A-16302, MAY 3, 1927, 6 COMP. GEN. 714

A-16302: May 3, 1927

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THE QUANTITY OF MATERIALS TO BE REMOVED THEREFROM WAS INDICATED AND PAYMENTS LIMITED TO THAT CONTAINED IN THE CROSS SECTIONAL "B" LINE. THE UNITED STATES IS NOT. 348.50 COVERING THE COST OF EXTRA WORK NECESSITATED BY A CAVE-IN OF A TUNNEL THAT WAS BEING CONSTRUCTED UNDER CONTRACT OF AUGUST 20. A CAVE-IN OCCURRED WHERE THE GROUND SURFACE WAS ABOUT 130 FEET ABOVE THE INVERT OF THE TUNNEL. WHICH FINALLY REACHED THE SURFACE AND WAS NOT STOPPED UNTIL JANUARY 17. THE CLAIM IS FOR THE REMOVAL OF THE EXTRA YARDAGE OF MATERIAL DUE TO THE CAVE-IN AND IS MADE ON THE BASIS OF THE CONTRACT PRICE OF $11.50 PER CUBIC YARD FOR THE REMOVAL OF SUCH MATERIAL EVEN THOUGH IT IS OF EVIDENCE THAT THE ACTUAL ENTIRE COST THEREOF.

A-16302, MAY 3, 1927, 6 COMP. GEN. 714

CONTRACTS - EXTRA WORK WHERE UNDER THE SPECIFICATIONS OF A CONTRACT FOR THE CONSTRUCTION OF A TUNNEL IN CONNECTION WITH A PROJECT FOR INCREASING THE WATER SUPPLY FOR THE DISTRICT OF COLUMBIA, THE QUANTITY OF MATERIALS TO BE REMOVED THEREFROM WAS INDICATED AND PAYMENTS LIMITED TO THAT CONTAINED IN THE CROSS SECTIONAL "B" LINE, THE UNITED STATES IS NOT, IN THE ABSENCE OF A SPECIFIC PROVISION IN THE CONTRACT COVERING SUCH A CONTINGENCY, LIABLE FOR THE COST OF REMOVING ADDITIONAL MATERIALS CAUSED BY A CAVE-IN IN THE ROOF OF THE TUNNEL.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 3, 1927:

THE M. A. LONG CO. REQUESTED MARCH 18, 1927, REVIEW OF SETTLEMENT NO. 0130461, DATED NOVEMBER 5, 1926, DISALLOWING ITS CLAIM FOR $53,348.50 COVERING THE COST OF EXTRA WORK NECESSITATED BY A CAVE-IN OF A TUNNEL THAT WAS BEING CONSTRUCTED UNDER CONTRACT OF AUGUST 20, 1923, IN CONNECTION WITH A PROJECT FOR INCREASING THE WATER SUPPLY FOR THE DISTRICT OF COLUMBIA.

FROM THE EVIDENCE OF RECORD IT APPEARS THAT ON OCTOBER 11, 1924, WHEN THE WORK IN THE TUNNEL SECTION OF THE AQUEDUCT THEN BEING CONSTRUCTED HAD PROGRESSED TO A POINT ABOUT 1,250 FEET SOUTH OF THE NORTH END OF THE TUNNEL, A CAVE-IN OCCURRED WHERE THE GROUND SURFACE WAS ABOUT 130 FEET ABOVE THE INVERT OF THE TUNNEL, WHICH FINALLY REACHED THE SURFACE AND WAS NOT STOPPED UNTIL JANUARY 17, 1925, NECESSITATING THE REMOVAL OF 4,639 CUBIC YARDS OF DIRT, LOOSE ROCK, ETC. THE CONTRACTOR STATES THAT ABOUT MIDNIGHT ON THE DATE MENTIONED ITS FOREMAN NOTICED DRIPPING AND SCALING FROM THE ROOF OF THE TUNNEL SECTION AT ABOUT STATION 12 PLUS 25 AND IMMEDIATELY ORDERED HIS MEN FROM THE HEADING SOME 30 OR MORE FEET BEYOND THAT STATION AND THAT THE MEN HAD HARDLY CLEARED THE STATION IN QUESTION WHEN THE TUNNEL ROOF FELL, COMPLETELY FILLING THE TUNNEL SECTION.

