A-51981, AUGUST 19, 1937, 17 COMP. GEN. 150

A-51981: Aug 19, 1937

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SUCH DECISIONS OF CONTRACTING OFFICER ARE CONCLUSIVE ON THE CONTRACTOR AND ARE NOT FOR REVIEW BY THE GENERAL ACCOUNTING OFFICE OR ANY OFFICER OF THE GOVERNMENT. IS NOT ENTITLED TO HAVE THE SETTLEMENT RECONSIDERED IN THE GENERAL ACCOUNTING OFFICE ON THE BASIS OF SO-CALLED EQUITIES WHICH NOT ONLY CONFLICT WITH WAR DEPARTMENT FINDINGS AND DECISIONS MADE CONCLUSIVE ON THE SAID CONTRACTOR. WHICH WAS MADE PURSUANT TO THE SPECIFIC DIRECTION AND IN ACCORDANCE WITH A LEGAL DECISION THEREON OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES. THE SETTLEMENT AND THE DECISION WERE BASED UPON FORMAL FINDINGS OF FACT AND COMPUTATIONS OF MUTUAL INDEBTEDNESS AS BETWEEN YOUR COMPANY AND THE UNITED STATES MADE BY DULY AUTHORIZED WAR DEPARTMENT OFFICIALS UNDER YOUR CONTRACT W-1106 ENG 1389.

A-51981, AUGUST 19, 1937, 17 COMP. GEN. 150

CONTRACTS - FINALITY OF ADMINISTRATIVE FINDINGS OF FACT - EQUITABLE CONSIDERATIONS WHERE CONTRACT FOR CONSTRUCTION OF A LEVEE PROVIDED THAT THE DECISION OF THE CONTRACTING OFFICER OR HIS REPRESENTATIVE SHOULD BE FINAL AND CONCLUSIVE ON DISPUTES CONCERNING QUESTIONS OF FACT, SUBJECT TO WRITTEN APPEAL TO THE HEAD OF THE DEPARTMENT WITHIN 30 DAYS, AND CONTRACTOR FAILED TO APPEAL TO THE SECRETARY OF WAR WITHIN THE TIME LIMITED, SUCH DECISIONS OF CONTRACTING OFFICER ARE CONCLUSIVE ON THE CONTRACTOR AND ARE NOT FOR REVIEW BY THE GENERAL ACCOUNTING OFFICE OR ANY OFFICER OF THE GOVERNMENT. THE DISMISSAL WITHOUT CAUSE AND WITHOUT PREJUDICE OF A PROCEEDING IN EQUITY BROUGHT ON BEHALF OF THE UNITED STATES FOR A RECEIVER AND THE IMPOSITION OF A PREFERRED LIEN AGAINST THE ASSETS OF THE DEFAULTING GOVERNMENT CONTRACTOR IN THE PROCESS OF COLLECTING A NET BALANCE OF INDEBTEDNESS FOUND DUE FROM SAID CONTRACTOR TO THE UNITED STATES, MAY NOT BE ACCEPTED AS A PROPER GROUND FOR RECONSIDERATION BY THE GENERAL ACCOUNTING OFFICE OF A DECISION AND SETTLEMENT OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, ISSUED UPON THE BASIS OF FACTS FOUND IN THE WAR DEPARTMENT UNDER CIRCUMSTANCES MAKING THEM FINAL AND CONCLUSIVE UPON ALL PARTIES. A DEFAULTING GOVERNMENT CONTRACTOR FOUND INDEBTED BY THE WAR DEPARTMENT FOR CONTRACT WORK IT IMPROPERLY REFUSED TO PERFORM, HAVING BEEN AFFORDED FULL OPPORTUNITY TO PRESENT ITS LEGAL OR EQUITABLE DEFENSE (IF ANY) IN A RECEIVERSHIP PROCEEDING BROUGHT AGAINST IT IN THE NAME OF THE UNITED STATES TO RECOVER THE NET BALANCE CERTIFIED DUE IN A SETTLEMENT MADE PURSUANT TO SECTION 236, REVISED STATUTES, AS AMENDED, IS NOT ENTITLED TO HAVE THE SETTLEMENT RECONSIDERED IN THE GENERAL ACCOUNTING OFFICE ON THE BASIS OF SO-CALLED EQUITIES WHICH NOT ONLY CONFLICT WITH WAR DEPARTMENT FINDINGS AND DECISIONS MADE CONCLUSIVE ON THE SAID CONTRACTOR, BUT WHICH THE CONTRACTOR'S COUNSEL FAILED TO SUBMIT TO JUDICIAL SCRUTINY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE R. E. COTTON CO., AUGUST 19, 1937:

A LETTER DATED JULY 10, 1937, ACCOMPANIED BY A LEGAL BRIEF AND COPIES OF THE DOCUMENTS, HAS BEEN RECEIVED IN THIS OFFICE FROM ATTORNEY WILLIAM M, HALL, REQUESTING ON YOUR BEHALF A REOPENING AND RECONSIDERATION OF SETTLEMENT NO. U.S. 3592-W DATED JANUARY 3, 1934, WHICH WAS MADE PURSUANT TO THE SPECIFIC DIRECTION AND IN ACCORDANCE WITH A LEGAL DECISION THEREON OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES. THE SETTLEMENT AND THE DECISION WERE BASED UPON FORMAL FINDINGS OF FACT AND COMPUTATIONS OF MUTUAL INDEBTEDNESS AS BETWEEN YOUR COMPANY AND THE UNITED STATES MADE BY DULY AUTHORIZED WAR DEPARTMENT OFFICIALS UNDER YOUR CONTRACT W-1106 ENG 1389, DATED JUNE 27, 1931, FOR CONSTRUCTION OF THAT PORTION OF CERTAIN LEVEE WORK NEAR GREENVILLE, MISS., DESIGNATED IN THE ADVERTISED SPECIFICATIONS--- WHICH SPECIFICATIONS BECAME A PART OF THE SAID FORMAL CONTRACT--- AS SUBSECTION 11C OF THE DEERFIELD SETBACK.

THERE HAS BEEN PRESENTED ALSO IN SUPPORT OF THE REQUEST FOR REOPENING AND RECONSIDERATION A FORM OF RELEASE WHEREBY YOU AGREE TO RELEASE AND FOREVER DISCHARGE THE UNITED STATES FROM ANY AND ALL CLAIMS BY VIRTUE OF THE SAID CONTRACT PROVIDED PAYMENT IS MADE TO YOU THEREON IN THE SUM OF $16,477. THIS SUM IS $1,410.43 IN EXCESS OF THE $15,066.57 CLAIMED BY YOU AUGUST 26, 1932, IN FINAL SETTLEMENT AND PAYMENT FOR ALL WORK COMPLETED BY YOU UNDER THE SAID CONTRACT. SEE YOUR LETTER OF AUGUST 26, 1932, TO MAJ. T. B. LARKIN, UNITED STATES ARMY, CONTRACTING OFFICER AND UNITED STATES DISTRICT ENGINEER AT VICKSBURG.

THE RECORDS SUBMITTED AND AS COMPILED IN THIS OFFICE SHOW THAT YOU APPARENTLY HAVE BEEN REPRESENTED BY LEGAL COUNSEL AND HAVE HAD THE BENEFIT OF ADVICE THEREFROM IN CONNECTION WITH ALL OF YOUR DISPUTES WITH ADMINISTRATIVE OFFICIALS AND IN CONNECTION WITH THE PRESENTATION AND ARGUMENT OF YOUR CLAIM THROUGH BRIEFS, ETC., BEFORE THE WAR DEPARTMENT AND THIS OFFICE. THESE RECORDS FURTHER SHOW THAT THE FACTS OF YOUR CONTENTIONS HAVE BEEN SO REPRESENTED ON YOUR BEHALF TO NUMEROUS MEMBERS OF THE UNITED STATES SENATE AND THE HOUSE OF REPRESENTATIVES THAT YOUR COUNSEL, IN CORRESPONDENCE ON BEHALF OF YOUR CLAIM, HAS DEEMED IT PROPER TO REFER TO THEM AS "SPONSORS" OF YOUR CLAIM. SOME OF SUCH MEMBERS WERE PREVAILED UPON TO BE PRESENT AT OR TO MAKE FREQUENT INQUIRY ON YOUR BEHALF CONCERNING, THE FORMER HEARINGS AND ARGUMENTS OF YOUR CONTENTIONS IN THE WAR DEPARTMENT BEFORE THE MATTER WAS REFERRED TO THIS OFFICE. DURING THE TIMES WHEN THE MATTER HAS BEEN UNDER CONSIDERATION IN THIS OFFICE--- INCLUDING THE PRESENT--- TELEPHONIC REQUESTS OR DEMANDS AND OTHER COMMUNICATIONS REPRESENTED TO EMANATE FROM LEGISLATIVE OFFICES HAVE BEEN RECEIVED IN THIS OFFICE BY PERSONNEL EVIDENTLY THOUGHT TO HAVE SOME RESPONSIBILITY IN OR KNOWLEDGE CONCERNING THE CONSIDERATION AND DISPOSITION OF YOUR CASE. THE RECORD SHOWS, ALSO, SUGGESTIONS ON YOUR BEHALF TO AT LEAST ONE MEMBER OF THE LEGISLATIVE BRANCH THAT THERE ARE CONSIDERATIONS, ASIDE FROM THE LEGAL RIGHTS ARISING UNDER THE TERMS OF THE CONTRACT, WHICH WOULD WARRANT THE SPONSORING OF A BILL FOR YOUR RELIEF. COUNSEL ON YOUR BEHALF IN CONNECTION WITH HIS PRESENT REQUEST FOR RECONSIDERATION HAS SUGGESTED, MOREOVER, THAT, IF I AM WITHOUT OFFICIAL AUTHORITY TO APPROVE PAYMENT ON YOUR CLAIM ON A LEGAL BASIS FROM APPROPRIATED MONEYS THAT THE SAME MIGHT BE PROPER FOR REPORTING TO THE CONGRESS ON EQUITABLE GROUNDS WITH A RECOMMENDATION THAT ITS PAYMENT BE AUTHORIZED BY PRIVATE ACT.

THE MATTER OF YOUR CLAIM HAS PREVIOUSLY BEEN THE SUBJECT OF MY OWN CAREFUL AND PERSONAL EXAMINATION. NOW THE RECORD AGAIN HAS HAD MY VERY THOUGHTFUL AND THOROUGH PERSONAL CONSIDERATION IN THE LIGHT OF THE ADDITIONAL DOCUMENTS AND REQUESTS PRESENTED. IT IS MY CONCLUSION THEREON THAT I AM WITHOUT AUTHORITY TO APPROVE YOUR CLAIM FOR PAYMENT FROM APPROPRIATED MONEYS AND THAT, IN THE ABSENCE OF ANY JUDICIAL FINDINGS--- BASED UPON TESTIMONY UNDER OATH--- ESTABLISHING THAT THE SPECIFIC DETAILED AND CONTROLLING FINDINGS OF FACT MADE AND THE ACTION TAKEN IN THE WAR DEPARTMENT WERE FRAUDULENT, ARBITRARY, OR CAPRICIOUS AND CONTRARY TO LAW, IT WOULD BE AN ABUSE OF DISCRETION ON MY PART AND AN IMPOSITION ON THE LEGISLATIVE BRANCH WERE I TO CERTIFY THE MATTER TO CONGRESS AS AN EQUITABLE CLAIM WHICH OUGHT TO BE PAID. IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING BY ANY ONE OF THE REASONS FOR MY DECISION THE SAME ARE HEREIN SET FORTH IN EXTENSO AND SERIATIM:

YOUR CITED LETTER OF AUGUST 26, 1932, PRESENTING TO THE CONTRACTING OFFICER YOUR CLAIM FOR FINAL SETTLEMENT AND PAYMENT IS AS FOLLOWS:MAJOR T. B. LARKIN,

UNITED STATES DISTRICT ENGINEER,

VICKSBURG, MISSISSIPPI.

IN RE: DEERFIELD SETBACK W 1106 ENG. 1389 YOUR FILE MR 374

DEAR SIR: AS YOU HAVE DOUBTLESS BEEN ADVISED, WE COMPLETED TO THE SATISFACTION OF THE AREA ENGINEER ON OR ABOUT AUGUST 2ND, 1932, THE DRESSING AND SODDING, WHICH CONSTITUTED COMPLETION, UNDER OUR CONTRACT, OF THE WORK WHICH YOU LEFT US TO DO, AND WE ARE, THEREFORE, NOW ENTITLED TO OUR FINAL SETTLEMENT AND PAYMENT. WE FIGURE THE AMOUNT DUE US AS FOLLOWS:

CHART

AMOUNT OF YARDAGE, 609,047 AT .194 CENTS ---- $118,155.12

AMOUNTS RECEIVED, ESTIMATES 1 THRU 5 -------- 103,088.55

AMOUNT DUE ------------------------------ 15,066.57

WE ACCORDINGLY HEREBY MAKE DEMAND FOR OUR SETTLEMENT AND PAYMENT.

FOR REASONS WHICH WE HAVE HERETOFORE CLEARLY STATED, WE ARE NOT CHARGEABLE WITH ANY PART OF THE COST OF THE WORK THAT YOU DID OR MAY DO ON THAT PART OF THE PROJECT WHICH YOU TOOK OVER IN VIOLATION OF THE TERMS OF THE CONTRACT AND OUR RIGHTS THEREUNDER.

THIS CLAIM FOR $15,066.57 LATER WAS INCREASED TO $15,124.63 TO EMBRACE AN ITEM OF $58.06 TO COVER LODGING AND SUBSISTENCE YOU HAD FURNISHED TO GOVERNMENT EMPLOYEES REQUIRED TO REMAIN ON THE WORK WHILE UNDER CONSTRUCTION.

THE RECORDS SHOW THAT EVERY CONTENTION OF MATERIAL FACT WHICH HAS BEEN MADE ON YOUR BEHALF AS WELL AS THE LEGAL RULES ON WHICH YOU RELY HAD CONSIDERATION IN THE WAR DEPARTMENT AND THAT YOU AND YOUR COUNSEL AND REPRESENTATIVES WERE ACCORDED FAIR AND FULL HEARINGS BOTH ORALLY AND BY WRITTEN BRIEFS IN THE WAR DEPARTMENT BEFORE THE MUTUAL CLAIMS WERE SENT TO THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES FOR SETTLEMENT AND ADJUSTMENT UNDER THE PROVISIONS OF SECTION 236 OF THE REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, 31 U.S.C. 71. THE CONTRACTING OFFICER, BY LETTERS OF SEPTEMBER 29, 1932, AND OCTOBER 13, 1932, MADE DEMAND UPON YOU FOR A NET BALANCE OF $28,832.67 REPRESENTING EXCESS COSTS FOR THE PERFORMANCE OF CONTRACT WORK WHICH HE AND HIS REPRESENTATIVES HAD FOUND TO BE DUE FROM YOU TO THE UNITED STATES FOR SUCH WORK AS YOU HAD REFUSED AND FAILED TO PERFORM, AFTER THE ALLOWANCE AGAINST SUCH EXCESS COSTS OF ALL CREDITS THEY HAD FOUND DUE TO YOU. BY LETTERS OF OCTOBER 26, 1932, AND NOVEMBER 28, 1932, SIMILAR DEMANDS WERE MADE UPON YOUR SURETY FOR THE SAME BALANCE.

