A-36628, JUNE 26, 1931, 10 COMP. GEN. 557

A-36628: Jun 26, 1931

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THE CONTRACTOR IS NOT ENTITLED TO FURTHER PAYMENT ON THE BASIS OF AN EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE UNDER THE PROVISIONS OF ARTICLE 4 OF THE STANDARDIZED GOVERNMENT CONSTRUCTION CONTRACT. AS IT IS NOT SHOWN THAT THE SUBSURFACE CONDITIONS DIFFERED MATERIALLY FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED BY THE SPECIFICATIONS. 1931: REFERENCE IS MADE TO YOUR LETTER OF MAY 11. ATTACHED HERETO ARE PHOTOSTAT COPIES OF THE CORRESPONDENCE EXCHANGED WITH THE CONTRACTOR ON THIS SUBJECT. FOLLOWING IS A BRIEF SUMMARY OF THE CONDITIONS AND OPERATIONS APPERTAINING TO THIS CLAIM: AT ABUTMENT NO. 5. THE ABUTMENT ON THE COLUMBIA ISLAND SIDE OF THE BOUNDARY CHANNEL) A LAYER OF GRAVEL AND BOULDERS AVERAGING ABOUT SEVEN FEET IN THICKNESS WAS ENCOUNTERED.

A-36628, JUNE 26, 1931, 10 COMP. GEN. 557

CONTRACTS - CHANGED CONDITIONS - EXTRA COMPENSATION WHERE IN EXCAVATING FOR THE ABUTMENTS AND PIERS OF A BRIDGE, THE CONTRACTOR ENCOUNTERED BEDROCK AT SUBSTANTIALLY THE LEVELS SHOWN BY THE CONTRACT DRAWINGS BUT THEREAFTER HAD TO EXCAVATE LARGER QUANTITIES OF DECOMPOSED ROCK AND BOULDERS FORMING A PART OF THE BEDROCK THAN HAD BEEN ANTICIPATED TO SECURE SUITABLE BEARINGS FOR THE FOUNDATIONS, FOR WHICH WORK EXTRA PAYMENT HAS BEEN MADE IN ACCORDANCE WITH THE SPECIFICATIONS, THE CONTRACTOR IS NOT ENTITLED TO FURTHER PAYMENT ON THE BASIS OF AN EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE UNDER THE PROVISIONS OF ARTICLE 4 OF THE STANDARDIZED GOVERNMENT CONSTRUCTION CONTRACT, AS IT IS NOT SHOWN THAT THE SUBSURFACE CONDITIONS DIFFERED MATERIALLY FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED BY THE SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO LIEUT. COL. U. S. GRANT, 3D, EXECUTIVE OFFICER, ARLINGTON MEMORIAL BRIDGE COMMISSION, JUNE 26, 1931:

REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1931, AS FOLLOWS:

THE N. P. SERVER IN COMPANY (GENERAL CONTRACTOR FOR THE BOUNDARY CHANNEL BRIDGE OF THE ARLINGTON MEMORIAL BRIDGE PROJECT) HAS PRESENTED A CLAIM IN THE AMOUNT OF $162,901.70 TO COVER ALLEGED ADDITIONAL COSTS INCURRED BY HIM AS A RESULT OF INCREASED DEPTH OF THE FOUNDATIONS FOR THIS BRIDGE MADE NECESSARY BY THE EXISTENCE OF A LAYER OF UNSUITABLE MATERIAL WHICH HAD TO BE EXCAVATED AND REPLACED WITH CONCRETE IN ORDER TO SECURE SATISFACTORY FOUNDATIONS FOR THAT STRUCTURE. ATTACHED HERETO ARE PHOTOSTAT COPIES OF THE CORRESPONDENCE EXCHANGED WITH THE CONTRACTOR ON THIS SUBJECT.

FOLLOWING IS A BRIEF SUMMARY OF THE CONDITIONS AND OPERATIONS APPERTAINING TO THIS CLAIM: AT ABUTMENT NO. 5, (I.E., THE ABUTMENT ON THE COLUMBIA ISLAND SIDE OF THE BOUNDARY CHANNEL) A LAYER OF GRAVEL AND BOULDERS AVERAGING ABOUT SEVEN FEET IN THICKNESS WAS ENCOUNTERED. THE BORINGS WHICH HAD BEEN MADE BEFORE THE CONTRACT WAS ADVERTISED HAD APPARENTLY STRUCK THE BOULDERS AND THIS LAYER OF GRAVEL WAS ACCORDINGLY INDICATED ON THE CONTRACT DRAWINGS AS THE TOP OF ROCK. THE MINOR PIERS AND THE FOUNDATION CYLINDERS ON THE COLUMBIA ISLAND SIDE ALSO HAD TO BE EXTENDED THROUGH THE SAME GRAVEL AND HAD TO BE CARRIED DEEPER THAN SHOWN ON THE CONTRACT DRAWINGS.

