B-161578, JUN. 3, 1968

B-161578, JUN. 3, 1968

TO WORKMAN CONSTRUCTION COMPANY:

YOUR LETTERS DATED NOVEMBER 3, 1967, AND FEBRUARY 26, 1968, ADDRESSED TO THE UNITED STATES FOREST SERVICE, PORTLAND, OREGON, CONCERNING YOUR CLAIM FOR THE VALUE OF CERTAIN MATERIALS AND EQUIPMENT WHICH WERE WASHED AWAY DURING A FLOOD AT THE SITE OF THE MUDDY FORK SANDY RIVER BRIDGE, MT. HOOD NATIONAL FOREST, OREGON, HAVE BEEN FORWARDED TO OUR OFFICE PURSUANT TO YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION DATED AUGUST 21, 1967, WHICH DISALLOWED IT.

THE CLAIM, WHICH AROSE OUT OF THE PERFORMANCE BY YOU OF CONTRACT NO. 06- 467, DATED JUNE 16, 1964, FOR THE CONSTRUCTION OF THE BRIDGE AND APPROACHES, WAS INITIALLY FORWARDED TO OUR OFFICE FOR CONSIDERATION BY THE CERTIFYING OFFICER FOR THE PROCURING ACTIVITY BY A LETTER DATED MAY 19, 1967, AFTER APPROVAL BY THE CONTRACTING OFFICER. THE FILE WHICH ACCOMPANIED THE CLAIM INDICATED THAT THE CONCRETE FOR THE BRIDGE DECK HAD BEEN POURED BY YOU ON NOVEMBER 10, 1964, AND ON THE BASIS THAT SUBSEQUENT COLD WEATHER HAD SLOWED THE CURING OF THE CONCRETE, AS EVIDENCED BY PERIODIC IMPACT HAMMER TESTS MADE BY THE GOVERNMENT, YOU WERE DIRECTED BY THE CONTRACTING OFFICER'S REPRESENTATIVE (COR) TO LET THE FALSEWORK STAND FOR A PERIOD BEYOND THE MINIMUM 14-DAY CURING PERIOD WHICH EXPIRED NOVEMBER 24.

THE RECORD FURTHER SHOWS THAT FOLLOWING SUCCESSFUL CORE TESTS BY AN INDEPENDENT TESTING LABORATORY ON DECEMBER 14, YOU WERE GIVEN WRITTEN NOTICE BY THE GOVERNMENT ON DECEMBER 15 THAT THE FALSEWORK COULD BE REMOVED; THAT ON DECEMBER 19, A HEAVY SNOWSTORM CLOSED THE ACCESS ROAD TO THE BRIDGE SITE; AND THAT ON DECEMBER 22, AN UNEXPECTED FLOOD WASHED AWAY THE FALSEWORK AND EQUIPMENT WHICH ARE THE SUBJECT OF YOUR CLAIM. ALTHOUGH YOU OFFERED NO EXPLANATION FOR YOUR FAILURE TO REMOVE THE ITEMS IN QUESTION FROM THE BRIDGE SITE WHILE IT WAS APPARENTLY ACCESSIBLE BETWEEN DECEMBER 15 (A TUESDAY) AND DECEMBER 19 (A SATURDAY), YOU SOUGHT RECOVERY OF YOUR LOSS ON THE PREMISE THAT IT WAS CAUSED BY UNREASONABLE DELAY BY THE GOVERNMENT IN GRANTING YOU PERMISSION TO REMOVE THE FALSEWORK.

IN OUR DECISION B-161578, AUGUST 21, 1967, TO THE CERTIFYING OFFICER, WE CITED THE PROVISIONS IN THE CONTRACT AUTHORIZING EXTENSION OF THE TIME FOR STRIKING THE FALSEWORK IN THE EVENT OF COLD WEATHER, AND ON THE RECORD BEFORE US WE HELD THAT THE DELAY IN PERMITTING THE REMOVAL OF THE FALSEWORK WAS FULLY JUSTIFIED BY SUCH PROVISIONS AND THEREFORE WAS IN NO WAY UNREASONABLE OR WRONGFUL. WE ALSO HELD THAT THE CONTRACTING OFFICER'S FAVORABLE ACTION ON THE CLAIM WAS BASED UPON A CLEARLY ERRONEOUS INTERPRETATION OF THE PROVISIONS OF THE CONTRACT, AND PURSUANT TO THE AUTHORITIES CITED IN OUR DECISION WE ADVISED THE CERTIFYING OFFICER THAT THERE WAS NO JUSTIFICATION EITHER WITHIN OR WITHOUT THE CONTRACT FOR ASSUMPTION BY THE GOVERNMENT OF YOUR LOSS.