THE CLAIM IS FOR THE REMOVAL OF THE EXTRA YARDAGE OF MATERIAL DUE TO THE CAVE-IN AND IS MADE ON THE BASIS OF THE CONTRACT PRICE OF $11.50 PER CUBIC YARD FOR THE REMOVAL OF SUCH MATERIAL EVEN THOUGH IT IS OF EVIDENCE THAT THE ACTUAL ENTIRE COST THEREOF, INCLUDING LABOR, MATERIALS, SUPERINTENDENT'S SALARY, MISCELLANEOUS EXPENSES, AND GENERAL OVERHEAD, AMOUNTED TO $24,953.70 ONLY.

THE PARAGRAPHS OF THE SPECIFICATIONS TO THE CONTRACT THAT ARE MATERIAL AND HAVE A BEARING ON THE QUESTION OF THE RESPONSIBILITY OF THE CONTRACTING PARTIES FOR THE REPAIRING OF THE DAMAGE CAUSED BY THE CAVE-IN IN THE TUNNEL READ AS FOLLOWS:

19. GEOLOGICAL FORMATION.--- BIDDERS WILL BE PERMITTED TO EXAMINE SUCH DATA AS HAVE BEEN COLLECTED BY THE CONTRACTING OFFICER REGARDING THE FORMATION ALONG THE LINE OF THE WORK. THEY ARE EXPECTED, HOWEVER, TO DETERMINE FOR THEMSELVES THE NATURE OF THE FORMATION, TO CHECK THE DATA COLLECTED BY THE CONTRACTING OFFICER AND TO ASSURE THEMSELVES REGARDING THE FORMATION THROUGH WHICH THEIR WORK WILL BE CARRIED AND ANY DISCREPANCIES BETWEEN THE NATURE OF THE FORMATION AS IT ACTUALLY EXISTS AND AS INDICATED BY THE DATA GIVEN BY THE CONTRACTING OFFICER WILL NOT BE RECOGNIZED AS VALID GROUNDS FOR ANY CLAIM AGAINST THE UNITED STATES FOR COMPENSATION OVER AND ABOVE THE PRICE NAMED IN THEIR BIDS.

31. REFERENCE LINES FOR TUNNELS.--- THE REFERENCE LINES DESIGNATED AS "A," "B," AND "C" LINES ON THE DRAWINGS SHOWING THE CROSS SECTIONS OF THE TUNNELS HAVE THE FOLLOWING SIGNIFICANCE: * * *

THE "B" LINE DEFINES THE LIMITS OF EXCAVATION TO BE PAID FOR REGARDLESS OF THE AMOUNT OF MATERIAL REMOVED OUTSIDE OF THAT LINE.

32. SUPERVISION.--- THE WORK WILL BE CARRIED ON UNDER THE GENERAL DIRECTION AND SUPERVISION OF THE CONTRACTING OFFICER WHO WILL EMPLOY INSPECTORS FOR THE WORK. * * * THE PRESENCE OF AN INSPECTOR SHALL NOT RELIEVE THE CONTRACTOR OR HIS RESPONSIBLE AGENT * * * OF ANY RESPONSIBILITY FOR THE PROPER EXECUTION OF THE WORK.

47. PRICES.--- THE PRICES STATED IN THE PROPOSAL SHALL BE PAID AND ACCEPTED AS FULL COMPENSATION FOR FURNISHING ALL MATERIALS AND FOR DOING ALL THE WORK CONTEMPLATED AND SPECIFIED IN THE CONTRACT, AS WELL AS FOR ALL LOSS OR DAMAGE ARISING FROM THE ACTION OF THE ELEMENTS OR FOR UNFORSEEN CONDITIONS OR DIFFICULTIES WHICH MAY ARISE IN THE PROSECUTION OF THE WORK.

THE ABOVE-MENTIONED PRICES SHALL COVER THE COST AND FURNISHING BY THE CONTRACTOR OF ALL PLANT, TOOLS, LABOR, AND MATERIALS OF EVERY KIND THAT ARE FURNISHED OR NEEDED TO COMPLETE THE ENTIRE WORK FOR MAKING ALL NEEDED REPAIRS TO THE WORK AND FOR MAINTAINING IT IN A SATISFACTORY CONDITION UNTIL THE FINAL PAYMENT IS MADE. SUCH PRICES SHALL ALSO COVER ALL ROYALTIES FOR PATENTS AND PATENTED MATERIALS, APPLIANCES AND PROCESSES USED IN THE WORK.

