A-15609, DECEMBER 8, 1926, 6 COMP. GEN. 386

A-15609: Dec 8, 1926

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WHICH WERE MADE A PART OF THE CONTRACT. THAT THEIR USE WAS AT THE BIDDER'S RISK. THAT THE INTENDING BIDDERS WERE EXPECTED TO EXAMINE THE SITES OF THE PROPOSED WORK TO INFORM THEMSELVES THOROUGHLY OF THE ACTUAL CONDITIONS AND REQUIREMENTS. SUCH PROVISIONS DO NOT CONSTITUTE A WARRANTY ON THE PART OF THE UNITED STATES AS TO THE CHARACTER OF THE DREDGING TO BE DONE OR THE MATERIALS TO BE REMOVED AND DO NOT ENTITLE THE CONTRACTOR TO ANY ADDITIONAL COMPENSATION FOR THE REMOVAL OF ROCK ALLEGED TO HAVE BEEN ENCOUNTERED IN FULFILLING THE TERMS OF THE CONTRACT. WHEREIN WAS ALLOWED $19. 833.61 IS CLAIMED AS ADDITIONAL COMPENSATION FOR EXTRA COSTS ALLEGED TO HAVE BEEN INCURRED IN PERFORMING CERTAIN ROCK DREDGING.

A-15609, DECEMBER 8, 1926, 6 COMP. GEN. 386

CONTRACTS - WARRANTIES - DREDGING WHERE THE GOVERNMENT ADVERTISED FOR BIDS FOR CERTAIN DREDGING WORK AND THE SPECIFICATIONS, WHICH WERE MADE A PART OF THE CONTRACT, STATED THAT THE SOUNDINGS AND BORINGS MADE BY THE GOVERNMENT COULD BE USED, TOGETHER WITH ANY OTHER PERTINENT DATA, BUT THAT THEIR USE WAS AT THE BIDDER'S RISK; THAT THE GOVERNMENT DID NOT GUARANTEE THE DEPTH OF THE WATER OR THE CHARACTER OF THE SOIL CONDITIONS TO BE ENCOUNTERED IN THE PILE DRIVING, AND THAT THE INTENDING BIDDERS WERE EXPECTED TO EXAMINE THE SITES OF THE PROPOSED WORK TO INFORM THEMSELVES THOROUGHLY OF THE ACTUAL CONDITIONS AND REQUIREMENTS, SUCH PROVISIONS DO NOT CONSTITUTE A WARRANTY ON THE PART OF THE UNITED STATES AS TO THE CHARACTER OF THE DREDGING TO BE DONE OR THE MATERIALS TO BE REMOVED AND DO NOT ENTITLE THE CONTRACTOR TO ANY ADDITIONAL COMPENSATION FOR THE REMOVAL OF ROCK ALLEGED TO HAVE BEEN ENCOUNTERED IN FULFILLING THE TERMS OF THE CONTRACT, NOR EXCUSE LIQUIDATED DAMAGES ASSESSED IN ACCORDANCE WITH THE CONTRACT TERMS FOR FAILURE TO COMPLETE THE WORK WITHIN THE TIME LIMIT. A PROVISION IN A CONTRACT WITH THE NAVY DEPARTMENT BY WHICH THE CONTRACTOR AGREES TO ACCEPT THE FINDINGS AND ACTION OF THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, AS CONCLUSIVE AND BINDING, AS TO ANY CLAIM BY IT FOR ADDITIONAL COMPENSATION, PRECLUDES ANY ALLOWANCE ON A CLAIM BY THE CONTRACTOR FOR ADDITIONAL COMPENSATION WHEN DISAPPROVED BY THE BUREAU OF YARDS AND DOCKS.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 8, 1926:

THE GILPIN CONSTRUCTION COMPANY REQUESTED AUGUST 25, 1926, REVIEW OF SETTLEMENT NO. 0140348-N, DATED JUNE 24, 1926, WHEREIN WAS ALLOWED $19,731.71 OF ITS CLAIM OR $112,990.32, THE AMOUNT ALLEGED TO BE DUE AS FINAL PAYMENT UNDER NAVY CONTRACT NO. 4615, DATED FEBRUARY 17, 1923. THE TOTAL AMOUNT CLAIMED, $4,425 REPRESENTS LIQUIDATED DAMAGES DEDUCTED ON ACCOUNT OF DELAYS IN COMPLETION OF THE WORK AND $88,833.61 IS CLAIMED AS ADDITIONAL COMPENSATION FOR EXTRA COSTS ALLEGED TO HAVE BEEN INCURRED IN PERFORMING CERTAIN ROCK DREDGING. THE AMOUNT ALLOWED ($19,731.71) REPRESENTS RETAINED PERCENTAGES THAT WERE WITHHELD DURING THE PROGRESS OF THE WORK FROM AMOUNTS DUE THE CONTRACTOR UNDER THE CONTRACT, LESS $4,425 DEDUCTED AS LIQUIDATED DAMAGES.

