - an amount in excess of $100,000 ‘pursuant to the Changed

" 2 Subsequent to the filing of thi- suit, plaintiff's name was changed from

Febihaber, Pues Co., Ine. ne Corporation. .

. $3 rane 57 nw ; (14)

“4 ¢ ee

| ee as a

conditions article of the contract: Plaintiff also seeks the

return. of liquidated dainages assessed against it in the

amount of $10,000 becnuse of its failure to complete: ‘the

‘contract on time.

"The contract which called for the construction of 22 piers

and 2 abutments for a bridge over the Delaware Canal in

standard Delaye-Damages and Disputes articles as

the standard Chenged conditions provision and was .

—e oS a.

- which provided in part as fellows: .

Bidders should examine ings and

as ‘to all conditions and matters can

inanp way allen the eerk the ont therest. * >

[. Defendant employed an architectural-éngineering firm to

make borings and compile boring logs showing the subsurface

conditions at the various pier locations. This analysis,

which ale» usted the sussber of tows pur Hasal es} vequical

tion — 100 fest, and was part of defendant's specifications for

he job. For various reasons, including inconsistencies in_

the number of blows required to penetrate similar type ma-

terials, the number of blows on the sampling spoon was con-- 4

sidered of little value to prospective bidders in determining

' a

could be

Seng tong |

The contract drawings showed the bottom of the footing ~

for Pier 1-N at elevation 48, which would require excava-

tiem to be performed. to that depth. The materials de .

scribed on the contract borings to that elevation would have —

been easy to excavate, and from an engineering standpoint,-

boring logs could reasonably have been con-

_strued 00 indicating that.dificulty in the performance of. .

the excavation would be experienced.

: ‘Plaintiff’ based ite bid upon the information contained

on the contract drawings and upon the conélusion that the

materials to be encountered could be readily excavated.

Below —48, steel H piles were to be driven to support ~

the pice ‘The materials described in the béting logs, both

above: and below the sandstone layers below depth, _.

should not have been. difficult to penetrate.. on:

: the sampling spoon did not suggest or reveal m which

_ eld cue high rian fo pe den heavy

~ and powerful hammer.. The soft sandstone at —50 -

ta Dighig Seth gt 000 hing SW os offer little, .

y, more materials in the setlierfugx Id any oth-~

materials in the “The sandstone

- from —585.7 to —57A4 was not c by plaintiff to be

caus ke sae it te oo underlying it were

substantially as reported, such underlying conditions being = _

reported as unconsolidated materials.. .

Concerning these borings, the contract and the specificn-

tions contained the following provisions:

- ARTI 1. The contractor

aihPett s memee 2 Bt te ees

' ——— the speci wate argon , schedules, and drawi po

which ‘are. Riess dao re casted

hentia SC-7 of the- Special Conditions of the Speci6-

. cations provided in part as follows :

| SC-7 PHYSICAL DATA. .The saa and

data furnished or to below are not intended as

”

oe 1 SSS Fg RS

d. ‘Foundation Conditions. —Thescontract plans show

the results of borings and test piles.driven at the site.

Any. conclusions drawn therefrom by the.contractor as

to the surface and. subsurface materials to be encoun-

tered, the methods required to complete the construction - —

shown on the plans,:and the necessary lengths of piles .

are at the pe ae risk. The taneten net aown

no x Seger 2 for the accuracy of the bc and

tests above referred to or the pu Lead sesaits ¢ f,

_ for does it oy area? vom enn eating gery in

-p jong different ‘from those shown will not be en-

re holes may be seen at pty aes ie

—*_- Paragraph Gc-2 of General Conditions of the Specifica- .

tions provided as follows:

_GC-2. SITE INVESTIGATIONS AND REPRE- |

SENTATIONS. The Contractor acknowledges that

_ he has satisfied himself as to the nature and locati f

the work, the general and loca! conditions, particularly

those bearing upon -transportation, disposal, handling

and storage of materials, availability of labor, water,

electric power, roads and uncertainties of weather, river

stages, tides or similar physical conditions st the site,

the conformation and-condition of the ground, the char- _

acter, quality and quantity of surface and subsurface -

' materials he cacouahated , the character np Neg :

and facilities needed’ preliminary to and. uring the ..

prosecution of the work and all other matters which can

in any way affect the work or the cost theré8f under

this contract. Any failure by the Contractor to ac-

_quaint himself with all the ayailable information con- . .

cerning these conditions will not relieve him from —

: ibility for. estimating rly the difficulty or .

cost of successfully performing t work. * * * —

——

The plaintiff did examine the site of the “preposed con- ©

struction and’ the physical samples that defendant acquired

. from its-borings. It did not, however, make borings. of its

own because of the limited time allowed for bidding and

‘because the existence of regularly scheduled traffic in the —

channel would have made’ such an attempt imprgcticable.

The record also discloses that it was not contemplated that

prospective bidders would conduct boring operations and

in fact it\was not done. Plaintiff: prepared its bid on the

basis of the plans and specifications submitted by defendant,

was subsequently awarded the bid and ordered on June 3,

Samples of mattrials. removed from the. ~

“*. pate of $200 per day as called for in the contract and i in the

_ with the Changed conditions article of the conttact, its con-

tention being that the excess costs ‘arose because the subsar- .

w» face conditions mgterially d differed from those shown oh the

‘contract drawing= and specifications. “ats

- Defendant first denied such relief by letter from: the-colr™

_ 1946, to commence Gein The’ contract called for com- &

pletion by December 22, 1946. For. various reasons, none of

which were granted: expressly for changed conditions, ex-

‘tensions were granted which pushed. the contract completion

date up to June 7, 1948. The defendant did not consider

. the contract substantially complete untikJuly 27, 1948, and,

therefore, assessed liquidated damages for 50 days at the

total amount of $10,000.

Plaintiff had’ on numerous occasions during the period of

construction notified defendant that it intended to make,and .

in fact was making, « claim for excessive’ éosts in accordance

tratting Officer ‘en September 155.1947, wherein he referred

. to plaintiffs nant request for changed conditions relief dur-

ing a telephone conversation on September 4, 1947, and -

advised that an investigation showed no changed conditions|

existed. He further notified plaintiff that’ no written con-

tentions had been received and suggested procedure under

_ article 15, the Disputes provision, within the next 30 days... -

Written application had already been mace by plaintiff,

however, on September 12, 1947. By letters of October 3,

Octobér 10, and November 5, 1947, plaintiff set forth the

details and extent of the excess costs claimed to have been .

_ incurred in the driving of the sheet piling. — excavation

for the pier base.

- By letter of November 25, 1947, plaintiff submitted to the

district engineer its claim. for additional-compensation cov-

ering the driving of H piles at Pier-1-N. This claim was. Sf

also based on the Changed Conditions provision. -

: The contracting officer on December 3, 1947, denied plain.

tiffs claim for changed conditions at Pier 1-N. Thereafter,

‘ plaintiff was permitted fo file two additional affidavits and —

the case was forwarded to the district engineer, the con-

tracting officet’s superior, who, under date of March 1, 1945,

executed and transmitted to plaintiff written findings ef fact

"aye changed — relief. sae

Pe ic, Se

19 :

Plainti®i ¢pyested solic the Diepltee ssticie at! the on:

tract on March 18, 1948, and was given a hearing by the

Corps of Engineers Claims and Appeals which denied

plaintiff's claim in « written. opinion dated February 15, -

1949. This action was reviewed on February 25, 1949, and

approved by the Chief of Engineers who was the duly au-

thorized appellate authority. Plaintiff was notified ef this —

action on March 14, 1949. Action was instituted in this —

court on September 28, 1949. :

uacingy of Sock amet destin see eal onl eovdhesiys on

parties as they were supported by substantial évidence. The

Government contends this court cannot resort to a consid- -

~ eration of our own de novo findings unless and until-we have,

at the very- threshold, reviewed the entire administrative

record a8 @ whole and found that that record did not contain

_ substantial evidence to support the administrative findings

and. decision. In effect the Government says that a de novo

hearing by this court is « nullity if.the administrative deci-

sion is supported by substantial evidence in the administra- .

tive record as'a whole, and that such de novo hearing should

not“even have been embarked upon if euch substantial evi-

dence existed..

Shinilaw aciiietienls ta a Geiltad Uiaselin with meade er :

the Government in the case of Volentine and Littleton, et al.

“ wv. The United States, No.‘62-54, decided November 7; 1956,

_ and were rejected by the court. |

| ' While the writer? of this opinion dissented in‘ that case

and still adheres to the. views.exprersed in that digsent, he -

must bow to the majority-and we hold against the Govern-

ment’s argument here. © Sy

Since Volentine and Littleton settled the problem there is

no need for any éomment thereon. The only thing we must

decide now is whether the decision of the Corps of. ,

Claims and Appeals Board, approved by the Chief of Engi- 4

neers, is supported by substantial evidence edduced at the

trial de novo before this court notwithstanding the adminis-

- trative record.

esac Lakisha iach aNRIRS editia ea Nnd cl

miscalculation on its part of the difficulties to be encountered =

and that there was no material difference in the location or

seein il saab slat ie mh in

defendant’s specifications. Defendant also asserts that plain-

tiffs operations on the whole were inefficient. oi

Sante sapere, Reston Sar wee santeneeer ay ths tapi’

which’ shows unquestionably that subsurface materials en-

countered at Pier 1-N materially and substantially differed

_ from that which could be expected from a study of the con- _

_-tract drawings and spedffications. The évidencve also shows _

Ee that plaintiff's operations at the site were reasonably efficient

job.

Tn this light, the decision of the Corps of Engineers Claim: ae

and Appeals Board is not supported by substantial evidence

_. and is in fact contrary to the overwhelming weight of the

_ evidence as the ensuing discussion herein will point out. The

differences encountered by plaintiff fall squarely within the

standard set forth in article 4 of the contract defining that

-which will constitute changed conditions. e

Details of the problems encountered by plaintiff in driving

the steel sheet piles for the cofferdam af Pier 1-N, in the exca-

. vation at Pier 1-N, and in driving H piles at Pier 1-N are

__ set out in findings 18 through 79 and will be repeated herein

cnly to the extent-aqosenary to thow the existence of changed.

- conditions. -

The coflerdaza wai to be ctmatrncted of 136 interlocking

'~ steel sheet piles which, according ‘te the contract, were to

be driven to approximately elevation —54.0 to —56.0, the —

- top of a rock stratum. As noted previously, plaintiff antici-

pated no difficulty in driving to the prescribed depth be-

cause of the composition of the subsurface. Except for the .

previously indicated layers of sandstone, all other materials —

ponwladis.c ep alng oat Nevertheless, severe re-

sistance-was encountered from elevation —21 to —26 and

from elevation —37 to —55 and the use of a jet was neces-

' _. Sitated in driving at those points. Becauze of this resistance, _

__ .. and because of the necessity of applying an excessive num-

- ber of blows of the steam hammer to the piles in an effort

- to drive them through the unexpected materials encountered,

30 percent of the piles were damaged and it was necessary

on several occasions to burn off 3 to 5 inches of the butt

_ ends. The sub strata was so hard that some 20.to 30 of '

! .

. or 3

’ the sheet pile could only be driven to about four feet above

~ the specified depth. Their tips rested at or about elevation _

—52.or —53, where the contract. borings indicated gand or

clay. The high sheets were driven to grade only after exca-

vation was completed and by use of an oversized hammer.

Work on the cofferdam was completed on April 10, 1947...

On or about April 8,°1947,.plaintiff orally advised defend-

ant’s district engineer of the difficulty encountered and that.

it would probably. make claim for ‘additional cost due to

_ changed conditions. >

After work on the cofferdam was completed, work began’ -

on the excavation whicl the contract required to be. per-

~ formed down to elevation —48. According to the borings,

little trouble should have been encountered in this work

_ as there was little or no hard materials down to that depth. « .

Notwithstanding this, however, excavation between —21 —

— 26" was extremely, difficult. and was delayed considerably

because much hard material difficult of-excavation was en-

countered. At —21 feet, a 42-foot open end pipe weighing

1,700 to 1,800 pounds-was permitted to fall some 20 to 25

fect onto the hard surface but was unable to penetrate until .

about 100 blows of a 6,700-pound steam hammer were applied.

to the pipe. ‘This drove the pipe five feet. Three feet of

sandstone and sand were recovered from the pipe at this.

4 .

level where.according to the borings only fine sand, clay-and. -

- gravel ‘should be encountered. Generally; ‘excavation be-~-

shell bucket with S-inch ‘steelteeth. During the excavation,

__ these teeth were often worn to the point where they needed .

replacing. The extreme-resistances that were being experi-.

~ enced continued to —26. ©

_. tween —21 and —26 was difficult enough to.require the use

_. of a water jet and a 1,200-pound pipe to break up. the hard

_.- surfage before excavation could be effected. After elevation.

_” —B1 was reached, the 34-yard bucket that was used up to

that point had to be replaced by a one-yard heavy-duty clam- ‘

‘ I ; zx

From —26° to-—37- no undue difficulty ‘was ‘met. From .

” 87 through #48, sandstone continually slowed up prog:

ress. “The use of a jet was necessitated and it was used in

the west end-of the cofferdam from —37 to —46.6 and on — .

the east end between elevations ~ 37

and 42. .

€5 +e

- @

Leas eS 2... <

At the suggestion of the: defendants ‘resident engineer. a

- 50-foot steel H beam weigliing about two tons with.a sharp- °

- ened point was used as a chopping bit’ to penetrate and

.. break up the sandstone. Tt was dropped from a-height of

"~~ about 30 feet with a resulting 60,000 ee of energy

being exerted in each drop.: - .

. The. use of a jet and the 1,200 pound pipe between =21

and —26 and the use 5f the 50-foot two-ton steel H beam.

‘+ between: —37 and —48 are considered extraordinary pro-

. cedures.when subsurface conditions are as‘should have been

encountered according to the «contract drawings and <

specifications.

Because of the existence of sandstone throughout the entire

, dsubsurface area of the cofferdam, plaintiff was advised on

September 8, 1947, that defendant would accept ‘a8 the final

‘ grade for Pier 1-N a higher elevation than the specified .

—48. When excavation was finally completed the average

grade was 46.6 and the entire bottom of the cofferdam wae

covered with hatd sandstone. a :

‘Plaintiff, at its own expense on) several occasions had an

AS independent laboratory analysis made of the materials being:

- encountered. Of materials recovered at —21 and —23 the

: report was that the rogk consisted of finely laminated to ~

massive silt stone ranging to ¢lay stone, consisting of thin

bands of clay intermixed with fine silt, and some bands

rather firmly cemented by iron oxide. -The com jive

strength of the. softest layer was 481 pounds per square inch,

and the hardest,’containing iron ore cement, whs 2,390

pounds per square inch, This rock was quite friable in.that.

particles of silt could be rubbed out of the clay matrix, par-

. ticularly when dry.” The samples revealed‘a type of material.

_- compact in mass which had the faculty of absorbing a blow.

- withput. shattering or ‘crumbling over an area of more than

. - an inch.or two from the point of i itmpact. - From an .engineer-

-ing standpoint, the material represented by the samples was

- a. soft sandstone which *would bé very difficult to excavate.