54. SHEETING AND BRACING.--- SHEETING AND BRACING SHALL BE PROVIDED AND PLACED TO SUPPORT SIDES OF EXCAVATIONS IN OPEN CUTS WHEREVER THEY ARE CONSIDERED NECESSARY AND REQUIRED BY THE CONTRACTING OFFICER FOR THE PROPER PROTECTION OF EITHER THE NEW OR PRESENT OLD WORK. * * *

THE CONTRACTOR SHALL ASSUME ALL RESPONSIBILITY FOR ANY DAMAGE THAT MAY BE CAUSED EITHER THROUGH ANY WEAKNESS IN SUCH SHEETING AND BRACING PLACED BY HIM OR BY HIS FAILURE TO PLACE SUCH SHEETING AND BRACING, AND HE SHALL PROMPTLY REPAIR SUCH DAMAGE AT HIS OWN EXPENSE.

56. EXCAVATION IN TUNNELS.--- THE EXCAVATION UNDER THIS SECTION INCLUDES ALL THE WORK OF THIS CLASS NECESSARY IN THE TUNNELS AND IN THE DRAINAGE TUNNELS THEREFROM. THE EXCAVATION SHALL BE MADE WITHIN THE PRESCRIBED LIMITS AS SHOWN ON THE DRAWING AND AS DESCRIBED IN THESE SPECIFICATIONS. THE CONTRACTOR SHALL MAKE ALL EXCAVATION IN ACCORDANCE WITH REFERENCE LINES "A," ,B," AND "C" AS SHOWN ON THE DRAWING AND DESCRIBED IN PARAGRAPH NUMBER THIRTY-ONE (31), BUT WITH THE UNDERSTANDING THAT NO EXCAVATION REMOVED BEYOND THE "B" LINE WILL BE PAID FOR. * * * WHERE IT IS NECESSARY TO SUPPORT THE EXCAVATION IN THE TUNNEL AND WHEN REQUIRED BY THE CONTRACTING OFFICER, THE CONTRACTOR SHALL DO ALL TIMBERING NECESSARY TO PROTECT THE EXCAVATION UNTIL AFTER THE CONCRETE MASONRY LINING HAS BEEN PUT IN PLACE. * * *

* * * THE ACTUAL AMOUNT OF MATERIAL EXCAVATED WITHIN THE "B" LINE WILL BE PAID FOR BY THE CUBIC YARD AT THE PRICE BID BY THE CONTRACTOR, WHICH SHALL INCLUDE THE ENTIRE COST FOR EXCAVATING AND ALL OTHER ITEMS MENTIONED ABOVE.

IT IS UNDER THAT PART OF PARAGRAPH 36 OF THE SPECIFICATIONS PROVIDING THAT TO COVER CASES IN WHICH DIFFICULT OR UNFORESEEN CONDITIONS MAY ARISE DURING THE PROGRESS OF THE WORK THE CONTRACTING OFFICER "SHALL GIVE ALL ORDERS AND DIRECTIONS NECESSARY; " UNDER THAT PART OF PARAGRAPH 54 MAKING IT THE DUTY OF THE CONTRACTOR TO PROVIDE AND PLACE SHEETING AND BRACING TO SUPPORT THE SIDES OF EXCAVATIONS IN OPEN CUTS "WHEREVER THEY ARE CONSIDERED NECESSARY AND REQUIRED BY THE CONTRACTING OFFICER; " AND UNDER THAT PART OF PARAGRAPH 56 OBLIGATING THE CONTRACTOR TO DO NECESSARY TIMBERING TO PROTECT THE TUNNEL EXCAVATION UNTIL AFTER MASONRY HAD BEEN PUT IN PLACE WHERE ,NECESSARY TO SUPPORT THE EXCAVATION IN THE TUNNEL AND WHEN REQUIRED BY THE CONTRACTING OFFICER" THAT THE CONTENTION IS BASED THAT THERE WAS NO LIABILITY ON THE CONTRACTOR TO PERFORM THE EXTRA WORK CAUSED BY THE CAVE-IN WITHOUT ADDITIONAL COMPENSATION THEREFOR, IT BEING CONTENDED THAT THE UNITED STATES BY MEANS OF THESE PROVISIONS OF THE SPECIFICATIONS, THROUGH THE CONTRACTING OFFICER, RESERVED THE RIGHT TO DETERMINE DIFFICULT OR UNFORESEEN CONDITIONS ARISING DURING THE PERFORMANCE OF THE WORK, WHETHER AND WHEN THE PLACING OF SHEETING AND BRACING FOR THE PROPER PROTECTION OF THE NEW OR PRESENT OLD WORK ARE NECESSARY AND THE NECESSITY FOR, AND THE ORDERING OF, TIMBERING TO PROTECT THE EXCAVATION IN THE TUNNEL.