IT APPEARS THAT THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, ADVERTISED FOR BIDS (TO BE OPENED JANUARY 27, 1923) FOR THE FURNISHING OF ALL LABOR AND MATERIALS NECESSARY TO CONSTRUCT AND COMPLETE AT THE NAVAL SUBMARINE AND DESTROYER BASE, ASTORIA, OREG., FOUR TIMBER PILES, A TIMBER BULKHEAD, TWO BRUSH BULKHEADS AND A RAILROAD TRACK, AND FOR THE PERFORMANCE OF APPROXIMATELY 1,000,000 CUBIC YARDS OF DREDGING, INCLUDING A 28-FOOT CHANNEL AND A 22-FOOT BASIN, APPROXIMATELY 400,000 CUBIC YARDS OF THE DREDGED MATERIAL TO BE DEPOSITED AS FILL BEHIND THE BULKHEADS. BIDS FOR THIS WORK WERE ASKED UNDER SIX ITEMS AS FOLLOWS: ITEM 1, PRICE FOR THE WORK COMPLETED, EXCLUSIVE OF DREDGING; ITEM 2, DEDUCTION FROM ITEM 1 FOR OMISSION OF EACH FINGER PIER; ITEM 3, DEDUCTION FROM ITEM 1 FOR OMISSION OF THE BREAKWATER SPECIFIED; ITEM 4, UNIT PRICES PER FOOT TO BE ADDED OR DEDUCTED FROM ITEM 1 FOR VARIATION IN PILE LENGTHS FROM BASIC LENGTH (55 FEET) SPECIFIED; ITEM 5, PRICE PER CUBIC YARD FOR MATERIAL DREDGED AND DEPOSITED AS FILL BEHIND BULKHEADS; AND ITEM 6, PRICE PER CUBIC YARD FOR MATERIAL DREDGED AND DEPOSITED AT THE AUTHORIZED DUMPING GROUND. OF THE THREE BIDS SUBMITTED THAT THE GILPIN CONSTRUCTION COMPANY (HEREINAFTER DESIGNATED AS THE CONTRACTOR) WAS THE LOWEST.

IT APPEARS THAT THE CONTRACTOR IN FORWARDING ITS BID ALSO SUBMITTED FOR CONSIDERATION, AS SET FORTH IN ITS LETTER OF JANUARY 10, 1923, THE SUGGESTION THAT THE PROPOSED CHANNEL BE SHIFTED SOMEWHAT TO THE SOUTH AND THE SURPLUS DREDGING MATERIAL BE PERMITTED TO BE DUMPED IN AN AREA TO THE SOUTH AND EAST OF THE PROPOSED BULKHEAD, AND IN EXPLANATION THEREOF STATED:

IF YOU CAN CHANGE THE CHANNEL AS SHOWN, THUS AVOIDING THE ROCK EXCAVATION ESPECIALLY THAT ON THE SLOPES, AND PERMIT THE FORMING OF AN ISLAND OF SURPLUS DREDGED MATERIAL IN THE APPROXIMATE LOCATION SHOWN IN YELLOW CROSS PATCH, THUS SHORTENING THE DISCHARGE LINE AND ELIMINATING THE NECESSITY OF MAINTAINING A LONG PIPE LINE ON PILING BENTS, WE WILL DO THE DREDGING AT A PRICE OF FIFTEEN (15) CENTS PER CUBIC YARD FOR BOTH FILL AND WASTE. THIS CHANGE IT SEEMS TO US WOULD ELIMINATE THE BREAKWATER AND ALSO AVOID THE EXPENSIVE ROCK EXCAVATION AND AT THE SAME TIME NOT INCREASE THE QUANTITIES APPRECIABLY, BUT WOULD GIVE YOU AN ENTRANCE OF ABOUT FIVE HUNDRED FEET INSTEAD OF THE THREE HUNDRED FEET AS PROPOSED. ON A BASIS OF 1,000,000 CUBIC YARDS THIS DIFFERENCE IN PRICE OF DREDGING AT 15 CENTS, AMOUNTS TO $50,000, AND IF THE CHANGE OF THE DUMP GROUND ELIMINATES THE BREAKWATER, A FURTHER SAVING OF $28,500 WOULD BE EFFECTED.

