A-57021, DECEMBER 21, 1934, 14 COMP. GEN. 473

A-57021: Dec 21, 1934

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CONTRACTS - EXTRA WORK - DAMAGES WHERE A CONTRACT STIPULATES THAT NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER. THERE IS NO LEGAL LIABILITY AGAINST THE UNITED STATES FOR COMPENSATION IN ANY AMOUNT. THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS. THE DISALLOWED ITEM APPEARS TO REPRESENT THE LABOR AND OTHER EXPENSES ALLEGED TO HAVE BEEN INCURRED IN EXCAVATING AND REMOVING 776.61 CUBIC YARDS OF "LEDGE ROCK. CONTRACTORS HAVE ASSERTED THAT THEY ARE ENTITLED TO COMPENSATION UNDER ARTICLE 4 OF THE CONTRACT IN EXCESS OF THE STIPULATED CONTRACT PRICES FOR COMPLETING PERFORMANCE OF THE WORK.

A-57021, DECEMBER 21, 1934, 14 COMP. GEN. 473

CONTRACTS - EXTRA WORK - DAMAGES WHERE A CONTRACT STIPULATES THAT NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER, THERE IS NO LEGAL LIABILITY AGAINST THE UNITED STATES FOR COMPENSATION IN ANY AMOUNT, IN EXCESS OF THE STIPULATED CONTRACT PRICE, IN THE ABSENCE OF SUCH WRITTEN ORDER. THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING THEREFOR.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 21, 1934:

H. C. LEMKE AND EDWARD DRIESSEN, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF THE LEMKE CONSTRUCTION CO., APPLIED NOVEMBER 7, 1934, FOR REVIEW OF THAT PART OF SETTLEMENT NO. 0337957, DATED SEPTEMBER 24, 1934, WHICH DISALLOWED $4,465.32 OF THE BALANCE CLAIMED AS DUE FOR COMPLETING PERFORMANCE OF WAR DEPARTMENT CONTRACT NO. W-1095 ENG-677, DATED APRIL 3, 1933, FOR REMOVAL OF THE OLD TIMBER DAM, KNOWN AS "CEDARS DAM," AND REPLACEMENT THEREOF BY THE CONSTRUCTION OF A NEW CONCRETE DAM IN THE FOX RIVER, AT KIMBERLY, OUTAGAMIE COUNTY, WIS.

THE DISALLOWED ITEM APPEARS TO REPRESENT THE LABOR AND OTHER EXPENSES ALLEGED TO HAVE BEEN INCURRED IN EXCAVATING AND REMOVING 776.61 CUBIC YARDS OF "LEDGE ROCK," INSTEAD OF THE ESTIMATED QUANTITY OF 365 CUBIC YARDS THEREOF, AS SHOWN IN THE SPECIFICATIONS.

CONTRACTORS HAVE ASSERTED THAT THEY ARE ENTITLED TO COMPENSATION UNDER ARTICLE 4 OF THE CONTRACT IN EXCESS OF THE STIPULATED CONTRACT PRICES FOR COMPLETING PERFORMANCE OF THE WORK, DUE TO ALLEGED CHANGED CONDITIONS AT THE SITE OF THE WORK, REQUIRING EXCAVATION OF CERTAIN ADDITIONAL QUANTITIES OF "LEDGE ROCK" NOT INCLUDED UNDER THE PROVISIONS OF THE ORIGINAL CONTRACT. THE CONTRACTORS HERETOFORE HAVE PRESENTED AN ITEMIZED STATEMENT OF THE VARIOUS AMOUNTS ALLEGED TO BE DUE THEM ON ACCOUNT OF SUCH EXTRA WORK, AS FOLLOWS:

CHART EXCAVATION OF 411.61 CUBIC YARDS OF "LEDGE ROCK," AT $2.40 PER

YARD ---------------------------------------------------- $987.86 EQUIPMENT EXPENSES:

CRANE RENTAL, 20 DAYS ------------------------- $600.00

PUMP RENTAL, 20 DAYS -------------------------- 196.00

DREDGE RENTAL, 20 DAYS ------------------------- 180.00

TRUCK RENTAL, 20 DAYS ------------------------- 200.00

POWER FOR PUMPS, ELECTRIC --------------------- 165.24

POWER FOR CRANE, GAS -------------------------- 96.00

-------------- 1,437.24 ADDITIONAL LABOR:

MOVING CONCRETE PLANT -------------------------- 16.80

LABOR ON FORMS --------------------------------- 39.00

MANUAL LABOR, 4 PERSONS, 20 DAYS --------------- 309.95

-------------- 572.20 ADDITIONAL MATERIALS:

GRAVEL ----------------------------------------- 309.95

SAND ------------------------------------------- 85.00

CEMENT ----------------------------------------- 627.14

-------------- 1,022.09 INTEREST ON LOAN ------------------------ ------- --- 40.00 OVERHEAD EXPENSES, 10 PERCENT -------- ------------- 405.93

TOTAL, EXTRA-WORK CLAIM ------------------------- 4,465.32

CONTRACTORS HAVE CONTENDED, ALSO, THAT THEY ARE ENTITLED TO BE REIMBURSED IN THE SUM OF $374.81 ON ACCOUNT OF CERTAIN DAMAGES SUSTAINED RESULTING FROM FLOOD WATERS ENCOUNTERED DURING THE PROGRESS OF THE WORK.

UNDER THE PROVISIONS OF THE CONTRACT THE CONTRACTORS AGREED, FOR AND IN CONSIDERATION OF THE PAYMENT OF THE VARIOUS UNIT PRICES AS STATED IN ARTICLE 1 OF THE CONTRACT FOR THE SEVERAL CLASSES OF REQUIRED WORK, TO FURNISH ALL LABOR, MATERIALS, AND EQUIPMENT (EXCEPT SUCH AS SPECIFICATION NO. 31 PROVIDES SHALL BE FURNISHED BY THE GOVERNMENT) AND TO PERFORM ALL THE NECESSARY WORK REQUIRED TO COMPLETE THE REMOVAL OF THE OLD TIMBER DAM AND TO CONSTRUCT A NEW CONCRETE DAM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES AND DRAWINGS, ALL OF WHICH ARE A PART OF THE CONTRACT. THE CONTRACT PROVIDED, ALSO, THAT THE WORK WAS TO BE COMMENCED WITHIN 10 CALENDAR DAYS AFTER THE RECEIPT BY CONTRACTORS OF THE GOVERNMENT'S NOTICE TO PROCEED THEREWITH AND THAT SAME WOULD BE COMPLETED ON OR BEFORE DECEMBER 1, 1933, UNLESS THE REQUIRED WORK SHOULD BE DELAYED BY FLOOD WATERS OR BY ICE CONDITIONS DURING THE PERFORMANCE PERIOD, IN WHICH EVENT ADDITIONAL TIME WAS AUTHORIZED TO BE ALLOWED TO THE EXTENT OF SUCH DELAY AS DETERMINED BY THE CONTRACTING OFFICER. IN THE EVENT OF DELAYS IN PERFORMANCE THE CONTRACT PROVIDED THAT THE CONTRACTORS SHOULD PAY TO THE GOVERNMENT AS LIQUIDATED DAMAGES AT THE RATE OF $50 FOR EACH CALENDAR DAY OF DELAY UNTIL THE WORK IS COMPLETED OR ACCEPTED, EXCLUDING THE MONTHS OF DECEMBER, JANUARY, FEBRUARY, AND MARCH, EACH YEAR, AS WELL AS ALL TIME OF SUSPENSION OF THE WORK ON ACCOUNT OF DELAYS CAUSED BY FLOOD WATERS OR ICE CONDITIONS.