BY DECISION A-16302, DATED MARCH 7, 1927, THIS OFFICE DETERMINED THAT THE CONTRACTOR WAS ENTITLED UNDER ARTICLE 5 OF THE CONTRACT, PROVIDING FOR AN EXTENSION OF TIME FOR DELAYS WHICH IN THE JUDGMENT OF THE CONTRACTING OFFICER, APPROVED BY THE CHIEF OF ENGINEERS, SHOULD BE LOST THROUGH UNFORESEEABLE CAUSE OF DELAY ARISING THROUGH NO FAULT OF THE CONTRACTOR, TO THE REMISSION OF COSTS OF SUPERINTENDENCE AND INSPECTION DEDUCTED FROM PAYMENTS OTHERWISE DUE THE CONTRACTOR BY REASON OF DELAY IN THE COMPLETION OF THE WORK CAUSED BY THE SAME CAVE IN FOR WHICH THE INSTANT CLAIM IS MADE, BUT THE RIGHT OF THE CONTRACTOR TO PAYMENT OF THE AMOUNT CLAIMED FOR EXTRA WORK BY REASON OF THE CAVE-IN IS DEPENDENT UPON THE OBLIGATIONS IT ASSUMED UNDER THE PROVISIONS OF THE SPECIFICATIONS WITH RESPECT TO THE CONSTRUCTION OF THE TUNNEL WHEREIN THE CAVE-IN OCCURRED.

THE ENGINEER OFFICERS OF THE ARMY, UNDER WHOSE DIRECTION AND SUPERVISION THE CONSTRUCTION WORK WAS PERFORMED, HAVE REPORTED THAT WHILE THE EXTRA WORK AND EXPENSE DUE TO THE CAVE-IN WERE ENTIRELY UNFORESEEN AND NO PROVISION WAS MADE IN THE SPECIFICATION FOR SUCH A CONTINGENCY, THE SPECIFICATIONS WERE INTENDED TO PROVIDE AGAINST THE UNITED STATES BEING HELD LIABLE AND WERE DRAWN UP WITH THE IDEA OF PROTECTING THE UNITED STATES AGAINST A CONTINGENCY OF THAT KIND; AND THEY HAVE EXPRESSED THE VIEW THAT THE SPECIFICATIONS CLEARLY MAKE THE CONTRACTOR RESPONSIBLE FOR THE CONDUCT AND SAFETY OF THE WORK, INCLUDING TIMBERING IN THE TUNNEL AND SHAFTS, AND DEFINE THE LIMITS TO WHICH TUNNEL EXCAVATION WOULD BE PAID FOR REGARDLESS OF THE AMOUNT OF MATERIAL REMOVED OUTSIDE OF THE DEFINED LIMITS. THE STATEMENTS AND VIEWS OF THAT DEPARTMENT IN REGARD TO THE MERITS OF THE CLAIM FOR EXTRA WORK AND TO THE INTENT OF THE SPECIFICATIONS IN REGARD THERETO WHILE NOT CONTROLLING, NEVERTHELESS ARE PERTINENT AS SHOWING THE ADMINISTRATIVE INTENT AND THE CONSTRUCTION THAT HAS BEEN PLACED UPON THE SPECIFICATIONS TO THE CONTRACT BY ADMINISTRATIVE AUTHORITIES.