BY LETTER DATED JANUARY 30, 1923, THE CONTRACTOR WAS INFORMED OF THE AWARD TO IT OF THE CONTRACT AS FOLLOWS:

FOR THE WORK COMPLETE (EXCLUSIVE OF DREDGING) UNDER ITEM 1, $128,500, LESS $28,500 FOR OMISSION OF BREAKWATER UNDER ITEM 3 AND FOR 400,000 CUBIC YARDS OF DREDGING TO BE DEPOSITED AS FILL BEHIND THE BULKHEADS UNDER ITEM 5, AS MODIFIED BY ITS LETTER OF JANUARY 10, 1923, SUPRA, AND ACCOMPANYING MARKED PLAN AT 15 CENTS PER CUBIC YARD. FOR VARIATION IN PILE LENGTHS, THE UNIT PRICES UNDER ITEM 4 WERE ACCEPTED.

UNDER DATE OF FEBRUARY 5, 1923, FOLLOWING RECEIPT OF THE LETTER OF JANUARY 30, 1923, THE CONTRACTOR BY TELEGRAM ADVISED THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, AS TO THE ACCEPTANCE OF THE AWARD ON ITEMS 1 AND 3, BUT DECLINED TO ACCEPT THE AWARD AS MADE FOR THE DREDGING ON THE GROUND THAT ITS ALTERNATE BID OF 15 CENTS PER CUBIC YARD WAS PREDICATED UPON ITS RECEIVING AN ORDER FOR AT LEAST 75 PERCENT OF THE AMOUNT OF DREDGING AS CONTEMPLATED BY PARAGRAPH 23 OF THE SPECIFICATIONS AND ALSO UPON THE LOCATION OF THE CHANNEL AND DUMPING GROUND BEING AS INDICATED ON THE MARKED PRINT ACCOMPANYING ITS ALTERNATE PROPOSAL. THE TELEGRAM IS AS FOLLOWS:

YOUR LETTER JANUARY THIRTIETH AWARDING NAVAL BASE ASTORIA ARRIVED TODAY. DID NOT EXPECT YOU TO APPLY DREDGING PRICE FIFTEEN CENTS NAMED IN OUR ALTERNATE PROPOSAL TO QUANTITIES OF LESS THAN SEVENTY FIVE PERCENT OF THOSE REQUIRED PER PARAGRAPH TWENTY-THREE SPECIFICATION FORTY SIX FIFTEEN. YOU HAVE SHORTENED THE DISCHARGE DISTANCE BUT CONFINED THE DREDGING TO THAT AREA, WHICH INCLUDES ALL THE CLAY AND ALSO ALL THE SHALE THAT WAS COVERED BY THE ENTIRE AREA TO BE DREDGED ON BOTH THE SPECIFICATION AND THE ALTERNATE. THE COST OF HANDLING THE CLAY AND SHALE IN THIS AREA IS TOO MUCH TO BE DISTRIBUTED INTO FOUR HUNDRED THOUSAND YARDS FOR THE PRICE YOU NAME BUT CAN BE TAKEN CARE OF AT TWENTY CENTS, WHICH IS OUR REGULAR BID PRICE, OR IF THERE WERE ANY CERTAINTY OF OUR GETTING THE BALANCE OF THE DREDGING ON THE ALTERNATE CHANNEL AT FIFTEEN CENTS WE WILL ACCEPT THE AMOUNT AWARDED SINCE THE RECORD OF BORINGS ON YOUR SHEET NUMBER SEVEN SHOWS THAT THE DREDGING NOT AWARDED TO US IS THAT PART THAT IS ALL SAND ON THE ALTERNATE CHANNEL AND THEREFORE SHOULD BE EASY DIGGING AND MAKE UP FOR THE MORE DIFFICULT MATERIAL IN YOUR AWARD. WE HAD ORIGINALLY FIGURED ON WASTING THE SHALE AND ROCK DREDGING ACCOUNT PROBABLE INABILITY TO HANDLE SAME IN THE FILL ECONOMICALLY. WE WILL ACCEPT THE FOUR HUNDRED THOUSAND YARDS OF DREDGING FOR FILL AT TWENTY CENTS OR ANY ADDITIONAL PART OF THE DREDGING ON THE PROPOSED CHANNEL AT THE SAME PRICE OR WE WILL MAKE THE FILL WITH WHATEVER MATERIAL CAN BE HANDLED WITH A SUCTION DREDGE AT FIFTEEN CENTS PER YARD MEASURED IN ORIGINAL POSITION AND DO THE BALANCE OF DIGGING TO REQUIRED DEPTH WITH DIPPER CLAM-SHELL ORANGE PEEL DREDGE AT YOUR OPTION AT COST PLUS TEN PERCENT, AS PER PARAGRAPH SEVENTEEN GENERAL SPECIFICATIONS AWARD OF ITEM ONE ONE HUNDRED TWENTY-EIGHT THOUSAND FIVE HUNDRED DOLLARS LESS TWENTY- EIGHT THOUSAND FIVE HUNDRED DOLLARS FOR OMISSION OF BREAKWATER IS SATISFACTORY TO US AND HEREBY ACCEPTED.