: Rock, such as represented by the samples, weakens with

_ excessive: moisture or upon air drying, and has its maximum

: strength 1 sanoay? normal subsurface conditioris. .

i.)

| 23 | | , {

Two ial Gecovered at —42, each m ghioh were solid

_ pieces of stone and weighed 500 pounds, were also inde- |

’ pendently analyzed and, tested and found to be sandstone,

the largest part of which consisted of an aggregate of quarts

grains cemented with calcium and iron carbonate, the rest

‘being numerous laminated layers varying from 4s little as

Ye inch up to a few inches thick of material cemented with

iron oxide or, bog iron. Approximately 36.5 percent of the |

rock was cementing agents with the rest being particles of

seqjiment. It was a-firm aggregate of cemented sand. Com-

pressive strength of this stone ranged from :1,590 to 2,380

* pounds per square inch. Typical sandstone, according to

| the authoritative Handbook of Physical Constants, .ranges

@ —— from 1,560 to 3,500 Reunds per square. inch. This rock has

considerable resistance to the kind of stresses exerted by

- cheavy equipment used in excavation. The sand grains of

this stone are completely unaffected by moisture and its

_ ecementing agents are practically insoluble in water. . It -

g - would have no tendency to soften or weaken jn water, but

“5 .would have the same attributes in its natural state as it did .

in a dry condition in laboratory testing.

These samples from elevation —42 represented - -material

more difficult to excavate than the material of which samples

: were previously obtained at elevations —21 to -23. —

Plaintiffs problems did not stop after excavation was com--

pleted. The contrac caHed for 231 steel H piles, each 55.

feet in. length, weighing 89 founds per foot, to be driven

within the cofferdani’to support Pier 1-N. Each pile was

to be driven at least 40 feet below the bottom of the excava-

tion at — 48, or to elevation - —88, and until suth pile attained

__ safé’ bearing load’ of 60tons as determined by a specified

_ formula with a hammer that developed a mihimum of 19,000

"foot-pounds of energy per blow. To achieve the 60 tons of

‘bearing capacity, the formula called for resistance of each

pile at, the rate of 90 blows per foot for the last foot after

_ minimum penetration of 40 feet. Ifa pile reached required

«resistance at the minimum depth at —88, the excess length

ail of projection above the bottom of the excavation could be

cut off. If the 55-foot pile.was driven to maximum depth, —

its tip end would be 47 feet below elevation —4Ser at — 95. -

= ab

of sandstone between elevations — 46 and —88 except one foot

of sandstone between elevations —53.9 and —BL9 on boring

1-NW and one foot of soft sandstone between —50 and —51,

and 1.7 feet of sandstone between —55.7 and —57.4 on boring

1-NE. . Tete.

_ Because of unconsolidated materials which the boring logs

indicated were underlying the sandstone at the indicated

trating the sandstone layers.

Plaintiff met little trouble between —46.6 and —55; how-

ever, between —55 and —57.4 maximum resistances of 90

blows or less per foot were encountered on 178 of the 231

steel H’ piles being driven; 91 to 180 blows per foot were

the remaining 16 piles. .

’ High resistances were experienced bet wean elevations —58

and — 64 and again'between — 72 and the maximum depth to

which the’ piles were driven which in the main ranged from

| ~81 to —88. . iss

~59 and —61 where 94 of the 231 piles drove at rates in

excess of 100 blows per foot. Of the 94, 39 drové in excess

10 in excess of 1,000 blows; and of the 10, one in excess of

tions —81 and —88, where 218 of the 231 piles needed 181 to

elevations required 400 or more blows per foot! =~

- These figures areé significant in that the number of blows

Because of the high resistances encountered, it ‘was decided

that all piles that required more than 400 blows per foot

would’ be extracted because of the possibility of damage.

flanges split, torn, and twisted for varying distances of from

e ;

According to the contract boring logs, there were no layers.

needed on 37 of the piles; and 181 to 399 blows per foot on .

Very high resistances were experienced between elevations.

of 200 blows; of the 39, 27 in excess of 400 blows; of the 27,.

3,000" mth per foot. . | :

Very high resistances were also experienced between eleva-

399 blows per foot; of the 218, 125 at some elevation or

forecast to be needed at maximum resistance after minimum

penetration of 40 feet was, as noted above, 90 blows per foot.

elevations, no trouble was expected to be encountered in pene- it

The extracted piles showed their tips to be shattered and their — |

one of two feet to eight or ten feet. In some instances five _.

to seven feet of rock were embedded in the flanges ofthe ex- ——

Gea.

tracted piles. -En some instances the excessive driving caused.

the butts of piles to, become battered to the extent that they .

_ had to be cut off to avoid wedging of the anvil of the ham- .

‘mer. This'‘occurred notwithstanding the fact that the-ham-

mer was equipped with a driving cap. which fitted: over the

butt of the pile.

“A sample of the rock which came from about elevation - 60

was extracted from one of the damaged piles and analyzed. —

It was found to have a compressive strength of 34,400 pounds

per square inch which is 50 — stronger than average

granite.

Minimum penetration of — 88 was never-attained and when

all the piles were in place and accepted by the Government

the average penetration was 35.5 feet below the bottom of the

excavation at —46.6 with eight of the piles being only 26 to.

29 feet below. The average overall penetration of the piles

_ was —82 with the highest at —72.7 and the lowest at —88.

The Government was aware that the piles rested at higher

elevations than the contract called for when it accepted tham

and knew as well of the resistances encountered in ea. at

_the various levels.

Thi above outline of the difficulties encountered by pleit

tiff, not the least of which is the number of blows of the

hammer required in driving the H piles in excess of the

maximum resistance expected of 90 Llows per foot after

—88 was reached, indicates without a doubt that it did

experience changed conditions and that it was s damaged asa

result’ thereof.

. The-Government points out in its brief that the specifi-

cations included caveatory and exculpatory provisions which

warned that the information and-data furnished to bidders

was not intended as representations or warranties but was

furnished for information only and: that any conclusions

‘drawn by the contractor as to ‘surface or subsufface mate-

rials to be encountered were at the contractor's risk. The

Government also pointed out that the general conditions of |

‘ the specifications provided for acknow ledgment by: the con-

tractor that he had made a site investigation and. included

_ a disclaimer by the Government as to responsibility for any

understanding or representation made by any of its officers -

or agents.

visions the plaintiff should be denied recovery’ as it did

provisions hold the Government harmless. for any incon-

_sistencies between the results of the borings reported in the

_ specifications and drawings and those conditions | which

actually were encountered.

It would have been a virtual impossibility, however, -

any. bidder to make its own borings, analyze them, compute,

prepare, and submit its,bid after the Invitation for Bids was

first published since there was only a 40-day interval between -

that publication. and the opening of the bids,. There were

. 32 piers and two abutments ‘to be constructed.. Borings in

two to four places would be necessary at each location, not -

only*at Pier 1-N. Therefore, we hold that because of the.

inabifity of the plaintiff to bore, analyze the borings, and

_to compute, prepare, and submit its bid within the short time

allotted, plaintiff i is not bound by. thé caveatory and excul-

‘patory provisions of the contract and Specifications and,

conversely, those provisions do not. relieve the defendant of

liability for changed cohditions as. the 'broad language

thereof would seem to indicate. Plaintiff had a right to rely

on the Government’s. specifications and drawings and the |

Government is bound by any rtions made therein not- —

withstanding the fact that it was stated that that data would

be for information only. Moreover, this court has repeat-

edly held that* the specifications cannot-alter the effect of the

specific language of the Changed conditians section df-the-

contract. See Vade P. Loftis v. United States, 110 C- Cs.

551; Peter Kiewit Sons’ Co., v. United States, 109 C. Cis.

517; Walsh Brothers v. United States, 107 C. Cls. 627; Gus-

tav HW irach v. United States, 94 ©. Cls. 602. c

. We hold, therefore, that Article 4 of the contract entitled

Changed conditions. was not restricted in any sense by the

* language of -the Invitation for Bids or the specifications

paragraph SC-7d or paragraph GC-2 which attempt to re-.

. lieve the Government of. all liability if the subsurface con-

ditions were not as reported. .We further hold, that the:

_ conditions encountered by plaintiff were materially different

.from those reported by the specifications and that this is

exactly the type.of situation anticipated by the Changed

Dall — "Ft an de s

The implication is, of course, that because of these pto- - oe

not make and analyze borings of its own, and that. those i

. / 27 :

conditions provision in the standard Government contract.

Plaintiff should, therefore, be reimbursed to the extent that

the changed conditions caused it to incur expenditures in

excess of that which would have been incurred liad the sub-

surface been as reported by the specifications. _

Findings 29 and 30, 64, 79, and 85 through 91 outline in

{ detail the additional costs incurred as a result of the changed

- conditions. Judg will be entered in accordance with

the computations therein in the amount of $50,414.90.

The only problem remaining is whether plaintiff is entitled 4

to the recovery of the liquidated damages in the amount

’ of $10,000 which were assessed by defendant because of delay

in the overall completion of the contract. . Plaintiff contends

that the 110 days of additional work at Pier 1-N was re-

. Sponsible. for it remaining’ on the project‘for an additional!

period of 65 days and that the court, therefore, should

recognize the fact/ that jthe changed’ conditions caused the

delay in the overall completion of the contract. |

* | * While there may a direct relationship between’ the

: ' changed conditions w ich necessitated additional work at

‘Pier 1-N and. the delay -in the overall completion of the

contract, we cannot find that that is the case unless there

is proof in support thereof, and there is none. While the

record shows that plaintiff was-delayed by changed condi~_

tions at Pier 1~N for a period of 30 calendar days in the

. driving of the sheet piles for the cofferdam, for 73 days i in

"excavating for the pier base, and for 7 calendar days in the

driving of the H piles,.or a total of 110 calendar days, there. _

‘is not sufficient evidence in the record to show that these .

delays caused‘ an overall delay of the entire project. The

only. detailed evidence.in the record concerns the pertinent

operations at Pier 1-N, with only casual and superficial

= references to the other piers or to the project’ ‘ag-§ whole.

Both parties deliberately endeavored to limit the evidence

to Pier 1-N. We are unable, therefore, from the evidence .

before ns to make a determination that the overall delay was

caused by the changed conditions. Accordingly, -plaintiff

_ is not entitled to recover the liquidated nian assessed ad

defendant. ° .

~ Judgment will be entered in favor of plaintit in the

amount of $50,414.90.

_ It is so ordered,

Masten, Judge; Wniraken, Judge; Sita Judge;

and J ON NES, —s J udge, concur.

. & t

FINDINGS OF FACT

* The court, having considered the eliesis the report of

Commissioner Roald A. Hogengon, and the briefs and argu-

ment of counsel, makes findings of fact as follows:

- lL, The plaintiff, Fehlhaber Corporation, formerly known

‘as Fehlhaber Pile Co. Inc., is a.New York corporation with

principal place of business at New York City. For the past

twenty years it has engaged i in heavy construction and has

had considerable experience in work requiring the © use of - .

cofferdams. -

2. This case concerns the constraction ofa bridge substruc- |

ture by the plaintiff for the defendant, and involves (1) the

question whether plaintiff in the construction of concrete

Pier 1-N encountered changed conditions; | (2) if changed

conditions were encountered, the further questions whether

- they: caused plaintiff increased costs (a) in driving inter-

_ locking steel Sheet piles for the cofferdam, (b) in excavating

. for the pier, and (c) in driving steel H piles to support the

pier; and (3) whether plaintiff shall be relieved of liquidated

damages: which have ee assessed against. it in the amount.

of $10,000. :

3. Defendant invited bids: on March 1, 1946, to be opened

on April 9, 1946. hee

4. The work for which bids were re requested and the contract

ier ‘executed, consisted of the construction of 32 piers and

btitments for a bridge over the yg ears and Delaware

Linal at Chesapeake City,. Maryland.

The two main piers were 1-N and 1-S. Pier iN was

-intpnded to ‘support the north end @f the steel work for the.

bridge and approaching roadway above the canal, and Pier. 3

1-S was to support the south end of the steel work for th-

_ bridge and the approaching roadway. : Pier 1-N was in the

~ channel of the canal. The canal was approximately 600 feet |

wide. als

| . ® -

"29

6. Available to prospective bidders were ‘various contract

_ drawings, one of which contained boring logs showing the

results that had been obtained through borings which had

been conducted at various pier: locations in advance of the

_ invitation for bids under the: supervision of the architect-

engineer firm retained by defendant to design the bridge and

supervise construction. The boring drawings and. ma--

térial descriptions thereon were prepared by the architect-

engineer firm. Defendant’s resident engineer on- ‘the’ canal

ect was an employee of this firm.

7. Boring.1-NE on the contract drawings was s located ap--

proximately 5 feet east of the location prescribed for Pier

_ 1-N, and boring. 1-NW was located approximately 5 feet

west of such pier, both of said borings —e' on the center-

line of the proposed pier.

- Borings 1-NE and 1-NW described the various isin of

‘materials encountered from thecbottom of the canal at about

">11 foot elevation to depths below —100. foot elevation,

~ sueh descriptions classifying the.materials thus.iocated prin-

cipally as. sands, clays, soft sandstone, or sandstone, as will

-more particularly hereinafter‘appear.. — .

_ The description of the clays as soft, medium, and stiff was

in relation to their’sheer strength; tlte description of sands

as fine, medium or coarse was in relation to their grain size

- and the description of the rock as “soft sandstone” or “sund--

stone” was in relation to its susceptibility. to breakage under

impact. From an engineer's standpoint, there is no distine-

tion ‘between sandstone and. rock, but sandstone exist8 in |

‘varying degrees of hardness. ~

8. The contract borings also revealed the number of blows

. per lineal foot which wére required to drive the sample.

spoon downward in the material encountered, and also indi-:

cated where a core drill had been used on sandstone. They

‘did not reveal the number of blows: required to drive the

_ casing for the sampling —_ which information defendant

had collected.’

The resistances to the sampling spoon were not initended

by the defendant to indicate sandstone unless the spoon

was unable to penetrate. The number of blows on the sam-

* pling spoon on. borings 1-NW and 1-NE varied from the

low of -7 blows per lineal foot at elevation —2t (described ©

Ss |

30 -

as fine white sand and some small gravel) on boring 1-NW

to the high of 355 blows at elevation —59- (described as

‘very fine, extremely hard, light brown clayey sand) on’ the

same boring. Generally; the spoon resistances showed wide

degrees of variation in materials bearing relatively the same

general description, such as 62 blows in “finé yellow clayey

sand” at elevation —24 in boring 1-NE, 158 blows in “fine

gray and brown sand” at —55, and 244 blows in “fine light —

brown, light gray and yellow sand, traces clay” at —84 on

‘the same boring. Sp. | a

‘The spoon resistances could be interpreted as indicativs

_ of vui ying degrees of compaction of the materiale dented, ;

- but the mere presence of a great number particles .