BY LETTER OF APRIL 12, 1933, THE THEN CHIEF OF ENGINEERS, MAJ. GEN. LYTLE BROWN, INFORMED YOUR ATTORNEY AS FOLLOWS:

I HAVE RECEIVED REPORT OF THE DISTRICT AND DIVISION ENGINEERS ON THE CLAIM OF THE R. E. COTTON COMPANY, CONTRACTOR FOR THE DEERFIELD SETBACK LEVEE, CONCERNING WHICH YOU WROTE ME IN YOUR LETTERS OF JANUARY 19, AND APRIL 5, 1933, AND WHICH WE DISCUSSED IN MY OFFICE ON DECEMBER 15, 1932. THE DETAILED CLAIM OF THE R. E. COTTON COMPANY AND ALL THE CIRCUMSTANCES OF THE CASE HAVE BEEN CAREFULLY REVIEWED. I AM OF THE OPINION THAT THE REQUIREMENT OF THE DISTRICT ENGINEER OF DECEMBER 18, 1931, THAT THE LEVEE BETWEEN STATIONS 4959 AND 4965 BE BROUGHT UP TO 1914 GRADE, THAT OF THE CONTROLLING LEVEE, WAS, IN FACT, A REQUIREMENT FOR THE CONSTRUCTION OF A TIE-IN LEVEE AS CONTEMPLATED UNDER PARAGRAPH THIRTY-FIVE OF THE CONTRACT. THERE WAS NO OTHER REASONABLE PLACE WHERE A TIE-IN LEVEE CONNECTING THE OLD LEVEE LINE WITH THE NEW LEVEE LINE MIGHT BE BUILT TO AFFORD CONTINUOUS PROTECTION REQUIRED. THE FACT THAT IT WAS ON TOP OF THE LEVEE ALREADY UNDER CONSTRUCTION DOES NOT CHANGE ITS ESSENTIAL NATURE AS A TIE-IN LEVEE FULFILLING EVERY PURPOSE AND MEETING EVERY NEED FOR WHICH TIE-IN LEVEES ARE CONSTRUCTED.

I AM OF THE OPINION THAT THE CONTRACTOR WAS OBLIGATED UNDER THE CONTRACT TO BUILD THE LEVEE TO CONTRACT DIMENSIONS AND THAT ALSO DURING CONSTRUCTION HE WAS OBLIGATED TO FURNISH PROTECTION DURING AN EMERGENCY BY CONSTRUCTING TIE-IN LEVEE TO 1914 GRADE WHEN SO ORDERED. WHEN HE FAILED TO MEET THE LATTER OBLIGATION, THE DISTRICT ENGINEER HAD NO OTHER RECOURSE THAN TO PERFORM THE WORK HIMSELF UNDER ARTICLE NINE, CHARGING THE EXCESS COST THEREOF TO THE CONTRACTOR. WHEN HE REFUSED TO COMPLETE THE LEVEE, THE SAME COURSE WAS NECESSARY.

INASMUCH AS THE CONTRACT COULD HAVE BEEN COMPLETED WITHIN THE CONTRACT TIME HAD IT NOT BEEN FOR WEATHER CONDITIONS, I DO NOT BELIEVE LIQUIDATED DAMAGES SHOULD BE ASSESSED.

I AM FORWARDING TO THE GENERAL ACCOUNTING OFFICE THE CLAIM OF THE R. E. COTTON COMPANY, RECOMMENDING THAT THERE BE COLLECTED AS DUE THE UNITED STATES THE COST OF FINISHING THIS WORK BY HIRED LABOR, LESS RETAINED PERCENTAGE AND THE LIQUIDATED DAMAGES WHOSE REMISSION IS RECOMMENDED.

THE CLAIMS HAD BEEN REFERRED TO THIS OFFICE THE PREVIOUS DAY FOR SETTLEMENT AND ADJUSTMENT BY FIFTH ENDORSEMENT, OFFICE CHIEF OF ENGINEERS, AS FOLLOWS:

1. THE INCLOSED CLAIM OF THE R. E. COTTON COMPANY FOR BALANCE OF $15,124.63 FOR AMOUNT DUE THEM UNDER CONTRACT W-1106-ENG-1389, DATED JUNE 27, 1931, FOR THE CONSTRUCTION OF DEERFIELD SETBACK LEVEE, ITEM 11-C, IS FORWARDED FOR DIRECT SETTLEMENT. PAYMENT OF THE AMOUNT EARNED BY THE CONTRACTOR FOR WORK DONE UNDER THIS CONTRACT HAS BEEN WITHHELD AS A SETOFF AGAINST A LARGER SUM DUE THE UNITED STATES FOR EXCESS COSTS IN COMPLETING THE WORK DUE TO THE FAILURE OF THE CONTRACTOR TO COMPLETE THE WORK INCLUDED IN THE CONTRACT. THE DETAILED ARGUMENTS OF THE CONTRACTOR TO THE EFFECT THAT HE WAS NOT REQUIRED BY THE TERMS OF HIS CONTRACT TO CARRY OUT THE ORDERS OF THE CONTRACTING OFFICER TO MEET A THREATENED EMERGENCY DUE TO THE EXPECTED RISE OF THE MISSISSIPPI RIVER ARE SET FORTH IN THE ACCOMPANYING BRIEF SUBMITTED BY HIM. THE FACTS OF THE CASE AND THE ANSWERS OF THE CONTRACTING OFFICER TO THE POINTS RAISED BY THE CONTRACTOR ARE FULLY COVERED IN THE ACCOMPANYING PAPERS.

2. THE CASE HAS BEEN VERY CAREFULLY REVIEWED BY THIS OFFICE, AND THE RECOMMENDATIONS OF THE DISTRICT AND DIVISION ENGINEERS THAT IN REACHING A SETTLEMENT THE DEDUCTION OF $4,460 LIQUIDATED DAMAGES FOR 223 CALENDAR DAYS DELAY FROM JANUARY 31, 1932, TO AUGUST 10, 1932, SHOULD BE REMITTED ARE CONCURRED IN.

3. THIS OFFICE IS UNABLE TO ACCEDE TO THE VIEWS OF THE CONTRACTOR THAT HE WAS JUSTIFIED IN HIS FAILURE TO CARRY OUT THE ORDERS OF THE CONTRACTING OFFICER TO CONSTRUCT AN EMERGENCY TIE-IN LEVEE. PARAGRAPH THIRTY-FIVE OF THE CONTRACT IN QUESTION CONTAINS THE FOLLOWING CLAUSE:

"IN ALL CASES WHERE MATERIAL IN THE CONTROLLING LEVEE IS USED OR THE CONTROLLING LEVEE LINE WEAKENED OR DESTROYED IN THE CONSTRUCTION OF A NEW LEVEE, THE WORK SHALL BE SO PLANNED AND EXECUTED THAT THE NEW LEVEE OR A SPOIL BANK OF A NET GRADE AND SECTION PRESCRIBED BY THE CONTRACTING OFFICER, BUT NOT EXCEEDING THE EXISTING GRADE AND SECTION OF THE CONTROLLING LEVEE, WILL BE COMPLETED AS THE CONTROLLING LEVEE IS WEAKENED OR REMOVED, IN ORDER THAT THE WORK MAY, WITH THE EQUIPMENT OR FACILITIES AVAILABLE ON THE JOB, BE PROMPTLY TIED-IN OR CONNECTED WITH THE CONTROLLING LEVEE SO AS TO FURNISH A CONTINUOUS LEVEE LINE FOR PROTECTION IN AN EMERGENCY.'

THE PURPOSE OF THIS PROTECTION AND THE OBLIGATION OF THE CONTRACTOR TO SO CONDUCT HIS OPERATIONS AS TO MAKE THIS PROTECTION POSSIBLE ARE VERY CLEARLY STATED IN THIS CLAUSE. IN THIS CASE THE CONTRACTOR VIOLATED HIS OBLIGATIONS TO SO CONDUCT THE WORK. THE CONTRACTOR SHOULD NOT EXPECT TO PROFIT FROM HIS OWN WRONG-DOING. THE TIE-IN LEVEE ORDERED BY THE CONTRACTING OFFICER WAS THE ONLY PRACTICAL MEANS OF OBTAINING THE EMERGENCY PROTECTION WHICH THE CONTRACTOR OBLIGATED HIMSELF TO FURNISH WHEN HE ENTERED INTO THIS CONTRACT. THE FACT THAT THE ONLY FEASIBLE PLACE TO AFFORD THE CONTINUOUS PROTECTION REQUIRED BY THE CONTRACT WAS ON TOP OF THE INCOMPLETE LEVEE DOES NOT ALTER THE FACT THAT IT WAS A TIE-IN LEVEE AS CONTEMPLATED IN PARAGRAPH THIRTY FIVE OF THE CONTRACT. THE CONTRACTOR RAISES THE OBJECTION THAT THIS CONSTRUCTION WOULD HAVE INCREASED HIS COSTS. THIS IS TRUE AND WAS FULLY CONTEMPLATED BY THE TERMS OF THE CONTRACT IN THE INCLOSED SENTENCE AS QUOTED FROM PARAGRAPH THIRTY-FIVE OF THE SPECIFICATIONS:

"WHERE THE METHOD OF CONSTRUCTION JEOPARDIZES THE SAFETY OF THE CONTROLLING LEVEE, THE CONTRACTING OFFICER RESERVES THE RIGHT TO SUSPEND THE CONTRACTOR'S OPERATIONS FOR ANY PERIOD OR PERIODS OF TIME DURING THE FLOOD SEASON THAT IN THE OPINION OF THE CONTRACTING OFFICER IS WARRANTED, SO AS TO ELIMINATE DANGER OF OVERFLOW BY UNSEASONABLE CONSTRUCTION AND NO CLAIM SHALL BE MADE BY THE CONTRACTOR FOR DAMAGE OR EXPENSE OCCASIONED BY SUCH SUSPENSION OF OPERATIONS OR OCCASIONED BY CONSTRUCTION DIFFICULTIES ON ACCOUNT OF THE TIE-IN LEVEES.' THE CONTRACT CONTEMPLATES THE FACT THAT TIE-IN LEVEES BUILT TO MEET EMERGENCY CONDITIONS MAY BE MORE DIFFICULT AND EXPENSIVE TO CONSTRUCT THAN THE ORDINARY CONSTRUCTION WORK, BUT IT IS AGREED IN ADVANCE THAT THE COMPENSATION FOR SUCH PROTECTIVE LEVEE SHALL BE AT THE CONTRACT PRICE PER CUBIC YARD CALLED FOR IN BUILDING THE MAIN LEVEE. THE CONTRACT PROVIDES FOR THE PAYMENT OF PROTECTION BUILT OF TIMBER OR OTHER MATERIAL TO BE CONSTRUCTED AROUND THE ENDS OF THE LEVEE OR ELSEWHERE, AT COST PLUS TEN PERCENT. THIS IS DUE TO THE FACT THAT THE CONTRACT BEARS NO UNIT PRICE FOR HANDLING TIMBER OR MATERIALS OTHER THAN THE PRICE PER CUBIC YARD FOR EARTH EMBANKMENT. THE CONTRACTOR'S ARGUMENT THAT OTHER MATERIAL INCLUDED IN THE FIRST SENTENCE OF PARAGRAPH THIRTY- SEVEN OF THE SPECIFICATIONS INCLUDES EARTH EMBANKMENT IS CONSIDERED FALLACIOUS. THE TERMS OF THE CONTRACT MUST BE READ AS A WHOLE TO OBTAIN ITS MEANING, AND SUCH A READING OF PARAGRAPHS THIRTY FIVE AND THIRTY-SEVEN IN CONJUNCTION INDICATES THAT IT IS CONTEMPLATED THAT PROTECTION BY EARTH EMBANKMENT SHALL BE PAID FOR AT CONTRACT PRICE AND PROTECTION BY OTHER MATERIALS AT COST, PLUS TEN PERCENT. FURTHERMORE, THIS HAS BEEN THE GENERALLY UNDERSTOOD MEANING OF THESE PARAGRAPHS ON THE BASIS OF INTERPRETATION IN ALL PREVIOUS CASES ARISING BETWEEN THE GOVERNMENT AND THE CONTRACTORS.

4. REVISED COMPUTATIONS SHOW THE AMOUNT NOW DUE THE CONTRACTOR FOR YARDAGE PLACED BY HIM IN THE LEVEE AS $16,477.00 INSTEAD OF $15,124.63, AS CLAIMED BY THE CONTRACTOR. THE WORK WAS COMPLETED BY GOVERNMENT PLANT AND HIRED LABOR AT AN EXCESS COST OF $36,655.13, PLUS $4,460.00 LIQUIDATED DAMAGES REFERRED TO ABOVE. IT IS, THEREFORE, RECOMMENDED THAT STEPS BE TAKEN TO COLLECT THE SUM OF $20,178.13 FROM THE R. E. COTTON COMPANY, REPRESENTING THE DIFFERENCE BETWEEN THE EXCESS COST LESS LIQUIDATED DAMAGES AND THE AMOUNT DUE THE CONTRACTOR FOR WORK PREVIOUSLY PERFORMED.

YOU HAVE QUESTIONED THE CORRECTNESS OF THE FINDINGS AND DECISIONS OF THE CONTRACTING OFFICER CONSTITUTING THE BASIS OF THESE CONCLUSIONS BY THE CHIEF OF ENGINEERS AND HIS SUBORDINATES WHICH CONCLUSIONS WHILE PERSUASIVE AND ENTITLED TO MOST RESPECTFUL CONSIDERATION ARE NOT NECESSARILY CONTROLLING. SUN SHIPBUILDING CO. V. UNITED STATES, 76 CT.CLS. 154, 193. THE TERMS OF YOUR CONTRACT IN THAT RESPECT ARE, HOWEVER, AS FOLLOWS.

ARTICLE 15. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN THIRTY DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO SUCH QUESTIONS OF FACT. IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED.

THE CONTRACTING OFFICER AND HIS TWO REPRESENTATIVES, WHO WERE UNQUESTIONED EXPERTS IN LEVEE CONSTRUCTION AND ITS TERMINOLOGY AND WHO WERE IN CHARGE OF ALL THE LEVEE WORK UNDER THE DIFFERENT CONTRACTS AWARDED UPON THE SAME SPECIFICATIONS AS YOUR OWN, ARE IN COMPLETE HARMONY, AFTER FULL HEARING OF YOUR SIDE OF THE CASE, AS TO WHAT THE ACTUAL FACTS WERE. THIS IS EQUALLY TRUE OF THE CHIEF OF ENGINEERS AND HIS ADVISERS, ALL APPARENTLY QUALIFIED EXPERTS. YOU DID NOT APPEAL THE FINDINGS AND DECISIONS MADE UNDER ARTICLE 15 TO THE SECRETARY OF WAR WITHIN 30 DAYS AS YOU MIGHT HAVE DONE, AND IT IS NOT OPEN TO THIS OFFICE OR TO ANY OFFICER OF THE GOVERNMENT OR OTHERWISE TO REVIEW AND REVISE THOSE FINDINGS NOW. HORACE WILLIAMS CO., INC, V. UNITED STATES, CT.CLS. NO. 42934, DECIDED JUNE 1, 1937; SUN SHIPBUILDING CO. V. UNITED STATES, 76 CT.CLS. 154, 186- 187, AND CASES THEREIN CITED. IN ORDER TO SHOW THE FAIR AND HONEST JUDGMENT EXERCISED IN THE MAKING OF THE FORMAL FINDINGS AND DECISION PURSUANT TO THE QUOTED ARTICLE 15 OF THE CONTRACT UPON EVERY MATERIAL POINT RAISED BY YOU IT SEEMS PROPER TO SET FORTH THE PORTIONS OF SAID FINDINGS AND DECISIONS MATERIAL TO YOUR PRESENT CLAIM WHICH WERE FORMALLY ENTERED OF RECORD AS FOLLOWS:

BASIC DECISIONS OF CONTRACTING OFFICER

ANSWERS TO POINTS RAISED BY R. E. COTTON COMPANY IN ITS PETITION FOR PAYMENT OF $15,124.63, ALLEGED BALANCE DUE UNDER ITS CONTRACT DATED JUNE 27, 1931, SYMBOL NO. W 1106 ENG.-1389.