THE ACCEPTANCE OF JANUARY 30, 1923, WAS UNDER DATE OF FEBRUARY 17, 1923, CANCELED AND THE CONTRACT AWARDED AS BEFORE EXCEPT AS TO THE DREDGING; AS TO THIS ITEM, THE AWARD WAS FOR 800,000 CUBIC YARDS, OF WHICH APPROXIMATELY 400,000 CUBIC YARDS WERE TO BE DEPOSITED AS FILL BEHIND THE BULKHEADS AND BALANCE ON DUMPING GROUND. THE CHANNEL WAS TO BE DREDGED TO A DEPTH OF 28 FEET AND LOCATED AS PROPOSED BY THE CONTRACTOR AND THE WIDTH OF THE BASING DECREASED TO 660 FEET AS SHOWN ON THE MARKED PRINT ACCOMPANYING THE LETTER OF AWARD. THE AMENDED AWARD WAS ACCEPTED BY THE CONTRACTOR AND A FORMAL CONTRACT ENTERED INTO UNDER DATE OF FEBRUARY 17, 1923. THE SPECIFICATIONS ACCOMPANYING THE ADVERTISEMENT FOR BIDS AND THE DRAWINGS THEREIN MENTIONED, TOGETHER WITH INSTRUCTIONS RELATIVE TO FACTORY INSPECTION MENTIONED IN THE SAID PROVISIONS, WERE INCORPORATED AND MADE A PART OF THE FORMAL CONTRACT.

IN REQUESTING ALLOWANCE OF ITS CLAIM THE CONTRACTOR, THROUGH ITS ATTORNEYS, HAS FILED SEVERAL BRIEFS SETTING FORTH IN DETAIL CERTAIN ALLEGED FACTS AND ITS CONTENTIONS IN RESPECT THERETO. THE CONTENTIONS URGED THEREIN ARE, IN SUBSTANCE, THAT THE AMOUNT IS DUE AND OWING IT AS AN ADDITIONAL COMPENSATION ON ACCOUNT OF MISREPRESENTATIONS AND ERRONEOUS INFORMATION CONTAINED IN THE DRAWINGS AND SPECIFICATIONS UPON WHICH ITS BID WAS BASED, IN THAT THE MATERIALS TO BE DREDGED WERE NOT AS SHOWN BY THE BLUE PRINTS PREPARED BY THE UNITED STATES BUT CONSISTED OF A QUANTITY OF HARD MATERIAL--- SOLID ROCK, ETC.--- WHEREAS THE CONTRACT PRICE WAS BASED ON THE ASSUMPTION AND UNDERSTANDING BY THE PARTIES THAT THE DREDGING OF SOFT MATERIAL ONLY WOULD BE REQUIRED. IN OTHER WORDS, THE CONTRACTOR CONTENDS THAT THE REPRESENTATIONS MADE IN THE DRAWINGS AND SPECIFICATIONS AS TO THE CHARACTER OF THE MATERIAL TO BE REMOVED WERE REPRESENTATIONS AS TO A MATERIAL FACT, AND THAT IT RELIED ON SAME AND BELIEVED THEM TO BE TRUE AND BID ACCORDINGLY, AND THAT CERTAIN REPRESENTATIONS WERE IN EFFECT A WARRANTY, AND BECAUSE THE MATERIAL REMOVED CONSISTED OF A QUANTITY OF ROCK, THERE WAS A BREACH OF WARRANTY AND BY REASON THEREOF THE CONTRACTOR PERFORMED ADDITIONAL WORK OVER AND ABOVE THAT COVERED BY THE CONTRACT IN THE AMOUNT OF ITS CLAIM. THE QUESTIONS, THEREFORE, ARE WHETHER THE UNITED STATES IS LIABLE BY REASON OF THE STATEMENTS MADE IN THE SPECIFICATIONS, AND CAN THE CONTRACTOR RECOVER AGAINST THE UNITED STATES FOR PERFORMANCE OF THE ALLEGED EXTRA WORK EITHER ON ACCOUNT OF THE REPRESENTATIONS MADE OR BECAUSE THE ACTUAL CONDITIONS AT THE SITE OF THE WORK WERE DIFFERENT FROM THOSE SET OUT IN THE SPECIFICATIONS.