- gan offer very great resistance to the spoon, quite indepéhd- —

ently ‘of cementation or induration. High- and low ~

‘resistances are indicated at elevations on the contract borings

where the described material is fine sand. tae

It is concluded that the tabulation of spoon resistances

‘on the contract borings was of little value to prospective —

bidders in the preparation of their bids.. The plaintiff so’

treated thisinformation. . : : rae

9. Paragraph SC-7 of Special Conditions of the Specifica-

tions provided-in part: Se Se cee Seer te

* SC-7.. Puystcan Data. The information and data

- furnished or referred to below are not intended as repre-.

sentati ns or warranties but are furnished for informa- __

tion only. It is expressly understood that the Govern- -

- ~ ment will not be fesponsible for the accuracy thereof or

_ therefrom by the Contractor. iS Pie oe!

. ire oe o>

d. Foundation Conditions.—The contract plans show -

. the results of borings and test piles driven at the site.

Any conclusions drawn therefrom by the. contractor as_

_ to the surface and subsurface materials to be en-

- ‘countered, the methods required to complete the con-

struction-shown on the plans, and the necessary lengths

of piles are at the contractor's risk. The Government,

- assumes no responsibility for the accuracy of the borings.

and tests above referred to or the published results

. thereof, nor does it repgesent that materials other than

_or in proportions different from those shown will not

ee ae)

be encountered. Samples of materials removed from —

=~ < : “Mes * . ©

- ; ° . bad

-_— aoe | |

Hila aie i pe dae {Ba

aH Ht Ai

a a ee

ae TEE an

Li ie

ined by defendant from the cont aa

Plaintiff’ made no it borings at the ‘site in ad- _

_ vance of biddis Because of the amount of time allowed ~~

_. 1. On May 6, 1946, following the acceptance of ite bid, «

- 200 calendar days after receipt by the contractor of notice to

= 1, and contained a provision: for liquidated dam |

‘. and received by plaintiff on June 5, 1946,-and the contract

to the contractor resulting from delays 6f subcontractors dus

33 7G: <

“tobe paid by the contractor at the rate of $900 for each calen:

ae See ee eee ee ee

we dlp ceotaieed seaneaiateal “eda = sgh

ve, w on

ich as to the facts of delay and the extension of

I glee rane ap OEEN

‘completion date thus became December 22, 1946...

By December 18, 1946, defendant had granted extensions

of time totaling 19 calendar days on account of three change

_ wary 10, 1947: Oni the latter date, defendant ‘in writing

_ granted a further extension to June 9, 1947, because of delay

to strikes. In March 1947, defendant granted extensions

totaling 18 calendar days, or to June 27, 1947, on account of

two — orders ey steel-pipe " concrete-filled Loe

ed ee

meee aS); lS Se CS

ewww to ee

oe s

: 34 aie

- 4m lieu of timber pilea on Piers 13-S, 14-S and 15-S. On

May 9, 1947, defendant -by change order further extended .

the contract performance time to September 20, 1947,’ on

account of delay encountered in driving sheeting at

‘Pier 1-S because of defective interlocks on the sheets as

On June 3, 1947, defendant by change order increased the

contract consideration by $18,653.97 and allowed 20 calendar

~ days, additiona] performance time on account of subsurface

conditions differing materially from those shown on the.

_ “contract drawings, thus extending the performance time to

October 10, 1947. This change-order settled all claims arie-

~ ing under Article 4 of the contract, except future claims that

might arise under Piers 1-S, .13-S, 14-S and 1-N.

Om account of subsurface conditions at Piers 1-S, 13-S _

and 14-S materially differing from those shown on the con-

tract drawings, defendant, by change order predated Octo-

ber 6, 1947, increased the contract consideration: by $12,476.17

and allowed a further time extension of 32 calendar days,

or to November 11, 1947: .

“On March 30, 1948, and again on July 8, 1948,defendant —

by two change orders allowed a total| extension of 49 cal-

- qndar days on account of delay in contract performance due

to unusually severe weather, thus ing the contract time |

- to December 30, 1947.

On January 19, 1949, which was a few months after com-

pletion of the contract work; the defendant by change order

granted the last of its extensions of the contract time for a =

period of 160 calendar days on account of acute labor‘short-

age from November 15, 1946, to July 27, 1948, thus extending _

the contract completion date to June7, 1948.

otherwise due, liquidated damages in the sum of $10,000 rep-

resentitig 50 calendar days of delay after. June 7, 1948,

project was completed and the defendant treated the contract

tract work performed’ thereafter, such as dressing.of the ~

bridge seats atop Piers 1-N and 1-S, stripping of forms

"from the concrete pour at the top of Pier 1-N, removal of»

| a RS

if pata oa

if Tia fu iH 3

TEE. 4 HL : HH rz iy

eee a

adit ray A HI ‘at 4 rid) i ice

ull ity iF le fh ait ial ivh Ht fi al

om Ne °

| part of the cofferdam on Pier 2-N, and general clean-up

dee

y eagges ra

tli ae

RUE

ENE

Pa uate

Hie Gil i.

THE §33:

bal at Hie

ning e—-.

: PIER i-N

48) \As the location for Pier. 1:N was in the canal approxi-

mately $Q.to 50 ft. from the shore line, work on this pier had

GSA

the pier for a minimum distance o

originally to own-

aN ee

the surface of the canal. At ap-

intended to extend d

elevation — 11 was the bottom of the cznal..The —

to rest at —48. The steel H piles sup- —

according to the contract drawings, was

were

originally in

proximately

4 ,

to be performed within a cofferdam. It was the only pier —

foot of the pier,

40 feet or to a minim

37 :

ies _20, The required cofferdam was rectangular in shape, being -

18 feet long’ and 40 feet wide, It was constructed oi 133 .

interlocking steel sheet piles each.of which was 63 feet long,

21 inches wide, and 5%-ineh thick. The cross-sectional shape:

_ of each pile was not rectangular but resembled somewhat the <

letter Z with zig-zagging contour. The cofferdam was

braced by three internal rings established at different levels

‘and also by longitudina) and transverse struts.’ °

21. Sheet 8-of the contract drawings contained the follow-

- ing note describing the elevation to which the tip of the shag

piling was to be driven: :

7 4. The- mn of the steel sheet piling: at’pier LN’

shall be ven to the top of the-rock strata at approxi-

mately elevation — 54.0 to dlevation —56.0 * * *.

“‘Specificati 801, above-quoted, stated. that the sheet

' piling would be driven’ through “any overlying strata of

. Tock” to the stratum indicated by the borings as located

“app 'y between, elevations —54and —58.”

22, Ack .to boring 1-NW, the “overlying strata of

: Ms Sosa er gst ype my berg php wee. rama

| 443 to —45.2 and the top’ of the rock stratum to which”

_ thé’ sheet piles were to be driven’ was at elevation —53.9,

" whdre a‘one-foot layer of sandstone was/shown between ele-

vations —53.9 and —54.9. No other sandstone wzs shown

at any other elevations from the bottom of the:canal'at

—11.8 to —94, a depth below any elevation to which plain-

tiff did or was to perform any work under the contract. .

_ The log. di boring-i-NW did indicate presence of small:

particles of brown sandstone. in fine to medium brown sand

from —45.2 to —52, but this reference was admittedly of

‘no significance to prospective bidders. .

; Boring 1-NE showed the “overlying strain of rock”. 6.

be one foot of soft sandstone from elevation —50 to —51.

The rock stratum to which the sheet pilea ‘were to be driven

~ was shown at elevation —55.7 to —57:4. No sandstone was*

shown at any other elevations from. the bottom of the canal

at --10.4 to —80.4 which was below-any elevation to which.

plaintiff performed work under the contract.

23. The purpbee of the ‘note on shéet 8 of the contract draw.

| | and of the similar language in paragraph 3-01 a of the

Sa ee

are

2 *

- i

ips would have a firm Weld in ‘the jae of sandstone, the

top. of which was indicated as existing at an elevation vary-

ing between — 53.9. and —55.7.. Because of the description -

on both borings of the-overlying 1-feot rock-stratum as “soft =

sandstone”, and because of the indication. that the materials Pa

above and below the overlying stratum were chiefly gands.

_ with some clay, it appeared from the contract drawings that --.

the sheet piles could be driven to and through the overlying aes

stratum and to the specified depth without difficulty. ,

24. Revised plans and detailed drawings showing the pro-

posed method of installation of the cofferdam at Pier 1-N-

- were submitted by: Qjaintiff and approved by defendant's _

.architect-engineer firm on October 4, 1946.

Although the plaintiff's original, progress schedule indi-"

8 image operations on Pier 1-N would commence in.

a aN ) plaintiff’s suppliers of sheet, piling and the steel

abricating bracing frames for Pier -N failed to make —

delivery until November 20, i946, when plaintiff commenced

| construction of a necessary work trestle for the handling of

. tnaterials, loading of trucks, and similar activities. . | :

ee 25. The erection of the ‘temporary driving frame for the se

sheet piles, which consisted of timbers supported by timber

_ piles, was accomplished during, two periods, from February —

19 to 26 and-from March 12 to.17, 1947. This. was the. initial

operation on Pier 1-N.

. During the interval between the two paras of scien

of the driving frame, -plaintiff accomplished the sticking,

or initial placement, of the sheet piles along the perimeter

| of the cofferdam to the extent that the frame had been

erected, and upon completion of the frame on March 17, 1947,

recommenced and proceeded with sticking until enclosure

‘of the cofferdam on March 21, 1947. ee .

Driving of the sheet piling’ to S loveshiin cienininnial

&@h a two-shift-per-day basis on March 24, 1947, and was

“ completed on April 10, 1947, except for 20 to 30 high sheets -

later driven as hereinafter related. :

~ “82 of this*work and the later excavation. ond H-pile

driving: had to. be done by wicane of cranes ae on

° ‘% The cranes ond other snihansiat which plaintiff weed

for the —— of sheet piles: for the cofferdam sere ——

‘ resistances at various élevations ‘within the areas from —21

tion through hard materials cannot otherwise be obtained.

| ts: senetanhhly. quod wishing einililen, anid sequined. nib wn-

usual repairs throughout the sheeting operations.

- 27. In driving the sheet piles, plaintiff encountered severe

to —26, and from —87 to —55. :

Commencing with the fifth day of ‘driving on March 28,

1947, and thereafter for 14 shifts throughout the operation

ending on April 10, 1947, plaintiff employed a water jet as.

a means of reducing skin friction. resistance of the sheet

itself so that greater force of the hammer could be brought

- to bear on the- material resisting the pile. . It is neither

customary nor desirable to use a jet as an aid to driving

sheeting through sands and similar materials because the

- outwash from the jetting tends to throw the’sheeting out of

plumb and adversely. affect the bracing structure. Such a

procedure is employed infrequently and only when penetra-

‘A-jet is not used as a chopping bit in a sheeting operation

because the And of a sheet pile has a relatively sharp: edge

is much more effective than any jet in breaking through

strata, but a jet is effective in furnishing water to wash

ials away from and lubricate the sheet pile... )

are normally encountered at the lowest eléva-

iving sheet piling due to the stresses generated

by i at high and low elevations, and were

-_of Re peeue«* .enihagpa” than. those ordinarily

Se ae

The high resistances. required that an excessive amount

This damage occurred even though the

and used was one of the heaviest manu

- ‘The 20 to 30 sheet piles which could not be dri to pre-

scribed elevation by April 10, 1947, ranged to asm

4 feet above specified depth, with the tips of some of them

at or about elevations —52 or —53, where the contract bor-

ings indicated sand or clay. The ‘defendant's resident en-

gineer reported as of April 12, 1947, that at Pier 1-N fies

0°

Re iti atic anes oe

quired elevation.” These “high” sheets then existed on three

sides of the cofferdam. After excavation had been completed

within ‘the cofferdam, plaintiff proceeded from October 30

to November 3, 1947, to drive the high sheets to grade by usé’

of an oversized hammer.

28. On or about April 8, 1947, plaintiff at the site of the

work oraHy advised defendant’s District Engineer that

plaintiff was encountering difficulty in driving the st@

sheeting at Pier 1-N, that it appeared that plaintiff would

make claim for additional cost due ‘to changed conditions, .

but that,decision to make such claim would be deferred until

subsequent excavation revéaled the character of materials

encountered. -

, 29. The hard, materials encountered in driving the shect

piling are more fully described in later findings concerning

Qo Fes teen

the pier foundation.

driving the cofferdam sheeting, plaintiff encountered

subsurface conditions materially different from ‘those in-

_ dicated by the contract drawings.

: If danditions had taen en segpeenniteliyplntenil could have

eet and driven 15 sheets per 8-hour shift and thus have taken

9 shifts to drive the 136 sheets that were placed. It was

_ reasonably estimated: by plaintiff that 5 shifts would be re-

quired to set the driving frame. A total of 14 shifts, or 18

calendar days, would have been required for the entire oper-

ation. This. work actually was done over a period of 51

calendar days from February 19, 1947, through April 10,

‘1947, utilizing 43 shifts, of which 11 shifts.were employed

on the driving frame and miscellaneous ‘matters, none of -

which were affected by changed subsurface conditions, The

remaining 32 shifts were devoted to sticking and driving of

sheeting, and the excess number of such shifts caused by the

changed subsurface conditions amounted to 23."

30. Reasonable costa incurred by plaintiff on the

aul hlise eqveiadie aletad ae SAOALET Ouc wae

the 43 shifts and $5,660 for equipment use (including fuel)

area. |

2B 2 41

i ania a niall aia a a le

ETRE nn Sh EES te Ce

work shifts. /

EXCAVATION. AT PIER 1-N

$1. The contract drawings showed the bottom of the foot

ing for Pier 1-N at elevation —48, which would require ex-

. cavation to be performed to that depth. The boring logs .

_ on the contract drawings indicated the various types of ma-

terial to be encountered to elevation — 48, as follows:

' Elevation

Zero to —10.4

—10.4 to. --13.5

—13.5 to —187

—18.7 to —229

—229 to —26.9

—26.9 to —353

—35.3 to —42.4

—42.4 to —50.0

‘ Yero to —11.8 |

~—11.8 to —18.0

—18.0 to —21.7

—21.7 to —247

—247 to -—375.

—875 to —425

—425 to —443

—443 to —45.2

—45.2 to —52.0

. 32.-The materials described on the contract borings to ele.

e Fine yellow sand.

Boring 1-NE

Description

Water. %

River mud (sandy).

° Fine yellow sand & soft gray clay mixéd. "Gravel.

Fine white sand & ciay mixed.

Fine yellow, clayey sand. .

‘Fine light gray sand.

Fine to medium gray- ecowe sand, with traces of

‘Boring 1-NW

Water.

River mud.

Light gray sand, streaks of brown sand, with some

clay.

Fine white sand & some small gravel. _

Fine yellow clayey sand; fine yellow sand.

Very fine light gray sand. ~

‘Very fine light gray sand.

Soft sandstone. :

Fine to medium brown sand. Sinai amarenee ot

brown sandstone. ‘Some clay.

vation ~48 would have been easy to excavate, and from an

_ engineering standpoint, nothing in the boring logs could

reasonably have besn construed as indicating that difficulty

‘in the performance of the excavation would be experienced.