AT ABUTMENT 6 (I.E., THE ABUTMENT ON THE VIRGINIA SIDE OF THE BOUNDARY CHANNEL) THE ROCK INDICATED ON THE CONTRACT DRAWINGS WAS FOUND UPON BEING UNCOVERED, TO BE DECOMPOSED AND TRAVERSED WITH LAYERS OF SOFT MUD. IT WAS NECESSARY TO REMOVE THIS MATERIAL TO A DEPTH OF FROM 8 TO 12 FEET BEFORE A SUITABLE BEARING WAS FOUND. THE MINOR PIERS AND FOUNDATION CYLINDERS ON THE VIRGINIA SHORE WERE ALSO CARRIED DOWN DEEPER THAN WAS ORIGINALLY ANTICIPATED BECAUSE OF THIS SAME DECOMPOSED ROCK.

THE CONDITION AT BOTH ABUTMENTS WAS OF COURSE ENTIRELY UNSUSPECTED BY THE CONTRACTING OFFICER. NO SUCH CONDITIONS WERE FOUND AT ANY OF THE FOUR ABUTMENTS AND SIX PIERS OF THE MAIN BRIDGE PREVIOUSLY BUILT. HOWEVER, THE POSSIBILITY OF SUCH AN EVENTUALITY HAD BEEN FORESEEN AND AN EFFORT TO PROVIDE FOR IT WAS MADE IN PARAGRAPH 48 OF THE SPECIFICATIONS IN CONJUNCTION WITH ARTICLE 4 OF THE CONTRACT. THE USUAL TEST PROBINGS WERE MADE, AND THE DEPTH TO THE TOP SURFACE OF THE BEDROCK OR GRAVEL AS FOUND IN THE EXCAVATIONS AGREED WITH THAT DISCLOSED BY THE PROBINGS.

IN THE OPINION OF THE ENGINEERS OF THIS COMMISSION, THE ADDITIONAL WORK NECESSITATED BY THE CONDITIONS AS FOUND WAS NOT UNUSUALLY DIFFICULT; IN FACT, AS FOUNDATION WORK GOES, IT WAS RELATIVELY EASY BECAUSE NO SUBSURFACE WATER WAS ENCOUNTERED EXCEPT THAT FROM SEEPAGE, WHICH WAS HANDLED BY ONE OR TWO SMALL ELECTRICALLY DRIVEN PUMPS. IN THE EXCAVATION FOR ABUTMENT NO. 5, WHERE THE GRAVEL WAS FOUND, CONSIDERABLE EXTRA SHEETING AND BRACING WERE NECESSARY, BUT IN NO GREATER AMOUNTS THAN WOULD BE REQUIRED IN ORDINARY FOUNDATION EXCAVATIONS OF THE SAME DEPTH. ABUTMENT NO. 6, THE SOFT ROCK WAS FIRM ENOUGH TO STAND ALONE SO THAT LITTLE OR NO ADDITIONAL BRACING WAS NECESSARY.

HOWEVER, IT SHOULD BE SAID IN FAVOR OF THE CONTRACTOR THAT THE CONDITION ENCOUNTERED WAS AS UNSUSPECTED BY HIM AS IT WAS BY THE ENGINEERS OF THIS OFFICE, AND THE EXPERIENCE WITH OTHER NEARBY FOUNDATION WORK PREVIOUSLY DONE JUSTIFIED THE ASSUMPTION THAT SIMILAR CONDITIONS WOULD BE FOUND HERE. HE WAS NECESSARILY PUT TO CONSIDERABLY GREATER EXPENSE IN MAKING THE ADDITIONAL EXCAVATION AND IN PLACING THE ADDITIONAL CONCRETE THAN MIGHT HAVE BEEN INVOLVED HAD THE CONDITIONS BEEN KNOWN BEFORE THE WORK WAS STARTED. THE NECESSITY FOR THE EXTRA BRACING WAS NOT KNOWN UNTIL COFFERDAMS HAD BEEN BUILT TO CONFORM TO THE CONDITIONS INDICATED BY THE CONTRACT DRAWINGS. THIS FACT ACCOUNTS FOR THE RATHER LARGE COST OF THE EXCAVATING AND BRACING WORK AS MENTIONED BELOW.