IT MAY BE STATED THAT THE BURDEN OF PROVING MISREPRESENTATIONS RESTS UPON THE PARTY MAKING THE ALLEGATIONS, IS NOT TO BE PRESUMED, AND ONE MAY NOT SIMPLY SHOW A DIFFERENT CONDITION IN SOME RESPECTS FROM THAT WHICH THE CHART OR BLUE PRINT OF BORINGS DISCLOSES AND REST HIS CLAIM UPON THE THEORY A MISREPRESENTATION MUST BE INFERRED. THERE MUST BE SOME DEGREE OF CULPABILITY ATTACHED TO THE MAKERS OF THE MAPS, CHARTS, BLUE PRINTS, ETC., EITHER THAT THEY WERE KNOWINGLY UNTRUE OR WERE PREPARED AS A RESULT OF SUCH A SERIOUS OR EGREGIOUS ERROR AS TO IMPLY BAD FAITH. MIDLAND LAND AND IMPROVEMENT COMPANY V. UNITED STATES, 58CT.CLS. 671, 683.

SUCH PARTS OF THE SPECIFICATIONS AS ARE NECESSARY IN THE CONSIDERATION OF THE QUESTIONS AT ISSUE ARE AS FOLLOWS:

GENERAL PROVISIONS:

10. EXAMINATION OF SITE.--- INTENDING BIDDERS ARE EXPECTED TO EXAMINE THE SITES OF THE PROPOSED WORK, TO INFORM THEMSELVES THOROUGHLY OF THE ACTUAL CONDITIONS AND REQUIREMENTS, AND TO FAMILIARIZE THEMSELVES WITH THE RULES AND REGULATIONS OF THE STATION AFFECTING THE WORK. FAILURE TO CONFORM WITH THE REQUIREMENTS OF THIS PARAGRAPH WILL NOT OPERATE TO RELIEVE THE CONTRACTOR OF ANY RESPONSIBILITY ARISING FROM HIS FAILURE TO INFORM HIMSELF PRIOR TO THE OPENING OF PROPOSALS RELATIVE TO SUCH CONDITIONS, REQUIREMENTS, RULES, AND REGULATIONS.

GENERAL SPECIFICATIONS:

17. SOUNDINGS AND BORINGS HAVE BEEN MADE AT THE SITE OF THE WORK BY THE GOVERNMENT, RESULTS OF WHICH ARE INDICATED. THE CONTRACTOR MAY USE THIS AND ANY OTHER PERTINENT DATA THE GOVERNMENT MAY HAVE, BUT MUST ASSUME FULL RESPONSIBILITY FOR ITS USE, AS THE GOVERNMENT DOES NOT GUARANTEE THE PRESENT DEPTH OF THE WATER NOR THE SOIL CONDITIONS TO BE ENCOUNTERED IN PILE DRIVING.

