A-36770, JUNE 1, 1931, 10 COMP. GEN. 533

A-36770: Jun 1, 1931

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SUBSURFACE AND/OR LATENT CONDITIONS AT THE SITE WHICH ARE MATERIALLY DIFFERENT FROM THOSE SHOWN ON THE DRAWINGS OF INDICATED IN THE SPECIFICATIONS. HE IS ENTITLED TO AN ADJUSTMENT BECAUSE OF CHANGED CONDITIONS AS PROVIDED IN ARTICLE 4 OF THE STANDARD FORM OF CONSTRUCTION CONTRACT. IF NOTHING IS SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS AS TO SUCH CONDITIONS. AS FOLLOWS: HEREWITH ARE PHOTOSTAT COPIES OF THE CORRESPONDENCE WHICH HAS BEEN EXCHANGED BETWEEN THIS OFFICE AND TRIEST AND EARLE INC. THE AMOUNT MENTIONED REPRESENTS THE ADDITIONAL COST OF THE WORK WHICH THE CONTRACTOR CLAIMS WAS OUTSIDE THE REQUIREMENTS OF HIS CONTRACT WITH THIS COMMISSION. THERE IS NO MATERIAL QUESTION OF FACT INVOLVED BETWEEN THE CONTRACTOR AND THIS OFFICE.

A-36770, JUNE 1, 1931, 10 COMP. GEN. 533

CONTRACTS - CHANGED CONDITIONS - EXTRA COMPENSATION IF A CONTRACTOR IN THE EXECUTION OF HIS CONTRACT ENCOUNTERS, DURING THE PROGRESS OF THE WORK, SUBSURFACE AND/OR LATENT CONDITIONS AT THE SITE WHICH ARE MATERIALLY DIFFERENT FROM THOSE SHOWN ON THE DRAWINGS OF INDICATED IN THE SPECIFICATIONS, HE IS ENTITLED TO AN ADJUSTMENT BECAUSE OF CHANGED CONDITIONS AS PROVIDED IN ARTICLE 4 OF THE STANDARD FORM OF CONSTRUCTION CONTRACT. IF NOTHING IS SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS AS TO SUCH CONDITIONS, THE CONTRACTOR HAS NOT RELIED UPON REPRESENTATIONS OF THE GOVERNMENT AND MUST, AT HIS PERIL, DETERMINE FOR HIMSELF THE SUBSURFACE AND/OR LATENT CONDITIONS.

COMPTROLLER GENERAL MCCARL TO COL. U. S. GRANT, 3D, EXECUTIVE AND DISBURSING OFFICER OF THE ARLINGTON BRIDGE COMMISSION, JUNE 1, 1931:

THERE HAS BEEN RECEIVED YOUR SUBMISSION OF MAY 20, 1931, AS FOLLOWS:

HEREWITH ARE PHOTOSTAT COPIES OF THE CORRESPONDENCE WHICH HAS BEEN EXCHANGED BETWEEN THIS OFFICE AND TRIEST AND EARLE INC., CONTRACTORS ON CONTRACT NO. 44, COVERING THE CONSTRUCTION OF THE FENDERS FOR THE BASCULE DRAW SPAN OF THIS PROJECT, RELATIVE TO A CLAIM ON THE PART OF THE CONTRACT OF $4,259.01 DUE TO ALLEGED UNEXPECTED DIFFICULTIES ENCOUNTERED IN THE DRIVING OF CERTAIN CONCRETE PILES FORMING A PART OF THE STRUCTURE IN QUESTION. THE AMOUNT MENTIONED REPRESENTS THE ADDITIONAL COST OF THE WORK WHICH THE CONTRACTOR CLAIMS WAS OUTSIDE THE REQUIREMENTS OF HIS CONTRACT WITH THIS COMMISSION.