THE CONTRACT WORK APPEARS TO HAVE BEEN COMPLETED ON MARCH 31, 1934, AND CONTRACTORS HAVE BEEN PAID THE UNIT PRICES STIPULATED IN THE CONTRACT FOR THE QUANTITIES OF THE SEVERAL KINDS AND CLASSES OF REQUIRED WORK ACTUALLY PERFORMED IN COMPLETING THE CONTRACT, AGGREGATING $62,798.53. LIQUIDATED DAMAGES ACCRUED UNDER THE CONTRACT, INASMUCH AS THE CONTRACT WORK WAS COMPLETED WITHIN THE SPECIFIED PERFORMANCE PERIOD, AS EXTENDED 3 1/2 CALENDAR DAYS BY THE CHANGE ORDER ISSUED JANUARY 4, 1934, FOR "FURNISHING, PLACING, PUMPING, AND REMOVING EXTRA COFFERDAM FROM FOREBAY MILL," FOR WHICH THE CONTRACTORS WERE ALLOWED AN ADDITIONAL PAYMENT OF $1,449.32, AND BY THE PROVISIONS OF SPECIFICATION 3 (B) WHICH EXCLUDED PAYMENT OF LIQUIDATED DAMAGES DURING THE MONTHS OF DECEMBER 1933 AND JANUARY, FEBRUARY, AND MARCH 1934.

AMONG OTHER THINGS, THE CONTRACT PROVIDED:

ARTICLE 3. CHANGES.--- THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY. NO CHANGE INVOLVING AN ESTIMATED INCREASE OR DECREASE OF MORE THAN FIVE HUNDRED DOLLARS SHALL BE ORDERED UNLESS APPROVED IN WRITING BY THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE. ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN DAYS FROM THE DATE THE CHANGE IS ORDERED, UNLESS THE CONTRACTING OFFICER SHALL FOR PROPER CAUSE EXTEND SUCH TIME, AND IF THE PARTIES CANNOT AGREE UPON THE ADJUSTMENT THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE 15 HEREOF. BUT NOTHING PROVIDED IN THIS ARTICLE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK SO CHANGED.

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.

ARTICLE 5. EXTRAS.--- EXCEPT AS OTHERWISE HEREIN PROVIDED, NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

ARTICLE 15. DISPUTES.--- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL DISPUTES 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 SPECIFICATIONS PROVIDE:

10. CHARACTER OF RIVER BOTTOM.--- AT THE PROPOSED DAM SITE THE BED OF THE RIVER IS LIMESTONE WITH IRREGULAR THOUGH GENERALLY HORIZONTAL STRATIFICATION, OVERLAIN IN PLACES WITH DEPOSITS OF LOOSE ROCK AND OTHER MATERIAL. THIS LOOSE ROCK AND OTHER MATERIAL, AND ALL LEDGE ROCK WHICH IS FOUND TO BE UNSUITABLE FOR THE DAM FOUNDATION WHEN THE SITE IS UNWATERED AND CLEARED WILL REQUIRE REMOVAL AS SPECIFIED IN PAR. 13. PROBINGS TAKEN BY DRIVING A 1 INCH DIAMETER STEEL ROD TO REFUSAL SHOW THAT OVER PORTIONS OF THE SITE THE LEDGE ROCK IS OVERLAIN WITH LOOSE ROCK AND OTHER MATERIAL TO A MAXIMUM DEPTH OF ABOUT 3 1/2 FEET. THE SAME PROBINGS INDICATE THAT THE ELEVATION OF THE LEDGE ROCK OVER THE SITE VARIES FROM ABOUT 11 TO 14.5 FEET BELOW DATUM. A PILE OF LOOSE ROCK HAVING A MAXIMUM DEPTH OF ABOUT 6 FEET COVERS AN AREA APPROXIMATELY 25 FEET BY 75 FEET NEXT TO THE MILL BUILDING AT THE SOUTH (RIGHT) END OF THE SITE. ADJACENT TO THIS PILE AN AREA APPROXIMATELY 20 FEET BY 30 FEET IS COVERED WITH LOOSE ROCK TO A MAXIMUM DEPTH OF ABOUT 3 FEET. AS MUCH OF THIS LOOSE ROCK AS IS NECESSARY TO CLEAR THE SITE FOR THE NEW DAM SHALL BE REMOVED BY THE CONTRACTOR AS SPECIFIED IN PAR. 13. THE FOUNDATION OF THE OLD DAM IS OF LIMESTONE AT ELEVATIONS OF ABOUT 11.5 TO 13 FEET BELOW DATUM.