FOR CONVENIENCE IN MAKING REFERENCE TO THE POINTS RAISED BY THE CONTRACTOR, THE POINTS RAISED IN THE CONTRACTOR'S PETITION HAVE BEEN NUMBERED TO AGREE WITH THE FOLLOWING:

1. THE CONTRACT (ADVERTISEMENT AND AWARD):

(1) INVITATIONS FOR BIDS ISSUED MAY 14, 1931. BIDS OPENED JUNE 10, 1931. AWARD MADE TO R. E. COTTON COMPANY ON JUNE 19, 1931, FOR THE CONSTRUCTION OF DEERFIELD SETBACK LEVEE, ITEM 11-C, INVOLVING APPROXIMATELY 651,300 CUBIC YARDS OF EARTHWORK, AT 19.40 CENTS PER CUBIC YARD. THE CONTRACT PROVIDED THAT LIQUIDATED DAMAGES AT THE RATE OF $20.00 PER DAY WOULD BE CHARGED FOR EACH CALENDAR DAY OF DELAY BEYOND THE DATE FIXED FOR COMPLETION OF THE WORK.

TIME FOR COMPLETION WAS 185 CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED; NOTICE TO PROCEED RECEIVED BY CONTRACTOR JUNE 29, 1931; DATE FOR COMPLETION THEREFORE FIXED AS DECEMBER 31, 1931.

CLEARING OPERATIONS COMMENCED ON JUNE 24, 1931.

(2) PITS OPPOSITE THE WORK WERE DESIGNATED ON DRAWING ACCOMPANYING CONTRACT AS ALLEGED. PARAGRAPH 25 OF SPECIFICATIONS DID NOT SPECIFICALLY PROVIDE FOR EXTRA COMPENSATION FOR DIRT HAULED FROM THE PLACES SUBSEQUENTLY DESIGNATED BUT, INSTEAD, READ AS FOLLOWS:

"25. BORROW PITS--- GENERAL.--- * * * WHEN SHOWN ON MAPS OR PROFILES SUBMITTED TO BIDDERS THAT EARTH CANNOT BE OBTAINED FROM OPPOSITE STATIONS IT MUST BE HAULED FROM PLACES DESIGNATED WITHOUT EXTRA COMPENSATION. * *

THE STATEMENTS REGARDING THE USE OF MATERIAL FROM THE OLD LEVEE LINE, AND THE PLACING OF EARTH IN THE LEVEE EMBANKMENT THAT SHOWED A TENDENCY TO SLOUGH, ARE CORRECT.

(3) INCORRECT.--- PARAGRAPHS 35 AND 37 OF THE SPECIFICATIONS READ AS FOLLOWS:

"35. OLD LEVEES, SPURS, ETC.--- ALL EXISTING LEVEES, PARTS OF LEVEES, OR SPURS MUST BE LEFT INTACT, UNLESS OTHERWISE STATED IN PARAGRAPH 39 AND SHOWN ON THE PLANS THAT THEY MAY BE CUT. IN ALL CASES WHERE MATERIAL IN THE CONTROLLING LEVEE IS USED OR THE CONTROLLING LEVEE LINE WEAKENED OR DESTROYED IN THE CONSTRUCTION OF A NEW LEVEE, THE WORK SHALL BE SO PLANNED AND EXECUTED THAT THE NEW LEVEE OR A SPOIL BANK OF A NET GRADE AND SECTION PRESCRIBED BY THE CONTRACTING OFFICER BUT NOT EXCEEDING THE EXISTING GRADE AND SECTION OF THE CONTROLLING LEVEE, WILL BE COMPLETED AS THE CONTROLLING LEVEE IS WEAKENED OR REMOVED, IN ORDER THAT THE WORK MAY, WITH THE EQUIPMENT OR FACILITIES AVAILABLE ON THE JOB, BE PROMPTLY TIED-IN OR CONNECTED WITH THE CONTROLLING LEVEE SO AS TO FURNISH A CONTINUOUS LEVEE LINE FOR PROTECTION IN AN EMERGENCY. * * * THESE PLANS SHALL PROVIDE FOR A MINIMUM NUMBER OF TIE-INS IN AN EMERGENCY. IN THE EVENT THAT THE CONSTRUCTION OF TIE-INS LEVEES IS REQUIRED BEFORE THE EXPIRATION OF THE CONTRACT PERIOD PRESCRIBED IN PARAGRAPH 39 HEREOF, PAYMENT THEREFOR WILL BE MADE BY THE UNITED STATES AS PRESCRIBED IN PARAGRAPH 37. WHERE THE METHOD OF CONSTRUCTION JEOPARDIZES THE SAFETY OF THE CONTROLLING LEVEE, THE CONTRACTING OFFICER RESERVES THE RIGHT TO SUSPEND THE CONTRACTOR'S OPERATIONS FOR ANY PERIOD OR PERIODS OF TIME DURING THE FLOOD SEASON THAT IN THE OPINION OF THE CONTRACTING OFFICER IS WARRANTED, SO AS TO ELIMINATE DANGER OF OVERFLOW BY UNSEASONABLE CONSTRUCTION AND NO CLAIM SHALL BE MADE BY THE CONTRACTOR FOR DAMAGE OR EXPENSE OCCASIONED BY SUCH SUSPENSION OF OPERATIONS OR OCCASIONED BY CONSTRUCTION DIFFICULTIES ON ACCOUNT OF THE BUILDING OF THE TIE-IN LEVEES.'

"37. DAMAGE OR INJURY TO WORK.--- IN ANTICIPATION OF DESTRUCTIVE FLOODS DURING THE PROGRESS OF THE WORK, THE CONTRACTING OFFICER MAY REQUIRE A PROTECTION OF TIMBER OR OTHER MATERIAL TO BE CONSTRUCTED AROUND THE ENDS OF THE LEVEE OR ELSEWHERE, AND ALSO A TEMPORARY PROTECTIVE LEVEE TO BE BUILT IN FRONT OF THE WORK, UPON SUCH LOCATION AND OF SUCH DIMENSIONS AS HE MAY DIRECT. IF SUCH A PROTECTIVE LEVEE IS BUILT THE CONTRACTOR WILL BE PAID THE CONTRACT PRICE PER CUBIC YARD; FOR OTHER PROTECTIVE WORK HE WILL BE PAID THE ACTUAL COST PLUS 10 PERCENT. ALL DAMAGE OR INJURY TO WORK, RESULTING FROM FLOODS OR OTHER CAUSES BEFORE THE WORK HAS BEEN ACCEPTED BY THE CONTRACTING OFFICER, SHALL BE SUSTAINED BY THE CONTRACTOR.'

PARAGRAPH 35 PLACES ON THE CONTRACTOR THE RESPONSIBILITY THAT "THE WORK SHALL BE SO PLANNED AND EXECUTED THAT THE WORK MAY, WITH THE EQUIPMENT OR FACILITIES ON THE JOB, BE PROMPTLY TIED-IN OR CONNECTED WITH THE CONTROLLING LEVEE LINE FOR PROTECTION IN AN EMERGENCY.' TIE INS MAY BE REQUIRED AT ANY POINT OF THE WORK AND AT ANY TIME. THIS IS A HAZARD WHICH THE CONTRACTOR SHOULD ANTICIPATE WHEN HE BIDS ON WORK INVOLVING SETBACKS. IF AND WHEN A TIE-IN IS REQUIRED IT IS THE RESPONSIBILITY OF THE CONTRACTOR TO CONSTRUCT IT PROMPTLY, SECURING ADDITIONAL EQUIPMENT IF NECESSARY.

(4) NO CHANGE IN PLANS WAS MADE BY THE CONTRACTING OFFICER AS ALLEGED; THE CONSTRUCTION OF TIE-INS WHEN AND WHERE NECESSARY IS CONTEMPLATED BY PARAGRAPH 25 OF THE SPECIFICATIONS; THEREFORE, SUPPLEMENTAL AGREEMENT (CHANGE ORDER) WAS NOT REQUIRED. ARTICLE 15 OF THE CONTRACT SPECIFICALLY PROVIDES FOR THE PROCEDURE IN CASE OF DISPUTES.

AS FAR AS MAKING ADEQUATE PROGRESS THE CONTRACTOR HAD SUFFICIENT EQUIPMENT ON THE JOB. HOWEVER, THE CONTRACTOR ELECTED TO COMPLETE THE LEVEE BELOW STATION 4965 TO PROJECT GRADE AND SECTION BUT LEAVING THE GAP IN QUESTION BELOW 1914 GRADE. THE CONTRACTOR PLACED SUFFICIENT ADDITIONAL YARDAGE BELOW STATION 4965 TO HAVE BROUGHT THE GAP UP TO 1914 GRADE HAD HE PLANNED AND EXECUTED THIS PORTION OF HIS WORK PROPERLY, THEREBY MAKING THE TIE-IN UNNECESSARY.

(4) SUBCONTRACTOR PLACED 201,958 CUBIC YARDS OF MATERIAL. THE CONTRACTOR MADE A MISTAKE IN PLANNING AND EXECUTING HIS WORK IN NOT HAVING THE SUBCONTRACTOR CONSTRUCT THE LEVEE FROM 4969/02 TO 4959 TO 1914 GRADE, WITH THE SAME YARDAGE, THEREBY ELIMINATING THE NECESSITY OF A TIE-IN. (SEE PAR. 2 (1).)

(8) THE CONTRACTOR FAILED TO PLAN HIS WORK SO THAT WITH THE EQUIPMENT AND FACILITIES ON THE JOB THE NEW LEVEE COULD BE PROMPTLY TIED-IN AND CONNECTED WITH THE CONTROLLING LEVEE, SO AS TO FURNISH A CONTINUOUS LEVEE LINE FOR PROTECTION IN AN EMERGENCY, AS REQUIRED BY PARAGRAPH 35 OF THE SPECIFICATIONS. THEREFORE, IN ORDER TO PROVIDE CONTINUOUS PROTECTION IN THE EMERGENCY WHICH AROSE, IT WAS NECESSARY TO PROCURE OTHER EQUIPMENT FOR DOING THIS WORK, FOR THE REASON THAT THE MATERIAL IN THE BORROW PITS DESIGNATED FOR THE LEVEE WAS, DUE TO EXCESSIVE RAINFALL, RENDERED UNSUITABLE FOR PLACING IN THE LEVEE. THE ONLY FEASIBLE MEANS OF PROVIDING THE NECESSARY PROTECTION WAS TO COMPLETE A PARTIALLY COMPLETED GAP IN THE NEW LEVEE TO THE GRADE OF THE CONTROLLING LEVEE. IN ORDER TO ACCOMPLISH THIS, MATERIAL HAD TO BE OBTAINED FROM A SECTION OF THE OLD LEVEE, WHICH INVOLVED A HAUL OF ABOUT 2,000 FEET. HAULING EQUIPMENT WAS REQUIRED FOR THIS WORK. THE CONTRACTOR HAD ONLY A DRAGLINE MACHINE ON THE JOB. UNDER PARAGRAPH 35 OF THE SPECIFICATIONS IT WAS THE CONTRACTOR'S RESPONSIBILITY TO HAVE ON THE JOB SUFFICIENT AND ADEQUATE EQUIPMENT TO CONSTRUCT A TIE-IN WHEN AND IF ORDERED AND TO CARRY ON HIS WORK ACCORDINGLY.

THE CONSTRUCTION OF A TIE-IN LEVEE WAS A SEPARABLE PART OF THE CONTRACT, BEING SPECIFICALLY PROVIDED FOR IN PARAGRAPH 35 OF THE SPECIFICATIONS. CONTRACTOR'S RIGHT TO PROCEED WAS NOT TERMINATED UNDER ARTICLE 9 OF THE CONTRACT DUE TO HIS LACK OF PROGRESS, BUT INSTEAD, ON ACCOUNT OF HIS REFUSAL TO BUILD A TIE-IN LEVEE, WHICH HE WAS OBLIGATED UNDER HIS CONTRACT TO CONSTRUCT.

DUE TO THE COMPACTNESS OF THE MATERIAL IN THE OLD LEVEE, AND THE SLOPE OF THE LEVEE, WHICH AFFORDED DRAINAGE, THIS MATERIAL WAS MUCH DRIER THAN THE MATERIAL IN THE BORROW PIT, AND IT WAS SATISFACTORY AS EVIDENCED BY THE FACT THAT THE TIE-IN LEVEE WAS PROPERLY COMPLETED WITH IT. THIS MATERIAL WAS NOT HAULED IN THE RAIN, NOR DID IT SHOW A TENDENCY TO SLOUGH, AS ALLEGED BY THE CONTRACTOR.

ON ACCOUNT OF THE SOFTNESS OF THE MATERIAL IN THE BORROW PITS, IT WAS NECESSARY TO CONSTRUCT A CORDUROYED ROADWAY IN ORDER TO MAKE HAULING OF THE MATERIAL POSSIBLE, AS ALLEGED.

(9) THE STATEMENT MADE BY THE CONTRACTOR IN HIS LETTER DATED DECEMBER 18, 1931, TO THE EFFECT THAT THE CONSTRUCTION OF THE TIE-IN LEVEE, BY USING MATERIAL FROM THE OLD LEVEE, WAS NOT PROVIDED FOR IN HIS CONTRACT, WAS IN ERROR. PARAGRAPH 35 OF SPECIFICATIONS REQUIRED THAT A TIE-IN LEVEE BE CONSTRUCTED. THE CONTRACTOR SHOULD HAVE PROCEEDED TO CONSTRUCT THE TIE-IN LEVEE WHEN ORDERED. ARTICLE 15 OF THE CONTRACT READS IN PART AS FOLLOWS:

"DISPUTES.--- IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED.' THE CONTRACTING OFFICER ACTED WITHIN HIS RIGHTS IN ORDERING THE TIE-IN LEVEE TO BE BUILT. SEE (8) ABOVE. CONDITIONS WERE NOT DIFFERENT FROM THOSE CONTEMPLATED BY THE CONTRACT AS IT IS TO BE EXPECTED THAT WHEN TIE-INS ARE REQUIRED THE PITS WILL BE WET.

AS A MATTER OF FACT HAD THE CONTRACTOR USED HIS TRACTORS AND WAGONS A FEW MORE DAYS BEFORE RELEASING THEM THE NECESSITY OF A TIE-IN WOULD HAVE BEEN OBVIATED.

(10) CONTRACTOR FAILED TO COMPLY WITH HIS CONTRACT BY HIS REFUSAL TO CONSTRUCT A TIE-IN LEVEE, WHICH HE WAS OBLIGATED UNDER HIS CONTRACT TO BUILD; THEREFORE, THE ACTION OF THE CONTRACTING OFFICER IN TERMINATING THE CONTRACTOR'S RIGHT TO PROCEED WITH THIS WORK WAS FULLY JUSTIFIED AND WAS APPROVED BY THE CHIEF OF ENGINEERS.

(11) THE GOVERNMENT COMMENCED BUILDING THE TIE-IN, BETWEEN STATIONS 4959 AND 4965, ON DECEMBER 21, 1931, AND COMPLETED THIS WORK ON JANUARY 3, 1932. THE STATEMENT REGARDING EQUIPMENT AND MEN IS NOT CORRECT. THE FOLLOWING FORCES AND EQUIPMENT WERE USED DURING THE PERIODS STATED:

DECEMBER 21, ONE DRAGLINE, AND SEVEN EACH TRACTORS AND WAGONS.

DECEMBER 22 TO 24, ONE DRAGLINE, AND TWELVE EACH TRACTORS AND WAGONS.

DECEMBER 25, TWO DRAGLINES, AND TWELVE EACH TRACTORS AND WAGONS.

DECEMBER 26 AND 27, TWO DRAGLINES AND FIFTEEN EACH TRACTORS AND WAGONS.

DECEMBER 28 TO JANUARY 3, THREE DRAGLINES AND FIFTEEN EACH TRACTORS AND WAGONS.