ACCORDING TO THE ARGUMENT PRESENTED BY THE CONTRACTOR IN SUPPORT OF ITS CONTENTIONS, THE DUTY OF DETERMINING THE NECESSITY FOR AND DECIDING WHEN THE TUNNEL EXCAVATION SHOULD HAVE BEEN SUPPORTED BY TIMBERING WAS ON THE UNITED STATES THROUGH ITS AGENT, THE CONTRACTING OFFICER. THE PROVISIONS OF PARAGRAPH 54 OF THE SPECIFICATIONS TO WHICH REFERENCE IS MADE BY THE CONTRACTOR, PERTAIN TO THE SHEETING AND BRACING OF SIDES OF EXCAVATION IN OPEN CUTS AND HAVE NO APPLICATION HERE. THE PROVISIONS OF PARAGRAPH 36 OF THE SPECIFICATIONS, RESERVING TO THE CONTRACTING OFFICER THE RIGHT TO GIVE ORDERS AND DIRECTIONS WHEN DIFFICULT OR UNFORESEEN CONDITIONS AROSE, AND OF PARAGRAPH 56, REQUIRING THE PLACING OF TIMBERING IN THE TUNNEL EXCAVATION WHEN NECESSARY FOR ITS SUPPORT AND WHEN REQUIRED BY THE CONTRACTING OFFICER, DID NOT IN ANY WAY OPERATE TO LESSEN THE CONTRACTOR'S RESPONSIBILITY OR RELIEVE THE CONTRACTOR FROM DETERMINING FOR ITSELF WHEN SUCH A NECESSITY AROSE, NOR WAS THE CONTRACTOR EXCUSED OR RELIEVED BY THOSE PROVISIONS FOR FAILING TO DO TIMBERING WHENEVER IT MIGHT APPEAR TO BE NECESSARY, WITHOUT SPECIFIC DIRECTIONS FROM THE CONTRACTING OFFICER. THE PHRASE "WHERE IT IS NECESSARY TO SUPPORT THE EXCAVATION IN THE TUNNEL AND WHEN REQUIRED BY THE CONTRACTING OFFICER," AS USED IN PARAGRAPH 56 OF THE SPECIFICATIONS COVERING THE EXCAVATION WORK IN THE TUNNEL, REFERS TO TWO SEPARATE AND DISTINCT CONDITIONS OR SITUATIONS AND MADE IT THE DUTY OF THE CONTRACTOR TO DETERMINE THE NECESSITY FOR THE TIMBERING AND TO PLACE TIMBER IN SECTIONS OF THE TUNNEL THAT APPEARED TO NEED SUCH SUPPORT AS WELL AS TO DO THE TIMBERING WHEN REQUIRED BY THE CONTRACTING OFFICER. THIS VIEW IS SUPPORTED BY THE PROVISION IN PARAGRAPH 31 OF THE SPECIFICATIONS STIPULATING THAT THE PRESENCE OF AN INSPECTOR SHOULD NOT RELIEVE THE CONTRACTOR OR HIS RESPONSIBLE AGENT OF ANY RESPONSIBILITY FOR THE PROPER EXECUTION OF THE WORK.

PARAGRAPH 19 OF THE SPECIFICATIONS PERMITTED THE CONTRACTOR, BEFORE SUBMITTING ITS BID, TO EXAMINE SUCH DATA REGARDING THE GEOLOGICAL FORMATION ALONG THE LINE OF THE WORK AS HAD BEEN COLLECTED BY THE CONTRACTING OFFICER, BUT ADMONISHED IT AND OTHER BIDDERS TO DETERMINE FOR THEMSELVES THE NATURE OF THE FORMATION THROUGH WHICH THE WORK WOULD BE CARRIED AS ANY DISCREPANCIES BETWEEN THE FORMATION AS IT ACTUALLY EXISTED AND AS INDICATED BY SUCH DATA WOULD NOT BE RECOGNIZED AS VALID GROUNDS FOR COMPENSATION OVER AND ABOVE THE PRICE NAMED IN THEIR BIDS. PARAGRAPH 31 PRESCRIBED THE LIMITS OF EXCAVATION, DESIGNATED AS THE CROSS SECTIONAL "B" LINE, THAT WOULD BE PAID FOR REGARDLESS OF THE AMOUNT OF MATERIAL REMOVED OUTSIDE OF THAT LINE. PARAGRAPH 47 STIPULATED THAT THE PRICES STATED IN THE PROPOSAL SHOULD BE PAID AND ACCEPTED AS FULL COMPENSATION FOR FURNISHING MATERIALS AND DOING ALL THE CONTEMPLATED WORK SPECIFIED IN THE CONTRACT AS WELL AS FOR ALL LOSS OR DAMAGE ARISING FROM THE ACTION OF THE ELEMENTS OR FOR UNFORESEEN CONDITIONS OR DIFFICULTIES WHICH MIGHT ARISE IN THE PROSECUTION OF THE WORK; AND PARAGRAPH 56, COVERING THE EXCAVATION IN THE TUNNEL, SPECIFIED THAT THE ACTUAL AMOUNT EXCAVATED WITHIN THE "B" LINE WOULD BE PAID FOR AT THE PRICE BID BY THE CONTRACTOR WHICH WOULD INCLUDE THE ENTIRE COST FOR EXCAVATING AND ALL OTHER ITEMS MENTIONED IN THAT PARAGRAPH.