13. PREPARING FOUNDATION FOR NEW DAM.--- (A) ALL LOOSE STONE, OLD CONCRETE MASONARY, FRAGMENTED ROCK, UNSOUND LEDGE ROCK, DEBRIS, ETC., ON THE SITE OF THE NEW DAM SHALL BE REMOVED TO THE SATISFACTION OF THE CONTRACTING OFFICER. UNSOUND LEDGE ROCK SHALL BE REMOVED BY MEANS OF BARS, WEDGES, OR OTHER METHODS APPROVED BY THE CONTRACTING OFFICER. THE AMOUNT OF UNSOUND LEDGE ROCK TO BE REMOVED CANNOT BE CLOSELY ESTIMATED, AS THE CONDITION OF THE SURFACE ROCK OVER THE SITE OF THE DAM WILL NOT BE KNOWN UNTIL THE AREA IS UNWATERED. FOR THE PURPOSE OF CANVASSING BIDS, THE AMOUNT OF UNSOUND LEDGE ROCK TO BE REMOVED BY MEANS OF BARS, WEDGES, OR OTHER APPROVED METHODS IS ROUGHLY ESTIMATED TO BE 125 CUBIC YARDS, PLACE MEASUREMENT; AND THE AMOUNT OF LOOSE STONE, OLD STONE AND CONCRETE MASONRY, FRAGMENTED ROCK AND DEBRIS IS ESTIMATED TO BE 600 CUBIC YARDS, PLACE MEASUREMENT. THE FINISHED BOTTOM SHALL BE APPROXIMATELY HORIZONTAL, OR STEPPED, AND LEFT AS ROUGH AS SOUND ROCK CONDITIONS WILL PERMIT, SO AS TO PROVIDE AS MUCH RESISTANCE AS POSSIBLE AGAINST DOWNSTREAM THRUST OF THE DAM.

(B) A KEYWAY, AS SHOWN ON PLAN, SHALL BE BLASTED OUT OF THE LEDGE ROCK WITH AS LIGHT SHOTS AS POSSIBLE SO AS NOT TO LOOSEN THE ROCK UNREASONABLY BEYOND THE REQUIRED LIMITS. A NARROW TRENCH THROUGH THE CENTER SHALL BE BLASTED WITH SHOTS SPACED AT ABOUT 1-FOOT INTERVALS WELL IN ADVANCE OF BREAKING OUT THE SIDES (WITH SHOTS AT ABOUT 2-FOOT INTERVALS); ALL AS FOUND TO BE NECESSARY TO PRODUCE THE REQUIRED MINIMUM DIMENSIONS FOR THE KEYWAY. THE ESTIMATED AMOUNT OF ROCK TO BE REMOVED FROM THE KEYWAY IS 240 CUBIC YARDS PLACE MEASUREMENT.