IN CONSEQUENCE OF THE INCREASED DEPTH OF THE FOUNDATIONS, IT WAS NECESSARY TO EXCAVATE ABOUT 3,000 CUBIC YARDS OF ADDITIONAL MATERIAL, MOST OF WHICH WAS EITHER LOOSE OR DECOMPOSED ROCK OR GRAVEL, AND TO PLACE APPROXIMATELY 1,700 CUBIC YARDS OF ADDITIONAL CONCRETE IN THE FOUNDATIONS. AS THIS WORK PROGRESSED, PAYMENTS FOR IT WERE MADE TO THE CONTRACTOR UNDER THE PROVISIONS OF PARAGRAPH 48 OF THE SPECIFICATIONS. ALL OF THE BILLS SUBMITTED BY THE CONTRACTOR FOR THIS WORK WERE CHECKED BY THE FIELD FORCES OF THIS OFFICE AND PAYMENTS WERE MADE IN CONNECTION WITH THE USUAL MONTHLY ESTIMATES, EXCEPT IN A FEW INSTANCES WHERE CLAIMS WERE EITHER DISALLOWED ENTIRELY OR PAYMENT POSTPONED PENDING FURTHER STUDY. THESE POSTPONED CLAIMS AGGREGATE APPROXIMATELY $8,000.

THE CONTRACTOR HAS ALREADY RECEIVED APPROXIMATELY $77,000 FOR THE ADDITIONAL FOUNDATION WORK.

ON OCTOBER 23, 1929, AFTER PRACTICALLY ALL OF THE FOUNDATION WORK HAD BEEN COMPLETED, THE CONTRACTOR DIRECTED A LETTER TO THIS COMMISSION CLAIMING CHANGED CONDITIONS AND SETTLEMENT FOR ADDITIONAL COSTS UNDER ARTICLE 4 OF THE CONTRACT, AND ADVISING THAT HE WOULD PRESENT ADDITIONAL BILLS FOR HIS WORK. THIS WAS ANSWERED BY A LETTER DATED OCTOBER 28, 1929, WHICH IN TURN ELICITED A LETTER FROM THE CONTRACTOR DATED NOVEMBER 14, 1929, AFTER A CONFERENCE BETWEEN THE OFFICIALS OF THIS COMMISSION AND THE CONTRACTOR.

NO FURTHER FORMAL CORRESPONDENCE ON THE SUBJECT TOOK PLACE UNTIL AFTER THE BOUNDARY CHANNEL BRIDGE WAS COMPLETED ON SEPTEMBER 26, 1930. SHORTLY AFTER THAT DATE THE CONTRACTOR REQUESTED ADVICE AS TO WHAT PROCEDURE HE SHOULD FOLLOW IN PRESENTING HIS CLAIM. HE WAS INFORMED THAT THE CONTRACTING OFFICER WOULD CONSIDER ANY DIRECT CLAIMS FOR TANGIBLE ITEMS OF WORK, AND WAS PREPARED TO MAKE PAYMENT FOR SUCH ITEMS IF SUBSTANTIATED AND IF THE WORK INVOLVED WAS AUTHORIZED UNDER THE PROVISIONS OF THE SPECIFICATIONS OR THE CONTRACT. HE WAS ALSO INFORMED THAT THE CONTRACTING OFFICER COULD NOT ADVISE HIM AS TO HOW TO PREPARE HIS CLAIMS, AND COULD NOT DECIDE QUESTIONS INVOLVING CLAIMS FOR INTANGIBLE ITEMS OR ITEMS INVOLVING LEGAL INTERPRETATIONS. DURING THE COURSE OF OUR CONVERSATIONS, I OFFERED TO CONSIDER THE SEVERAL PROTESTED ITEMS WHICH HAD PREVIOUSLY BEEN DISALLOWED OR POSTPONED, BUT THE CONTRACTOR PREFERRED TO INCLUDE ALL OF HIS CLAIMS IN THE ONE SUM WHICH HE OBTAINED BY DEDUCTING THE PAYMENTS WHICH HE PREVIOUSLY RECEIVED FROM THE TOTAL COST OF THE WORK AS COMPUTED BY HIS OWN ACCOUNTING FORCE.