FROM THE PROVISIONS OF THE SPECIFICATIONS HEREIN REFERRED TO THE INTENT TO LIMIT THE LIABILITY OF THE UNITED STATES STRICTLY TO COSTS FOR EXCAVATING IN THE TUNNEL AND REMOVING MATERIALS THUS EXCAVATED WITHIN THE LIMITS OF THE "B" LINE ONLY, IS PLAINLY APPARENT. THE RESPONSIBILITY OF DETERMINING THE NATURE OF THE GEOLOGICAL FORMATIONS THAT MIGHT BE ENCOUNTERED ALONG THE LINE WHERE THE TUNNEL WAS TO BE LOCATED WAS THAT OF THE CONTRACTOR, AND SUCH DATA AS HAD BEEN COLLECTED BY THE CONTRACTING OFFICER WAS AVAILABLE TO THE CONTRACTOR TO ASSIST IT IN ARRIVING AT HIS OWN CONCLUSION REGARDING THE FORMATIONS. THE CAUSE OF THE CAVE-IN IS STATED TO HAVE BEEN OF SUCH A NATURE THAT IT WOULD NOT HAVE BEEN FORESEEN, BUT THAT WAS A CONTINGENCY THE CONTRACTOR ASSUMED SINCE NO APT PROVISION PROTECTING ITSELF AGAINST SUCH A CONTINGENCY WAS INCORPORATED IN THE CONTRACT, AND AS A CONSEQUENCE OF ITS FAILURE TO SO PROTECT ITSELF, IT ASSUMED THAT RISK AND THE LIABILITY OF THE UNITED STATES IN THE MATTER CAN NOT BE ENLARGED BY REASON OF SUCH FAILURE. SEE DERMOTT V. JONES, 2 WALL. 1, AND DECISIONS A-4356, OF APRIL 23, 1926, AND A-5759, OF APRIL 24, 1925, OF THIS OFFICE.

THE POSSIBILITY THAT THE CAVE-IN MAY HAVE BEEN CAUSED BY THE GOVERNMENT ENGINEER DRIVING A CENTER PLUG IN THE ROOF OF THE TUNNEL AT THE POINT WHERE THE CAVE-IN STARTED, HAS ALSO BEEN SUGGESTED BY THE CONTRACTOR, IT BEING STATED THAT THE PROBABILITY IS THAT IN DRIVING THE PLUG THE KEY OF THE ROOF WAS DISTURBED GIVING THE WATER IN THE SOIL AN OPPORTUNITY TO START DRIPPING THROUGH; BUT THE PROBABILITY OF SUCH BEING THE CAUSE OF THE CAVE-IN IS SO REMOTE AS NOT TO DESERVE SERIOUS CONSIDERATION AND, BESIDES, THE MERE PROBABILITY THAT THE CAVE-IN MIGHT HAVE BEEN SO CAUSED CAN NOT BE MADE THE BASIS FOR PAYING THE CLAIM BECAUSE, SINCE THE CONTRACT DOES NOT PROVIDE FOR THE PAYMENT UNDER SUCH CIRCUMSTANCES, THE CLAIM WOULD BE IN THE NATURE OF A CLAIM FOR DAMAGES RESULTING FROM THE ACTION OF AN OFFICER OR AGENT OF THE GOVERNMENT AND THE BURDEN WOULD BE UPON THE CLAIMANT TO ESTABLISH THE VALIDITY OF ITS CLAIM.