34. WORK COVERED BY PRICE BID.--- THE CONTRACTOR SHALL UNDER HIS CONTRACT PRICES FURNISH AND PAY FOR ALL MATERIAL AND ACCESSORIES (EXCEPT THOSE SPECIFIED IN PARAGRAPH 31 TO BE FURNISHED BY THE UNITED STATES) AND LABOR, AND ALL PERMANENT, TEMPORARY, AND INCIDENTAL WORK, AND DO EVERYTHING WHICH MAY BE NECESSARY TO CARRY OUT THE CONTRACT IN GOOD FAITH, WHICH CONTEMPLATES EVERYTHING COMPLETED, IN GOOD WORKING ORDER, OF GOOD MATERIAL, WITH ACCURATE WORKMANSHIP, SKILLFULLY FITTED, AND PROPERLY CONNECTED AND PUT TOGETHER.

THE GENERAL RULE IS THAT THE PARTIES TO A CONTRACT ARE REQUIRED TO PERFORM IT ACCORDING TO ITS TERMS, WHERE SUCH PARTIES ARE SUI JURIS, WHERE THE CONTRACT VIOLATES NO RULE OF LAW OR PUBLIC POLICY, AND WHERE NO FRAUD OR IMPOSITION HAS BEEN PRACTICED, NOTWITHSTANDING THE CONTRACT MAY OPERATE HARSHLY OR UNJUSTLY ON ONE OF THE PARTIES (13 CORPUS JURIS, 627-635). IS WELL-ESTABLISHED LAW THAT WHERE THE CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE (13 CORPUS JURIS, 584; BRAWLEY V. UNITED STATES, 96 U.S. 168; AND SIMPSON V. UNITED STATES, 172 U.S. 379).

THE CONTRACT HERE INVOLVED WAS ON THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT (NO. 23), ARTICLE 5 OF WHICH PROVIDED, AS ABOVE QUOTED, THAT NO PAYMENT FOR EXTRA WORK DONE OR MATERIAL FURNISHED WOULD BE PAID TO THE CONTRACTORS UNLESS SAME HAD BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER. ARTICLE 15 OF THE CONTRACT, ABOVE QUOTED, PROVIDES THAT IN EVENT OF DISPUTES CONCERNING QUESTIONS OF FACTS ARISING THEREUNDER, THE DECISIONS OF THE ADMINISTRATIVE OFFICERS ARE FINAL AND CONCLUSIVE ON THE CONTRACTORS. NO WRITTEN ORDERS WERE ISSUED BY THE CONTRACTING OFFICER FOR ANY OF THE "LEDGE ROCK" EXCAVATION WORK. IT APPEARS THAT DURING THE PROGRESS OF THE WORK, HOWEVER, THE CONTRACTORS NOTIFIED THE CONTRACTING OFFICER OF ALLEGED LATENT CONDITIONS AT THE SITE OF THE WORK MATERIALLY DIFFERING FROM THOSE INDICATED IN THE SPECIFICATIONS. SUBSEQUENTLY, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 4 OF THE CONTRACT (ABOVE QUOTED) THE CONTRACTING OFFICER INVESTIGATED AND SURVEYED THE CONDITIONS ENCOUNTERED BY CONTRACTORS DURING THE PROGRESS OF THE WORK AND REPORTED THE FACTS RELATIVE THERETO IN A LETTER TO THE CONTRACTORS DATED JANUARY 23, 1934, IN WHICH CONTRACTORS WERE INFORMED, IN EFFECT, THAT INASMUCH AS THE REQUIRED "LEDGE ROCK" EXCAVATION WORK WAS A PART OF THE ORIGINAL CONTRACT WORK, THEY WERE NOT ENTITLED TO ANY COMPENSATION IN EXCESS OF THE CONTRACT YARDAGE PRICE OF $2.88 PER CUBIC YARD, FOR EXCAVATING AND REMOVING THE REQUIRED 776.61 CUBIC YARDS OF "LEDGE ROCK" NECESSARY TO SATISFACTORILY COMPLETE THE CONTRACT IN ACCORDANCE WITH ITS TERMS.