Plaintiff based its bid upon the information contained on

the contract drawings and upon the conclusion that the ma-

terials to be encountered could be readily excavated. . -

33. Plaintiff used. a heavy-duty Marion steam crane

naquntel a k heme to enenets Phen 1-N. The crane was

properly designed for the type of excavation described in

‘the contract drawings and was in reasonably good condition. -

Tt had been used successfully on other piers under this con--

tract, and operated’ with reasonable efficiency in the removal

of the materials encountered at Pier 1-N. This crane had

been equipped with a %-yard bucket with teeth, until June

19, 1947, shortly after the start of excavation at Pier 1-N,

when plaintiff rigged to the crane a one-yard heavy-duty

clamshell bucket having-8-inch steel teeth designed to pene-

trate materials as the two sections of the bucket were me-

chanically drawn together. The bucket was in good con-

dition and ‘as the teeth became worn, they were replaced. ..

. Plaintiff had sufficient dump trucks and other equipment

for the excavation operations at Pier Se

$4. ‘As the cofferdam was braced by 3 rings or tiers at vari-

ous elevatio:s, the excavation fell into four phases in the ©

order of its performance, as follows: | Shige

(1) Bracing ring No. 1 was placed at rota +1, and .

approximately one foot of excavatiori into the éanal bottom

or to about’ elevation —12 was performed in order that the

two other rings could be temporarily suspended. below the

first one. This excavation was completed May 8, 1947...

(2) Bracing ring No. 2 was placed at elevation —19, and

‘to permit the setting of this ring with the third ring tem-

_ ~porarily Suspended below, excavation was conducted from °

elevations —12.to —24 from June 16 to July 17,1947. -

. (3) Bracing ring No. 3 was set at elevation — 36, and as-a- :

“prerequisite, excavation was performed from —24.to —37

by August 13,1947. ~- - - Sas ‘

_ (4) The last stage of the excavation from —37 was started

. on August 18, 1947, and was stopped at.an average depth of

“46.6 on September 12,1947. - 2. |

35. On June 20, 1947; which was the fifth day on the second - ,

phase of excavation, at which time plaintiff was excavating

at the east end of the cofferdam at elevations =21.to —23,

approximately 20 to 25 feet from boring 1-NE, plaintiff ro-

ported to defendant's resident engineer that: it was encounter-

ing difficult excavation due to hard material. At this ele-

vation, boring 1-NE indicated fine sand with some clay

mixed, but no sandstone. The resident engineer thereupon -

directed plaintiff to hoist by means of a line on the crane a

42-foot open-end pipe having a'10-inch diameter and weigh-

ing 1,700 to 1,800 pounds. tiie ples wis pension to i

from just above the level of the water some 20 to 25 feet into

‘the pertinent area of uvation.

The fall ‘of the pipe di not cause it to-penetrate any ap-

preciable amount, and it was prevented from falling over

. by means of the hoist line. The steam hammer, weighing

6,700 pounds, was then permitted to fall on the pipe. There

was no substantial penetration. Plaintiff then applied abaut.

100 blows to the pipe. by means of the steam hammer and

drove the pipe about 5 feet. As 80 used, tk hammer de-

veloped approximately 6,000 foot-pounds of energy. Sut. of

@ maximum capacity of 8,500 foot-pounds.

_ The pipe was then extracted and hoisted over the>work

trestle where it was struck with a sledge hammer to dislodge

the material which remained in it. The-material recovered

from —21 to —24 consisted of 3 feet of sandstone and sand,

_ the sandstone being laminated and from 6 to 8 inches thick.

This core supported a 20-foot high column of water during

hoisting of the pipe froin the excavation to the work.trestle,

No sandstone. was indicated on the.contract borings at or

near any of the elevations involved in the 10-inch pipe test.-.

36. At the time of the 10-inch pipe test, defendant's resi-

dent engineer requested plaintiff's crane operator to save

samples of thé materials being encountered: at elevations

' —21 to —23, which the crane operator did, delivering sev-

eral samples of hard material six inches in thickness. Plain-

_ tiff’s superintendent could not agree with the proposed joint

statement af the defendant’s resident engineer concerning

the nature of such samples, and the resident engineer dis-

posed of them. The material consisted of laminated sand-

stone with at least one layer of extremely hard sandstone or

- bog iron Yj to % inch thick, with the remaining laminations

being friable sandstone of a substantial degree of cements.

tion.

. At a time just following the 10-inch pipe operation, the

_ defendant’s resident engineer advised the defendant's assist-

ant officer in charge of construction contracts at the Phils

delphia office of the District Engineer, that wafer-thin sand-

stone had been observed. In his daily report for June 20,

«1947, defendant's resident engineer stated that “very hard

sone” hed bye reputed by plainti ot elvation— on

44.

that he maple raid inthe pipe showed “white and gay

par ae NEAR De thin strata (14” to 14’) of sandstone

yellow brown/sand.” For June 2, 1947, he reported

7 tat Oe material ng exaratad ga the mn te Boba

_ deecribed on June.20.

- By letter dated June 30, 1947, to the District office of the

+ Oorps of Engineers, at Philadelphia, plaintiff stated as

of sandstone had been encounter.u at Pier 1-N not shown

on contract borings. By letter dated July 9, 1947, defend-

ant’s resident engineer in his comments upon plaintiff's letter,

stated to the Philadelphia office of the Corps of Engineers

that the “core” retrieved from the 10-inch pipe showed “gray

‘sand with thin clay stratifications overlying a medium brown

sand” and that between these two classes of material was

‘discovered “a very thin lens of sandstone or bog iron %””

- to-4”’ thick and estimated 4%”’ maximum.” He failed to

report at any time the 6” samples furnished by the crane

operator.

37. On July 14, 1947, as the excavation was approaching

the end of the second stage at —24, plaintiff encountered

_ harder materials which were described by the resident en- —

gineer’s entry for that day in his personal diary record of the

project as “heavier saridstone in this bay up to 6 inches thick

but not solid”, and for July 15, an “sandstone up to 6” thick .

but loosely stratified with sand.”

This hard material was removed in pieces as large as 12

to 18 inches long and upsto’6 inches thick. From July 14

ie July 16, defendant's resident engineer admittedly rved

_ the excavation of “chunks” of such material up to the-largest _

size above-described, but he failed completely to mention.

the fact in his daily reports to the defendant covering those ©

or any other days, and in the. weekly report for the period

ending July 19, 1947, his only statement with respect to ma-

terialg being encountered at Pier 1-N was that on “Montlay

_and Tuesday the jet'was used to enable excavation to pene-

trate a strata at about EL. —21 to — 23 consisting of lenses

of sandstone or ‘big iron’ in four of the ten bays of the

gpfterdam.” The daily and weekly reports to the defendant

were prepared from the information recorded by the resident

> 8

"part of its explanation of delays i performance, thatalayer —

; 7 : 45

$8. The architect-engineer firm through iti employee who?

_ was defendant’s resident engineer, knew that consolidated —

materiais claimed: by. plaintiff to be sandstone were being

“encountered. at elevations —21 to ;-23, but did not advise

the contracting officer or the District Engineer of this fact.

This firm had previously warned the contracting officer that

‘ recognition of changed conditions on’ Pier 2-S would aid -

the contractor in claiming changed conditions on 1-S on

both of which piers changed conditions were found by the

—- officer.

on June 30, 1947, plaintiff made inter-

‘<a water jet as an aid to excavating between

elevations —21 to —26. This jet consisted of » pipe carry-—

ing water pumped at a pressure of 275 pounds per inch. |

Shortly thereafter and while excavation was proceeding at

the same elevation, plaintiff replaced the first jet with a

50-féot jet pipe of heavy-duty steel which carried water at

‘the same pressure but which was sharpened atone end and -

-_‘ weighed approximately. 1,200 pounds. This jet’ pipe was

hoisted by the whip line attached to the crane and itted |

to fall through the water from a height of approximately 20

_ feet onto the bottom of the excavation. The force of the fall

of the pipe permitted enough penetration of the jet point

<jnto the sandstone strata to enable.the water under pressure

to work out the supporting layer of sand. By the chopping

with the jet pipe and ripping with the teeth of the clamshell

bucket, (plaintiff was able to break up the sandstene into

pieces small enough to be removed by bucket. This -

heavy-duty jet was used over oe entire. area “ the coffer-

dam.

Had the material been as: indicated “ the hen logs, the

_ use 6f such a combination jet pipe and chopping bit vous

not have-been required. ©

40. In late June or early July 1947, plaintiff by telephone

advised defendant’s onstruction officer (later the ‘principal

civilian engincer on construction projects) at the Philadel-

phia office of the District Engineer that the contract borings

were erroneous and requested’ that defendant join with -

plaintiff in conducting an analysis of materials being en- —

countered at Pier 1-N, each party to assume one-half of the

. cost thereof. The —_ officer rejected. the offer on |

”

- 46

on the information which it had received from the project.

This officer had the duty to review alt daily and weekly re-

and investigate all controversial matters arising at the proj-

ect. He did not investigate the alleged changed conditions

_ at Pier 1-N until September 8, 1947, and did not report his

.in heavy waxed

early July telephone conversation with plaintiff to the

. “ Bastees Mentesae. - . : ) i.

~ 4&)On July 7, 1947, Professor R. ‘W. Briggs of Columbia —

‘University, under engagement: by plaintiff, visited the site

_ of the work and made a selection of samples representative

of material then being excavated between elevations —21

and —23 at Pier 1-N. Plaintiff wrapped the selected samples

sor Briggs at Columbia University.

Examination and test of the Samples by « qualified. geolo-

gist at-Columbia University revealed that they were com-.

pacted and indurated rock, which could not be classified as

unconsolidated sediment. This rock consisted of finely lam-

"inated to massive silt stone ranging to clay stone, consisting

' of thin bards of clay intermixed with fine silt, and some

bands rather firmly cemented by iron oxide. The compressive

strength of the softest layer was 481 pounds per square inch,

- ablow without shattering or crumbling over an area of

elevations. Rock, such as represented by the samples,

arid of the hardest; containing iron ore cement, was 2,390

pounds per square inch. This rock was quite friable in that

riel compact in mass which had the faculty of absorbi

paper, crated abd shipped-them to. Profes- os

"particles of silt could be rubbed out of the clay matrix, par: .

- ticularly when dry. The samples revealed a type-of mate-

than an inch or two from the point of impac& From an

engineering standpoint, the material represented by the

samples was & soft sandstone which would be very difficult

.to excavate, and materially differed from the unconsolidated

materials indicated by the contract borings at the pertinent

weakens with excessive moisture or upon air drying, and

has’ its maximum \strength under normal subsurface

conditions.

: a)

= ,

Bill ae

heer enw Ge oui Gliie & on at a

on either or beth of the cranes and enh

Pier 1-N on August 18, 1947, continuing the use of two .

. cranes with-the Lima excavating and loading trucks on the

Bracing ring No. 5 was placed-in position on August 13,

1947.

and now the rehandling of materials within the th sera

It would have been hazardous and

circumstances existing at Pier 1-N to have increased

i Hie

beom

_ to swing

eit

Hit

a HE - lit 2

Hult

. geaeienameaatedegmantinane de antes ane of

een ee hae ae Raaity A gutesing

~ papetetaamiaaaanideieiniaeeeeedinel

ti 44° $s4

aan Hi sg inet

had been claiming changed conditions from below

thing but sand. This construction engineer was aware that

elevation 21, and was the assistant to the officer charged

48. On August $1, 1947, the coflerdam was probed with a

jet, and it was found that the sandstone being encountered |

able to penetrate in some places but not in others.

From —37 to —466 plaintiff, at the request of and with

wedwe:

full knowledge of the resident engineer, used the jet through-

cofferdam —

out the excavation operation in the west end of the

48. On August 20, 1947, plaintiff at the suggestion of the —

foot. a

or about two tons, and its.point was sharpened. The beam |

was attached to a cable on the crane which raised it to the

_ surface of the water and then permitted it to drop more than

30 feet to the bottom of the excavation to break wp the sand-

;

50. On August 29, 1947, Professor Briggs. of Columbia -

University returned to Pier 1-N at plaintiff's In

his presence, a bucketful of the material was from

. elevation — 42 and placed on the trestle for his examina-

tion. Soundings conducted at'the time indicated that the

jit

ftir

" to 2,380 pounds per square inch. Sestesl aeadinene. ancend-

_ing te the authoritative Handbook of Physical Constants, ?

ranges from 1,560 to 3,500 pounds per square inch. _—s.

This rock had the property of crumbling at the immedi-

ate point of impact but.not transmitting stress so as to shat-

"ter: Grains of sand could be rubbed off this rock by applica- _

. tion-of a person’s fingers. Because of its friability, this

“rock éould be easily drilled, and the cuttings would be broken‘?

i up into small particles, and when washed up in a drilling

operation would appear to be uncemented materials if only

- Visually examined. Such rock has corisiderable resistance to

‘the kind of stresses exerted by heavy equipment used in

excavation. The sand grains of this stone are completely

unaffected by moisture and its cementing agents are prac-

tically insoluble in water. It would have no tendency to

_ soften or weaken in water, but would have the same attri-

: : 4 > \ . .

. | ee | Ls

} ee - eect '

‘buteo in its natural state as i¢ did in a dry condition in lab-

82 On September 8, 1947,

excavation of the cofferdam. He was then aware that plain-

;

aie

E ;

, i:

; hart

Prt

Ere

}

ale

iat

Fel

tii

: aft

fie

iti

samples of rock exhibited by plaintiff to this

ar at the time of his investigation had ah overall thick-

nese of 12 inches.of which about 8 to 10 inches was hard

\ :

“3

undersigned visited the

way Bridge to investi- |

eats conditions

was noted that the contractor is encountering:

8’’ thick between Se rieble ‘

8 September 1

Chesapeake Ci

ZB 10

cia

tie

Pils

2rtila

Hert

a er anor whan Senay Wan os This.

pee rin ab when it becomes dry. This isacom- _

- mon = ‘se stone ae wi Eee its .

natural of Merriman an i

Ci | fin thie neering diandbonk, Fifth Edition.),

aren wi

this soft la there is

6” thick. This Tayer has from visual observa-

.@ Persea Be Cathet which .is commonly

_ referred to as sandstone. The quantity of this brown

. Sag of apenas eed oepemaanion ob Gan Mapeak? pon

ay 0 examination 0 area

of the excavated material did not disclose any reason to

_’., believe that the total quantity of this brown sandstone .

. exceeded 25° to 50 cubic yards. This-brown stone is

the plans & what is reported on the borings included on

as bits of brown sandstone between elevations

that in the process of .

making borings. this ma ial was not encountered in

"sufficient thickness to produce\a core but broke up under .

the drill and was washed up as bits of small sandstone.

3. In excavating throughout this pier the contractor.

has not had to resort'to any tn 1 methods. The ma-

terial has been oxcavated by use of a jet and a claim.

sic] shell bucket. This routine has only been departed

‘ for the last week when the\contractor from time

to time broke up the brown sandstone by use of the spud

as this sandstone could not be di by the jet... In

conclusion, it is 0 iniated {sic] that the torings shown

on the plans for Pier 1-N are accurate. It is not be- |

lieved that any. unusual conditions. materially differing

from those which could. be antici pated in this -excava-

| tion have been encountered nor is it Mhelieved that the con-

\ ; tractor "has had to resért-to any unusual means to ~

\s. perform the ified excavation. Hence, it is con-

~\ cluded that no conditions have been encountered.