THE AVERAGE FORCE WAS ABOUT EIGHTY MEN DAILY.

AS STATED IN 2 (8) ABOVE, THE MATERIAL WAS NOT HAULED IN THE RAIN, AND IT HAD NOT SOFTENED WHEN IT REACHED THE LEVEE, AS ALLEGED BY THE CONTRACTOR.

THE FALSE BERM REFERRED TO BY THE CONTRACTOR WAS NOT CONSTRUCTED ON ACCOUNT OF THE CONDITION OF THE MATERIAL PLACED BY THE GOVERNMENT AS ALLEGED, BUT INSTEAD, FOR THE REASON THAT THE MATERIAL WHICH THE CONTRACTOR HAD PREVIOUSLY PLACED HAD BEEN LEFT ON A STEEP SLOPE (ABOUT 2 TO 1). WHEN THE ADDITIONAL MATERIAL WAS PLACED THEREON, IT WOULD NOT REMAIN IN PLACE ON ACCOUNT OF THIS SLOPE, THE WET CONDITION OF THE PARTIALLY COMPLETED EMBANKMENT AND OF THE LEVEE BASE. IN ORDER TO CORRECT THIS CONDITION, IT WAS NECESSARY TO CONSTRUCT A FALSE BERM ABOUT 40 FEET WIDE OVER THE ENTIRE LENGTH OF THE GAP, BUT ENTIRELY WITHIN THE LEVEE SECTION PRESCRIBED IN THE SPECIFICATIONS.

(13) THE CONTRACTOR'S STATEMENT TO THE EFFECT THAT BACK SIDE SLOPE WAS AMPLE TO TAKE CARE OF THE WATER THAT ACTUALLY CAME IS CORRECT. HOWEVER, THE GOVERNMENT'S ACTION IN REGARD TO THE CONSTRUCTION OF THE TIE-IN LEVEE WAS JUSTIFIED, DUE TO THE EXTREME EMERGENCY EXISTING AT THE TIME SAID ACTION WAS TAKEN.

DURING THE EARLY PART OF DECEMBER 1931 RIVER REPORTS ISSUED BY THE UNITED STATES WEATHER BUREAU SHOWED A CONSIDERABLE RISE IN THE MISSISSIPPI RIVER AT GREENVILLE, MISS. ON DECEMBER 8, 1931, THE RIVER REACHED ITS CREST OF 23.2 FEET, AFTER WHICH DATE IT FELL, AND BY DECEMBER 16, RECEDED TO A STAGE OF 19.4 FEET. HOWEVER, ON DECEMBER 16 A STAGE OF 34 FEET WAS PREDICTED AT GREENVILLE, ISS., BY DECEMBER 30, OR 31.

ALTHOUGH THE PREDICTED RISE IN THE RIVER WAS NOT SUCH AS TO CAUSE MATERIAL DAMAGE TO THE UNCOMPLETED LEVEE, OR ENDANGER THE LIVES OF THE PEOPLE OR DAMAGE THE PROPERTY BEHIND THE LEVEE, THE SITUATION WAS SUCH THAT, IN THE EVENT THE PREDICTED STAGE WAS REACHED, IT WOULD HAVE RESULTED IN A HEAD OF ABOUT SIX FEET OF WATER AGAINST THE LEVEE, WHICH WOULD HAVE MADE THE FUTURE STRENGTHENING AND RAISING OF THE WEAK SECTION PRIOR TO AN OVERTOPPING STAGE PROBLEMATICAL. IT WAS NECESSARY TO CONSTRUCT THE TIE-IN BEFORE THE RIVER STAGE PREVENTED HAULING OVER THE OLD PITS. IT COULD NOT HAVE BEEN COMPLETED AT A LATER DATE AS THE STAGE ROSE ALMOST CONTINUOUSLY UNTIL IT REACHED 47 FEET GREENVILLE GAGE FEBRUARY 26, ABOUT TWO MONTHS LATER. THE GOVERNMENT'S ACTION AT THE TIME WAS NECESSARY AS IT WOULD NOT HAVE BEEN PRUDENT TO JEOPARDIZE THE LIVES AND PROPERTY OF PEOPLE LIVING BEHIND THE LEVEE. THE WORK IN QUESTION WAS ON THE FRONT LINE LEVEE A FEW MILES BELOW GREENVILLE, MISS.

(16) THE CONTRACTOR'S RIGHT TO PROCEED WITH ONLY SUCH PORTION OF THE LEVEE AS WAS NECESSARY TO BRING THE WEAK SECTION TO 1914 GRADE AND SECTION WAS TERMINATED. THIS ACTION WAS TAKEN IN ORDER TO PROVIDE CONTINUOUS PROTECTION, AS REQUIRED BY PARAGRAPH 35 OF THE SPECIFICATIONS. THEREFORE, THE CONTRACT WAS STILL IN FULL FORCE AND EFFECT AS TO THE COMPLETION OF THE LEVEE BETWEEN STATIONS 4959 AND 4965 TO FINAL GRADE AND SECTION. THE CONTRACTOR WAS ACCORDINGLY REQUESTED ON FEBRUARY 1, 1932, TO ADVISE THE CONTRACTING OFFICER AS TO HIS PLANS FOR COMPLETION OF THE WORK WHICH HAD NOT BEEN TAKEN OVER.

(18) THE CONTRACTING OFFICER'S ACTION IN TERMINATING THE CONTRACTOR'S RIGHT TO PROCEED WITH THE CONSTRUCTION OF SO MUCH OF THE PORTION OF THE LEVEE AS WAS NECESSARY TO BRING IT UP TO 1914 GRADE AND SECTION TO PROVIDE THE PROTECTION PROVIDED FOR BY PARAGRAPH 35 OF THE SPECIFICATIONS WAS JUSTIFIED. THE CONSTRUCTION OF A TIE-IN LEVEE WAS A SEPARABLE PART OF THE CONTRACT, BEING REQUIRED BY PARAGRAPH 35 OF THE SPECIFICATIONS. SEE 3 (5) BELOW. THEREFORE, THE CONTRACTOR'S CONTENTION THAT THE CONTRACTING OFFICER'S ACTION IN LEGAL EFFECT WAS A RESCISSION OF THE CONTRACT WITH REFERENCE TO ALL OF THE WORK BETWEEN THOSE STATIONS IS NOT WELL FOUNDED. IN VIEW OF THE FACT THAT ONLY A PORTION OF THE WORK WAS TAKEN OVER, THE CONTRACTOR WAS OBLIGATED FOR THE COMPLETION OF HIS CONTRACT.

THE MATERIAL PLACED BY THE GOVERNMENT IN THE GAP WAS NOT WET AND SOFT AS ALLEGED. BORINGS WERE MADE DURING THE MONTH OF JULY 1932, BEING MORE THAN 6 MONTHS AFTER THE MATERIAL HAD BEEN PLACED, TO DETERMINE THE CONDITION OF THE MATERIAL WHICH HAD BEEN PLACED BY THE GOVERNMENT, AND IT WAS FOUND THAT NO PLANES OF CLEAVAGE EXISTED AND THAT THE MATERIAL WAS SOLID. WHEN THE LEVEE WAS BROUGHT TO FINAL GRADE AND SECTION NO SLIDES OR TROUBLE OF ANY KIND WERE ENCOUNTERED.

(19) THE CONTRACTOR REFUSED TO COMPLETE THE LEVEE BETWEEN STATIONS 4959 AND 4965 UNLESS THE CONTRACTING OFFICER AGREED THAT IN SO DOING THE CONTRACTOR WAS NOT ADMITTING ANY OBLIGATION FOR THE WORK PERFORMED BY THE GOVERNMENT, OR FOR THE EXCESS COST INVOLVED THEREBY, AND FURTHER THAT HE WOULD NOT BE HELD RESPONSIBLE FOR SLIDES DEVELOPING IN HIS WORK ON ACCOUNT OF THE WORK DONE BY THE GOVERNMENT. THE CONTRACTOR WAS ORALLY INFORMED THAT HE WOULD NOT BE HELD RESPONSIBLE FOR ANY SLIDES RESULTING FROM THE CONDITION OF THE FILL PLACED BY THE GOVERNMENT. THE CONTRACTING OFFICER REFUSED TO AGREE TO PERMIT THE CONTRACTOR TO COMPLETE THE LEVEE UNDER THE CONDITION THAT HE WOULD NOT BE RESPONSIBLE FOR EXCESS COST INCURRED IN THE WORK OF BRINGING THE GAP TO 1914 GRADE. THE CONTRACTOR REFUSED TO COMPLETE THE WORK WHICH HE WAS OBLIGATED TO DO. THEREFORE, THE REMAINING WORK BETWEEN THE ABOVE MENTIONED STATIONS WAS TAKEN OVER ON AUGUST 10, 1932, UNDER AUTHORITY OF THE CHIEF OF ENGINEERS.

(20) THE CONTRACTOR ON JULY 20, 1932, COMMENCED THE WORK OF DRESSING AND SODDING A PORTION OF THE LEVEE WHICH HAD NOT BEEN TAKEN OVER AND COMPLETED SAME ON AUGUST 1, 1932.

(22) LETTER DATED AUGUST 26, 1932, RECEIVED FROM CONTRACTOR, AS ALLEGED. (THIS WAS THE ABOVE QUOTED LETTER CLAIMING FINAL BALANCE DUE CONTRACTOR OF $15,066.57)

(24) THERE IS ATTACHED HERETO A REVISED STATEMENT SHOWING THE BALANCE DUE THE UNITED STATES TO BE $24,638.13 INSTEAD OF $28,836.67 AS SHOWN IN THE STATEMENT SENT TO THE CONTRACTOR ON SEPTEMBER 29, 1932. THE DIFFERENCE OF $4,198.54 COVERS 21,642 CUBIC YARDS OF THE MATERIAL WHICH HAD BEEN PLACED BY THE CONTRACTOR IN THE LEVEE BETWEEN STATIONS 4959 AND 4965 PRIOR TO THE DATE THE WORK WAS TAKEN OVER BY THE GOVERNMENT.

CREDIT WAS GIVEN THE CONTRACTOR FOR PLACING IN THIS PORTION OF THE LEVEE ONLY 3,949 CUBIC YARDS, AMOUNTING TO $766.11, AS SHOWN IN UNPAID ESTIMATE FOR DECEMBER 1931, WHEREAS THE UNPAID ESTIMATE SHOULD HAVE COVERED A TOTAL OF 25,591 CUBIC YARDS, AT CONTRACT PRICE OF 19.40 CENTS PER CUBIC YARD, BEING $4,964.65.

3. CONTRACTOR'S CONTENTION--- ARGUMENT IN SUPPORT AND CONCLUSION:

(1) THE TOTAL AMOUNT WITHHELD TO APPLY AGAINST THE EXCESS COST AMOUNTS TO $16,477.00 INSTEAD OF $15,124.63 AS STATED BY THE CONTRACTOR. (SEE STATEMENT ATTACHED.)

(2) THE CONTRACTOR DEFAULTED UNDER HIS CONTRACT BY REFUSING TO CONSTRUCT THE TIE-IN LEVEE, WHICH WAS A SEPARABLE PART OF HIS CONTRACT, BEING REQUIRED BY PARAGRAPH 35 OF SPECIFICATIONS. THEREFORE, THE GOVERNMENT WAS JUSTIFIED IN CHARGING THE CONTRACTOR WITH EXCESS COST INVOLVED IN DOING THIS WORK. THE CONTRACTOR FURTHER DEFAULTED UNDER HIS CONTRACT BY REFUSING TO COMPLETE THE PORTION OF THE LEVEE WHICH WAS NOT TAKEN OVER, AND THE GOVERNMENT WAS THEREFORE JUSTIFIED IN CHARGING THE CONTRACTOR WITH EXCESS COST INCURRED IN COMPLETING THE LEVEE TO FINAL GRADE AND SECTION.

(3) THE CONTRACTOR'S RIGHT TO PROCEED WITH THE WORK FIRST TAKEN OVER AND COMPLETED BY THE GOVERNMENT WAS NOT TERMINATED ON THE GROUNDS THAT THE CONTRACTOR HAD NOT MADE SUFFICIENT PROGRESS, BUT INSTEAD, ON ACCOUNT OF HIS REFUSAL TO BUILD THE TIE-IN LEVEE, WHICH HE WAS OBLIGATED TO BUILD UNDER PARAGRAPH 35 OF THE SPECIFICATIONS.

(4) PARAGRAPH 35 OF THE SPECIFICATIONS REQUIRED THE CONSTRUCTION OF A TIE -IN LEVEE IN AN EMERGENCY. AS STATED IN 2 (13) ABOVE, THE EMERGENCY WAS SUCH THAT IT WAS NECESSARY TO CONSTRUCT A TIE-IN LEVEE. THE WORK OF BRINGING THE GAP TO 1914 GRADE AND SECTION WAS MERELY CONSTRUCTING A TIE- IN LEVEE "WITH THE CONTROLLING LEVEE SO AS TO FURNISH A CONTINUOUS LEVEE LINE FOR PROTECTION IN AN EMERGENCY" (PAR. 35). THE CONTROLLING LEVEE WAS THE NEW LEVEE FROM STATION 4965 SOUTH.

THE MATERIAL PLACED IN THE TIE-IN BY THE GOVERNMENT DID NOT SHOW A TENDENCY TO SLOUGH, AS ALLEGED BY THE CONTRACTOR. AS STATED IN 2 (13) ABOVE, WHEN THE LEVEE WAS BROUGHT TO FINAL GRADE AND SECTION, NO TROUBLE OF ANY KIND WAS EXPERIENCED, AND A STABLE LEVEE WAS BUILT. THE TIE-IN LEVEE WAS THEREFORE NOT CONSTRUCTED IN VIOLATION OF PARAGRAPH 22 OF THE SPECIFICATIONS, AS ALLEGED.

(5) THE WORK IN QUESTION WAS THE CONSTRUCTION OF A TIE-IN LEVEE ORDERED UNDER PARAGRAPH 35 OF THE SPECIFICATIONS. PAYMENT FOR THIS WORK WAS TO BE AT CONTRACT PRICES AS PROVIDED FOR IN PARAGRAPH 37 OF THE SPECIFICATIONS FOR A PROTECTIVE LEVEE.

(6) THE WORK OF CONSTRUCTING THE TIE-IN WAS NECESSARY IN THE EMERGENCY AS EXPLAINED IN (4) ABOVE. THE CONTRACTOR WAS OBLIGATED UNDER PARAGRAPH 35 OF THE SPECIFICATIONS TO SO EXECUTE HIS WORK THAT A TIE-IN LEVEE COULD BE BUILT WHEN AN EMERGENCY AROSE. PARAGRAPH 35 DOES NOT INDICATE THE PERMANENCY OF A TIE-IN LEVEE. IT MAY BE TEMPORARY OR PERMANENT. CONTRACTOR WAS THEREFORE OBLIGATED TO HAUL MATERIAL FROM ANY LOCATION WHICH WAS NECESSARY IN ORDER TO OBTAIN SATISFACTORY MATERIAL FOR THE TIE- IN LEVEE, AND TO PERFORM THIS WORK AT CONTRACT PRICE PER CUBIC YARD. STATED IN 2 (8) ABOVE, THE CONTRACTOR FAILED TO EXECUTE HIS WORK AS REQUIRED BY PARAGRAPH 35 OF THE SPECIFICATIONS, AND AS A RESULT THEREOF CREATED A CONDITION WHICH MADE IT IMPOSSIBLE TO PROVIDE CONTINUOUS PROTECTION IN THE EMERGENCY WITH THE EQUIPMENT HE HAD ON THE JOB. UNDER THESE CIRCUMSTANCES, THE CONTRACTOR WAS OBLIGATED TO PLACE THE NECESSARY EQUIPMENT ON THE JOB, IN ORDER TO PROVIDE THE PROTECTION REQUIRED BY THE CONTRACT.