IN YOUR LETTER DATED NOVEMBER 3, 1967, TO THE CONTRACTING OFFICER, YOU CHARGED THAT THE FACTS HAD NOT BEEN PROPERLY PRESENTED TO OUR OFFICE, AND CONTENDED THAT THE CORES WHICH YOU TOOK OF THE CONCRETE PROVED THAT THE IMPACT HAMMER TESTING BY THE GOVERNMENT WAS NOT PERFORMED PROPERLY.

IN A LETTER DATED FEBRUARY 26, 1968, TO THE CERTIFYING OFFICER, AFTER YOU HAD BEEN FURNISHED A COPY OF THE REPORT WHICH WAS INITIALLY MADE TO OUR OFFICE ON MAY 19, 1967, YOU AGAIN CHARGED THAT THE TRUE FACTS HAD NOT BEEN PRESENTED TO OUR OFFICE. YOUR LETTER READS, IN PART, AS FOLLOWS:

"* * * I CLAIM THAT IT WAS NOT AN ACT OF GOD THAT CAUSED THE LOSS. THE LOSS WAS CAUSED BY POOR JUDGEMENT AND LACK OF CONCERN BY YOUR ENGINEERS WHO CAUSED THE DELAY AND LOSS OF OUR MATERIAL.

"WE WORK ON THESE RIVERS YEAR AFTER YEAR AND HAVE BEEN IN THIS BUSINESS FOR OVER THIRTY YEARS. WE KNOW WHEN THE RAINY SEASON COMES AND WHEN WE HAVE TO BE OUT OF THE DUE TO RAIN AND HIGH WATER. (SIC)

"WE HAD OUR CREW STANDING BY WAITING DAY AFTER DAY TO DO THIS WORK BEFORE HIGH WATER BUT WAS NOT ALLOWED TO DO THE STRIPPING.

"I REALIZE THAT ACCORDING TO YOUR SPECIFICATIONS YOU CAN DELAY STRIPPING OF FALSE WORK FOR MOST ANY TIME. THIS IS SUPPOSED TO BE A REASONABLE AMOUNT OF TIME AND IT IS A PROVEN FACT THAT YOU WERE UNREASONABLE.

"YOUR TEST WITH THE IMPACT HAMMER PROVED THIS. YOU STATE THAT ON DECEMBER 1, THE DECK WAS TESTED WITH AN IMPACT HAMMER BY FOREST SERVICE PERSONNEL AND THE STRENGTH WAS REPORTED TO BE 1,000 TO 1,500 P.S.I. (AN UNSATISFACTORY FIGURE).

"THIS TEST WAS NOT DONE RIGHT OR FAIR. THE IMPACT HAMMER IS A PRETTY GOOD TESTING INDICATION IF IT IS USED RIGHT, BUT YOU CAN GET AN UNFAIR REPORT IF IT IS NOT USED PROPERLY AND THE SURFACE CLEAN AT THE POINT IT IS USED.

"IN YOUR REPORT TO THE COMPTROLLER GENERAL YOU SAY ON DECEMBER 14, CORE SAMPLES WERE OBTAINED BY AN INDEPENDENT TESTING LABORATORY RESULTING IN STRENGTH OF OVER 3000 P.S.I. YOU DID NOT TELL HIM HOW MUCH OVER 3000 P.S.I. THEY WENT WELL OVER THAT FIGURE, WHICH DEFINITELY PROVED THE IMPACT TESTS WERE UNFAIR AND THIS WAS YOUR REASON NOT TO STRIKE THE FALSE WORK.

"YOU STATE THAT THE CONTRACTING OFFICER DETERMINED THAT THE GOVERNMENTS' ACTION IN HOLDING UP REMOVAL OF THE FALSEWORK WAS IMPROPER AND NOT DUE TO DEFICIENCIES IN THE WORK. I CLAIM HE IS RIGHT AND THAT THE LOSS WAS CAUSED BY UNJUST DELAY FOR WHICH YOUR PERSONNEL WAS RESPONSIBLE. WE WOULD HAVE REMOVED THIS MATERIAL AND EQUIPMENT BEFORE HIGH WATER HAD WE NOT BEEN UNJUSTLY DETAINED BY YOUR ENGINEER AND WE WOULD NOT SUFFERED THIS LOSS.'