THERE IS NO MATERIAL QUESTION OF FACT INVOLVED BETWEEN THE CONTRACTOR AND THIS OFFICE. THE CONDITIONS AS FOUND AND STATED BY THE CONTRACTOR HAVE BEEN SUBSTANTIATED BY THE FIELD FORCES OF THIS COMMISSION, AND THE EXTRA AMOUNTS CLAIMED BY THE CONTRACTOR HAVE ALSO BEEN CHECKED BY THE SAME EMPLOYEES AS BEING CORRECT. THE PHYSICAL FACTS RELATIVE TO THIS CLAIM ARE, BRIEFLY STATED, AS FOLLOWS: THE FENDER STRUCTURES CONSIST OF TWO SIMILAR PARTS, ONE PART BEING ADJACENT TO EACH OF THE TWO DRAW-SPAN ABUTMENTS. EACH FENDER CONSISTS OF A CONCRETE BRACING STRUCTURE LYING IN AN APPROXIMATELY HORIZONTAL POSITION SUPPORTED AT REGULAR INTERVALS ALONG THE OUTSIDE EDGE BY CONCRETE PILES DRIVEN TO SOLID ROCK. THESE CONCRETE STRUCTURES SERVE AS A SUPPORT FOR THE WOODEN FENDER WALLS TO PROTECT PASSING VESSELS FROM CONTACT WITH THE UNYIELDING CONCRETE STRUCTURES.

OF THE TWENTY-SEVEN CONCRETE PILES PERTAINING TO EACH STRUCTURE, IT WAS NECESSARY TO DRIVE FOURTEEN VERY CLOSE TO THE TOE OF THE UNDERWATER BUTTRESS OF THE DRAW-SPAN ABUTMENTS, AS CLOSE, IN FACT, AS IT WAS POSSIBLE TO DRIVE THEM. IN DRIVING THE FOURTEEN PILES OF THE FIRST ABUTMENT, THE CONTRACTOR ENCOUNTERED TIMBERS IN THE UNDERLYING MUD AND VERY CLOSE TO THE BEDROCK. THESE TIMBERS WERE 14 BY 14 INCH PIECES, RUNNING ALMOST THE WHOLE LENGTH OF THE BUTTRESS, AND APPARENTLY HAD BEEN LEFT IN THE MUD BY A PREVIOUS CONTRACTOR WHEN THE COFFERDAMS WITHIN WHICH THE ABUTMENTS WERE BUILT WERE BEING DISMANTLED. BECAUSE OF THESE SUBMERGED TIMBERS IT WAS EXTREMELY DIFFICULT TO HOLD THE PILES IN PLACE ON ACCOUNT OF THEIR POINTS BEING DEFLECTED FROM TRUE POSITIONS BY THE TIMBERS.

THE CONTRACTOR AT ONCE VERBALLY PROTESTED TO THIS OFFICE AND WAS INSTRUCTED TO PROCEED WITH THE WORK, AND TO FILE A PROTEST FOR PORTION OF THE WORK WHICH HE CONSIDERED TO BE OUTSIDE THE OBLIGATIONS OF HIS CONTRACT. A WRITTEN PROTEST WAS INCLUDED IN THE CONTRACTOR'S LETTER DATED NOVEMBER 15, 1930.

THE CONTRACTOR DID CONTINUE HIS OPERATIONS UNDER RATHER DISCOURAGING DIFFICULTIES AND WITH A RIGHT GOOD WILL. NOTWITHSTANDING HIS BEST EFFORTS, HE WAS SERIOUSLY DELAYED AND PUT TO CONSIDERABLE ADDITIONAL EXPENSE. THE DESIGN WAS THEREFORE RECONSIDERED UPON COMPLETION OF THE DRIVING AT THE EAST ABUTMENT, AND IT WAS DETERMINED BY THE ENGINEERS OF THIS COMMISSION THAT IF THE FOOT OF EACH PILE AT THE WEST ABUTMENT WAS PLACED ONE FOOT OR SO OUTWARD FROM ITS THEORETICAL POSITION, DRIVING CONDITIONS WOULD BE IMPROVED AND A SLIGHT STRENGTHENING OF THE STRUCTURE COULD BE REALIZED, ALTHOUGH, ON THE OTHER HAND, THE APPEARANCE OF THE RESULTING STRUCTURE WOULD BE SOMEWHAT THE WORSE. AS THE CONCRETE PILES ARE ENTIRELY HIDDEN BY THE OUTER FENDER WALLS, IT WAS DECIDED TO ALLOW THE CONTRACTOR TO DRIVE PRACTICALLY ALL THE PILES ON THE WEST ABUTMENT SLIGHTLY OUT OF PLUMB. NOTWITHSTANDING THIS CHANGE, THE CONTRACTOR CONTINUED TO EXPERIENCE SOME DIFFICULTY ALTHOUGH TO A MUCH LESS DEGREE, AND WITH CONSIDERABLY LESS COST TO HIMSELF.