(7) THE CONTRACTOR WAS OBLIGATED FOR THE CONSTRUCTION OF THE TIE-IN LEVEE UNDER PARAGRAPH 35 OF THE SPECIFICATIONS. (SEE (4) ABOVE.)

(8) * * * PARAGRAPH 35 OF THE SPECIFICATIONS ATTACHED TO AND FORMING A PART OF THE CONTRACT IS CLEAR AS TO THE REQUIREMENTS TO BUILD TIE-IN LEVEES. THE CLOSURE OF THE GAP TO 1914 GRADE WAS MERELY THE CONSTRUCTION OF TIE-IN LEVEE.

(9) CONDITIONS NOT CHANGED AS ALLEGED. TIE-INS ARE NECESSITATED BY RAINS AND HIGH WATERS, WHICH ARE POSSIBLE AT ANY TIME DURING THE YEAR. CONTRACTOR IN BIDDING ON THIS WORK SHOULD HAVE ANTICIPATED THAT RAINS AND HIGH WATER WOULD MAKE HIS PITS WET SO THAT A LONGER HAUL WOULD PROBABLY BE REQUIRED FOR ANY TIE-IN. CONTRACTOR'S CONTENTION THAT SUPPLEMENTAL AGREEMENT SHOULD HAVE BEEN ENTERED INTO TO PROVIDE FOR ADDITIONAL PAYMENT FOR CONSTRUCTING THE TIE-IN IS NOT WELL FOUNDED. HE WAS OBLIGATED UNDER PARAGRAPH 35 OF SPECIFICATIONS TO DO THIS WORK. THEREFORE, ARTICLES 3 AND 4 OF CONTRACT WERE NOT APPLICABLE. PARAGRAPH 25 OF THE SPECIFICATIONS DOES NOT PROVIDE FOR EXTRA COMPENSATION.

(10) THE GOVERNMENT'S ACTION UNDER ARTICLE 9 OF THE CONTRACT WAS WARRANTED. THE CONTRACTOR DEFAULTED UNDER HIS CONTRACT BY REFUSING TO CONSTRUCT THE TIE-IN LEVEE ORDERED UNDER PARAGRAPH 35 OF THE SPECIFICATIONS. CONTRACTOR IS THEREFORE PROPERLY CHARGEABLE WITH EXCESS COST INVOLVED IN DOING THIS WORK.

(11) LIQUIDATED DAMAGES ARE NOT PROPERLY CHARGEABLE TO THE CONTRACTOR AFTER THE DATE HIS RIGHT TO PROCEED WAS TERMINATED. HOWEVER, THE CONTRACTOR'S RIGHT TO PROCEED WITH ALL OF THE REMAINING WORK UNDER HIS CONTRACT WAS NOT TERMINATED UNTIL AUGUST 10, 1932, AND LIQUIDATED DAMAGES WERE PROPERLY CHARGEABLE UP TO THAT DATE, EXCEPT FOR DELAY DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING UNUSUALLY SEVERE WEATHER, AS PROVIDED IN ARTICLE 9 OF THE CONTRACT. IT IS CONSIDERED THAT THE CONTRACTOR COULD HAVE COMPLETED ALL OF THE WORK COVERED BY ITS CONTRACT BY THE DATE FIXED FOR ITS COMPLETION IF NORMAL WEATHER CONDITIONS HAD PREVAILED, AND THAT LIQUIDATED DAMAGES ARE NOT PROPERLY CHARGEABLE FOR ANY PART OF THE DELAY FROM JANUARY 1, 1932, TO AUGUST 10, 1932, BEING 223 CALENDAR DAYS AT $20.00 PER CALENDAR DAY, TOTALING $4,460.00.

THIS CONCLUSION IS BASED ON THE FOLLOWING:

(A)CONTRACTOR'S NORMAL PROGRESS WITH HIS MACHINE WAS ABOUT 130,000 CUBIC YARDS PER MONTH.

(B) ON DECEMBER 1, 1931, ONLY 60,712 CUBIC YARDS REMAINED TO BE PLACED.

(C) ABNORMAL DELAY 10 DAYS IN JULY 1931, DUE TO EXCESSIVE RAINFALL. (D) ABNORMAL DELAY 21 DAYS IN DECEMBER 1931, DUE TO EXCESSIVE RAINFALL.

THEREFORE, WITH THE EQUIPMENT THE CONTRACTOR HAD ON THE JOB, HE SHOULD HAVE COMPLETED THE CONTRACT ABOUT DECEMBER 15, 1931, UNDER NORMAL WORKING CONDITIONS.

(12) THE CONTRACTOR COMMENCED DRESSING AND SODDING THE PORTION OF THE LEVEE AS TO WHICH HIS RIGHT TO PROCEED HAD NOT BEEN TERMINATED ON JULY 20, 1932, AND COMPLETED THIS WORK ON AUGUST 1, 1932.

(13) THE GOVERNMENT'S ACTIONS IN BOTH THE FIRST AND SECOND TERMINATIONS OF THE CONTRACTOR'S RIGHT TO PROCEED WERE JUSTIFIED. (SEE 2 (8) AND 2 (19) ABOVE.)

(14) AS THE CONTRACTOR'S RIGHT TO PROCEED WITH ONLY THE PORTION OF THE LEVEE NECESSARY TO PROVIDE THE PROTECTION REQUIRED BY HIS CONTRACT WAS TERMINATED, THE CONTRACTOR WAS NOT RELEASED FROM FURTHER OBLIGATION OR RESPONSIBILITY FOR THE COMPLETION OF THE WORK BETWEEN STATIONS 4959 AND 4965, AS ALLEGED.

(15) THE CONTRACTING OFFICER'S ACTION IN DECEMBER IN TERMINATING THE CONTRACTOR'S RIGHT TO PROCEED WITH A PORTION OF THE WORK BETWEEN STATIONS 4959 AND 4965 WAS PROPER. PARAGRAPH 35 REQUIRED THE CONSTRUCTION OF TIE- IN LEVEE, WHICH WAS A SEPARABLE PART OF THE WORK. THE GOVERNMENT DID NOT PERFORM THE WORK OF BUILDING A TIE-IN LEVEE BY USING IMPROPER MATERIALS, OR IN AN IMPROPER MANNER, AS ALLEGED BY THE CONTRACTOR. (SEE 2 (19) ABOVE.)

(16) THE CONTRACTOR DEFAULTED UNDER HIS CONTRACT BY REFUSING TO BUILD THE TIE-IN LEVEE WHICH WAS A SEPARABLE PART OF THE CONTRACT. THE GOVERNMENT'S ACTION IN TERMINATING THE CONTRACTOR'S RIGHT TO PROCEED WITH THE PORTION OF THE CONTRACT WHICH WAS NECESSARY FOR THE CONSTRUCTION OF THE TIE-IN LEVEE WAS THEREFORE JUSTIFIED.

(17) THE WORK WAS NOT CHANGED IN CHARACTER, AS ALLEGED BY THE CONTRACTOR. THE CONTRACTOR WAS INFORMED THAT HE WOULD NOT BE HELD RESPONSIBLE FOR ANY SLIDES RESULTING FROM THE CONDITION OF THE FILL PLACED BY THE GOVERNMENT. (SEE 2 (19) AND 3 (4) ABOVE.)

(18) THE CONTRACTOR'S RIGHT TO PROCEED WITH THE DRESSING AND SODDING REFERRED TO, WHICH WORK WAS BETWEEN STATIONS 4920 AND 4957-63 AND STATIONS 4965 AND 4969-02, WAS NOT TERMINATED. AS EXPLAINED IN 2 (14) AND 2 (19), THE ONLY WORK TAKEN OVER BY THE GOVERNMENT WAS THAT BETWEEN STATIONS 4959 AND 4965.

(20) THE GOVERNMENT DID NOT MAKE A MISTAKE IN CONSTRUCTING THE TIE IN. (SEE 2 (13).) THE WORK IN QUESTION WAS ON THE FRONT LINE LEVEE A FEW MILES BELOW GREENVILLE, MISS. THE DISTRICT ENGINEER DID NOT BELIEVE IT PRUDENT TO PLACE HUMAN LIVES AND PROPERTY IN JEOPARDY AND ACTED FULLY WITHIN THE SCOPE AND AUTHORITY OF THE SPECIFICATIONS IN DIRECTING THAT THE CONTRACTOR CONSTRUCT A TIE-IN LEVEE.

SUPPLEMENTAL DECISIONS OF CONTRACTING OFFICER SUBJECT: CLAIM UNDER CONTRACT W 1106 ENG.-1389-R. E. COTTON CO.

1. THE INCLOSED CLAIM PERTAINS TO CONTRACT NO. W 1106 ENG.-1389, ENTERED INTO WITH R. E. COTTON CO. ON JUNE 27, 1931, COVERING THE CONSTRUCTION OF DEERFIELD SETBACK LEVEE, ITEM 11-C, INVOLVING ABOUT 651,300 CU. YDS. EARTHWORK ON THE EAST BANK OF THE MISSISSIPPI RIVER, IN MISSISSIPPI, AT A UNIT PRICE OF 19.40 CENTS PER CUBIC YARD.

2. ON DECEMBER 18, 1931, THE CONTRACTOR HAD ABOUT 600 FT. OF NEW FILL THAT WAS ONLY UP TO AN ELEVATION 6 FT. BELOW THE 1914 GRADE. (SEE SKETCH FORWARDED WITH E.D. 3504 (VICKS. D.O./-597). DUE TO THIS SITUATION, THE CONTINUED RAINS AND THE PREDICTED RISE IN THE RIVER, THE PEOPLE OF GREENVILLE AND THE NEIGHBORING COMMUNITY WERE MUCH ALARMED.

THE CONTRACTOR HAVING REFUSED ON DECEMBER 18, AFTER REPEATED REQUESTS TO CONSTRUCT A TIE-IN LEVEE UNDER PARAGRAPH 35 OF THE SPECIFICATIONS, THE PRESIDENT, MISSISSIPPI RIVER COMMISSION, AUTHORIZED THE DISTRICT ENGINEER TO CONSTRUCT THIS TIE-IN. THIS ACTION WAS APPROVED BY THE CHIEF OF ENGINEERS IN INDORSEMENT DATED DECEMBER 31, 1931, E.D. 3504 (VICKS. D.O./ -597.

THE PROPER PROCEDURE FOR THE CONTRACTOR WOULD HAVE BEEN TO CONSTRUCT THE TIE-IN AS DIRECTED AND PROCEED, HAD HE SO DESIRED, UNDER ARTICLE 15 OF THE CONTRACT.

3. IN LETTER OF APRIL 23, 1932, THE CONTRACTOR STATED DEFINITELY THAT HE WOULD NOT ASSUME COMPLETION OF THE WORK BETWEEN STATIONS 4959 AND 4965. THE CHIEF OF ENGINEERS ON JUNE 14, 1932, E.D. 3504 (VICKS. D.O./-678, AUTHORIZED THE TERMINATION OF THE CONTRACTOR'S RIGHT TO PROCEED WITH THAT PORTION OF THE WORK, EXCESS COSTS TO BE CHARGED TO THE CONTRACTOR AND THE SURETY. BY TELEGRAM OF AUGUST 9, 1932, THE SURETY DECLINED TO UNDERTAKE COMPLETION OF THIS WORK.

4. UNDER THE PROVISIONS OF PARAGRAPH 35 OF THE SPECIFICATIONS, IT IS THE RESPONSIBILITY OF THE CONTRACTOR TO CARRY ON HIS WORK IN SUCH MANNER THAT HE WILL BE ABLE TO CONSTRUCT ANY TIE-INS NECESSARY.

DURING DECEMBER 1931 IT WAS NECESSARY TO CONSTRUCT TIE-INS ON FOUR CONTRACTS. IN ALL CASES, EXCEPT THAT OF THE R. E. COTTON CO., THESE TIE- INS WERE MADE BY THE CONTRACTORS WITHOUT PROTEST, AT THE DIRECTION OF THE CONTRACTING OFFICER, AND IT WAS NECESSARY FOR THE CONTRACTORS TO SECURE TRACTORS AND WAGONS FOR DOING THIS WORK.

5. THE WORK WAS COMPLETED ON SEPTEMBER 9, 1932, BY GOVERNMENT PLANT AND HIRED LABOR. THE TOTAL EXCESS COST TO THE GOVERNMENT IN CLOSING THE GAP AMOUNTED TO $36,655.13. AS SHOWN BY INCLOSED REVISED STATEMENT, THERE IS DUE THE CONTRACTOR FOR WORK PERFORMED AND UNPAID SUBSISTENCE ACCOUNT THE SUM OF $16,477.00. SINCE THE CONTRACTOR COULD HAVE COMPLETED HIS CONTRACT WELL WITHIN THE TIME FIXED FOR COMPLETION IF NORMAL WEATHER HAD PREVAILED, THE LIQUIDATED DAMAGES AMOUNTING TO $4,460.00 SHOULD NOT BE PAYABLE BY THE CONTRACTOR.

MAKING NO DEDUCTION FOR LIQUIDATED DAMAGES, THERE IS DUE TO UNITED STATES A TOTAL OF $20,178.13 ($36,655.13-$16,477.00), AND IT IS RECOMMENDED THAT STEPS BE TAKEN TO COLLECT THIS AMOUNT FROM THE CONTRACTOR AND THE SURETY.

AS BEARING ON THE COMMENTS THAT OTHER CONTRACTORS CONSTRUCTING OTHER PORTIONS OF THE LEVEE IN THE SAME VICINITY UNDER IDENTICAL CONTRACT PROVISIONS AND UNDER SIMILAR CIRCUMSTANCES PERFORMED THE WORK WHICH YOUR COMPANY REFUSED TO PERFORM, THE RECORDS OF THIS OFFICE SHOW AT LEAST SEVEN OTHER CONTRACTS WITH SIMILAR PROVISIONS WERE AWARDED ON THE SPECIFICATIONS GOVERNING THE PERFORMANCE OF YOUR WORK AND IN SPEAKING OF YOUR FAILURE AND REFUSAL TO PERFORM, THE E. F. POWERS CONSTRUCTION CO., WHICH WAS AWARDED THE CONSTRUCTION WORK AT LOWER CUBIC YARD RATES UNDER CONTRACT W-1106 ENG. 1391, JUNE 1931, FOR CONSTRUCTION OF SUBSECTIONS 11-A AND 11-B, ADJACENT TO SUBSECTION 11-C OF THE DEERFIELD SETBACK PORTION OF THE LEVEE COVERED BY YOUR CONTRACT, STATED IN ITS LETTER OF MAY 6, 1932, TO THE DISTRICT ENGINEER AT VICKSBURG, AS FOLLOWS:

* * * DECEMBER 22, A TIE-IN LEVEE BECAME NECESSARY ON ITEM 11-C FOR WHICH THE CONTRACTOR (YOUR COMPANY) LACKED SUFFICIENT EQUIPMENT TO CONSTRUCT, OUR TRACTORS BEING UNABLE TO WORK ON ITEM 11-A WERE RENTED TO THE GOVERNMENT FOR THIS EMERGENCY WORK. AFTER THE COMPLETION OF THIS TIE-IN ON ITEM 11-C ALL OF OUR EQUIPMENT WAS RETURNED * * *.