IT HAS BEEN HELD THAT WHERE A CONTRACT VESTS AUTHORITY IN A CONTRACTING OFFICER TO DECIDE A QUESTION OF FACT, AS SEEMS TO BE THE CASE HERE, SUCH DECISION WILL BE ACCEPTED AS FINAL AND CONCLUSIVE IN THE ABSENCE OF ANY SHOWING OF FRAUD OR SUCH GROSS MISTAKE AS TO IMPLY BAD FAITH. 20 COMP. DEC. 812; KIHLBERG V. UNITED STATES, 97 U.S. 398; CHICAGO, ETC., R.R.CO. V. PRICE, 138 U.S. 185; UNITED STATES V. GLEASON, 175 U.S. 588, 602; AND BRAY, TRUSTEE, V. UNITED STATES, 46 CT.CLS. 132.

THE RIGHTS AND LIABILITIES OF THE PARTIES AS TO COMPENSATION UNDER A CONTRACT ARE, OF COURSE, LIMITED BY ITS TERMS, WHICH ARE TO BE INTERPRETED ACCORDING TO THE GENERAL RULES OF CONSTRUCTION. CLAIMANTS WOULD APPEAR TO BE SEEKING TO RECOVER THE ADDITIONAL $4,465.32 UPON THE THEORY OF AN IMPLIED CONTRACT FOR EXTRA WORK, BUT THE EVIDENCE DOES NOT SUSTAIN SUCH CONTENTION, IT APPEARING THAT THE CONTRACTOR WAS NOT REQUIRED TO PERFORM ANY "LEDGE ROCK" EXCAVATION WORK IN EXCESS OF THE CONTRACT REQUIREMENT. THE CONTRACTING OFFICER HAVING DETERMINED AS A MATTER OF FACT THAT NONE OF THE "LEDGE ROCK" EXCAVATING AND REMOVAL REPRESENTED EXTRA WORK, AS CONTEMPLATED BY ARTICLE 4 OF THE CONTRACT, SUCH FINDING OF FACT IS CONCLUSIVE ON CONTRACTORS UNDER ARTICLE 15 OF THE CONTRACT, NO APPEAL THEREFROM TO THE HEAD OF THE DEPARTMENT HAVING BEEN TAKEN WITHIN THE PRESCRIBED PERIOD. PENN BRIDGE CO. V. UNITED STATES, 59 CT.CLS. 892, AND CASES THERE CITED; AND MORRIS AND CUMMINGS DREDGING CO., INC., V. UNITED STATES, NO. L-57, CT.CLS. DECISION, DATED NOVEMBER 6, 1933.