55. 5. The sandstone which plaintiff encountered between ele-

~ vations — 37.and —46.6 consisted of recurring strata varying

in thickness up to a msximum in some — of 18 inches,

ee <e

"ial ch iit ith nile ei. In the western

half of the cofférdam the rock strata occurred. from elevation __

87 to —46.6 and in the eastern half from —42 to — 46.

This sandstobg was formed in the sediment of estuarine

deposits of the Cretaceous age., The sedimentary deposits |

‘ vvere highly cross-bedded, lacked parallelism, and rose and

fell in, pitch--with respect to each other... The cementing . _

_-agents, mainly calcium carbonate and iron oxide, which ulti-

mately created sandstone in the sediments, were largely

deposited by ground water, and because of the vagaries of

ground-water activity due among other factors to fluctuation

-and varying porosity of the sands and other sediments, there

- was no uniformity in the deposition of cementing materials.

“From:a geological standpoint the causalities concerning the

deposition’ of cementing materials. are so numerous and so .

, variable that it would not be possible to predict the existence

of cementation or the extent thereof at any particular lova- 3 ;

tion although such cementation occurred generally through-

out large areas. The spasmodic and discontinuous deposit

of cementing agents resulted in the formation of sandstone

strata which “varied rapidly in thickness, degrees of hard-

ness, and in elevation within an area as small as that of the

colferdam at Pier 1-N.

56. The conclusion of the defendant's construction offeer

“and his assistant, as. weil as that of the resident engines, -

that only small quantities of sandstone were encountered by —

_ plaintiff at Pier 1<N was based upon their joint examination |

- of a spoil pile located at the north-abutment, on which area -

brown sandstone, which they found to only in smal)

“the approach road was-to be constructed. This pile con-

tained from 4% to % of all materials excavated from Pier

1-N, such materials having been placed under restrictions.

limiting the size of stone to be deposited there. At times this

area was leveled by a bulldozer which tended to bury any

stone in the pile. This spoil was not pulled apart on: the

investigation or at any other time, but the defendants repre-

sentatives made only a superficial examination except for

some limited probing with a board at places. By this means,

they concluded-that negra Dlg rand emai

pieces; with an occasional piece of sand, had been

excavated from Pier 1-N. of

sed | 1

¢ \ i

- ect site to investigate plaintiff's contention that it was en-

-«..shell sometimes came up empty and the bucket was seldom

~ to @ point in the east end, but trucks were not being loaded.

YO» ment dump ‘located approximately one mile from the job

: exeavation show on the surfaces of those areas substantial .

* @levation the excavation was being conducted, and only

es .® cay <2 hes

oy a CAPE ie as

From 1% to’ % of*the material excavated from Pier 1-N

_ was deposited at three other lecations ta erect s berm on —

the canal-side of Pier 2-N, to. backfill around other north —

piers, and to be wasted. on a regularly established ‘Govern- .

site. Photographs in evidence of both the-2-N berm and. _

. ‘the regular Government dump taken after completion of

quantities of rock like that excavated from Pier 1-N.

. 87. The lar employment by the plaintiff of the heavy-

duty jet and also the extensive use of the 2-ton H beam as a

chopping bit were ‘extraordinary procedures in the excava-_

tien operations in that they would not have been necessary

had the subsurface conditions been as represented by -the -

contract boring logs. Although two cranes were used by»

‘the plaintiff in the rhanner related above, plaintiff was able

to excayate between elevations —87 and 46.6 only at an

average rate of 32 cubic yards per shift, when the shifts

- yaried from 8 tq, 10 hours in duration, or at. a rata. of lees

“‘than oné bucket of material every 15 minutes... |

$8 On July 3, 1947, the District Engineer visited the proj- -

_ countering sandstone. This visit was prompted by plain-

tiff's letter of Jyine 30, 1947, referred to in finding 36-above

_On that occasion, he concluded: that plaintiff was experienc-

. ing difficulty in excavation when he observed that the clam-

able to pick up a pay load:. He did not determine at what

observed the material as it fell from the ‘clamshell bucket _

from just above the body of a truck. PN ee oad

-_‘ $9. The contracting officer, who was a military officer sub-

— ordinate to the District Engineer, also visited the site on -

-. July-8, 1947, and spent 10 to 15 minutes observing the exca- -

-: yatioh operations at Pier 1-N. His visit was also prompted.

. by plaintiff's letter dated June 30, 1947, claiming that oa

that. pier sandstone had been encountered not shown on the

-/ contract. borings. At this time yacavation operations were

- proceeding somewhere between elevations —21 and —

when a crane was casting from the west end of the cofferdam

iisinein bad tiebbindstiin Mitiia iaiadiaiiaas :

of the canal, and his observation of materials was limited

7 to their fall as the clamshell bucket opened about two feet

. above the water over the east end of the cofferdam. ‘He .

concluded from the way the crane was digging, and from .

what-he could see.of the materials, that plaintiff was pot

excavating rock at that time. He was not aware that the

bottom had been jetted throughout all of the preceding day,

, end excavation appeared cary to him becsase jetted materials

_ By letter dated July -11, 1947, the contracting officer re-

plied tq plaintiff's letter dated June 80, 1947, accusing plain-

tiff of being opposed to the adoption of any suggestions to

improve the rate of progress, and stating that’ there was no

~ basis in fact to substantiate plaintiff's claim that sandstone _

was being encountered at Pier 1-N. ;

60. On July 16, 1947, when excavation at Pier 1-N was sat

approximately elevation —24,-a conference was held with

the District Engineer, the contracting officer, the partner

of the artchitect-engineer firm, the resident engineer, and

plaintiff's representatives regarding the progress of con-

tract work and the. withholding of progress payments.

-Pigintiff asserted that it was encduntering rock at Pier 1-N .

and that conditions were different from those indicated by

(the contract borings. A heated discussion followed between

plaintiff's president and the resident engineer, in which the

resident engineer asserted that the only rock he had seen

excavated. frofy Pier 1-N was a single piece of granite rip-

rap (which was entirely foreign as subsurface material in

this area bi.- had been allegedly represented ‘as such by

plaintiff's superintendent). and the “peanut-brittle” mate-

rial’ which he claimed to have seen in connection with the

10-inch Pipe test. Plaintiff's president asserted that the

resident engineer was either unaware of the conditions or

was deliberately withholding infprmation. The resident

engi then knew and failed to/state that on July 14 and .

15 pl intiff had encountered 6-i sandstone. His daily

reports to the deféndant for those days failed to reveal such

- fact, and his weekly report/for'the period ‘ending July 19,

1947, mentioned only “Iénses of sandstone”. His persog

ally kept diary of the project work, which he used to pre-

+57

pare the daily and weekly reports, showed the encounter-

ing of 6-inch sandstone'at Pier 1-N on July 14 and 15. In-

. his testimony before this Court, he explained these dis-

. crepancies by stating that after the conference he returned

te the project on July, 17 and verified the encountering of —

6-inch sandstone and then made the entries concerning the

same in his diary for July 14 and 15. On this basis, the -

- omission of such/fact from.the daily reports. is reasonably

to be explained’ by: their preparation before change of the

diary entries, but the resident engineer made no explanation

for the minimizing of the description to “lenses” in the

_ weekly report:prepared on July 19.

.6L. On July 30, 1947, when excavation wes at —94, plain-

tiff met the District Engineer’ at the plaintiff's job office

near Pier 1-N, again asserted that sandstone was being en-

countered in’ excavating that pier, and showed various sam- |

ples to him. ‘Tham singles come trem quvations —21 to

—23-at Pier 1-N. .

The samples were soft sandstone; varying in size from

8 inches to 3 feet in length and from several inches to one

foot in thickness. When thrown tothe ground from

—~-shoulder height some broke into a number of pieces, and

others did not. Oné large piece taken from Pier 1-N, which

was hardér than any of the others and concerning which the

District Engineer was advised by the resident engineer that

its source was the bottom of the excavation for Pier 1-S_

across the , Was struck with a 12-pound sledge hammer

in.the presence of the District Engineer and did not break

The District Engineer considered the samples as soft sand-

‘stone and remarked to plaintiff on this occasion that’ the

material was not rock in a sense of difficult excavation—

The District Engineer did not examine gny spoil areas to

make any decision about rock being encountered at Pier 1-N.

The contracting officer did make « casual observation of the

spoil area at the north abutment.

On his visit of July 80, 1947, the District Engineer ob-

served recasting of material from one end of the coderdam

to the other under circumstances similar. to those existing

when the contracting officer made his observations on July 8.

The District Engineer approved the higher final grade

vised him that plaintiff was having difficulty in excavating -

an there wag edequaje and guitable foundation at the depths _-

reached.

. @2; On various bet rather infrequent éncssions, the Die-

. trict Engineer and the contracting officer briefly visited the

project site. It is obvious from the entire record in this —

met oF

.of claimed changed conditions, but relied upon information

% ey nang Sao. 0 tls ears emg

to make such investigations.

63. Plaintiff encountered in the excavation of Pier 1-N,

e256 ea“ 8 8

such substantial quantities between elevations —37 and

— 46.6 as to constitute. subsurface conditions materially dif-

fering from those indicated on the contract borings, which

substantially prolonged the excavation work at Pier 1-N.

64. If the subsurface conditions at Pier 1-N had been as_

_ shown on the contract borings, plaintiff. could have excavated

with the equipment available at the site 200 cubic yards per

8-hour shift, and ori this basis, the excavation of the 3,800

cubic yards required for Pier 1-N would have been accom- '

plished ‘in 19 shifts; or about 25 calendar days on a single

‘shift basis. ;

The actual time taken for the excavation workowas May 7,

8, 9, arid June 9 through September 11, 1947, 1 period of:

98 calendar days, during which plaintiff. employed a total

of 105 shifts, or an excess of 86 shifts. —

-" Reasonable costs incurred ‘by plaintiff on the excavation

operations amounted to $6,755.61 for labor for the 105 shifts,

and $14,290 for. equipment use (including fuel) for the 98

calendar-day period, or total direct costs of $21,045.61.

These costs, being an average of $200.43 for each of the

98 shifts, amounted to a total of $17,296.96 for the 36 excess

m shifts.

* DRIVING “ PILES'AT PIER. 1-N . \

6. The contract drawings required that 231 steel H piles,

\atth 55 feet in length, weighing 89 pounds per foot, be driveh

_ Within the cofferdam to support Pier 1-N, the spacing. bejhg

_ generally about 3 feet apart in all directions, with 11 rows

Tera Rr s"S STFA HeEe SHS SES

case that neither personally made any thorough investigation. _

received from representatives of the defendant stationed at ._

“sandstone of the nature described in findings 51 and 55 in .

staat aetiaii il tiscali i itt ital

It was specified that each pile was to be driven at least 40

feet below the bottom of the excavation at — 48, or to eleva-

- ‘minim )

above the bottom of the excavation could be cut off. If the.

55-foot pile was driven to maximum depth, its tip end would

be 47 feet below elevation —48 or at ~95. .

The H piles were intended to‘provide point-bearing as

showed sandstone strata to exist in both borings at elevation .

6. According to the contract boring logs, there were no _

layers of sandstone between elevations —46 and —88 except

one foot of sandstone between elevations =53.9 and —54.9°

on boring 1-NW and one foot of soft sandstone between — 50

and —51, and 1.7 feet of sandstone (from which a 64-inch

core was recoveréd) between —55.7 and —57.4 on boring

'-1-NE. From elevations —46 to —88, the latter elevation

_ being the maximum depth to which any pile was driven, the

boring logs showed the following descriptions of material :

Boring 1-NE Y fe

Blevetion ° j | Description / :

*—4#24 to —50 Fine to medium gray-stown sand, with traces

P of clay. ~

—60 to —51 Soft sandstoese, 20 -

—61 tw —523 Fine to medium gray-brown eand, with traces

ef clay.

? . .

Boring #-55—-Gutant

| Blevation Description

_ BET to -574 Bandetone core 6%4"".

—57.4 to —641 Brown medium sand with streaks of light to dark

—@4.1 to — ‘Medium gray y clayey sand. Streaks of ecows

-—@ to —79.7 Meditim soft dark gray clay, with pockets and

; streaks of fine gray sand and silt.

—T0.7 to —823 Fine light brown and gray clayey sand.

—823 to —98. Fine light brown, light gray ‘and yellow sand,

. traces clay. Hard formation, possible sand-

stone stratum. [Latter material at —090 to .

—91) . .

. - Boring 1-NW

—62 to —52 Fine to medium brown sand. Small —

ame - of brown sandstone. Some clay. —

‘—52 to —53.9 iateed an Gnd a0 Gad.

—53.9 to —54.9- Sandstone. No core. ;

—54.9 to —50 Very fine, extremely hard, light brown. clayey

sand.

50.0 to —63.0 ‘Very hard, fine to medium brown sand.

—€3.0to—€35 $$ Redsandyciay, -

—€8.5 to —725 sins wl, take ooee tantly ee 008 dee

- of red sand. .

725 to —T7.2 Medium hard gray clay with streakb of light

es sand.

* —772to-~-82.9 Mixed medium soft red and -gray clay. Some

- —_—829 to —83.4 Fine light gray sand... i

+~83.4 to —85.8 Medium yellow sand, pieces sandstone.

—%.8 to —86.4 Medium coarse light brown sand.

“86.4 to —87.7 Very hard yellow sand. |

—87.7 to —90.5 Medium coarse white sand and light gray clay.

. $7. The materials described in the boring logs, both above |

_ and below the indicated sandstone; should not have been

difficult for the piles to penetrate. The previously described .

resistances to the sampling spoon, recorded on the boring

logs, did not suggest or reveal materials which would cause

high resistances to H piles driven by a heavy and powerful

hamme?. Th¢ contract ‘prohibition concerning uge of a

jet below the layer of rock at —55 was‘to prevent disturb-

ff. ance of what was indicated as unconsolidated said below

3 such sandstone.

_ as to plaintiff's method of.penetrating this layer. Plaintiff's

. a

The soft sandstone at slevation —80 in boring 1-NE and.

_—53.9 in boring 1-NW would offer little, if ahy, more re-

‘sistance to the H piles than the unconsolidated materials. -

With respect to the sandstone at —55.7 in boring 1-NE

_ the field party which conducted the boring operations had ©

* gucteeded in recovering only a 64-inch core from an indi-

cated layer of 1.7 feet, which core was examined by plaintiff

soon after the contract award in an early discussion about |

job procedure at-the office of the previously mentioned part-

net of the architect-engineer firm.: This core was hard sand-

stone, and the inquiry was made by the architect-engineer |

observation then was that only a six and one-half inch core. ;

had been recovered and that a heavy haiamer would cause

the piles to break through such a layer without substantial

difficulty. With the boring logs indicating unconsolidated .

materials underlying this sandstone‘layer from which only

_a@ six and one-half inch core had been obtained, plaintiff.

reasonably assumed when preparing its bid that no serious.

difficulty.would be experienced in penetrating this layer and

that generally the piles could be driven through all of the

other materials without difficulty. .