THIS LETTER BY A CONTRACTOR ENGAGED ON IDENTICAL CHARACTER OF WORK AND FAMILIAR WITH THE TERMINOLOGY THEREOF IS ON FILE IN THIS OFFICE IN CLAIM FILE 0409640 COVERING THE CLAIM OF THE SAID POWERS CONSTRUCTION CO. FOR REMISSION OF LIQUIDATED DAMAGES ADMINISTRATIVELY DEDUCTED FROM PAYMENTS UNDER ITS CONTRACT. THE CONTRACTING OFFICER--- UNDER YOUR CONTRACT AS WELL AS UNDER THE POWERS CONSTRUCTION CO. CONTRACT AND OTHER CONTRACTS AWARDED ON THE SAME SPECIFICATIONS--- FORMALLY DECIDED ON THE POINT AS TO THE POWERS CONSTRUCTION CO. EQUIPMENT AS FOLLOWS:

* * * THE EQUIPMENT REFERRED TO BY THE CONTRACTOR WAS RENTED BY THE GOVERNMENT AS CLAIMED. IT WAS RECEIVED BY THE GOVERNMENT ON DECEMBER 20, 1931, INSTEAD OF ON DECEMBER 22, 1931, AS STATED BY THE CONTRACTOR. WAS RETURNED TO THE CONTRACTOR ON JANUARY 22, 1932. * * *

THIS FINDING IS ALSO IN G.A.O. CLAIM FILE 0409640.

THE PRESIDENT OF THE MISSISSIPPI RIVER COMMISSION, AN EMINENT ENGINEER AND A RECOGNIZED EXPERT ON LEVEE WORK OF THE CHARACTER COVERED BY YOUR CONTRACT AND THE TERMINOLOGY APPLYING THERETO, AS WELL AS FAMILIAR WITH THE ACTUAL FACTS, MADE FORMAL COMMENT BY FOURTH ENDORSEMENT OF MARCH 14, 1933, TO THE CHIEF OF ENGINEERS, UNITED STATES ARMY, CONCERNING THE DECISIONS MADE BY THE CONTRACTING OFFICER AND HIS REPRESENTATIVES, AS FOLLOWS:

1. R. E. COTTON CO., AFTER HAVING TORN DOWN THE CONTROLLING LEVEE (BUILT TO 1914 GRADE) ON ITEM 11 (C) IN THE VICKSBURG DISTRICT, A SHORT DISTANCE BELOW GREENVILLE, MISS., REFUSED, IN THE FACE OF IMPENDING HIGH WATER, TO RESTORE CONTINUOUS PROTECTION TO 1914 GRADE BY ADDING 31,000 CUBIC YARDS OF MATERIAL TO ABOUT 600 FEET OF PARTIAL FILL THAT WAS STILL 6 FEET BELOW 1914 GRADE.

THE UNITED STATES THEN TOOK OVER THE WORK TO THE NECESSARY EXTENT AND PLACED THE REQUIRED MATERIAL, BILLING THE CONTRACTOR FOR THE EXCESS COST THEREOF.

UPON SUBSIDENCE OF HIGH WATER THE CONTRACTOR REFUSED TO COMPLETE THE WORK WHICH THE UNITED STATES HAD BROUGHT UP TO 1914 GRADE. * * *

2. THE CONTRACTOR CLAIMS THAT HE WAS NOT BOUND TO FURNISH THE CONTINUOUS PROTECTION REQUIRED AT CONTRACT RATES, INASMUCH AS DOING SO ENTAILED LONG HAUL, POSSIBLE USE OF WET MATERIAL WHOSE USE WAS FORBIDDEN BY THE SPECIFICATIONS AND THAT LATER MIGHT DEVELOP SLIDES, AND ADDITIONAL EXPENSE BY WAY OF ASSEMBLING EQUIPMENT OTHER THAN THAT WHICH HE ALREADY HAD ON THE WORK. HIS DETAILED PLEA RATHER INGENIOUSLY MISINTERPRETS SOME OF THE REQUIREMENTS OF THE SPECIFICATIONS THAT HERETOFORE HAVE BEEN PERFECTLY CLEAR.

3. THE SPECIFICATIONS CLEARLY CHARGE THE CONTRACTOR WITH THE DUTY OF RESTORING CONTINUOUS PROTECTION (DESTROYED BY HIM) AT CONTRACT RATES, UPON DEMAND. THAT THE TIE-IN IN THIS CASE HAD TO BE UPON THE LEVEE LINE PROPER BECAUSE THE CONTRACTOR HAD MADE ALL OTHER ROUTES IMPOSSIBLE IN NO WAY RELIEVES HIM OF RESPONSIBILITY.

4. THE CONTRACTOR'S REFUSAL TO COMPLETE THE PORTION UPON WHICH THE UNITED STATES HAD WORKED IS BASED UPON THE CONTENTION THAT HAVING TAKEN OVER PART OF THE WORK BETWEEN SPECIFIED STATIONS, THE GOVERNMENT HAD TAKEN OVER ALL WORK BETWEEN THOSE STATIONS; THAT THE JOB CAN BE DIVIDED BY LINES DRAWN NORMAL TO THE CENTER LINE BUT NOT BY LINES DRAWN PARALLEL TO IT. THE DISTINCTION SEEMS FINELY DRAWN. SINCE THE CONTRACTOR HAD ALREADY PLACED SOME MATERIAL ALONG THE LANDSIDE TOE OF THE STRETCH, FOR WHICH HE IS DEMANDING PAYMENT, IT IS CLEARLY DEMONSTRATED THAT IT IS POSSIBLE TO SEPARATE THE FILL ALONG LONGITUDINAL LINES AS WELL AS ALONG TRANSVERSALS. IN THE PRESENT CASE, THE GOVERNMENT LEFT THE CONTRACTOR THE SHORT-HAUL, HIGH-PROFIT YARDAGE TO PLACE.

5. THE CONTRACTOR BRINGS IN CLAIMS AS TO CHANGED CONDITIONS, ETC., AND ALSO INTRODUCES MANY IRRELEVANCIES--- ALL OF WHICH ARE CONCISELY AND ABLY ANSWERED BY THE DISTRICT ENGINEER IN HIS MEMORANDUM. THE CONTRACTOR AND HIS LAWYER SOUGHT AND RECEIVED AN AUDIENCE WITH ME NOVEMBER 5, 1932. THEIR VERBAL REPRESENTATIONS WERE NO MORE CONVINCING THAN ARE THEIR WRITTEN ONES. I FIND MYSELF IN FULL ACCORD WITH THE VIEWS AND RECOMMENDATIONS OF THE DISTRICT ENGINEER.

YOUR CLAIM, SUPPORTED BY BRIEFS, ETC., AND THE CLAIM OF THE UNITED STATES ADMINISTRATIVELY FOUND AGAINST YOU UNDER THE CONTRACT, THUS HAVING BEEN PRESENTED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AND ADJUSTMENT AND THE CHIEF OF CLAIMS DIVISION HAVING REQUESTED THE FORMER COMPTROLLER GENERAL PERSONALLY TO INSTRUCT HIM AS TO THE SETTLEMENT AND ADJUSTMENT AUTHORIZED AND REQUIRED TO BE MADE, THE SAID FORMER COMPTROLLER GENERAL IN MEMORANDUM OF DECEMBER 15, 1933, STATED HIS LEGAL CONCLUSIONS AND DECISION, PURSUANT TO WHICH THE SETTLEMENT NO. U.S. 3592-W OF JANUARY 3, 1934, WAS MADE, AS FOLLOWS:

THERE ARE RETURNED HEREWITH THE PAPERS TRANSMITTED WITH YOUR MEMORANDUM OF NOVEMBER 8, 33,"CONT-0415680-LAW," WHEREIN YOU REQUEST INSTRUCTIONS RELATIVE TO THE CLAIM OF R. E. COTTON COMPANY FOR A BALANCE OF $15,124.63 ALLEGED TO BE DUE FOR SERVICES IN CONNECTION WITH PERFORMANCE OF CERTAIN MISSISSIPPI RIVER LEVEE CONSTRUCTION WORK UNDER ITS WAR DEPARTMENT CONTRACT W-1106-ENG-1389, DATED JUNE 27,1931, DESIGNATED AS SUBPROJECT ITEM NO. 11-C IN THE DEERFIELD SETBACK SECTION 3.

THE CONTRACT PRICE TO BE PAID FOR REQUIRED LEVEE CONSTRUCTION WORK, ESTIMATED AT 651,300 CUBIC YARDS, WAS $0.194 PER CUBIC YARD, APPROXIMATED AT $126,352.20. THE PERFORMANCE PERIOD AS FIXED BY PARAGRAPH 35.5 OF THE SPECIFICATIONS, A PART OF THE CONTRACT, WAS 185 CALENDAR DAYS FROM THE DATE OF RECEIPT BY THE CONTRACTOR OF THE GOVERNMENT'S NOTICE TO COMMENCE THE CONTRACT WORK. IN THE EVENT OF DELAYS IN PERFORMANCE THE CONTRACT PROVIDED THAT THE CONTRACTOR SHOULD BE CHARGED WITH LIQUIDATED DAMAGES AT THE RATE OF $20 PER DAY FOR EACH CALENDAR DAY OF DELAY BEYOND THE CONTRACT DATE FOR COMPLETION, EXCEPTING FOR THE DELAYS EXCUSABLE UNDER ARTICLE 9 OF THE CONTRACT "DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.' THE RECORD DISCLOSES THAT THE CONTRACTOR RECEIVED THE GOVERNMENT'S NOTICE TO PROCEED WITH THE WORK ON JUNE 29, 1931. UNDER THE CONTRACT TERMS THE FINAL DATE FOR COMPLETION OF THE WORK WAS 185 CALENDAR DAYS THEREAFTER, OR BY DECEMBER 31, 1931. HOWEVER, THE CONTRACTOR DID NOT COMPLETE PERFORMANCE OF ALL THE LEVEE WORK COVERED BY ITS CONTRACT, BUT FAILED AND REFUSED TO PERFORM CERTAIN LEVEE CONSTRUCTION WORK BETWEEN STATIONS 4959 AND 4965, WHICH NECESSITATED SUBSEQUENT COMPLETION THEREOF BY THE UNITED STATES.

THE ADMINISTRATIVE REPORTS SHOW THAT CONTRACTOR REMOVED OR TORE DOWN PORTIONS OF THE OLD EXISTING FLOOD PROTECTION OR CONTROLLING LEVEE, WHICH WAS BUILT TO THE 1914 GRADE, ON ITEM 11-C, THE DEERFIELD SETBACK LEVEE, SECTION 3, IN THE VICKSBURG DISTRICT, A SHORT DISTANCE BELOW GREENVILLE, MISSISSIPPI; THAT SUBSEQUENTLY, IN DECEMBER 1931, ON ACCOUNT OF IMPENDING HIGH WATERS AND AN EXISTING EMERGENCY, THE CONTRACTING OFFICER DEEMED IT NECESSARY TO RESTORE SAID FLOOD PROTECTION OR CONTROLLING LEVEE TO THE 1914 GRADE BY THE CONSTRUCTION OF A TIE-IN LEVEE OF EARTH MATERIAL TO THE PARTIAL FILL OF 600 FEET REMAINING SIX FEET BELOW THE 1914 GRADE, AND IN ACCORDANCE WITH THE PROVISIONS OF SPECIFICATION NUMBER 35 OF THE CONTRACT THE CONTRACTOR WAS REQUESTED TO CONSTRUCT SUCH TIE-IN LEVEE; HOWEVER, THE CONTRACTOR REFUSED TO PERFORM SUCH REQUESTED FLOOD-PROTECTION WORK UNLESS PAID EXTRA THEREFOR, CLAIMING THAT SAME WAS NOT INCLUDED IN ITS CONTRACT WORK. THE CONTRACTING OFFICER, HOWEVER, DECIDED THAT UNDER THE TERMS OF THE CONTRACT AND IN VIEW OF THE FACTS, IT WAS THE CONTRACTOR'S RESPONSIBILITY TO CONSTRUCT SUCH TIE-IN LEVEE IN ORDER TO PROVIDE CONTINUOUS FLOOD PROTECTION FROM THE IMPENDING HIGH WATERS; AND AFTER THE CONTRACTOR'S REFUSAL TO CONSTRUCT REQUIRED TIE-IN LEVEE UNDER ITS SAID CONTRACT, IN ORDER THAT THE GAP BETWEEN STATIONS 4959 AND 4965 BE BROUGHT UP TO THE 1914 GRADE, THE GOVERNMENT CONSTRUCTED SAME FOR THE ACCOUNT OF THE CONTRACTOR, AT AN EXPENDITURE OF $39,456.49.

WHERE THE CONTRACT PROVIDES, AS IN THIS CASE, THAT THE DECISION OF THE CONTRACTING OFFICER OR HIS REPRESENTATIVE SHALL BE FINAL AND CONCLUSIVE ON DISPUTES CONCERNING QUESTIONS OF FACT, SUBJECT TO WRITTEN APPEAL TO THE HEAD OF THE DEPARTMENT WITHIN THIRTY DAYS THEREAFTER, THE DECISION OF THE CONTRACTING OFFICER AS TO WHAT DOES OR DOES NOT CONSTITUTE EXTRA WORK IS CONCLUSIVE ON THE CONTRACTOR, UNLESS SAME ON APPEAL IS REVERSED. INSTANT CASE, THE CONTRACTOR HAVING FAILED TO APPEAL TO THE SECRETARY OF WAR FROM THE DECISION OF THE CONTRACTING OFFICER THAT THE REQUESTED TIE-IN LEVEE WORK WAS NOT EXTRA WORK BUT THAT SAME WAS A PART OF THE WORK INCLUDED WITHIN THE PROVISIONS OF ITS CONTRACT, AS SHOWN BY SPECIFICATION NO. 35, SUCH DECISION IS CONCLUSIVE ON THE CONTRACTOR. UNDER SUCH CIRCUMSTANCES THE CONTRACTOR IS LIABLE FOR THE $39,456.49 EXPENDED BY THE GOVERNMENT TO COMPLETE THE REQUIRED TIE-IN LEVEE.

THE ADMINISTRATIVE REPORTS SHOW ALSO THAT AFTER COMPLETION BY THE GOVERNMENT, FOR CONTRACTOR'S ACCOUNT, OF THE TIE-IN LEVEE WORK BETWEEN STATIONS 4959 AND 4965 OF THE CONTRACT WORK, THE CONTRACTOR WAS CALLED UPON TO COMPLETE THE REMAINDER OF THE CONTRACT LEVEE CONSTRUCTION WORK BETWEEN SAID STATIONS, BUT THE CONTRACTOR FAILED TO COMPLETE SUCH WORK, AND ON APRIL 23, 1932, CONTRACTOR NOTIFIED THE CONTRACTING OFFICER THAT IT WOULD NOT COMPLETE THE LEVEE WORK BETWEEN SAID STATIONS AND CONTENDED THAT THE GOVERNMENT'S CONSTRUCTION OF REQUIRED TIE-IN LEVEE BETWEEN SAID STATIONS RELIEVED IT OF ITS CONTRACTUAL OBLIGATION TO COMPLETE THE UNFINISHED CONTRACT LEVEE WORK BETWEEN SAID STATIONS. THE GOVERNMENT SUBSEQUENTLY NOTIFIED THE SURETY ON THE CONTRACTOR'S PERFORMANCE BOND, THE NATIONAL SURETY COMPANY OF NEW YORK, N.Y., OF THE CONTRACTOR'S DEFAULT IN FAILING AND REFUSING TO COMPLETE THE CONTRACT LEVEE WORK BETWEEN STATIONS 4959 AND 4965, AND REQUESTED COMPLETION OF SAID CONTRACT WORK BY SUCH SURETY. THE SURETY DECLINED TO COMPLETE SAID WORK. SUBSEQUENTLY, ON AUGUST 10, 1932, THE GOVERNMENT TERMINATED THE RIGHT OF THE CONTRACTOR TO PROCEED WITH THE LEVEE WORK REMAINING UNCOMPLETED BETWEEN STATIONS 4959 AND 4965 UNDER ITS CONTRACT OF JUNE 27, 1931. THEREAFTER, THE GOVERNMENT COMPLETED SUCH LEVEE WORK, FOR THE ACCOUNT OF THE CONTRACTOR, AT AN EXPENDITURE OF $9,754.68.