FROM AN EXAMINATION OF THESE SPECIFICATIONS IT WILL BE OBSERVED THAT THE UNITED STATES MADE NO SPECIFIC REPRESENTATIONS AS TO THE CONDITIONS AT THE SITE OF THE WORK OR THE MATERIAL TO BE DREDGED EXCEPT THAT IT WAS SHOWN ON THE BLUE PRINTS OR PLANS WHICH WERE MADE A PART OF THE SPECIFICATIONS THAT THERE WAS A SMALL ROCK AREA IN THE CHANNEL TO BE DREDGED. THE GOVERNMENT OR ITS REPRESENTATIVES DID NOT CONCEAL ANY KNOWLEDGE WHICH THEY HAD FROM THE CONTRACTOR; THE STATEMENTS WERE TRUE AS FAR AS THEY KNEW AND THEY DID NOT SPEAK WITH CERTAINTY AS TO CONDITIONS AT THE SITE OF THE WORK, BUT EXPRESSLY PLACED UPON THE CONTRACTOR RESPONSIBILITY OF ASCERTAINING AND DETERMINING FOR ITSELF THE ACTUAL CONDITIONS AND THE MATERIALS TO BE DREDGED. THE CHARACTER OF THE MATERIALS TO BE DREDGED AS SHOWN ON THE BLUE PRINTS IS NOT A WARRANTY. WHERE THERE IS NO WARRANTY, THERE CAN BE NO BREACH OF WARRANTY. IT IS WELL SETTLED THAT A WARRANTY WILL NEVER BE IMPLIED WHEN A CONTRACT EXPRESSLY STIPULATED AGAINST ITS EXISTENCE AS IN THIS CASE. 13 CORPUS JURIS 567. IN VIEW OF SUCH FACTS, THE CONTRACTOR HAS NO LEGAL CLAIM AGAINST THE UNITED STATES UPON THE GROUND THAT IT RELIED UPON THE SPECIFICATIONS AND BLUE PRINTS TO DETERMINE THE QUALITY OF MATERIAL TO BE DREDGED. TO HOLD THE GOVERNMENT LIABLE UNDER SUCH CIRCUMSTANCES AND AS HERE PRESENTED, WOULD MAKE IT INSURER OF THE UNIFORMITY OF ALL WORK AND CAST UPON IT RESPONSIBILITY FOR ALL CONDITIONS WHICH A CONTRACTOR MIGHT ENCOUNTER AND MAKE THE COST OF ITS PROJECTS AN UNKNOWN QUANTITY. MCARTHUR BROS. V. UNITED STATES, 258 U.S. 12; SEE ALSO THE VERY RECENT CASES OF FRENCH DREDGING AND WRECKING COMPANY V. UNITED STATES, 62 CT.CLS. 97; AND GEORGE F. PAWLING AND COMPANY V. UNITED STATES, NO. C-1015, IN THE COURT OF CLAIMS, BOTH DECIDED APRIL 19, 1926.

THE CONTRACTOR ALSO CONTENDS AS A BASIS FOR ALLOWANCE OF ITS CLAIM THAT THE FACTS AND CIRCUMSTANCES WERE FULLY INVESTIGATED BY A BOARD OF OFFICERS DULY AUTHORIZED AND APPOINTED BY THE NAVY DEPARTMENT FOR THE PURPOSE OF DETERMINING THE AMOUNT OF EXTRA COMPENSATION, IF ANY, THE CONTRACTOR WAS ENTITLED TO RECEIVE AND THAT SAID BOARD FOUND THAT THE CONTRACTOR WAS ENTITLED TO THE SUM OF $88,833.61. PARAGRAPH 18 OF THE CONTRACT PROVIDES AS FOLLOWS: EXTRAS.--- THE CONTRACT PRICE SHALL COVER ALL EXPENSES, OF WHATEVER NATURE OR DESCRIPTION, CONNECTED WITH THE WORK TO BE DONE UNDER THE CONTRACT. SHOULD THE CONTRACTOR AT ANY TIME CONSIDER THAT HE IS BEING REQUIRED TO FURNISH ANY MATERIAL OR LABOR NOT CALLED FOR BY THE CONTRACT, A WRITTEN ITEMIZED CLAIM FOR COMPENSATION THEREFOR MUST BE SUBMITTED BY HIM TO THE OFFICER IN CHARGE, WHO WILL REFER THE SAME AT ONCE WITH FULL REPORT AND RECOMMENDATION TO THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, FOR DECISION AND FORMAL ORDER COVERING APPROVED ITEMS, IF ANY. THE FAILURE OR NEGLECT OF THE CONTRACTOR TO PRESENT AS ABOVE HIS CLAIM FOR MATERIAL OR LABOR ALLEGED TO BE EXTRA WITHIN 60 DAYS AFTER BEING REQUIRED TO FURNISH OR PERFORM THE SAME SHALL BE DEEMED AND CONSTRUED AS A WAIVER OF ALL CLAIM AND RIGHT TO ADDITIONAL COMPENSATION FOR THE FURNISHING OR PERFORMANCE OF THE ALLEGED EXTRA MATERIAL OR LABOR, AND THE CONTRACTOR AGREES TO ACCEPT THE FINDING AND ACTION OF THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, IN THE PREMISES AS CONCLUSIVE AND BINDING.