68. Plaintiff provided a reinforced steel pile which. wes,

’ used as a spud and driven at a number of the pile locations

to shatter the rock. Thereafter the spud. was- withdrawn

‘and the permanent pile inserted and driven at the same point.

: To achieve the 60 tons of bearing capacity prescribed by —

~ specification 3-O8c, defendant prescribed a formula based on —

the hammer and other. equipment used by plaintiff, which

~ called for resistance of each pile at the rate of 90 blows

for the last foot after minimum penetration of 40 feet.

.69. The driving of the H piles commenced at Pier 1-N on

‘ September 12, 1947, and was completed on October 29, 1947,

_ with plaintiff employing 2:to 3 eight-hour shifts per work.

"day éxcept for an occasional single shift! .

In the driving of the H piles, a template was laid acros

repoanctemplsiees: hip de <a -tnewhagde $0

plate as a guide to the pile and hammer, and the pile

iw oi han ath Gate dein en eaiad tah teat tk gee

a foot block or gate at the bottom of the spud. The hammer

: " was then threaded onto the spud by means of guide attach-

62 _*

_ driving head which fitted over the top of the pile and was

thereby allowed to come firmly to rest on the pile. With

the pile held in driving position at the foot of the spud and

"by the hammer at the top, the pile was then driven by turning

en.the steam

and almost entirely hard sandstone, the piles tended’ to

éwalk” or move out of position at the outest of driving, and

‘the hammer was thereby caused tobind and lose ‘some of its

speed and energy. This required frequent resetting of the

pile; and at several pile locations it was necessary to start

with the preliminary driving of s-reinforced spud pile.

Between elevations —46.6 and —55 plaintiff encountered

rock in various parts of the cofferdam ares as evidenced by

gach rock being contained in the flanges of some piles ex-

tracted before they had penetrated below such elevations.

. dene mare thest 60 Ulowe per fost within thest elevations,

qgcept for 3 percent of the piles.

Sa Dadween the ebivabiens Whats ti weed have bem res:

that a sandstone strata would exist, as indicated by a

1.7 layer of sandstone between elevations —55.7 and —57.4

en boring 1-NE and a one-foot layer between —53.9 and

54.9 on boring 1-NW, plaintiff encountered maximum

resistances of 90 blows ér less per foot on 178 piles, 91 to 180

16 piles.

Below the above-described layer, the resist-

to the piles generally increased to the extent that all

ances compiled at the time the piles were being driven.

__ Resistances to the piler varied to the extent that some piles

‘were driven at he natn iy wo geen ra

they reached ah vecetonees tp the Test feat or tere of driv.

f c $anehe 3T

pressure. ,

76. Because the bottom of the excavation was irregular

_ The materials were not sufficiently hard to require the exer-

ot cenan cease vautene, ss totaaet uy 8 :

. but four of the 231 piles were drivan at sume elevation or.

@evations before reaching final grade at maximum rates in _

excees of 180 blows per foot. . The four piles had maximum .

resistances between 91 and 180 blows, 85 piles between 181

and 39 blows, and 142 piles 400 or more blows per foot, all

ef which is shown by the defendant’s record of pile resist-

dia iin tie The hammer had a special — |

ae oo

_ abodt —81 and —88, 218 of the 931 piles encountered: max-

- encountered these high resistances for only the last foot

. foot before the pile would be. structurally damaged. The

m bp oye ee p e pr ee

imum resistances at one or more points within such eleva-

tions at rates of 181 to 399 blows per foot, and of the 218, 125.

_were driven at some elevation or elevations at rates of 400 or .

~ more blows per foot. Within such elevations, some piles

or two of driving, whereas a substantial number were driven

8 feet, with one pile for 12 consecutivé feet. -

% ‘Desssans of the high vusishaneen innemnticiyd, Qofeniiad

. devised a formula by which it determined that the H piles

could undergo driving resistance at a rate of 400 blows per

basic premise was that blows in excess of that amount meant

* that the pile was encountering a stratum of rock hard enough

to damage the pile.. A pile having a resistance at maximum _

penetration ef 400 blows per foot possessed a bearing re-

sistancé in excess of 200 tons. - Se ee een ae

ba dep sera ca areca cnes sc aaceni

on “ .

“planned procedure wast bandon sh pil for Inter trac

tion and resume driving elsewhere.

By October 13,1947, plaintiff had driven ‘all but 36 of the

piles, and 18 of these had encountered 400 blows or more per _

foot within elevations —58 to —@2 wien abandoned for later:

extraction, with the remaining 28 not reasonably to be driven

until the condition of the 13 had been. ascertained. The

extraction of the 18 commenced on this date. Actually, 19

without extraction, despite resistances in excess of 400 blows,

hy the employment of either the spad pile or reinforced

’ piles. Twenty-eight of the last 36 piles driven were re-

' inforced at the tip and butt by adding a plate to the flanges

- and web at each end, and the other eight piles were driven

rock strata. ae:

; Examination. of the extracted piles showed their. tips to |

“be shattered and their flanges split, tortand twisted for

_ varying distances from one or two feet to 8 or 10 feet. In.

flanges of the extracted piles.

5. In some instances the excsniive Gpiving coneed the butts

_of piles to become battered to the extent that they had to be

cut off to avoid wedging of the anvil of the hammer.. This

occurred notwithstanding the fact that the hammer was -

qqeipped with a driving cap which Sted over the butt of the

pile.

: 76. On October 14, 1947, Professor Briggs returned to the

project and observed the pilestextracted on the previous day.

In his presence, the battéred flanges of one of them were |

_cut away, and six or seven feet of sandstone removed there-

~ from. A 3pound specimen, which came from about eleva-

tion —60 was selected by-him and shipped to Columbia Uni-

versity for analysis. This specimen was similar to the rock

contained in the flanges of the other extracted piles. ,

When subjected to exaniination and test by a qualified

geologist at Columbia University, this sample was found 3

it, with pebbles up to one-half inch in

eh, ne and thoroughly cemented‘ by bog iron

and by iron and @alcium ca The compressive

‘ether piles were driven through elevations —59 to —¢61

after a reinforced epad had Been used to break through the a

. ome instances 5 to 7 feet of rock were imbedded in the :

strength of ths ial was 5 24,400 pleeds 5 per square inch, or

50. percent stronger than average granite. —

77. Because of the very high resistances encountered at the

lower elevations of driving, the H piles tould not be driven

even to the specified minimum of 40 feet tion.. The

. average penetration of the 231 piles was 35.6 feet below the

bottom of excavation at — 46.6, with the eight highest of the .

. piles being driven only 26 to 29 feet: Instead of reaching

the minimum depth at elevation —88 as contemplated by the

ifications, the piles penetrated to an average elevation of .

~—82, with the highest-at —72.7 and the lowest at —88 and.

: =a with about 188 of the 281 penetrating to points betwees

' elevations —80 and —84.

> The defendant was fully informed as to the elevations ae

the resistances encountered and scoepted the piles at the

vations to which they were finally driven.

78. From the commencement of the pile driving operations,

plaintiff re ‘advised the defend@t that rock was

being from elevation —46 to a depth of from

25 to 30 feet. In keeping the records of. Mois wie thek tak:

- each pile at each , defendant was fully aware of the

hi istances which strongly inferred the presence of .

hard rock at: elevations where none was shown by the con-

i tract borings.

‘The defendant’s District. Enpineet ae its. contracting”

officer made only: c&3ual and infrequent observations with

‘to the difficulties being encountered in the driving

_. of the H piles, but relied heavily on the architect-engineer .

:, firm and its employee, the defendant's resident engineer, for

advice as to whether changed conditions existed. — .

In the driving of the H piles at Pier 1-N; plaintiff en-

countered subsurface conditions substantially and materially .

differing from. those shown by the contract borings.

3 79. Had the subsurface conditions been as shown by the

contract borings, plaintiff with the equipment which it had-

- at the site, could have driven at least seven piles per 8-hour

shift, and thus have driven all 231 piles in 38 8-hour shifts.

The actual time required was i8 calendar days during

which plaintiff utilized 77°8-hour shifts, or an excess of 44

shifts required by the changed. subsurface conditi

encountered. a on

+ 66. f

‘Reasonable costs incurred by plaintiff on thé driving of.

~ the H piles amounted to $14,260.59 for labor. for the 77 shifts. .

- .day period of these operations, and reasonable costs incurred

‘ by plaintiff for equipment use (including fuel) amounted

‘to $17,255. ‘These costs amounjed to $31,515.59 for the 7

. shifts. -

With the Gveiagn af wich conte belay SO0AMD tev cach at

the excess 44 shifts amounted to $18,008.76. mae

Had the subsurface conditions been as represented, the

. pile driving would have been accomplished in 41 calendar

tended over 48 calendar days with — shifts.

: pee mee

* 80. Licinetali: in Gluuhie: et wldeiiiaadial tranttue

\to time through August 1948, in connection with

sums otherwise determined due to plaintiff, various amounts .

as liquidated damages for delay in ormance. The suc-

_ cessive deductions at the rate of $200 per day accumulatively

" Fepresented ‘the extent to which plaintiff’s total time of per-

/tormance up to the end of » particular payment petied,

in caJendar days the contract performance time as

pomate defendant. As further extensions of time were

allowed, adjustments in the amounts withheld were made

accordingly. By the time of the payment made August 25,

1948, covering performance-between July 15 and August 15, —

‘1948, defendant had withheld the accumulated net amount

_of $45,800 as liquidated damages for 229 calendar days of |

' delay beyond December 380, et, the contract completion

. date as last extended.

-In February 1949 defendant ‘gteiitel .$32,000 . of then

wi funds because of the 160 calendar-day extension

allo by defendant. on January 19, 1949, for acute laber

In ‘October 149, defendant, refunded an ediisienal cam

of $8,900 covering 19 calendar days after July $7, 1948, the /

by defendant as the actual contract completion _

day. After all a wie aap of $10,000 ——

/ . Ales

Heavy use of equipment was made during the 48 calendar. —

ts 3E chitin, Che Seta semeeie sees of Oy Gale Se :

. days on a single shift basis, whereas actual operations ex-

periodic

payments for work performed, defendant, deducted from.

ee |

fs ee ae

ae oe ct peri

"67

defendant, as liquidated damages covering the 50 calendar-

day period of time after June 7, 1948, the contract comple

tion date as extended by defendant, and July 27, 1948.

' 81. Upon executing and submitting the public voucher for

the last refund of liquidated damages in the sum of $3,800,

remap in writing reserved. all of its claims in the eon

: i this reservaticn 3 we wish it undesstood that in: ac-

cepting t.e amount set forth in this voucher we do not

. Waive, and that. we fully ezamag'e all of our claims for

e increased costs resulting from ‘the performance of this

work, our claim for the remission of liquidated dam- -:

| ages, as well as our claim for reimbursement of funds

expended on the Schaefer suit.

Similar language was used by plaintiff. i in connection with

each voucher: for partial payments, on which a deduction

had been made on account.of liquidated damages.: | .

82. At a conference held December. 1,- 1947, attended: by:

plaintiff, the District Engineer commented that he was

anxidus to avoid the assessment of liqhidated damages, and

the defendant’s contracting officer replied that an extension

of time could not be granted without placing defendant in

the positiog of admitting the plaintiff's pending claim that

_ delay Was caused by changed conditions at Pier 1-N.

‘ Shortly after December 3, 1947, on which date

\ tracting officer issued his-letter of denial of plaintifs. claim

- Of changed conditions at Pier 1-N, the District Engineer.

- became the successor contracting officer, and it was he who

* “granted the extensions of time of 49 calendar days for bad

’ weather and 160 calendar days fog labor shortage, which

> \ extensions neé-amounted to more time than the original

-\The supporting facts and circwnstances for

such extensions’ are superficially. mentioned in this rec-

ord.. When cross-examined concerning the basis for the.

_ labor-shortage extension, the District’ Engineer reluctantly

’ admitted in effect that the 160-day extension could ‘not be

| justified and that he was endeavoring to find a way-to avoid

( the assessment of a substantial amount of liquidated om

ages.

ss Plaintiff was | delayed by changed. conditions at Pier

1-N for a period of 30 calendar days in the driving of the

‘|

sheet piles for the cofferdam, for 73 days in excavating for

the pier base, and for'7 calendar days in the/driving of the

H piles, or a total of 110 calendar days.

Plaintiff requested defendant to allow a 151 calendar-day,

eetenae an aapeens of cue Changed eqneiieta, Sat ue en

tension was ever allowed. —_

84. The only detailed evidence in this record concerns the

pertinent operations at Pier 1-N, with only casual and

superficial references to the other piers or to the project as a.

‘whole. Both’ parties. deliberately endeavored ° to liens the

evidence to Pier 1-N.

Throughout: the contract performance, the y ON

representatives repeatedly criticized plaintiff. for lack of

sufficient equipment and for poor planning and coordination

- of the project as a whole.

The evidence is not.sufficient on which to base any finding

‘that changed conditions at Pier 1-N caused an overall delay

of the entire project. :

OVERHEAD AND OTHER ADDITION AL CosTs ,

§5.- Plaintiff contends that in addition to the .excess costs

hich it incu in direct connection with the construction’

- of the or excavation for the pier base, and driving -

of the H piles at Pier 1-N, it incurred additional costs of *

an indirect ." which it identified by name and,amount

as follows: | +2 e. *

Additional Field Costs : es So + :

Field BE oonctinn synced ince: paaekineds. - $12, 737. 25

Batching Ee _ "88, 584. 05

ee —_———— $51, 821. 30

Employees Room ana Board. aman 805. 00

. Overhead Expense_._-“__-. ideinnmmesien _ 21, 292. 8 oo.

ER AR as eiee cree _. ¥, 328. 65

86. In connection with the ehuidin of the field office at

‘the project, plaintiff had a superintendent and other straight

~ time and regular employees who were paid on a weekly basis, -

such employees being required to remain assigned to the

project as long as there was any work to be done: These

employees were paid a total of $462 per week, on’ which pay- -

roll insurance at a rate of 0.96 — or $46.02 per week,

“¢.

“7

eo:

69 .

; — es.

was'paid. Two of these employees,. iuciuding the superin-

*:tendent, received allowances for room and boerd amounting

to. total of $66.25 per week. > ,

Plaintiff necessarily maintained a job truck and 4 job boat -

at the project throughout the performance, at reasonable.

costs of $100 per week for the truck and $75 per week for the

boat. ‘ , :

The total costs of these fixed i -was $749.27 per week,

or on the. basis of a 5 work-day weit, $1 per day.

87. The specifications contained following provision —

~~ with. respect to batching and mixing of concrete:

1-10 _ Batcerne anv Mrxtno.—a. Equipment —The

contractor shall provide at the site of the work two (2)

* or’more modern and dependable batch-t mixi

planty The plants shall be so located and arran

that & mjnimum plant-capacity of 1,000 cubic yards of

concrete per 8 hours is made available and ready for use

onthe same side of the canal as the pier during the

placing of each separate lift in eithet main pier base. |

(1N and 1S:) The remaining plant capacity shall be

available-for immediate use, if necessary, ¢o maintain

a continuous rate of pour of 85 cubic yards per hour.

- The available plant shall include not fewer than two (2).

complete mixers with separate power plants. The equip-

ment shall be capable of combining the. aggregate,

cement, and water into a wniform pox home and of dis-

charging this mixture*without segregation.