THE AGGREGATE AMOUNT EXPENDED BY THE GOVERNMENT IN COMPLETION OF THE WORK WHICH THE CONTRACTOR FAILED AND REFUSED TO PERFORM IS ($39,456.48 PLUS $9,754.68) $49,211.17. THE COST OF SAID WORK AT THE CONTRACT PRICE WOULD HAVE BEEN (59,592 CUBIC YARDS AT $0.194) $11,560.85 AND THE ENGINEERING AND INSPECTION COSTS THEREON WOULD HAVE BEEN $995.19, MAKING A TOTAL OF $12,556.04. HENCE, THE CONTRACTOR'S DEFAULT RESULTED IN AN EXCESS COST TO THE GOVERNMENT OF ($49,211.17 MINUS $12,556.04) $36,655.13.

IT FURTHER APPEARS FROM THE ADMINISTRATIVE REPORTS THAT WHEN THE CONTRACTOR'S RIGHT TO PROCEED WITH THE WORK UNDER SAID CONTRACT WAS TERMINATED ON AUGUST 10, 1932, ON ACCOUNT OF ITS DEFAULT, THE CONTRACTOR HAD COMPLETED 590,427 CUBIC YARDS OF THE REQUIRED LEVEE CONSTRUCTION WORK FOR WHICH IT HAD RECEIVED PAYMENTS (ON VOUCHERS NOS. 1894, 3423, 4814, 6200, AND 7450) AGGREGATING $103,088.55; THAT THE CONTRACTOR HAD COMPLETED ALSO 25,591 CUBIC YARDS OF THE REQUIRED LEVEE CONSTRUCTION WORK BETWEEN STATIONS 4959 AND 4965, PRIOR TO ITS DEFAULT ON THE SAID LEVEE WORK BETWEEN SAID STATIONS, FOR WHICH IT HAS RECEIVED NO PAYMENTS; THAT THE CONTRACTOR HAS FURNISHED LODGING AND SUBSISTENCE FOR GOVERNMENT EMPLOYEES REQUIRED TO REMAIN ON THE WORK WHILE UNDER CONSTRUCTION, IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 16 OF THE SPECIFICATIONS, FOR WHICH IT HAS RECEIVED PAYMENTS (ON VOUCHERS NOS. 2527, 4326, 5777, 6942, AND 7816) AGGREGATING $410.40; AND THAT THE CONTRACTOR ALSO HAS FURNISHED LODGING AND SUBSISTENCE FOR SUCH GOVERNMENT EMPLOYEES AMOUNTING TO $58.06 FOR WHICH IT HAS RECEIVED NO PAYMENT. THUS, IT APPEARS THAT IT REQUIRED 675,610 CUBIC YARDS OF LEVEE CONSTRUCTION WORK TO COMPLETE PERFORMANCE OF THE CONTRACT, OF WHICH THE CONTRACTOR COMPLETED 616,018 CUBIC YARDS AND THE GOVERNMENT COMPLETED 59,592 CUBIC YARDS.

IT APPEARS THAT AT THE TIME THE GOVERNMENT TERMINATED THE CONTRACTOR'S RIGHT TO PROCEED WITH THE UNCOMPLETED CONTRACT LEVEE CONSTRUCTION WORK, ON ACCOUNT OF ITS DEFAULT, TO WIT, ON AUGUST 10, 1932, THERE HAD BEEN 223 CALENDAR DAYS OF DELAY BY THE CONTRACTOR IN PERFORMANCE OF SAID CONTRACT. UNDER ARTICLE 9 OF THE CONTRACT THE CONTRACTOR IS TO BE CHARGED WITH LIQUIDATED DAMAGES AT THE PER DIEM RATE SHOWN IN THE SPECIFICATIONS, TO WIT, $20 PER DAY, FOR EACH CALENDAR DAY OF DELAY IN PERFORMANCE EXCEPT FOR ANY DELAYS DUE TO "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.' THE CONTRACTING OFFICER HAS FOUND AS A FACT, IN EFFECT, THAT THE CONTRACT WORK WAS DELAYED FOR CAUSES, AS FOLLOWS: (1) 10 DAYS IN JULY 1931, DUE TO EXCESSIVE RAINFALL; (2) 21 DAYS IN DECEMBER 1931, DUE TO EXCESSIVE RAINFALL; AND (3) 136 DAYS DURING THE PERIOD BEGINNING JANUARY 1 AND ENDING MAY 15, 1932, DUE TO HIGH WATER, WHICH PREVENTED PERFORMANCE OF ANY OF THE LEVEE CONSTRUCTION WORK; AND THAT NO PART OF THE REMAINING 56 DAYS OF DELAY WAS DUE TO ANY OF THE CAUSES FOR WHICH THE CONTRACT AUTHORIZED REMISSION OF LIQUIDATED DAMAGES, OR TO ANY CAUSES FOR WHICH THE GOVERNMENT OR ITS AGENTS WERE RESPONSIBLE. ACCORDINGLY, UNDER THE TERMS OF THE CONTRACT, THE CONTRACTOR SHOULD NOT BE CHARGED WITH LIQUIDATED DAMAGES FOR THE 167 DAYS OF DELAY IN PERFORMANCE OF THE WORK, DUE TO UNUSUALLY SEVERE WEATHER AND HIGH WATER CONDITIONS, WHICH MAY BE ACCEPTED AS EXCUSABLE CAUSES WITHIN THE MEANING OF ARTICLE 9 OF THE CONTRACT, FOR WHICH THE CONTRACTOR IS NOT CHARGEABLE WITH LIQUIDATED DAMAGES. UNDER THE TERMS OF THE CONTRACT AND THE FACTS AS TO THE DELAYS AND CAUSES THEREOF AS FOUND BY THE CONTRACTING OFFICER, IT APPEARS THAT LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT ON ACCOUNT OF THE CONTRACTOR'S UNEXCUSED DELAY OF 56 CALENDAR DAYS IN COMPLETING PERFORMANCE OF ITS CONTRACT, PRIOR TO THE GOVERNMENT'S TERMINATION OF THE CONTRACTOR'S RIGHT TO PROCEED THEREWITH, ON AUGUST 10, 1932, AT THE SPECIFIED RATE OF $20 FOR EACH CALENDAR DAY, AMOUNTING TO $1,120.

UNDER THE FACTS AND CIRCUMSTANCES DISCLOSED BY THE RECORD, AND THE TERMS OF THE CONTRACT, IT APPEARS THAT THE CONTRACTOR EARNED UNDER THE CONTRACT FOR WORK PERFORMED AT THE STIPULATED PRICE PER CUBIC YARD AND ON ACCOUNT OF ACCOMMODATIONS FOR GOVERNMENT EMPLOYEES DURING THE TIME THEY WERE REQUIRED TO REMAIN ON THE WORK, AS FOLLOWS:

CHART

616,018 CUBIC YARDS OF LEVEE WORK AT $0.1940 ------- $119,507.49

FURNISHING LODGING AND SUBSISTENCE TO GOVERNMENT

EMPLOYEES ----------------------------------------- 468.46

TOTAL ------------------------------------------ 119,975.95

PAYMENTS HERETOFORE RECEIVED, AGGREGATING ---------- 103,498.95

BALANCE EARNED --------------------------------- 16,477.00

INASMUCH AS THE GOVERNMENT WAS REQUIRED TO EXPEND $36,655.13 IN COMPLETING PORTIONS OF THE CONTRACT WORK, DUE TO THE REFUSAL OF THE CONTRACTOR TO PERFORM SAME, AS HEREINABOVE SHOWN, AND AS THE CONTRACTOR IS CHARGEABLE WITH $1,120 LIQUIDATED DAMAGES FOR CERTAIN UNEXCUSED DELAYS IN PERFORMANCE OF THE CONTRACT, THE $16,477 OTHERWISE DUE CONTRACTOR SHOULD BE RETAINED AND APPLIED AS A PARTIAL LIQUIDATION OF SUCH INDEBTEDNESS, AS FOLLOWS:

CHART

AMOUNT DUE UNITED STATES AS EXCESS COSTS ABOVE

CONTRACT LIABILITY, FOR COMPLETING CERTAIN CONTRACT

WORK WHICH THE CONTRACTOR FAILED AND REFUSED

TO PERFORM ----------------------------------------- $36,655.13

ACCRUED LIQUIDATED DAMAGES DUE UNITED STATES, 56

DAYS AT $20 PER DAY -------------------------------- 1,120.00

TOTAL AMOUNT DUE UNITED STATES ----------------- 37,775.13

LESS UNPAID BALANCE EARNED BY CONTRACTOR ------------ 16,477.00

NET BALANCE DUE UNITED STATES ------------------ 21,298.13

SETTLEMENT SHOULD ISSUE ACCORDINGLY AND COLLECTION OF SUCH INDEBTEDNESS SHOULD BE PROCEEDED WITH AS IN OTHER SIMILAR CASES.

(SIGNED) J. R. MCCARL,

COMPTROLLER GENERAL OF THE UNITED STATES.

IT WILL BE OBSERVED THAT THE COMPUTATIONS OF THE CONTRACTING OFFICER AND THE DECISION OF THE FORMER COMPTROLLER GENERAL ALLOW YOU CREDIT UNDER YOUR CONTRACT FOR $16,447 TO COVER THE WORK PERFORMED BY YOU, WHICH IS $1,352.37 IN EXCESS OF THE TOTAL OF $15,124.63 PREVIOUSLY CLAIMED BY YOU AS DUE FOR SUCH WORK. YOU NOW SEEK RECONSIDERATION OF THE SETTLEMENT AND ADJUSTMENT MADE UPON THE DECISION OF THE FORMER COMPTROLLER GENERAL AND TO HAVE THE $16,477 CERTIFIED FOR PAYMENT TO YOU, NOTWITHSTANDING THE DECISION OF THE CONTRACTING OFFICER AND THE DECISION OF THE FORMER COMPTROLLER GENERAL THAT YOU ARE INDEBTED TO THE UNITED STATES FOR WORK REQUIRED OF YOU UNDER THE CONTRACT WHICH YOU REFUSED TO PERFORM, THE NET COST OF HAVING SUCH WORK DONE BEING ADMINISTRATIVELY REPORTED AS MORE THAN $36,000, RESULTING IN THE DECISION THAT THERE IS A NET BALANCE DUE FROM YOU UNDER THE TERMS OF THE CONTRACT IN EXCESS OF $20,000.

AS ONE GROUND FOR GRANTING YOUR PRESENT APPLICATION YOU HAVE SUBMITTED A CERTIFIED COPY OF THE FOLLOWING COURT ORDER:

JULY 7, 1937

IN THE DISTRICT COURT OF THE UNITED STATES WESTERN

DISTRICT OF TENNESSEE WESTERN DIVISION

NO. 1234. IN EQUITY UNITED STATES OF AMERICA,

PLAINTIFFVS.

R. E. COTTON COMPANY, A TENNESSEE CORPORATION; AND NATIONAL SURETY COMPANY, A NEW YORK CORPORATION, AND JOHN J. BRADY, ANCILLARY RECEIVER FOR TENNESSEE, DEFENDANTS

ORDER OF DISMISSAL WITHOUT PREJUDICE

ON THE 7TH DAY OF JULY 1937, CAME THE UNITED STATES ATTORNEY, IN BEHALF OF THE UNITED STATES, THE PLAINTIFF HEREIN, AND MOVED THE COURT FOR AN ORDER OF DISMISSAL OF THE WITHIN CAUSE, WITHOUT CAUSE, WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY.

AND UPON DUE CONSIDERATION THEREOF,

IT IS ORDERED BY THE COURT THAT SAID MOTION OF SAID UNITED STATES ATTORNEY BE AND THE SAME IS HEREBY GRANTED.

ACCORDINGLY, IT IS ORDERED BY THE COURT: THAT THIS CAUSE BE DISMISSED WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY.

ENTER.

(SIGNED) JOHN D. MARTIN,

U.S. DISTRICT JUDGE.

THIS ORDER WAS ENTERED IN THE SUIT BROUGHT AGAINST YOU FOR RECOVERY OF THE NET BALANCE OF OVER $20,000 FOUND DUE FROM YOU. IT IS NOT UNDERSTOOD THAT THE MUTUAL ITEMS OF DEBIT AND CREDIT OF $16,447--- THE CREDIT ITEM OF WHICH YOU NOW SEEK PAYMENT--- WERE THE SUBJECT OF THE BILL OF COMPLAINT FILED OR THAT YOU FILED ANY COUNTERCLAIM OR OTHER PLEADING BRINGING BEFORE THE COURT EITHER YOUR RIGHT TO PAYMENT ON THE CREDIT ITEM AS NOW CLAIMED OR THE MERITS OF THE QUESTION AS TO WHAT BALANCE REMAINS DUE FROM YOU. YOUR BRIEF IN THE MATTER RECENTLY FILED IN THIS OFFICE, DESCRIBES THE PROCEEDING AS FOLLOWS:

* * * AFTER THE UNITED STATES ATTORNEY AT MEMPHIS HAD BROUGHT SUIT ON BEHALF OF THE UNITED STATES AGAINST CLAIMANT AND ITS SURETY, ON THE CLAIM OF THE UNITED STATES AGAINST CLAIMANT, AS THERETOFORE DETERMINED IN THE GENERAL ACCOUNTING OFFICE, IN THE DISTRICT COURT OF THE UNITED STATES, ON ITS EQUITY SIDE, IN EQUITY UPON THE THEORY THAT THE UNITED STATES UPON THE ALLEGATIONS OF ITS BILL WAS ENTITLED TO A RECEIVERSHIP FOR THE CLAIMANT AND A LIEN UPON THE ASSETS OF BOTH DEFENDANTS TO INSURE PRIORITY OF PAYMENT, THE DEPARTMENT OF JUSTICE, UPON REQUEST OF CLAIMANT'S COUNSEL, MADE ITS OWN INQUIRY INTO THE FACTS OF THE CASE, AND RECENTLY ADVISED COUNSEL, ORALLY AND BY LETTER THROUGH SENATOR * * * THAT THEY FOUND THE EQUITIES WITH THE R. E. COTTON COMPANY AND WOULD DISMISS SAID SUIT AND WOULD SO ADVISE THE COMPTROLLER GENERAL.

THAT CLAIMANT IS ADVISED THAT IN CONSEQUENCE IT IS NOW ENTITLED TO BE PAID WITHOUT DEDUCTIONS THE $16,477.

IF THERE WERE OR ARE ANY EQUITIES IN THIS CASE AUTHORIZED TO BE CONSIDERED IT WAS OPEN TO YOU DURING THE CONSIDERABLE PERIOD THE CASE WAS PENDING TO FILE YOUR COUNTERCLAIM AND PRESENT SAID EQUITIES FOR THE CONSIDERATION AND DECISION OF THE COURT THEREON. IN THE ABSENCE OF SUCH PRESENTATION AND RAISING OF THE ISSUES, WHICH YOU SAY EXIST, FOR TRIAL IT WAS THE ABSOLUTE RIGHT OF THE UNITED STATES TO DISMISS THE SUIT WITHOUT PREJUDICE AND SUCH A PROCEEDING AND DISMISSAL LEAVES IT OPEN FOR THE BRINGING OF ANOTHER PROPER ACTION EITHER IN LAW OR IN EQUITY OR TO FULLY DEFEND BY COUNTERCLAIM AGAINST ANY SUIT WHICH YOU MAY INSTITUTE. THE MERITS OF THE SETTLEMENT AND ADJUSTMENT OF THE MUTUAL CLAIMS UPON THE BASIS OF THE CONTROLLING FINDINGS AND DECISIONS OF THE CONTRACTING OFFICER AND PURSUANT TO THE DECISION OF THE FORMER COMPTROLLER GENERAL ARE NOT AFFECTED IN ANY WAY WHATSOEVER BY SUCH SUIT AND DISMISSAL WITHOUT CAUSE AND WITHOUT PREJUDICE. HALDEMAN, ET AL. V. UNITED STATES. 91 U.S. 584, 486; EX PARTE, IN THE MATTER OF SKINNER AND EDDY CORPORATION, 265 U.S. 86, 96.