ON DECEMBER 10, 1930, THE CONTRACTOR PRESENTED A FORMAL LETTER MAKING CLAIM FOR A FINAL PAYMENT OF $187,901.70, OF WHICH $25,000.00 WAS THE AMOUNT RETAINED BY THIS OFFICE FROM THE MONTHLY ESTIMATES, AND THE BALANCE, $162,901.70, WAS TO COVER THE ADDITIONAL COSTS ALLEGED TO HAVE ARISEN FROM THE CHANGED CONDITIONS ENCOUNTERED. THIS LETTER WAS FOLLOWED ON DECEMBER 12 AND 22 WITH DETAILED STATEMENTS OF COST FROM THE CONTRACTOR, ALL OF WHICH WERE REPLIED TO BY MY LETTER DATED JANUARY 9, 1931.

THE MATTER IS FURTHER COMPLICATED BY THE CONSIDERATION OF TIME. THE DATE FOR COMPLETION AS ORIGINALLY FIXED WAS FEBRUARY 2, 1930, WHEREAS THE WORK WAS NOT ACTUALLY COMPLETED UNTIL SEPTEMBER 28, 1930. PARAGRAPH 42 OF THE SPECIFICATIONS PROVIDES THAT LIQUIDATED DAMAGES IN THE AMOUNT OF $100.00 PER CALENDAR DAY WILL BE ASSESSED FOR ALL DELAY IN COMPLETING THE WORK AFTER THE DATE FIXED FOR COMPLETION, CORRECTED IF NECESSARY, FOR CHANGES ORDERED IN THE WORK TO BE DONE AND EXTRA WORK. BESIDES THE ADDITIONAL FOUNDATION WORK REFERRED TO ABOVE, THE CONTRACTOR DID OTHER ADDITIONAL WORK WHICH WAS FOUND NECESSARY AND ORDERED FROM TIME TO TIME IN ACCORDANCE WITH PARAGRAPHS 31 AND 33 OF THE SPECIFICATIONS, WITH THE RESULT THAT A TOTAL OF A LITTLE MORE THAN $105,000.00 HAS BEEN PAID TO HIM AS EXTRAS FOR WHICH ADDITIONAL TIME IS ALLOWABLE UNDER THE SPECIFICATIONS.

HIS CLAIM IS NOW SUBMITTED TO YOU FOR YOUR OPINION AS TO WHETHER THE CONDITIONS DESCRIBED ABOVE WERE SUCH AS TO JUSTIFY LEGALLY A SETTLEMENT ON THE BASIS OF ARTICLE 4 OF THE CONTRACT, INCLUDING EXCESS COSTS FOR ITEMS AND EXPENSES NOT RELATED DIRECTLY TO THE FOUNDATION WORK. PERSONALLY, I HAVE BEEN FORCED TO THE CONCLUSION THAT THE CONDITIONS FOUND WERE ONLY SUCH AS PARAGRAPH 48 OF THE SPECIFICATIONS COVERED AND WAS INTENDED TO COVER, AND THAT THE OBLIGATIONS OF THE GOVERNMENT WOULD BE FULLY DISCHARGED BY SETTLEMENT IN ACCORDANCE THEREWITH. HOWEVER, THE CONTRACTOR DESERVES EVERY POSSIBLE LAWFUL CONSIDERATION SINCE HE IN NO WAY SKIMPED THE WORK AND FINISHED THE CONTRACT WITH UNUSUAL PERFECTION, IN SPITE OF THE KNOWLEDGE THAT IT WAS COSTING HIM MUCH MORE THAN HE HAD ANTICIPATED.

THE CONTRACT DATED DECEMBER 29, 1928, WAS EXECUTED ON THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, ARTICLE 4 OF WHICH, WITH REFERENCE TO "CHANGED CONDITIONS," PROVIDES:

SHOULD THE CONTRACTOR ENCOUNTER, OR THE GOVERNMENT DISCOVER DURING THE PROGRESS OF THE WORK, SUBSURFACE AND (OR) LATENT CONDITIONS AT THE SITE MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, THE ATTENTION OF THE CONTRACTING OFFICER SHALL BE CALLED IMMEDIATELY TO SUCH CONDITIONS BEFORE THEY ARE DISTURBED. THE CONTRACTING OFFICER SHALL THEREUPON PROMPTLY INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT THEY MATERIALLY DIFFER FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, HE SHALL AT ONCE, WITH THE WRITTEN APPROVAL OF THE HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE, MAKE SUCH CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS AS HE MAY FIND NECESSARY AND ANY INCREASE OR DECREASE OF COST AND (OR) DIFFERENCE IN TIME RESULTING FROM SUCH CHANGES SHALL BE ADJUSTED AS PROVIDED IN ARTICLE 3 OF THIS CONTRACT.