* ° .

7 -. . — ‘ *

(8). The mechanism for delivering water to the mixers

shall be such that leakage wi] not occur when tlie valves

are closed. -* * * .

Plaintif® did not provide the batch-type mixing plants

but instead two batching plants -each possessing a capacity

of 500 cubic yards per 8-hour day, one of which was located

onthe north side of the canal-and the othe? on the south

side of the canal. The batched aggregates weré discharged

into transit-mix trucks, and the concrete mixed on the way

to the point of deposit. No objection was ever made by any

representative of the defendant to the batching plants and -

concrete equipment employed: by plaintiff, or the combined

The largest continuous pours to be made under the contract

were the two tremie pours‘for Piéf I—N ‘and 1-S, each lo- ;

cain: at the bottom of the pier excavation sbbut-and, just :

above the pile projections, and plaintiff by use of both batch- __

ing plants during each operation succeeded in maintaining a

continuous rate of pour of 85 cubic yards per hour, or 680 .

cubic yards per 8-hour shift. Except for these two tremie

pours, each plant was used to service pours on the various

piers and the abutment:on the same side of the¢anal. _

The average daily reasonable cost. incurred by : plaintiff

on account of the two batching plants was $453. 93.

88. In its claim for additional field costs, plaintiff com-

bined the daily. costs of field office expense and batching

plants and arrived at-a total daily cost of field éxpense of ~

$603.78. Plaintiff applied this rate to 85 working days

which it derived from 118 calendar days, the alleged total

excessstime’ required to perform the sheeting and bracing,

the excavation and the _ pile re penne at.. Pier

1-N.

These claimed 118 calenilar days ocyerred within the pe-

riod February 20, 1947, to October 29, 1947, during which —

__ time work was being prosecuted throughout the entire proj-

ect. ‘The daily reports of the resident. engineer show that

during this time concrete pours were conducted on most of

the piers of the project.

. The evidence is not sufficient to support any ‘finding ‘that

plaintiff's field costs for'field office and batching plants were’

increased in the above-stated period because of changed ¢con-

ditions at Per 1-N, or that such costs were increased by any

overall delay in- completion of the entire project, caused by.

such changed conditions at Pier.1-N. )

89. During.the course of the contract. nes formance suffi-

~ cientskilled labor irithe immediate urea was not available - ~

~~ and plaintit®? was required to recruit employees from New:

York and other areas and pay their room and board.

- It is not: shown in evidence that these employees were

enguged to work solely.at Pier 1-N, or that their period

of employment: was confined to the time when changed. con-

ditions were encountered there. It is established that dur-.

ing this period two of these employees were detained: at Pier

1-N at times when they could have been assigned to other

work. - | :

: “ a a ‘

71 =

= ae

The excess costs.thus incurred by plaintiff by changed

conditions at Pier 1-N on account of employees’ board and

room was the reasonable sum of $345.

90. The fairly allocated amount of plaintiff's general over-

head on all of its business to the pertinent project was the

sum of $5,395: per month. . By applying this monthly sum *

to the claimed 118 calendar-day period, which is equivalent.

to 3.93 months, plaintiff requests the sum of $21,202.35, as

general overhead cost.

These claimed 118 calendar days occurred: when work was

progressing on the whole project. “No overall delay of ‘the

entire project is shown to have been gun by changed con:

ditions at Pier 1-N.

_ A fair and reasonable allowance Ne gener overhead ex-—

penses would be’10 percent of the total excess of direct costs .

caused: by changed conditions encountered on the three per-

tinent phaste, of the work at Pier 1-N. .

‘sUMMARY OF DAMAGES "

9}. In the performance of the work required for the con-

struction of Pier 1-N, plaintiff incurred reasonable excess —

costs caused by the above-described changed conditions, as

follows:

-* Sheeting and bracing___.-- SEE LI TTL WF $5, 799. 22

Excavation ._-...---.----.- anwgececacceecces macncossenas 17, 236. 98

ee ee ee ee 18, 008. 76

Employees room and board_-__------ hiitionees: — - 845. 00

* Overhead expenses at 10% —_._..__--..------------------ 4, 139. 00

, 46, 528. 96

Sn thé allowances of additional-sums of money for changed * -

‘ conditions on other piers, defendant allowed 10 percent of.

the increased costs for profit, and on the costs summarized

above, such allowance for profit would amount to $4,552.90

for a total sum of $50,081.86. ,

Plaintiff would be further obligated to pay an’ additional

‘amount of premium to its bonding company for bonds fur-

nished as required by the contract and specifications at a

rate of .665 percent o of the $50;081.86, or $333.04.

Total damages &rnount to $50,414.90. .

ce . ADMINISTRATIVE PROCEDURE

$2. On September 12, 1947, p&fintiff wrote the defendant

‘asfollows: ae | : :

In view of the fact that the excavation work in Pie SD

{-N will be completed shortly, we wish to, at this time».

confirm in writing the writer's oral statements to both; = *

Major Albert J. Ryan end Captain Louis Caccese that’

the materials encountered in Pier 1-N are considerably |

° different'than those shoyn,on the plans, and that we will.

, file a claim for our excéssscosts in accordance with the °

article in our contract headed “Changed Conditions”.

As soon as the éxcavation work is completéd, we will

immediately commence correlation of these said costs,

and also substantiation of our claim, and submit to you

for your approval. ~ a oe eae ae

93.°The contracting officer, who was a military officer sub- _

ordinate to the District Engineer, having been. adviged by.

. defendant’s representatives that only thin layers of sand-

stone had been encountered at Pier 1-N, sent the following |

‘ ]etter to plaintiff, dated‘September 15,1947:

Reference is! made to your telephone conversation of

4 September 1947 to this office in which you alleged that

changed conditions were being encountered at Pier 1-N.

This 1s to advise that our investigation does not disclose

‘any evidénce of changed conditions within the condi-

tions as set forth in Article 4 of the contract.

This office has not received your formal written con-

tentions upon which you Dase your allegation. Should

you intend to prosecute your allegation, it is —

that ,ou submit your contentionssas to the c

conditions encountered at.Pier 1-N, together with the

amount of your claim, within the next 30 days as speci-

fied by Article 15 of the tontract. =

94. By letter dated October 3, 1947, plaintiff stated to the

'’ District Engineer’s office that subsurface conditions ma-

terially differing from those shown on the contract draw-

. ings had been encountered at Pier 1-N, enclosed a state-

ment concerning excess costs thereby caused in setting and

‘driving steel sheet piling and excavating for the pier base,

_ and also requested an extension of contract performance time

of 115 days. an :

95. By letter dated October 10, 1947, plaintiff submitted '

additional claimed costs on the sheet: piles and. excavation, |

refating to changed conditions at Pier 1-N, and requested

aconference. — -

96. On October 14, 1947, the District Engineer by letter

requested plaintiff to submit cogent reasotis to support its ~

allegation of changed conditions, stating that prior to the

. . gubmission of such material a conference would be pre-

. - 97. Replying to-the letter summarized in the preceding

finding, plaintiff by letter dated November 5, 1947, stated

as follows: Peat : Pe ea :

- Our claim is based on the fact. that we encountered,

“during the progress of the work sub-surface and/or.

latent. conditions at the site materially differing from

those shown on the drawings or indicated. in the specifi-

cations”; This claim is borne-out by the sub-surface

conditions as actually encountered ; and is further borne

out by the laboratory analysis of the «:aterials efcoun--

tered; and by the design changes ne ssitated by these

changed conditions ait authorizec. by your architect- -:

Py engineer. | er hea. eae

‘o be more spécific, boring 1-NE shows, at elevation

ae to elevation —26.9, that.we should expect fine

white sand and clay and fine yellow clay sand, and béy-

ing 1-NW, at approximately the same ¢!tvatto:is;shows _

that we should expect a soil of similar composition.

When the pier was excavated, instead ‘of soil of this

composition, we encountered an exceedingly hard mate-*

rial, and after. forwarding samples of this material to-

. the Soil Mechanic’s Laboratory at Columbia University .

for analysis and classification, we were advised thy this

material could not be classified as-a soil, and any -

analyses were to be made, they would. have to be made

by a geologist. . ae

Similarly, at elevation —37, extending to and beyond

the origina ~ m of the coferdam, we again

the tremie seal, because of the impracticability of ex- .

cavating this rocklike material. .

. Will you, therefore, kindly arrange for a conference

n - on this subject at your earliest possible convenience? -

Sart 98..On “November 17, 1947, plaintiff sent to defendant s

geological report which included the results of certain com-'

fe 3%

. a ‘&

avg

| pression tests made on materials recovered pare the.dis- . “3;

puted areas at Pier 1-N. gin

99. By letter dated November 25, 1947, plaintiff submitted eS

‘te to the Didiict Engineer its claim for additional compensa-

_ tion covering the driving of H piles at Pier 1-N, asserting”

_ that the claim was based on Article 4 of the contract and

that the piles were not driven ‘the minimum depth of 40 feet . o

because that specification. /was changed by defendant's

architect-engineer for the /reason ‘that the materials :en-

countered mad@ it physically impossible of execution. In

-connection therewith, plaintiff requested a further exten-

sion of time for project completion of 36 days, and also re- °

‘ferred to the geological reports previously submitted.

100. On Deeembey 1, 1947, plaintiff conferred with. the —

architect-engineer firm, the’ resident engineerdnd others.

At that time, the ‘parties discussed changed coiditions at

Piers 1-S, 13-S and. 14-S. Plaintiff then submitted a geo-

logical report on materials excavated fram‘ 1-S, prepared by

_ thé same experts who tested materials from Pier 1-N, which &

“asserted that the materials tested were different from those

- indicated on the contract drawings, and over the denial of

_- changed conditions by the partner of the architect-engineer

|__ firm, plaintiff was later paid for changed conditions: at Pier -

iS Setces. ne

' Because the part of plaintiff s claim on Pier 1-N ,concern- —-

. ing H pile driving, had just been received, Pier 1-N was dis-

cussed only briefly at this conference. The amounts of’

. plaintiff's Pier 1-N claims were $54,744.65 for sheet piling

and excavation, and $23,495.40 for H pile driving. The de-

fendant’s representatives stated that the payments. for

thanged. conditions had been nominal in amount on other .

_ piers and asserted that such large amounts would not be*paid

_ on 1-N,

. 101. By letter dated December 3, 1947, the wating ~~ ae

ficer denied plaintiff’s claim for changed conditions at Pier |

1-N, as follows: . 1

Your claims for driving of sheeting, excav ation and

driving of piles at Pier 1-N in the amount of $78,2

_. together with your su ing evidenee as con seb

\ in your aforemention | letters, have been considered.

pline end epealieuons sok theokes for in the .

r dditional ‘compensation on at mid pier are dis-

approved.* — | ees

PE tn rtd Ait of no

tract. which alloWs a 30 od in which to a a

from the above decision. ws ae ppeal P

102. On December 80, 1947, plaintiff advised defendant that.

it would supply two further affidavits in support of its claim,

reserving all rights under Article 15. pertaining to appeal,

* and’on January. 9, 1948, plaintiff was advised by defendant

that upon receipt of the affidavits the claim would be con- .

‘sidered further and forwarded to higher authority, for deter-

“mination. . The affidavits were iaane with the defendant on

February 3, 1948. ve

103. The District Engineer 1 ee inmeantad the archi-

tect-engineer to review plaintiff's claims and gn February 5,

1948, the architect-engineer alvisedafhe District Engineer

icnnen GT ee ee £

Our review. discloses no reasons for changi the con-

clusions which are contatged in our letter of November

26, 127 yo on tha boc We might add nt fie

- ‘evidence ‘at hand indi t the very thin layer

sandstone which was found over a + portion of ste Bw

of the cofferdam near nlevety I had an entirely

‘perfo

negligible effect on tie costs the work at

this pier and could not be construed as. condi-

tion. .

2—Ino ini = mee mre % ithed 1 Laie

tional compensation, and we commend that the claims

_ be disallowed. — : :

10 Under date’of March 1, 1948, the District Engineer

executed and transmitted to plaintiff written findings of fact

concerning changed conditions at Pier 1-N, which, after _

cations and making reference to te contract paring logs,

provided. as — *.

é &

8. The contractor that subsurface conditions

materially ae those shown on the drawings

or indicated in the were encountered at

i ee he is due $78,240.05. (See con-

The contractor has su ee kh te

(a) Report of Wesley 141

ber 1947, (Said report is aay as Exhibit, C.) “This

report céncludes with the allegation that shown

at, Pier 4-N should be termed incorrect at elevation +21

* lus or minus, at elévations —37 to — 45, and at elevation

laBbratory :findings made .on nples selected, shipped

the contractor or his representative.

between ‘elevation —21 and —26 and from —%7 to the

~ bottom ofthe cofferdam and that the jet pipe wes used

as a chopping bit. (See Exhibi: D, stacken

Png The et ge does mo = an copes

the contractoffs a égation ing the materials en-

countered in the excavation because of the followi

(a) Only small quantities of materials whic!

generally recognized as rock were encountered in the

excavation. Quantity encountered was so little and so

dispersed as to make accurate quantitative

.— The estimate of the Resident Engineer on

@ job. vernment observers of the rock encoun-

pond ates than three per cent by volume of the total .

pervanthon ang This estimate is based on observation of the

actual excavation and the disposal areas. The amount

of rock: encountered is not — unusual and

Elevations Em to —52 Small Particles of Sandstone

Eleyations Fh Bet Sandstone Strata

eg ¢'Plar 1H condned f pont bg possessing

tion o - °o . This co-

——~<hesion’ because of a- Slseed a ame tot

material was easily displaced and

Generally, solid pieces ant were retrieved wi easi

friable nad fragile but. when permitted to airdry_in-

-creased in hardness re toughness. Specimens tested by

letters dated 1 October 1947 end 25 ovember -

1 cop aici Eshibs A dB rapesiny)

—60. This conclusion is based-en the interpretation of |

and reported as coming from the various elevations by

"pig “eh var Stee

. no 1-NW—Elevation —43.5 Soft a

(b) Two affidavits stating that pork was. encountered - .

al encountered in the excava- :

£™M,

-.- that materials taken from the excavation were subject.

