# Petition for Writ of Certiorari — United States v. Fehlhaber Corp. (No. 472) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1529%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 ## Text ee \ 3 ona) *.& ; | INDEX | Ripa be gsae 4 a te Soy 2S ree bes BD... . Son npc accags cen ideas iiweeen ah Jurisdiction - - ~~. - Shawn shsadaben wheat be daniewehesns as, Question presented ____ citcnnene awe Sera ARP ee ieee. se Statutory and secant provisions involved. -_- anes ee: 2: EE ee Peer eer e es rt jeeblneantecne* + cans 0 cating Ate Wilh... ~ : 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 .*. al ei 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. | yf 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, ks . & = 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-. Oo 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 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 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 * ry 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 - 12 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. [. 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 | 16 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 a, ” 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 G 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 20 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... 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. 25 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 ay . / 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. ° . + 28 ~ 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 ox | . ® - "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 © for any deduction, interpretation, or conclusion drawn. _ 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 — . =~ \ y eagges ra tli ae co 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 a GSA f the pier for a minimum distance o originally to own- te 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 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 a > 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- ‘ 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. > Wg : a) = , HH Bs Bill ae Hi 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 A beom _ to swing eit Hit a HE - lit 2 i: a 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- i ; i : 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: Ht ; hart Prt Ere a RE | | t f } Hi | i" lt ale Hf iat Fel Ls "F 3 tii iu : aft Mr I z i ! | if fie tf if oF 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 i. as + \ : a “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 a 2rtila Hert ee 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, ay A ee 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 ‘| 68 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. f 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 - t 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 .use of both plants for a pour on one side of the canal. © The largest continuous pours to be made under the contract were the two tremie pours‘for Piéf I—N ‘and 1-S, each lo- ; s 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 ‘ "y 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: t -* 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? - oo 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 — District Engineer, the contracting officer, the partner of 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 _ setting forth pertinent provisions of the contract and specifi- © cations and making reference to te contract paring logs, provided. as — *. ~ oO 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- ——~ 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 — eh q, ’ 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 ; + .. (a) They were “directed to tise the elevation of the © fo _ tremie seal because of the impracti®ability of excavating . “£%, this rocklike material.” (See tontractor’s letter dated » 106. On March 18, 1948, plaintiff took an appeal under the . - under date of February 15, 1949, disallowed plaintiff’s claim in a written decision and opinion. On Februsry 25, 1949, © ‘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 - data indicates wide variation in composition of com ' the various ication: ee As pointed out one the a rather than being unusual, this con- 85 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 or ~ geologic classification given by the consultant. How- ever, the Government should have been given the appor- tunity to question the extent to which the materials tested ‘ were representative of conditions in the pier founda- ” tion. It was emphasized that the samples were taken in > the absence of any Government inspectign whicli woulds. _ have - permitted recording exact de;fAs, elevations, thicknesses, saturated hardness, and similar information. -Further indication thatthe character of appellant’s *aboratory samples were not representative lies in the claim that an exact elevation could be given to a sample tecovered from the flange of an H-beam driven to eleva-— tion —60. Obviously, a rock, fragment so ‘recovered - after driving and retracting an H-beam through 20 feet ".”. of foundation could not be identified. with. any specific elevation, such as -60. | To the contractor's repeated contention that the draw- : ings represented the foundations as “unconsolidated,” it - was pointed out that nowhere on the boring data sheet -is the term “unconsolidated” used. . g te ‘ “\ — > . - . s rey Coe 86 Upon eareful consideration of the entire record and | \ - the evidence adduced at the hearing, it isthe opinion of — _ the Board that, although material excavated-at Pier 1-N was harder and more expensive to excavate than a llant- estimated from the borings furnishe:' by vernment, the conditions did not vary materially from those represented by the borings an in the con-. tract specifications. During the course of the work, the _ contractor failed fo give written notice of con- ditions as required by Artic’ of the contract, but filed- claim for additional compensation at or near the com-. : pee the work. In a case decided by the Court of aims on 1 November 1948 Hallman Brothers v. United States, the Court said: = - te We think that the plaintiffs wholly failed to comply with the requirements of Article 4 as to. calling the - attentién-of.the contracting officer to conditions asserted to have been unforeseen. The primary purpose of that — . ° provision of Article 4 isto induce a udder not to in- __ elude in his bid additional amounts to cover all possible, - but improbable, events. But this purpose is safe- guarded by the requirement that the Government's at- ofention be promptly called to {Se claimed unforeseen ‘condition, as such, so that an-mtelli determination ean be made as to whether it is unforeseen within the meaning of the contract, and how much extra expense it has caused. Here the plaintiffs, by withholding their claini until it was impossible to investigate it, obteined a findings of fact from the contracting officer based on esswork, and seek a judgment from this co»rt simi- arly based. - We think, for this reason alsd, that the» plaintiffs have no rights-under Article 4. . _ “For the foregoing reasons, the Board recommends that . the apipeal for additional compensation be denied... In view of this recommendation, it follows that appella js not entitled to an extension of time of 115 i as claimed. ae 406. Plaintiff has withdrawn its claim for the removal of the Schaefer wharf, covered by paragraphs X ‘through XIT of its petition. and no findings of fact were requested with respect thereto. aes a 107. The administrative findings of fact and decisions are contrary to the overwhelming weight of the evidence in this - case, which clearly establishes that-plaintiff encountered sub. surface conditions at Pier 1-N, materially and substantially _ es. fin} . 4 , Lv a ns yi! 87 ‘ ' different from those shown on the contract drawings, and the administrative decisions are not supported by substantia] “d . ‘ . e E CONCLUSION OF Law Wha Ale @. insite Aebaasdiek Gualaaiicd tek Whites kee cabin part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover for changed condi- | tions encountered, and it is therefore adjudged and ordered that it recover of and from the Umited Statés the sum of 2 ar thousand, four hundred fo dollars and_ninety cents ($50,414.90). Plaintiff is not entitled ‘to a return of . Lancet e defendant jn i at aia ; : ©. 8. Govennwast ParsTine errice. 1967 o5° . . oo . . . v. . ’ ’ o ‘ . ° 7 , . * 7 . , ; ‘ ° . : P ‘ * ‘s ’ ! . \ ’ ‘ bad ’ ‘ . é p ° , - . ’ ° . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1529%3A2. Public record. Not legal advice.