THE CONTRACTOR APPARENTLY CONTENDS THAT BY VIRTUE OF THIS PROVISION OF THE CONTRACT IT IS ENTITLED TO AN EQUITABLE ADJUSTMENT THEREUNDER OF THE CONTRACT PRICE TO COMPENSATE IT FOR ALL ADDITIONAL COSTS OF THE ENTIRE CONTRACT WORK OCCASIONED DIRECTLY AND INDIRECTLY BY HAVING TO EXCAVATE EXCESSIVE QUANTITIES OF GRAVEL, BOULDERS, AND DECOMPOSED ROCK BELOW THE LEVEL SHOWN FOR BEDROCK BY THE CONTRACT DRAWINGS BEFORE REACHING SOUND BEDROCK SUITABLE FOR THE FOUNDATIONS OF THE BRIDGE ABUTMENTS AND MINOR PIERS.

YOU SUGGEST, TO THE CONTRARY, THAT THE EXCAVATION OF SUCH ADDITIONAL MATERIAL WAS CONTEMPLATED BY PARAGRAPH 48 OF THE CONTRACT SPECIFICATIONS AND, CONSEQUENTLY, THAT THE CONTRACTOR IS ENTITLED TO ADDITIONAL PAYMENT ONLY ON THE BASIS PROVIDED THEREIN. PARAGRAPHS 47 AND 48 OF SUCH SPECIFICATIONS ARE AS FOLLOWS:

47. EXCAVATION AND EXPOSING SURFACE OF BEDROCK: THE CONTRACTOR SHALL EXCAVATE AND UNWATER THE CRIBS, COFFERDAMS, OR CAISSONS, SHALL MAINTAIN THESE CONSTRUCTIONS IN A STATE OF SAFETY AND GOOD REPAIR, AND SHALL DO ALL PUMPING NECESSARY TO KEEP THEM DRY.

THE CONTRACTOR SHALL ALSO REMOVE ALL MUD, DIRT, AND UNATTACHED ROCK UP TO ONE-HALF CUBIC YARD IN SIZE, IN ORDER THAT A THOROUGH INSPECTION OF THE SURFACE OF THE BEDROCK MAY BE MADE BY THE CONTRACTING OFFICER. NONE OF THE EXCAVATED MATERIAL SHALL BE WASTED IN THE BOUNDARY CHANNEL.

THE COST OF ALL WORK DESCRIBED IN THIS PARAGRAPH SHALL BE BORNE BY THE CONTRACTOR, AND SHALL BE INCLUDED IN THE PRICE BID FOR THE WORK.

48. PREPARATION OF SURFACE OF BEDROCK: AFTER THE SURFACE OF THE BEDROCK HAS BEEN EXPOSED AND CLEANED, AS SPECIFIED IN THE FOREGOING PARAGRAPH, THE CONTRACTOR SHALL REMOVE ALL UNATTACHED ROCKS GREATER IN SIZE THAN ONE-HALF CUBIC YARD, ALL ROTTEN OR DECOMPOSED ROCK ADHERING TO THE BEDROCK, AND ALL PINNACLES AND IRREGULARITIES IN THE SURFACE, AS DIRECTED BY THE CONTRACTING OFFICER. THE CONTRACTOR SHALL ALSO DO SUCH TRIMMING OR CUTTING INTO THE SOUND ROCK AS MAY BE NECESSARY, IN THE OPINION OF THE CONTRACTING OFFICER, TO SECURE A GOOD BEARING FOR THE FOUNDATION AND A GOOD BOND BETWEEN THE FOUNDATION AND THE BEDROCK. BLASTING SHALL BE DONE ONLY AT SUCH TIMES AND UNDER SUCH CONDITIONS AS MAY BE APPROVED BY THE CONTRACTING OFFICER.