THE CONTRACTOR CONTENDS THAT IN PREPARING HIS BID HE MADE ALL INQUIRIES AND INVESTIGATIONS OF THE SITE THAT A PRUDENT BIDDER SHOULD MAKE. THESE CONSISTED, FOR THE MOST PART, OF INQUIRIES TO A SUBCONTRACTOR ON A PREVIOUS CONTRACT WHO HAD DRIVEN A ROW OF TEMPORARY WOODEN PILES ABOUT TWO FEET FARTHER AWAY FROM THE ABUTMENT THAN THE CONCRETE PILES IN QUESTION. THIS SUBCONTRACTOR STATED THAT NO DIFFICULTIES HAD BEEN ENCOUNTERED BY HIM IN DRIVING THE TEMPORARY WOOD PILES. BASED UPON THIS INFORMATION, THE CONTRACTOR ASSUMED THAT NO DIFFICULTY WOULD BE ENCOUNTERED IN DRIVING HIS CONCRETE PILES, BUT IN MOVING TWO FEET NEARER THE ABUTMENTS THE OBSTRUCTIONS OF WHICH HE COMPLAINS WERE ENCOUNTERED.

IN THE CONVERSATIONS AND CORRESPONDENCE WITH THE CONTRACTOR, THIS OFFICE HAS CONTENDED THAT NO REPRESENTATIONS WERE MADE IN THE SPECIFICATIONS AS TO THE CHARACTER OF THE GROUND INTO WHICH THE PILES WERE TO BE DRIVEN EXCEPT TO STATE THE APPROXIMATE DEPTH OF WATER AND THE APPROXIMATE DEPTH OF BEDROCK WHICH HAD BEEN ENCOUNTERED WHEN THE ABUTMENTS WERE BUILT. ALL INFORMATION IN THE POSSESSION OF THIS OFFICE RELATIVE TO THE CHARACTER OF THE GROUND INTO WHICH THE PILES WERE TO BE DRIVEN OR OF ANY OBSTACLES TO THE WORK WAS INCLUDED IN THE SPECIFICATIONS AS ADVERTISED.

PARAGRAPH 10 OF THE SPECIFICATIONS STATES SPECIFICALLY:

"NO ALLOWANCE WILL BE MADE FOR FAILURE OF A BIDDER CORRECTLY TO ESTIMATE THE DIFFICULTIES ATTENDING THE EXECUTION OF THE WORK.'

IT WOULD APPEAR THAT THE PROVISIONS OF ARTICLE 4 OF THE STANDARD FORM OF CONTRACT DO NOT APPLY TO THIS CASE, AS THE CHANGE MADE IN THE DESIGN AFFECTED NEITHER THE CONTRACT COST NOR THE CONTRACT TIME.

THE CONTRACTOR ASSERTS THAT WHILE THE CONTRACTING OFFICER MAY NOT HAVE KNOWN OF THE EXISTENCE OF THE OBSTACLE, THIS OFFICER EITHER COULD OR SHOULD HAVE KNOWN THIS, AS THE OBSTACLE WAS LEFT THERE AS A RESULT OF HIS PREVIOUS OPERATIONS AT THIS POINT. IF THIS POSITION IS TENABLE, IT WOULD SEEM THAT THE EQUITY RESTS WITH THE CONTRACTOR AND THAT THE ADDED COST OF DRIVING THESE PILES SHOULD BE DEFRAYED BY THE GOVERNMENT.