IN FORWARDING YOUR LETTERS TO US, THE CERTIFYING OFFICER FURNISHED THE FOLLOWING ADDITIONAL INFORMATION:

"THE CLAIMANT CONTENDS THAT THE GOVERNMENT ACTED IN BAD FAITH IN REFUSING HIM PERMISSION TO REMOVE THE FALSEWORK AT 14 DAYS AFTER THE DECK WAS POURED AND AT OTHER TIMES PRIOR TO THE TIME PERMISSION WAS GIVEN ON DECEMBER 15, 1964 AFTER THE CORES WERE TESTED. THE CLAIMANT ADMITS THAT THE CONTRACT GIVES THE GOVERNMENT AUTHORITY TO DELAY REMOVAL OF THE FALSEWORK UNDER THE WEATHER CONDITIONS WHICH PREVAILED HERE; HE FEELS, HOWEVER, THAT THIS AUTHORITY SHOULD NOT HAVE BEEN EXERCISED UNDER THE CIRCUMSTANCES. THE POINT AT ISSUE IS NOT WHETHER THE FOREST SERVICE WAS - RIGHT- IN REQUIRING THE FALSEWORK TO BE KEPT IN PLACE, BUT WHETHER THERE WERE REASONABLE GROUNDS TO BELIEVE THAT THIS WAS THE -RIGHT- DECISION AT THE TIME IT WAS MADE. ONLY IF THE DECISION WAS OBVIOUSLY WRONG CAN THE CLAIMANT'S POSITION BE CORRECT.

"THE CIRCUMSTANCES WERE THAT THE NIGHT AFTER THE CONCRETE FOR THE DECK SLAB WAS POURED, THE TEMPERATURE DROPPED TO OR BELOW FREEZING. THIS TYPE OF WEATHER CAN BE HARMFUL TO NEW CONCRETE. SOME COVER AND SOME HEATING WAS DONE AT THE DIRECTION OF THE FOREST SERVICE A DAY OR TWO LATER. THIS SERVICE WAS CALLED FOR IN THE CONTRACT SPECIFICATIONS WHEN CONDITIONS WARRANTED. BECAUSE OF THE COLD TEMPERATURES WHICH PREVAILED IMMEDIATELY AFTER THE POUR, AN INSPECTION BY AN ENGINEER FROM THE FOREST SERVICE REGIONAL OFFICE WAS MADE TO DETERMINE IF THERE WAS DAMAGE TO THE BRIDGE DECK. THE REPORT OF THIS INSPECTION INDICATED THAT THE SURFACE OF THE BRIDGE DECK WAS SOFT AND, USING A COIN, COULD BE SCRAPED TO A DEPTH OF 1/8 TO 1/4 INCH. THE INSPECTOR STATED HE THOUGHT THAT WITH A HEAVIER TOOL HE COULD HAVE SCRAPED AS DEEP AS 1/2 INCH. HE FELT THAT THIS INDICATED THE CONCRETE WAS DEFECTIVE AND THAT AT LEAST THE TOP SURFACE MAY HAVE BEEN DAMAGED BY THE FREEZING TEMPERATURES.

"AFTER MAKING THE ABOVE OBSERVATIONS, THE INSPECTOR MADE TESTS WITH AN IMPACT HAMMER. NINE AREAS WERE TESTED; THREE AT EACH END OF THE BRIDGE AND THREE TESTS AT THE CENTER. THREE READINGS WERE TAKEN AT EACH SPOT TESTED FOR A TOTAL OF 27 READINGS. THE RESULTS WERE RECORDED AS FOLLOWS:

1. A. 13-1000 (-) *PSI 2. A. 30-4400 PSI

B. 15-1450 PSI B. 27-3700 PSI

C. 12-1000 (-) *PSI C. 33-5200 PSI 3.

10-1000 (-) *PSI 4. A. 18-1450 PSI

B. 12-1000 (-) *PSI B. 15-1500 PSI

C. 10-1000 (-) *PSI C. 18-1450 PSI 5.

15-1450 PSI 6. A. 11-1000 (-) *PSI

B. 16-1600 PSI B. 10-1000 (-) *PSI

C. 16-1600 PSI C. 15-1450 PSI 7.

10-1000 (-) *PSI 8. A. 15-1450 PSI

B. 10-1000 (-) *PSI B. 10-1000 (-) *PSI

C. 10-1000 (-) *PSI C. 10-1000 (-) *PSI

9. A. 11-1000 (-) *PSI

B. 13-1000 (-) *PSI

C. 13-1000 (-) *PSI

"IT SHOULD BE NOTED THAT ACCEPTABLE READINGS WERE OBTAINED IN ONE AREA ONLY WITH THE IMPACT HAMMER. THE REPORT DOES NOT IDENTIFY THE AREA WHERE THESE FIGURES WERE OBTAINED. A CHECK OF THE CURB (POURED SIX DAYS BEFORE THE TEST) INDICATED A STRENGTH OF 2000 PSI WHILE THE PIERS (AN EARLIER POUR) SHOWED STRENGTHS IN EXCESS OF 3000 PSI. THESE READINGS HAVE NO SIGNIFICANCE OTHER THAN THEY WERE USED AS A CHECK OF THE INDICATED ACCURACY OF THE IMPACT HAMMER. THE REPORT RECOMMENDS THAT THE FALSEWORK BE LEFT IN PLACE FOR 28 DAYS (PRESUMABLY FROM DATE OF POUR) WHICH BRINGS THE TIME TO DECEMBER 9. BASED ON THIS REPORT, THE CONTRACTOR WAS DIRECTED TO LEAVE THE FALSEWORK IN PLACE AN ADDITIONAL 14 DAYS WITH THE UNDERSTANDING THAT FURTHER IMPACT HAMMER TESTS WOULD BE PERFORMED AT THE END OF THE 14 DAY PERIOD. THE CONTRACTOR WAS FURTHER ADVISED THAT IF THE IMPACT HAMMER FIGURES WERE NOT SATISFACTORY, THEN CORE TESTS WOULD BE MADE TO OBTAIN A MORE ACCURATE PICTURE OF THE CONDITION OF THE INTERIOR OF THE SLAB.

"ON DECEMBER 2, 1964, 21 DAYS AFTER THE DECK SLAB WAS POURED, THE CONTRACTING OFFICER'S REPRESENTATIVE AGAIN INSPECTED THE DECK SLAB AND FOUND LITTLE CHANGE FROM THE NOVEMBER 24 REPORT. THE SURFACE WAS STILL SOFT AND THE TOP 3/8 INCH OF CONCRETE COULD BE SCRAPED OFF. BY CONTRAST, THE CURB COULD NOT BE SCRAPED AT ALL. THE COR'S DIARY INDICATES ANOTHER INSPECTION WAS MADE DECEMBER 10 AND THE CONCRETE STILL INDICATED LOW IN STRENGTH. THE RESULTS OF THIS INSPECTION WERE DISCUSSED WITH THE REGIONAL BRIDGE ENGINEER AND ON DECEMBER 11, THE CONTRACTOR WAS REQUESTED TO OBTAIN CORE SAMPLES FOR TESTING. THIS WAS DONE AND THE RESULTS BECAME AVAILABLE ON DECEMBER 15, INDICATING THE DECK SLAB HAD SATISFACTORY STRENGTH, AND THE CONTRACTOR WAS GIVEN PERMISSION TO STRIKE HIS FALSEWORK. THE CORE TEST RESULTS WERE 3180 PSI, 3680 PSI AND 3910 PSI WHICH EXCEEDED THE 3000 PSI REQUIRED BY THE CONTRACT. IT SHOULD BE NOTED, ALSO, THAT THREE ADDITIONAL CORES WERE OBTAINED AT THE SAME TIME, 34 DAYS AFTER POUR, AND CURED FOR AN ADDITIONAL 14 DAYS UNDER CONTROLLED CONDITIONS AND THEN BROKEN. THE RESULTS WERE 4200 PSI, 4750 PSI AND 6020 PSI AT 48 DAYS AFTER POUR.