THE CONTRACTOR SHALL FURNISH ALL MATERIALS, PLANT, AND LABOR, AND SHALL PERFORM ALL THE WORK AS SPECIFIED IN THIS PARAGRAPH; BUT ALL OF SUCH WORK WILL BE PAID FOR ON THE BASIS OF THE ACTUAL COST THEREOF TO THE CONTRACTOR (INCLUDING THE HIRE OR RENTAL OF SUCH PLANT AS MAY BE EXCLUSIVELY USED THEREFOR, AND INCLUDING ALSO WORKMAN'S COMPENSATION INSURANCE, BUT EXCLUDING OVERHEAD AND ANY PART OF THE COST OR RENTAL OF THE CRIBS, COFFERDAMS, OR CAISSONS, AND EXCLUDING ALSO ANY PART OF THE COST OF THE PROTECTION, SINKING, RIGHTING, PLUMBING, MAINTENANCE, AND PUMPING OF THESE CONSTRUCTIONS) PLUS FIFTEEN (15) PERCENT OF THAT COST TO COVER PROFIT AND ALL INDIRECT CHARGES EXCEPT THOSE SPECIFICALLY MENTIONED HEREIN TO BE INCLUDED.

ADDITIONAL TIME REQUIRED FOR THE PERFORMANCE OF THE WORK PAID FOR UNDER THE PROVISIONS OF THIS PARAGRAPH WILL BE COMPUTED AND ALLOWED ON THE BASIS OF THE RULE FOR COMPUTATION OF EXTRA TIME IN PARAGRAPH 31. THE TIME AND COST KEEPING INVOLVED IN THE WORK CARRIED OUT UNDER THE PROVISIONS OF THIS PARAGRAPH WILL BE DONE BY THE CONTRACTOR, BUT WILL AT ALL TIMES BE SUBJECT TO THE REVIEW AND CHECK OF THE CONTRACTING OFFICER.

THUS, THE BASIC ISSUES IN THE CASE APPEAR TO BE WHETHER THE SUBSURFACE CONDITIONS ACTUALLY ENCOUNTERED MATERIALLY DIFFERED FROM THOSE REPRESENTED BY THE DRAWINGS OR SPECIFICATIONS WITHIN THE MEANING OF ARTICLE 4 OF THE CONTRACT AND, IF SO, WHETHER THE ADDITIONAL WORK REQUIRED IN EXCAVATING TO SOUND BEDROCK WAS BEYOND THAT CONTEMPLATED BY THE PROVISIONS OF PARAGRAPH 48 OF THE SPECIFICATIONS, FIXING THE OBLIGATION OF THE GOVERNMENT TO PAY ONLY THE ACTUAL COST, AS SET FORTH THEREIN, OF ADDITIONAL WORK IN REMOVING BOULDERS, DECOMPOSED ROCK, ETC., AFTER THE SURFACE OF THE BEDROCK WAS EXPOSED, TO SECURE SUITABLE BEARINGS FOR THE FOUNDATIONS.

THESE ISSUES MUST BE RESOLVED AGAINST THE CONTENTIONS OF THE CONTRACTOR. IT APPEARS THAT BEDROCK WAS ACTUALLY ENCOUNTERED AT THE LEVELS SHOWN BY THE DRAWINGS BASED ON BORINGS MADE BY THE GOVERNMENT PRIOR TO THE ADVERTISEMENT FOR BIDS. THIS WAS ADMITTED AND ACKNOWLEDGED BY THE CONTRACTOR IN THE FIRST PARAGRAPH OF HIS LETTER OF OCTOBER 23, 1929, TO YOU, AS FOLLOWS:

IN EXCAVATING FOR THE CAISSONS AND COFFERDAMS OF THE BOUNDARY CHANNEL BRIDGE, BEDROCK WAS ENCOUNTERED AT SUBSTANTIALLY THE ELEVATIONS INDICATED ON THE DRAWINGS. THIS BEDROCK WAS FOUND TO BE ROTTEN OR DECOMPOSED; WE, THEREFORE, WERE DIRECTED TO EXCAVATE THROUGH THIS ROTTEN BEDROCK TO SUCH ELEVATIONS AS HAVE BEEN, OR WILL BE, DESIGNATED BY YOUR REPRESENTATIVES.