IN VIEW OF THE ABOVE, I HAVE NOT FELT JUSTIFIED IN PAYING THE CONTRACTOR'S CLAIMS, BUT I AM FORWARDING THE MATTER TO YOU FOR YOUR CONSIDERATION. YOUR OPINION AS TO THE LEGALITY OF THE PAYMENT OF THE ADDITIONAL AMOUNT TO THE CONTRACT IS RESPECTFULLY REQUESTED.

THE CONTRACTOR, IN LETTER OF MARCH 30, 1931, BASED ITS CLAIM ON ARTICLE 4 OF THE CONTRACT, WHICH READS:

ARTICLE 4. CHANGED CONDITIONS.--- 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.

THIS ARTICLE DOES NOT COME INTO OPERATION UNLESS THE UNITED STATES HAS IN THE SPECIFICATIONS OR DRAWINGS MADE REPRESENTATIONS CONCERNING THE SUBSURFACE OR LATENT CONDITIONS AT THE SITE. THIS IS NECESSARILY TRUE BECAUSE THE ARTICLE STATES THAT THE SUBSURFACE OR LATENT CONDITIONS WHICH THE CONTRACTOR ENCOUNTERS MUST MATERIALLY DIFFER "FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS.' IF NOTHING IS SHOWN ON THE DRAWINGS NOR INDICATED IN THE SPECIFICATIONS AS TO THE SUBSURFACE OR LATENT CONDITIONS, THE CONTRACTOR NECESSARILY HAS NOT RELIED UPON REPRESENTATIONS OF THE UNITED STATES AND MUST, AT ITS PERIL, DETERMINE FOR ITSELF THE SUBSURFACE OR LATENT CONDITIONS. IF THE CONTRACTOR MAKES AN EXAMINATION AS HERE AND AFTERWARDS FINDS THAT THE SUBSURFACE OR LATENT CONDITIONS ARE NOT IN ACCORD WITH WHAT WAS BELIEVED TO EXIST AT THE TIME OF THE EXAMINATION, THERE HAS BEEN NOCHANGE IN THE SUBSURFACE OR LATENT CONDITIONS WITHIN THE OPERATION OF ARTICLE 4 OF THE CONTRACT.

AS STATED IN THE SUBMISSION, PARAGRAPH 10 OF THE SPECIFICATIONS SPECIFICALLY INFORMED PROSPECTIVE BIDDERS THAT NO ADDITIONAL ALLOWANCES WOULD BE MADE FOR FAILURE OF THE BIDDER CORRECTLY TO ESTIMATE THE DIFFICULTIES ATTENDING THE EXECUTION OF THE WORK, BUT THE CONTRACTOR HAD CONTENDED, IN THE LETTER OF MARCH 30, 1931, THAT CONTRACT DRAWING 2E6-107 INDICATED THE RIVER AND MUD LINE AT AN APPROXIMATE ELEVATION OF MINUS 24.0 INCHES AND ROCK LINE OF APPROXIMATELY AN ELEVATION OF MINUS 38.0 INCHES, WITH NO MENTION OF ANY MATERIAL BUT ROCK AND MUD. THERE WAS NOTHING IN THE SPECIFICATIONS OR IN THE DRAWING TO INDICATE THAT THERE WAS NO OTHER MATERIAL THAN ROCK OR MUD WITHIN THE AREAS WHERE THE PILING WAS TO BE DRIVEN, AND THE FACT THAT OTHER MATERIAL WAS NOT INDICATED DOES NOT AMOUNT TO A REPRESENTATION AS TO THE SUBSURFACE AND (OR) LATENT CONDITIONS, ESPECIALLY WHEN IT APPEARS TO BE UNDISPUTED THAT THE GOVERNMENT HAD NO NOTICE THAT THE PREVIOUS CONTRACTOR HAD FAILED TO REMOVE CERTAIN TIMBERS FROM THE BASE OF THE ABUTMENTS WHICH FORMED A PART OF THE COFFERDAM.

IT WOULD SEEM TO BE CLEAR THAT TRIEST AND EARLE (INC.) HAVE NO CLAIMS AGAINST THE UNITED STATES ON ACCOUNT OF THE DIFFICULTIES ENCOUNTERED, AND YOU ARE ADVISED ACCORDINGLY.