THE REPORT OF THE BOARD OF OFFICERS WAS FORWARDED TO THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, ON APRIL 1, 1926, WHICH DISAPPROVED THE FINDINGS OF THE BOARD, STATING, IN PART, AS OLLOWS:

IN INVITING PROPOSALS FOR THE WORK UNDER SPECIFICATION 4615 THE GOVERNMENT, WHILE MAKING AVAILABLE TO INTENDING BIDDERS ALL INFORMATION IN ITS POSSESSION AS TO CONDITIONS AT THE SITE, GAVE EXPRESS EVIDENCE THAT SUCH USE OF IT AS THE CONTRACTOR MIGHT MAKE WOULD BE AT HIS OWN RISK, AS ITS ACCURACY WAS NOT GUARANTEED, AND THAT INTENDING BIDDERS WERE EXPECTED TO SATISFY THEMSELVES AS TO EXISTING CONDITIONS BY PERSONAL EXAMINATION OF THE SITE. THE CONTRACT LATER EXECUTED PROVIDED FOR THE DREDGING OF CERTAIN AREAS TO SPECIFIED DEPTHS FOR A CERTAIN UNIT PRICE WITHOUT DISTINCTION AS TO THE CHARACTER OF MATERIAL REMOVED. THE ROCK, FOR WHICH THE CLAIM IS MADE, WAS ENCOUNTERED WITHIN THE LIMITS OF THE AREAS AND DEPTHS REQUIRED TO BE DREDGED, AND IT DOES NOT APPEAR THAT ITS PRESENCE THERE WAS IN FACT AT VARIANCE WITH CONDITIONS AS ACTUALLY SHOWN ON THE DRAWINGS OR SPECIFIED.

UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR AGREED TO ACCEPT THE DETERMINATION OF THE NAVY DEPARTMENT, BUREAU OF YARDS AND DOCKS, AS TO WHETHER IT (THE CONTRACTOR) WAS ENTITLED TO ADDITIONAL COMPENSATION FOR EXTRAS. THEREFORE THE FINDINGS SO MADE ARE FINAL AND CONCLUSIVE UPON THE CONTRACTOR. SEE UNITED STATES V. GLEASON, 175 U.S. 588.

WITH REFERENCE TO THE AMOUNT OF $4,425 DEDUCTED AS LIQUIDATED DAMAGES ON ACCOUNT OF 59 DAYS' DELAY IN COMPLETION OF THE WORK, THE REQUEST FOR AN EXTENSION OF TIME IS BASED ON THE GROUND THAT ROCK AREAS WERE ENCOUNTERED WHICH CAUSED EXTRA WORK. IT BEING DETERMINED THAT THERE WAS NO EXTRA WORK OVER AND ABOVE THAT REQUIRED BY THE TERMS OF THE CONTRACT AND SPECIFIC PROVISION HAVING BEEN MADE IN THE CONTRACT FOR THE DEDUCTION OF LIQUIDATED DAMAGES IN EVENT OF DELAY IN COMPLETION OF THE WORK, IT WOULD NECESSARILY FOLLOW THAT DEDUCTION THEREOF WAS PROPER.

UPON REVIEW, NO DIFFERENCES ARE FOUND AND THE DISALLOWANCE OF THE CLAIM IS SUSTAINED. HOWEVER, PAYMENT OF $19,731.71 REPRESENTING RETAINED PERCENTAGES WILL BE WITHHELD PENDING RECEIPT OF A FINAL RELEASE EXECUTED BY THE CONTRACTOR IN ACCORDANCE WITH PARAGRAPH 43 OF THE GENERAL PROVISIONS OF THE CONTRACT RELEASING THE UNITED STATES FROM ANY AND ALL CLAIMS UNDER OR BY VIRTUE OF THE CONTRACT OF FEBRUARY 17, 1923.