THE GOVERNMENT APPARENTLY HAD NO MEANS OF KNOWING AND DID NOT REPRESENT IN THE DRAWINGS OR SPECIFICATIONS THE CHARACTER OF THE BEDROCK TO BE FOUND AT THE LEVELS SHOWN IN THE DRAWINGS OR THAT THE BEDROCK AT SUCH LEVELS WOULD BE SUITABLE FOR THE BEARINGS OF THE FOUNDATIONS. IN FACT, THE SPECIFICATIONS EXPRESSLY ANTICIPATED AND GUARDED AGAINST THE CONTINGENCY THAT IT WOULD NOT BE SUITABLE BY PROVIDING IN PARAGRAPH 48 FOR THE EXTRA WORK OF REMOVING DECOMPOSED ROCK AND UNATTACHED ROCKS FORMING A PART OF THE BEDROCK SHOWN ON THE DRAWINGS, AND EVEN CUTTING INTO THE SOUND ROCK TO PROVIDE FOUNDATION BEARINGS SATISFACTORY TO THE CONTRACTING OFFICER, AND FOR ADDITIONAL COMPENSATION TO THE CONTRACTOR AND EXTENSION OF THE CONTRACT TIME FOR ALL SUCH EXTRA WORK FOUND NECESSARY TO SECURE SUITABLE BEARINGS AFTER BEDROCK WAS REACHED. THE GOVERNMENT DID NOT REPRESENT OR EVEN ESTIMATE IN THE DRAWINGS OR SPECIFICATIONS THE AMOUNT OF SUCH MATERIAL WHICH WOULD HAVE TO BE REMOVED BUT PROVIDED FOR PAYMENT FOR THE ACTUAL COST OF ALL SUCH WORK PLUS 15 PERCENT FOR OVERHEAD AND PROFIT. THE CIRCUMSTANCE THAT THERE WAS SUBSTANTIALLY MORE OF SUCH MATERIAL FOUND, WHICH HAD TO BE EXCAVATED, THAN ACTUALLY WAS ANTICIPATED DOES NOT ESTABLISH THAT THE DRAWINGS SHOWED OR THAT THE SPECIFICATIONS INDICATED SUBSURFACE CONDITIONS MATERIALLY DIFFERING FROM THOSE ACTUALLY ENCOUNTERED, AS REQUIRED TO BE ESTABLISHED BY ARTICLE 4 OF THE CONTRACT AS A CONDITION PRECEDENT TO ADJUSTMENT OF THE CONTRACT PRICE THEREUNDER. THIS CONNECTION SEE DECISION A-36770, ADDRESSED TO YOU, JUNE 1, 1931.

FURTHERMORE, IT MAY BE REMARKED HERE THAT ALTHOUGH BEDROCK WAS FOUND AT THE LEVELS INDICATED BY THE DRAWINGS, APPARENTLY THERE WAS NO UNQUALIFIED REPRESENTATION EVEN AS TO THIS, IN VIEW OF THE STATEMENT IN PARAGRAPH 34 OF THE SPECIFICATIONS THAT "AS STATED ON THE DRAWINGS THE ELEVATIONS SHOWN FOR BEDROCK ARE AVERAGE ONLY, AND DEPARTURES OF ABOUT 5 FEET EITHER WAY MAY BE EXPECTED.' BUT, HOWEVER THAT MAY BE, IT SEEMS CLEAR THAT THE DRAWINGS DID NOT SHOW NOR DID THE SPECIFICATIONS INDICATE THE CHARACTER OF THE BEDROCK AT THE INDICATED LEVELS OR THE QUANTITIES OF DECOMPOSED ROCK, BOULDERS, ETC., WHICH WOULD HAVE TO BE REMOVED AFTER REACHING BEDROCK AND, ACCORDINGLY, YOU ARE ADVISED THAT THERE APPEARS NO BASIS FOR AN EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE UNDER THE PROVISIONS OF ARTICLE 4 OF THE CONTRACT ON THE GROUND THAT THE SUBSURFACE OR LATENT CONDITIONS DIFFERED MATERIALLY FROM THOSE SHOWN BY THE DRAWINGS OR INDICATED BY THE SPECIFICATIONS. CONSEQUENTLY, THE CONTRACTOR IS NOT ENTITLED TO ADDITIONAL PAYMENT OR ADJUSTMENT OF THE CONTRACT TIME OTHER THAN AS PROVIDED IN PARAGRAPH 48 OF THE SPECIFICATIONS FOR THE EXTRA WORK OF EXCAVATING THE MATERIAL IN QUESTION.