THE MATTERS ARISING FOR DECISION UPON THE MERITS ARE UNDERSTOOD TO INVOLVE SOLELY QUESTIONS OF LAW AS TO WHAT ARE THE RESPECTIVE LEGAL RIGHTS UNDER YOUR CONTRACT BASED UPON THE CONCLUSIVE FINDINGS AND DECISIONS OF THE CONTRACTING OFFICER. IT IS CONCEIVABLE THAT THERE WERE EQUITIES WHICH MADE IT UNDESIRABLE TO INSIST UPON A RECEIVER AND AN ATTACHMENT OR SEGREGATION OF ALL YOUR ASSETS WHICH MIGHT HAVE OPERATED TO PUT YOU ENTIRELY OUT OF BUSINESS. ALSO IT MAY BE THAT THE DESIRABILITY OF PROCEEDING IN ANOTHER FORUM OR AT LAW WAS INDICATED. IN THIS CONNECTION YOUR COUNSEL, IN A LETTER OF JANUARY 9, 1934, TO THE FORMER COMPTROLLER GENERAL, AFTER FAILING TO HAVE THE CLAIM ACTED ON FAVORABLY IN THE WAR DEPARTMENT OR IN THIS OFFICE, STATED:

I AM IN RECEIPT OF THE NOTICE OF SETTLEMENT OF CLAIM UNDER ABOVE CAPTION, ADDRESSED TO R. E. COTTON COMPANY IN MY CARE. I HAVE NOT UP TO THIS WRITING BEEN ABLE TO CONFER WITH THE OFFICERS OF THE R. E. COTTON COMPANY AND CANNOT THEREFORE SAY AUTHORITATIVELY WHETHER THEY WILL BE WILLING TO MAKE PAYMENT TO THE UNITED STATES OR NOT IN ACCORDANCE WITH YOUR SETTLEMENT.

I ANTICIPATE, HOWEVER, THAT NEITHER THEY NOR THEIR SURETY WILL BE WILLING TO PAY THIS AMOUNT UNTIL AFTER THE COURTS HAVE PASSED UPON THE QUESTION UPON WHICH THEIR LIABILITY TURNS * * *.

MAY I ASK * * * WHETHER YOU REFER IT DIRECT TO THE DEPARTMENT OF JUSTICE FOR ACTION.

I AM ASKING BECAUSE I WANT TO COMMUNICATE WITH THE DEPARTMENT OF JUSTICE IN REFERENCE TO THE MATTER ABOUT THE TIME IT GOES THERE WITH A VIEW TO MAKING SOME SUGGESTIONS ABOUT THE VENUE OF THE SUIT * * *.

WHEN THE SUIT HAD BEEN BROUGHT, HOWEVER, INSTEAD OF BONA FIDE COOPERATION TO HAVE THE COURT PASS UPON THE LEGAL MERITS OF THE CASE THROUGH FILING OF COUNTERCLAIM OR OTHER PROPER PLEADINGS, THE EFFORTS OF YOUR COUNSEL APPEAR TO HAVE BEEN DIRECTED WITH A VIEW TO AVOIDING HAVING THE COURT PASS UPON THE LEGAL MERITS AND TO HAVING THE PROCEEDING DISCONTINUED.

OF THE ESTIMATED WORK UNDER YOUR CONTRACT, INVOLVING APPROXIMATELY 651,300 CUBIC YARDS OF MATERIAL, YOU HANDLED 616,018 AND WERE PAID $103,498.95 AND CREDITED $16,477, OR A TOTAL OF $119,975.95, OF WHICH BUT $468.46 WAS FOR BOARD AND LODGING FURNISHED GOVERNMENT EMPLOYEES AND THE BALANCE, $119,507.49, WAS FOR ACTUAL LEVEE CONSTRUCTION.

ONE OF YOUR PRINCIPAL SO-CALLED GROUNDS FOR EQUITABLE CONSIDERATION, REPEATEDLY URGED, IS AS FOLLOWS:

THE CONTRACTOR, R. E. COTTON COMPANY, BEGAN CONSTRUCTION WITHIN THE TIME STIPULATED THEREFOR AND PROCEEDED THEREWITH UNDER A PLAN THERETOFORE SUBMITTED TO AND APPROVED BY THE GOVERNMENT'S CONTRACTING OFFICER, AND ON DECEMBER 1, 1931, WHEN IT WAS DOING THE WORK AT A COST OF 8 CENTS PER CU. YD. AND AT A PROFIT OF 11.40 CENTS PER CU. YD., ABNORMAL RAINS SET IN * * *. THE CONTRACTOR, THEREAFTER, ON DECEMBER 9TH, GAVE NOTICE IN WRITING TO THE CONTRACTING OFFICER OF THE EXCESSIVE RAINS FORCING DISCONTINUANCE OF OPERATIONS * * *. THE CONTRACTOR HAD COMPLETED AT THE TIME SAID RAINS STOPPED THE WORK ALL OF SAID LEVEE WITH THE EXCEPTION OF * * * ABOUT 60,000 CUBIC YARDS. * * *

THE CONTRACTING OFFICER THEREAFTER, ON OR ABOUT DECEMBER 18TH, WHICH SAID EXCESSIVE RAINS AND SAID UNFITNESS OF SAID MATERIAL CONTINUED, DIRECTED THE CONTRACTOR, BECAUSE OF THE PROSPECT OF HIGH WATER, TO BRING THE INCOMPLETE STATIONS TO A CERTAIN DIKE SECTION WITH EARTH FROM A SECTION OF THE OLD LEVEE * * * LOCATED ABOUT 2,000 YARDS AWAY * * *.

UPON YOUR REFUSAL TO DO THIS WORK WITHOUT AN ORDER IN WRITING ALLOWING YOU EXTRA COMPENSATION OVER AND ABOVE THE CONTRACT PRICE, YOU SAY FURTHER:

* * * THE CONTRACTING OFFICER'S ONLY RESPONSE THERETO WAS NOTICE THAT THE WORK WAS BEING TAKEN OVER. THE CONTRACTING OFFICER * * * BROUGHT SAID STATIONS FIRST TO THE DIKE SECTION AND LATER TO THE COMPLETE LEVEE SECTION AT A TOTAL COST MORE THAN FOUR TIMES THE CONTRACT PRICE.

NO EQUITIES FAVORABLE TO YOUR COMPANY ARE PERCEIVED AS ARISING FROM THESE CIRCUMSTANCES. CERTAINLY THE FACT YOU HAD COMPLETED MORE THAN 90 PERCENTUM OF THE CONTRACT WORK UNDER CONDITIONS ENABLING YOU TO REALIZE A NET PROFIT OF MORE THAN 142 PERCENTUM GAVE YOU NO VESTED RIGHT TO CONTINUE MAKING SUCH INORDINATE PROFITS OR TO REFUSE TO DO THE BALANCE OF THE CONTRACT WORK BECAUSE YOU COULD NOT DO IT UNDER CONDITIONS ENABLING YOU TO CONTINUE MAKING SUCH A PROFIT OR BECAUSE THE CONTRACTING OFFICER REFUSED TO ALLOW YOU COST PLUS 10 PERCENTUM FOR SUCH WORK REQUIRED TO BE PERFORMED UNDER UNFAVORABLE CONDITIONS. A GOVERNMENT CONTRACT PERMITTING A NET PROFIT FOR ALL THE WORK THEREUNDER OF 142 PERCENTUM OR ANYTHING NEAR THAT FIGURE APPARENTLY WOULD BE SO UNCONSCIONABLE AS TO MAKE IT VOID. THE ANSWER OF THE CHIEF OF ENGINEERS THERETO IN HIS REPORT OF APRIL 11, 1933, TRANSMITTING THE CASE TO THIS OFFICE CORRECTLY STATES THE RULE--- WHICH OTHER CONTRACTORS RECEIVING A LOWER CUBIC-YARD PRICE ARE UNDERSTOOD TO HAVE ACCEPTED WITHOUT QUESTION--- AS FOLLOWS:

* * * THE CONTRACTOR RAISES THE OBJECTION THAT THIS CONSTRUCTION WOULD HAVE INCREASED HIS COSTS. THIS IS TRUE AND WAS FULLY CONTEMPLATED BY THE TERMS OF CONTRACT * * *.

THE CONTRACT CONTEMPLATES THE FACT THAT TIE-IN LEVEES BUILT TO MEET EMERGENCY CONDITIONS MAY BE MORE DIFFICULT AND EXPENSIVE TO CONSTRUCT THAN THE ORDINARY CONSTRUCTION WORK, BUT IT IS AGREED IN ADVANCE THAT THE COMPENSATION FOR SUCH PROTECTIVE LEVEE SHALL BE AT THE CONTRACT PRICE PER CUBIC YARD CALLED FOR IN BUILDING THE MAIN LEVEE. * * *

NOT ONLY IS NO EQUITY PERCEIVED IN THIS CONTENTION OF YOURS BUT IT APPEARS WHAT YOU SEEK IS TO HAVE A SETTLEMENT WHICH WOULD BE UTTERLY INEQUITABLE TO THE PUBLIC INTERESTS, OF BEING PAID FOR THAT PART OF THE CONTRACT WORK YOU ELECTED TO PERFORM AND ON WHICH YOU COULD REALIZE A HANDSOME PROFIT, THE GOVERNMENT TO BE SADDLED WITH THE EXPENSE OF DOING THE LESS THAN 10 PERCENT OF THE CONTRACT WORK ON WHICH YOU WOULD HAVE SUSTAINED A LOSS. ASIDE FROM THIS, THE CONTRACT FIXES YOUR LEGAL RIGHTS AND THERE IS NO PROPER BASIS FOR CONSIDERING SO-CALLED EQUITIES.

IT HAS BEEN SUGGESTED THAT THE FORMER COMPTROLLER GENERAL ERRED AS A MATTER OF LAW IN BASING HIS SETTLEMENT AND ADJUSTMENT UPON THE SPECIFIC AND DETAILED FINDINGS OF THE CONTRACTING OFFICER AS TO DELAYS EXCUSABLE UNDER THE CONTRACT, RATHER THAN UPON THE CONTRACTING OFFICER'S MORE GENERAL CONCLUSION, RESULTING IN THAT THE NET BALANCE FINALLY CERTIFIED DUE FROM YOU INCLUDES AN ITEM OF $1,120 AS FOR LIQUIDATED DAMAGES. THIS CONTENTION HAS NO SUBSTANCE IN CONNECTION WITH YOUR PRESENT APPLICATION FOR PAYMENT OF $16,477, WHICH IS NOT AFFECTED ONE WAY OR THE OTHER BY WHETHER THE INCLUDING OF THE $1,120 LIQUIDATED DAMAGE ITEM IN THE NET BALANCE CERTIFIED DUE FROM YOU WAS CORRECT OR ERRONEOUS. EXCLUDING THE ITEM OF $1,120, THE NET BALANCE REMAINING DUE FROM YOU, BOTH UNDER THE DECISION OF THE CONTRACTING OFFICER AND UNDER THE DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, WOULD BE MORE THAN $20,000 AND THE EXACT AMOUNT CAN BE COMPUTED LATER, UPON THE BASIS OF JUDICIAL DETERMINATION IN THE COURT OF CLAIMS OR OTHER AUTHORIZED JUDICIAL FORUM FOR WHICH THE QUESTIONS PROPERLY HAVE BEEN RESERVED. LONGWILL V. UNITED STATES, 17 CT.CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319.

IN YOUR RECENT BRIEF YOU CONTEND THAT THE ACTION OF THE CONTRACTING OFFICER IN ORDERING YOU TO CONSTRUCT THE PROTECTIVE TIE-IN IN AN EMERGENCY WITHOUT GIVING YOU A WRITTEN ORDER ASSURING YOU OF AT LEAST 10 PERCENTUM NET PROFIT THEREON WAS SO ARBITRARY AS TO AMOUNT TO BAD FAITH, BUT THAT CONTENTION HAS NO SUPPORT FROM THE OFFICIAL RECORD. MOREOVER, NO CASE HAS COME TO MY NOTICE WHEREIN A CONTRACTING OFFICER HAS SHOWN MORE CONCERN AND DISPOSITION TO CONSIDER FAIRLY AND THOROUGHLY THE INTERESTS OF BOTH THE PUBLIC AND THE CONTRACTOR. IN THE FINAL PARAGRAPH OF YOUR EARLIER STATEMENT AND BRIEF WHICH YOU FILED FOR CONSIDERATION IN THE WAR DEPARTMENT, IT WAS STATED IN THIS CONNECTION AS FOLLOWS:

THE GOVERNMENT'S ENGINEER MADE A MISTAKE IN CONSTRUCTING THE DIKE, AS IT TURNED OUT THAT IT WAS NOT NECESSARY AND THAT THE DIRT IN THE BACK SLOPE WAS AMPLE TO HOLD THE WATER WHICH ACTUALLY CAME; BUT THE CONTRACTOR FREELY CONCEDES THAT IT WAS AN ERROR ON THE RIGHT SIDE, FOR IN VIEW OF THE ENGINEER'S DUTY TO PROTECT THE COUNTRYSIDE FROM THE DANGER WHICH SEEMED TO THREATEN, IT WAS BETTER TO BE SAFE THAN SORRY * * *.

AS A FURTHER EVIDENCE OF GOOD FAITH ON THE PART OF THE CONTRACTING OFFICER IT IS NOTEWORTHY THAT THE SITE SELECTED FOR CONSTRUCTING THE TEMPORARY TIE-IN WAS SUCH THAT THE FILL COULD BE EMBRACED IN THE PERMANENT LEVEE WORK REQUIRED UNDER THE CONTRACT AND THE CONTRACTING OFFICER COMPUTED AS DUE YOU FOR WORK WHICH YOU DID MORE THAN $1,300 IN EXCESS OF WHAT YOU YOURSELF CLAIMED.

THE MATTER UPON WHICH THE CONTRACTING OFFICER MADE FINDINGS AND DECISIONS PURSUANT TO THE CONTRACT PROVISIONS, AND WHICH APPEAR TO ME CONTROLLING OF THE ENTIRE CASE, ARE NOT NOW OPEN TO REVIEW BUT ARE FINAL UPON ALL PARTIES, NO APPEAL HAVING BEEN TAKEN THEREFROM WITHIN THE PRESCRIBED PERIOD. INSOFAR AS THE DECISION AND SETTLEMENT OF THE FORMER COMPTROLLER GENERAL WERE NOT CONTROLLED BY SUCH FINDINGS AND DECISIONS OF THE CONTRACTING OFFICER BUT INVOLVED PURE QUESTIONS OF LAW PROPERLY FOR DECISION BY HIM, HIS DECISION IS NOT OPEN FOR MY REVISION. SEE 16 COMP. GEN. 51, 118, AND THE CASES CITED THEREIN. IT SEEMS PROPER TO SAY, HOWEVER, AS I ALREADY HAVE SAID REPEATEDLY IN CORRESPONDENCE WITH THE ATTORNEY GENERAL AND WITH THOSE INQUIRING ON YOUR BEHALF, I AM IN COMPLETE AGREEMENT WITH THE ACTION OF THE WAR DEPARTMENT AND WITH THE DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES UNDER WHICH YOU HAVE BEEN FOUND INDEBTED TO THE UNITED STATES IN A NET AMOUNT EXCEEDING $20,000. IT CAN SERVE NO USEFUL PURPOSE, THEREFORE, TO FURTHER CORRESPOND WITH THIS OFFICE IN THE MATTER UNLESS OR UNTIL THERE HAS BEEN A FINAL JUDICIAL DETERMINATION OF THE MATTER.