77 ~- ‘S)

of the materials the state

in the fact that

elevation —45 was removed withoat

shell bucket. Between elevations —21 and —45 the

assistance of a j rn At

approximate e ion —45 a spud was put in use to

break ap thin rock strata. The-excavation at Pier 1-N

took place during the period 16 June 1947 to 11 Septem-

ber 1947, inclusive. Until 7 July 1947 excavation was

‘accomplished by use of clam: bucket alone. On 7

July 1947 and thereafter jetting was employed to assist

the clamshell bucket, On 2 September 1947 and until

completion of the excavation on 11 September 1947 a>

was used to break up the thin rock strata encoun- .

tered at approximate elevation — 45. ae

‘(d) ratory tests conducted by the contractor are

not considered as representative. At the time contractor —

was selecting samples, it was reported by both the Resi-

dent Engines Government representatives viewing

— rk that specimens being selected by the contractor »

were not representative. The samples tested by the con-

tractor were air dried and-aged before testing as can be

- noted from Mr. Briggs’ report. Again it was: noted

‘by the-Government prior to the time tests were made

to considerable hardening upon drying. This is not an

unusual characteristic of material has a cementing

m pred quersor = St ea nas aN Rie S

ae Whe coatgncionc anit: tha pegeat' ab Mr Briggs,’

-(e a rt o ,

Tndivates the estimate of the

' gtone encountered. Detailed scviow of Samples Neo 1-

and 3 of the report of Mr. Briggs, which were the ones

retrieved from the excavation, supports the Government

contention that the hardest materials encountered in

the excavation existed in thin layers which were

surrounded having a cementing agent present.

but : Genes a hechniog a:

was on SS,

The very “7 Sraminn exommuoet in he

stance is explained on page three of Mr. Briggs’ report .

n the unusually large amount of —

’ cement

nt ich hardens on “

Specific comments on samples upon which

No. 1.—The actual. character of ex-

i and

Mr .Fehlhaber on 80 July 1947, aa upon > Dintriet

. Engineer’s return he saw to write into the files of this.

office : “I saw swab eo gy it el m th It aa

into many ents when drop on the groun

There were, however, teow solid anal

Samrtz No. 2—taken from an H beam which had been:

_ driven to elevation —60 and subsequent! y pulled. .Ac-

\. cordingly, the exact shovetion ak which this sample.

_ existed is indeterminate. . Sandetoise wi on

» the borings shown on the contract drawings at elevations

' +55 and —57. Bidders’ attention -was invited to the

___preeence of a a sandstone layer around élevations — 55 and

. —57 in paragraph 3-08(c) of the specifications § as this .

¥ a layer which the Government presumed prior to

_ the execution of the work would requi equip-

» Ment to penetrate. - ee tis.

Samrps No. &—Sample re as being talkan ivan :

between elevations ‘—37 ari —45. This sample was

'_ tember 1947 and a feld | ion by District personnel \

on 10 Ber 1947 tha specimens being selected \- -

were not representative of ‘run of material, It ds

-was further observed that specimens which were.

selected by the contractor were eae meer between eleva-:

_ tions —42 and —45. Mr. Briggs points out: the un-”

" usually high amount of cementing material in this . -

\ specimen. * This should’ be carefully noted. It is the

' a ee, Fae out after being Femoved

pe yinceaben ta Nosdaiee gf Gd mintecial efter 1

eposi

- The material in j area’ “from which this sample was |

taken is shown on™ “1-NW as soft sandstone at -

elevation — 44 and small particles of sandstone between

elevations — 45 and —52.”’ Difficyty in excavating this

material should have been anticipated from the 195.

blows per foot,on the sample spoon. which’ were re-

ee ae

“+ 438650—57—_6 . =

@ ©. ie ,

2-4 ee

Ba : ak 7 Rapotts

corded on bering 1 NE 0 shown 09 the. contract draw-

ae Architect’ Sl kibeginien ais conies:-

itect- Engineer in his opinion on the contrac-

peroserpey 2 materiale at the lower elevations

° - ‘near the bottom of

| 2" shown by or rersonabl

pres . The samples of “12” rock” refer.

possible to determine the average thickness of the °:

‘ rock’ because of variations‘ in Ahickness of several: ~

_ inches. which occur wWfthin afeas as. small as one

~ square foot. Adhering to the rock, generally above

and: below it, are ors or nipre layers of lightly

_ cemented sand which can. be broken easily by hand.

and which could be excavated with the aid ofa jet.

5. The contractor further alleges that a manifesta-

ars, tion of the changed conditions encountered is found in ».

the fact that:~ j +p

fo _ tremie seal because of the impracti®ability of excavating .

“£%, this rocklike material.” (See tontractor’s letter dated

<“* _§ November 1947, Exhibit E, a ). -

| (b) “Thegpecifications clearly state that piles shall . _

not. be driven less than 40 feet. This ie mp eon was

changed by your Architect-Engineer for the reason that -

es tion.” (Contained in contractor’s letter dated 25 No-

_ vember 1947, attached Exhibit B.) wie igus

6. The Government. denies that the above allegations

offer evidence of:qbanged conditions because of the fol-

* . Jowing: . 2 ie ca

-. °(a) Plans show cofferdam tovbe excavated to bottom

elevation of —48.< Inasmuch as firm bottom had been

encountered at Somewhat lesser depth the contractor was

given permission, in compliance with his request, to con-

' gider the excavation complete when average bottom

elevation of —46.5 feet had been obtained and the bot-

_@ tom was reasonably level and ‘free.of loose material. —

chan pre Arh nen omrcpentoni cu paw Bs

8. Conclusions of the Ney Officer. —The Con-

- tractin i ae ae

a fe) -_ toon shown on the contract draw-

y | Pvebocw in the execution. af ge excavation at Pier 1-N. .

) The fact that some modification was made in the

Ht piles elevation of excavation and accepted | of

iles is not sufficient basis to constitute con-

9. ‘The following ational iitlonantion’ is: presented :

.(a) No attempt has been made to check the amount of

the contractor’s claim inasmuch as the existence of

changed conditions has not been acknowledged.

mB... Samples of material excavated from Pier 1-N

ve been ee et ee

ay decided that such data are. in consider-

~ing the contractor’s claim, The sam ra kare

merged in water to prevent asing

rie

ve beef im-- |

o ’

. oa -

——~ _ . driving steel H-beams: because of unknown: conditions -

oy . A 2 ‘ . ae

>» 106. On March 18, 1948, plaintiff took an appeal under the .

- under date of February 15, 1949, disallowed plaintiff’s claim

‘the findings of fact, views and conclusions of this board were

‘approved and. the plaintiff's appeal denied by the Chief of

Engineers, who was the duly authorized appellate authority.

‘. Qn March 14; 1949, plaintiff was advised of the action -

taken on itsappeal:co- 2° * v

: The pertinent parts of the findings of fact and decision of |

the appeal board aré as follows:. ea

2 J ' OPINION ~ : pte

Appellant seeks to recover additional compensation .

- for setting and-driving steel sheet piles, excavation and-

of.an unusual nature differing materially from those .

-. ordinarily encountered and, generally recognized as in- _

’ . hering’in work of the character provided in od apy ve

and ifications within the meaning of Article 4,. -

‘in the statement ‘of: facts above. Specificall

appellant claims to have encountered rock at Pier 1-

at elevations —18.7 to —26.9, at glevations —37 to —45,.

_ and at*elevation —60, all of which is stated to have

increased the contracfbr’s cost.

Pier 1-N being located in the channel of the Chesa-

e & Delaware Canal necessitated construction of.a.

cofferdam'75 feet longand 45 feet wide, The cofferdam

was constructed with interlocking steel piles, oy < aoe P

by interior steel walers and bracing struts. Bracing

_struts divided the area into ten fie through which the

work was carried on. After ‘the excavation reached

progressive stages, the walers were lowered and left at

the requited position. Under the specifications, excava-

_ tion was cy eer to be carried on to elevation —48, to

_ which the footings were to be founded. Inasmuch as .

. suitable bottom was encountered at a somewhat lesser:

_. depth, the contractor was given permission, in compli- |

-ance with his request, to consider excavation complete .

when the average bottom.elevation of —46.5. had been

Obtained and the bottom was reasonably level and free ~

. from all loose.material. The material was excavated -

by clamshell bucket and ee Rear nS Lae ps

' The specifications provided that steel piles at Pier 1-N

_ . would be paid for at a lump sum per pile and that the

ane piles would be driven to a pee Ne yacity vf 60

—B2 ao ae aa

Q\ :

tons and driven to a minimum of 40 feet he field .

it was. found thats pie bearing capacity. was obtained —

-at lesser penetration than 40 feet. / Accordingly, some |

core, : = with:a penetration as low as 27-feet were accepted,

he ‘average penetration of piles being, 35.5 feet.

' Because a firm foundation for Pier 1-N -was found

at average elevation — 46.5, and because 60 ton bearing

- . capacity was obtained by driving steel piles to.an average

a —- of 35.5, feet, appellant contends that the re-

‘ - duction in these elevations -was-indicative of the im-

Ae. — of excavating this. “rock-like” material.

ncerning this contention, the testimony adduced at

the hearing indicated the bulk of the material excavated _

consisted of sand possessing some cohesion because of a i

. lant’s construction superintendent, at a hearing

a the contractor, corroborated an affidavit exe-

cuted by him describing the conditions encéuntered as

follows: Peet - eg

J Aaron Burros, being’ duly swort, deposés and says:

Tam the superintendent for the construction of the

substructure of the Cossppente & Delaware Canal High-

way Bridge at Chesa » City, Md., employed by the /—

.. Kehthaber Pile Co., Inc. of 205 East 42 Street, New

York, N. Ty: i" Oe | .

/ I -have beer/a superintendent. for over twenty years,

and have speciajized ore in substructure work,

including work on the Grand Coulee Dam. =

» The materials excavated from Pier 1-N at approxi-:

‘mately elevation 21 were definitely of rock despite the .

fact that boring 1-NE classifies this material as ‘fine

white sand and clay mixed, and boring 1-NW, light gray -

- sand, streaks ‘of brown sand with some clay. This sin |

material extended to‘approximately elevation —26, and

was in approximately 6’’ to 12”’ layers. E i

. ‘This material was again encountered at approximat

elevation —37 and continued to below the ——

posed battom of.the.cofferdam. Borings 1-NE & if

homevse, would lead one to expect that we would

encounter sand with traces of clay. - _— ag 3

* Because of this. definite rock condition, it was Ebysi-

- cally impossible for us to excavate to the proposed bot-

tom elevation. The Architect-Engimeers representative

recognized this fact, and permitted us to leave the bottom

in certain’ areas considerably higher -than‘ those shown -

_ on the plans, because of our inability to excavate this -

material. i,

” in deidp inition’ which peovad sist Sh tac ts oo

moval of this material between elevation —21 and '—26

_ and again between elevation —37 to the bottom, was b

a process of using a heavy’ jet pipe as a Dooce.

| chipping tool, and also by-using a heavy I-beam as a ram.

ave in my possession ps Be pes ome of this mate- -

rial, each weighing several hun unds, which have

7 been obtai from the maaarial opped out of this

. Robert iW

Briggs, a consulting engineer, ‘was at the

job nit -“y a ‘severa occasions and took representative

les of this reck as 4 were removed from the cof-

Sarde, for We ame

From my lo experience, I know that thie-

material aaa at and varied various elevations was not _-

fine sand and clay mixed, nor brown sand with clay; -

~ but was definitely 6 inches to 1 foot layers of rock be- —

. tween sand strata. — ’

Pa/ Aa@in Burros | _

: _ January 30-1948

heen t@iimony offered on behalf of a er con-

cerning = yoann encountered is as follows

On the basis of our tests of samples from Pier 1-N,

data from the borings at the ee gee above

should. be termed incorrect, and consequently, mislead-

ing information. Our tests show the materials at these

_ elevations to be hard consolidated materials which must-:

be definitely classed as rock. At elevation —60 ae

1- indicates “Very-hard, fine tg medium brown sand

._ ghd shows 288. blows per "foot on .the sample spoon.

‘ This: classification is very questionable. The matérial -

encountered was doubtless that of our Sample No.2 -

- which‘is classified as very. hard sandstone. .

The materials represented by our Samples Nos. 1 and

3 should have been classified as hard sandstone strata.

_ They are not sand.in any sefise of the word. They occur"

in strong tough strata difficult to break and excavate

without extensive chopping and drilling. The

have classified these materials as sand with the exce

tion of about one foot of material in I-NW from —

. to —45 which they call “soft sandstone”. Our studies -

of the material do not substantiate this classification.

Specific comments of the District E

a orcs geologist

bi follow: meigies referred to by appel

‘ Sawpte No. 1.—The ectual character of siatastal ex- .

cavated ct and around elevation —21 is manifested by —

“8 ‘ te iy

, | a |

OE |

the fact that it wasvall excavated by clamshell bucket

-and jetting, The material from the neighborhood of

. @levation —21 was observed by the District Engineer

- and Mr. Fehthaber on 30 July A » and upeén the Dis-

' trict E ’s return he saw fit to write into the files -

of this : “I saw this*material, and it is not rock.

It broke into many fragménts when d on the

the

There were, however, a-few solid pieces. ;

Samrtz No. 2.—Taken. froc ‘an H bead which hed

been driven to elevation —60 and subsequen led.

Accordingly, the exact elévation at which this sample

* existed ‘is indeterminate. Sandstoné was reported on

‘the borings shown on the contract drawings at eleva-

tions —55 and —57. Bidders’ attention was invited to

_ the presence of a sandstone layer around elevations —55

and —57 in pages = 3-08 te)

_-» this was a layer which the Goreme ued :

Saiere Wo. reported as being taken from ,

between. elevati No. Sample reported This sample was not

‘representative of material fontes —387 and —45. It.

was noted in the Resident Engineer’s report on 5 Sep-

tember 1947 and a field inspection by District

8h 10 September 1947 that test specimens being selected

_ Were not representative of general run of material. It

be whe further observed that the test specimens which were’

nen oe the contractor were retrieved between eleva-

—45. Mr. Briggs points out the un-

pome F ‘high amount of cementing material tm this

specimen. This should be carefully noted. It is the

pram agent \ which gives the stone the property of ~

as it dries out after being removed

oom ‘ite ms ral eposit.° This the extraor- .

dinary -i 3e in hardiness of t ‘material after

removal] from its natural deposit. :

se Seconantld ur Sethuincs by expert Gov ent. geologist |

1. The foundation siinentibe’t in question were —

cam sampled by conventional ' -tube mous “nd de-

vices commonly for sampling unconsolidated or

Mis condition 38 stream and 2 the d sediments.

is condition is V parent on rawing ex-

hibiting the boring ey Pn

2. Careful study of doaphe p> - data indicates wide

variation in composition of com

' the various ication: ee As pointed out

one the a rather than being unusual, this con-

dition is very characteristic of the channel sediments at

the site of Pier 1-N. Notable differences of foundation

conditions within small vertical and horizontal intervals

is to be expected in cross-bedded estuatine sediments, and

is illustrated effectively in the wide variation in the

number of haminer blows per foot required to force the

sampling pipe through the different sediments.

3. An outstanding weakness in the contractor's claip

~ lies in the method of excavating the purported rock nf

terials. fromgsthe foundation intervals in question.

Evidence p ted by the Government indicated “ex-

cavation to approximate elevation —21 was made by use:

of clamshell bucket. Between elevations —21 and .

“> and —45 thé assistance of a jet.to loosen materials-was

employed.”, Jt was pointed out -by the Government's

ist that such methods of excavation cannot be

~-classified as rock excavation.

4. It is the opinion of the Government's geologist that

while the original foundation borings were not presented

to the-greatest advantage in that they were not sub-

[op to a gedlogist’s inspection and logging, on the

asis of the classification of materials presented in the

contract drawings which are clear in emphasizing wide

variations in cofmpaction, no grounds for. claiming -

. changed conditions obtain.

With respect to the laboratory investigations con-

ducted by the contractor's -consultant, there is no in-

clination to dispute either the accuracy of the tests o

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