"WE ARE ADVISED BY OUR ENGINEERS THAT CONCRETE OF THIS TYPE CAN NORMALLY BE EXPECTED TO ATTAIN 65 TO 75 PERCENT OF THE 28 DAY STRENGTH AT 14 DAYS AND AFTER 28 DAYS THE STRENGTH INCREASES QUITE SLOWLY. IN THIS CASE THE INCREASE IN STRENGTH FROM 34 TO 48 DAYS WAS MUCH GREATER THAN IT COULD HAVE BEEN HAD THE CONCRETE CURED NORMALLY. THIS HIGH GAIN IN STRENGTH BETWEEN 34 DAYS AND 48 DAYS TENDS TO CORRELATE WITH THE APPARENT FROST DAMAGE TO THE SURFACE, AND IS A TYPICAL REACTION OF CONCRETE TO PERSISTING COLD TEMPERATURES IMMEDIATELY AFTER IT HAS BEEN POURED. THIS APPEARS TO JUSTIFY THE FOREST SERVICE DECISION THAT THE FALSEWORK SHOULD STAY IN PLACE AFTER THE INITIAL 14 DAY CONCRETE CURING PERIOD.

"THE FILE DOES NOT INDICATE SPECIFICALLY THAT THE CLAIMANT WAS AWARE OF THE RESULT OF THE IMPACT HAMMER TEST AT THE TIME IT WAS MADE, BUT IT DOES INDICATE THAT HE KNEW THE REASON FOR THE DELAY IN APPROVAL TO REMOVE THE FALSEWORK. IF HE FELT THAT THE BRIDGE ACTUALLY WOULD MEET THE CONTRACT SPECIFICATIONS FOR REMOVING THE FALSEWORK, HE COULD HAVE PROTESTED THE RULING AND EITHER ARRANGED TO HAVE THE IMPACT HAMMER TEST REPEATED OR ARRANGED FOR CORE TESTS AT THE END OF THE 14 DAY PERIOD. HE DID NEITHER, AND THE FACT REMAINS THAT A PORTION OF THE DECK SURFACE WAS DEFECTIVE, BOTH AT 14 DAYS AFTER POUR AND AT ALL TIMES SUBSEQUENT TO THAT TIME.

"IT IS IMPOSSIBLE TO SAY JUST WHEN THE STRENGTH OF THE CONCRETE IN THE BRIDGE REACHED THE POINT WHERE IT WOULD HAVE BEEN PROPER TO REMOVE THE FALSEWORK UNDER THE CONTRACT SPECIFICATIONS, OR TO SAY WHETHER THE BRIDGE WOULD HAVE COLLAPSED IF THE FALSEWORK HAD BEEN REMOVED AT 14 DAYS AFTER POUR. HOWEVER, IN REVIEW OF THE OVERALL SITUATION, WE BELIEVE THAT THE DELAY IN REMOVAL OF FALSEWORK WAS JUSTIFIED BY THE EVIDENCE AT HAND, AND THAT THE ACTION OF THE FOREST SERVICE WAS REASONABLE UNDER THE CIRCUMSTANCES. WE CAN SEE NO EVIDENCE IN THE FILE TO INDICATE THAT ANYONE IN THE FOREST SERVICE ACTED IN BAD FAITH IN THE ADMINISTRATION OF THIS CONTRACT.'

THERE IS NOTHING IN THE RECORD WHICH SUBSTANTIATES YOUR CHARGE THAT THE IMPACT HAMMER TESTS WERE NOT PERFORMED PROPERLY. ON THE CONTRARY, THE RESULTS OF THE SIMULTANEOUS TESTS OF THE PREVIOUSLY POURED PIERS AND THE CURB APPEAR TO SUPPORT THE ACCURACY OF THE IMPACT HAMMER READINGS. FURTHER, AS LATE AS DECEMBER 10 THE IMPACT HAMMER TESTS SHOWED THAT AVERAGE READINGS FOR THE BRIDGE DECK WERE BELOW THE REQUIRED 3,000 PSI, AND IT WAS NOT UNTIL THE CORE TESTS WERE MADE ON DECEMBER 14 THAT THE READINGS FINALLY REACHED THE REQUIRED 3,000 PSI. ACCORDINGLY, WE ARE UNABLE TO ACCEPT YOUR VIEW THAT THE DEFERRAL OF THE REMOVAL OF THE FALSEWORK THROUGH DECEMBER 14 CONSTITUTED AN UNFAIR OR UNREASONABLE DELAY ON THE PART OF THE GOVERNMENT. IN THE CIRCUMSTANCES, WE MUST ADHERE TO OUR ORIGINAL CONCLUSION THAT THERE WAS NO UNREASONABLE DELAY OR NEGLIGENCE ON THE PART OF THE GOVERNMENT, AND THEREFORE OUR DECISION OF AUGUST 21, 1967, IS AFFIRMED.