FURTHERMORE, WHERE THE CONTRACT CONTAINS CONDITIONS IN REFERENCE TO COMPENSATION FOR EXTRAS, THE BUILDER MUST COMPLY WITH THEM OR HE HAS NO RIGHT TO COMPENSATION. SEE PLUMLEY V. UNITED STATES, 226 U.S. 545. THIS MATTER, ARTICLE 5 OF THE CONTRACT (ABOVE QUOTED) PROVIDED THAT NO CHARGE WOULD BE ALLOWED FOR EXTRA WORK UNLESS SAME HAD BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER. IN THIS MATTER THE CONTRACTING OFFICER HAS REPORTED THAT NO EXTRA "LEDGE ROCK" EXCAVATING WORK, OTHER THAN THAT INCLUDED IN THE CONTRACT, WAS REQUIRED OF THE CONTRACTORS, AND THAT THE CONTRACTING OFFICER ISSUED NO ORDER THEREFOR. SPECIFICATIONS NO. 10 (ABOVE QUOTED) INFORMED THE BIDDERS RELATIVE TO THE CHARACTER OF THE RIVER BOTTOM AT THE SITE OF DAM, AS DISCLOSED BY THE GOVERNMENT'S INVESTIGATIONS AND SURVEYS, AND "THAT ALL LEDGE ROCK WHICH IS FOUND TO BE UNSUITABLE FOR THE DAM FOUNDATION WHEN THE SITE IS UNWATERED AND CLEARED WILL REQUIRE REMOVAL AS SPECIFIED IN PAR. 13.' SPECIFICATION NO. 13 (ABOVE QUOTED) INFORMED THE BIDDERS THAT ALL "LOOSE STONE, OLD CONCRETE MASONRY, FRAGMENTED ROCK, UNSOUND LEDGE ROCK, DEBRIS, ETC., " ON THE SITE OF THE DAM MUST BE REMOVED TO THE SATISFACTION OF THE CONTRACTING OFFICER, AND THAT "THE AMOUNT OF UNSOUND LEDGE ROCK TO BE REMOVED CANNOT BE CLOSELY ESTIMATED, AS THE CONDITION OF THE SURFACE ROCK OVER THE SITE OF THE DAM WILL NOT BE KNOWN UNTIL THE AREA IS UNWATERED.' THE SPECIFICATIONS FOR THE WORK, WHEREIN THE ESTIMATED QUANTITIES OF "LEDGE ROCK" FOR EXCAVATION AND REMOVAL WERE PLACED AT APPROXIMATELY 365 CUBIC YARDS, CLEARLY INFORMED THE BIDDERS THAT THE REQUIRED "LEDGE ROCK" EXCAVATION WORK FOR THE ACCEPTED BID WOULD BE SUCH AS IS NECESSARY TO SATISFACTORILY COMPLETE THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS, REGARDLESS OF WHETHER SUCH "LEDGE ROCK" EXCAVATION BE MORE OR LESS THAN THE ESTIMATED QUANTITIES THEREOF AS SHOWN IN THE SPECIFICATIONS.

UNDER THE FACTS AND CIRCUMSTANCES DISCLOSED, AND THE TERMS OF THE CONTRACT, THERE IS NO LEGAL LIABILITY AGAINST THE GOVERNMENT FOR PAYMENT OF ANY AMOUNT, AS FOR "EXTRA WORK," IN EXCESS OF THE STIPULATED CONTRACT PRICE OF $2.88 PER CUBIC YARD, FOR THE EXCAVATING AND REMOVAL OF SAID 776.61 CUBIC YARDS OF "LEDGE ROCK" UNDER INVOLVED CONTRACT. IN THIS CONNECTION, SEE 10 COMP. GEN. 533 AND 557; 11 ID. 72 AND 322; AND 14 ID. 141.

WITH REFERENCE TO THE CLAIM OF THE CONTRACTORS FOR AN ADDITIONAL PAYMENT OF $374.81 IN EXCESS OF THE CONTRACT PRICES FOR COMPLETING PERFORMANCE OF THE CONTRACT, ON ACCOUNT OF CERTAIN DAMAGES SUSTAINED RESULTING FROM FLOOD WATERS ENCOUNTERED DURING THE PROGRESS OF THE WORK UNDER INVOLVED CONTRACT, THERE WOULD APPEAR TO BE NO BASIS FOR SUCH DAMAGE CLAIM AGAINST THE UNITED STATES. THE FACTS RELATIVE TO SAID DAMAGE CLAIM ARE SHOWN IN THE CONTRACTING OFFICER'S LETTER OF JANUARY 4, 1934, TO THE CONTRACTOR, AS FOLLOWS:

3. ON THE AFTERNOON OF AUG. 30, 1933, THE PRESIDENT OF THE KIMBERLY-CLARK CORPORATION, NEENAH, WIS., REQUESTED PERMISSION FROM THIS OFFICE TO DRAW DOWN THE LEVEL OF THE LITTLE LAKE BUTTE DES MORTS POOL, BETWEEN APPLETON AND NEENAH-MENASHA, ABOUT 3 FEET IN ORDER TO RECOVER THE BODY OF ONE OF ITS EMPLOYEES WHO HAD DROWNED AND WHOSE BODY COULD NOT BE FOUND. AS HAS BEEN DONE PREVIOUSLY IN SIMILAR CASES, THE PERMISSION WAS GRANTED--- WITH THE UNDERSTANDING THAT HE WOULD ARRANGE THE MATTER SATISFACTORILY WITH THE NAVIGATION INTERESTS ON THE RIVER. HE AGREED TO THIS ORALLY AND HAD HIS ENGINEER ARRANGE WITH ALL OF THE MILLS DOWN THE RIVER AT AND BELOW APPLETON TO DRAW WATER THROUGH THEIR WHEELS UP TO THEIR CAPACITY, STARTING AT MIDNIGHT ON AUGUST 30. THEY HAD BEEN USING ONLY ABOUT 25 PERCENT OF WHEEL CAPACITY FROM AUGUST 25-30, AND 40 PERCENT TO 60 PERCENT FROM AUGUST 1 24. AT 2:00 A.M., AUGUST 31, AFTER DRAWING DOWN OF THE BUTTE DES MORTS POOL HAD BEEN IN PROGRESS FOR TWO HOURS, THE GOVERNMENT LOCKMASTER AT APPLETON UPPER DAM WAS REQUESTED BY THE WISCONSIN MICHIGAN POWER CO. TO AID IN THE FURTHER LOWERING OF THE POOL BY DOING A SMALL AMOUNT OF SLUICING, AND HE DID SO. THE NET RESULT OF DRAWING THE WATER THROUGH THE WHEELS AT APPLETON PLUS A VERY SMALL AMOUNT OF SLUICING, AFTER THE POOL HAD BEEN LOWERED AND THE DISCHARGE CAPACITY OF THE WHEELS HAD BEEN REDUCED THEREBY, WAS TO PRODUCE A TOTAL FLOW OF SUCH AMOUNT THAT ALL OF IT WAS TAKEN THROUGH THE WHEELS OF THE KIMBERLY CLARK CORPORATION'S MILL AT THE RIGHT END OF THE DAM WHICH YOU ARE REBUILDING EXCEPT FOR A 0.4-FOOT RISE OF THE POOL ABOVE THE DAM. HOWEVER, THE MILL AT LITTLE CHUTE DAM IMMEDIATELY BELOW CEDARS TOOK ONLY 21 PERCENT OF ITS CAPACITY FLOW THROUGH ITS WHEELS, INSTEAD OF 100 PERCENT, AS HAD BEEN ARRANGED. THIS FAILURE TO TAKE THE FLOW THROUGH THE LITTLE CHUTE MILL CAUSED THE TAILWATER TO RISE ONLY ABOUT 2 FEET, WHICH WAS 1 FOOT ABOVE THE LOW POINT OF FILLING IN YOUR COFFERDAM. THE INVESTIGATION ALSO DISCLOSES THAT AT VARIOUS TIMES SINCE YOU REPAIRED THE LOWER COFFERDAM IT HAS BEEN CLOSE TO BEING OVERFLOWED WITH ONLY THE NORMAL OPERATION OF THE POWER PLANTS ON THE RIVER, AND THAT THE COFFERDAM HAS BEEN SAVED FROM DAMAGE AND FILLING ONLY BY PROMPT OPERATION OF THE SLUICE GATES IN THE GOVERNMENT DAM AT LITTLE CHUTE. THE NARROW MARGIN OF SAFETY PROVIDED IN YOUR LOWER COFFERDAM IS FOUND TO BE MANIFESTLY INADEQUATE, AND YOUR ATTENTION WAS CALLED TO THAT FACT AT VARIOUS TIMES PRIOR TO AUGUST 30. YOUR ATTENTION WAS ALSO CALLED PRIOR TO AUGUST 31 TO THE INADEQUATE WIDTH OF THE COFFER, AND IT IS REGARDED AS VERY FORTUNATE FOR YOU THAT ONLY 43 FEET OF IT FAILED BY SLIDING AS THE RESULT OF ONLY A MODERATE RISE OF THE POOL, SUCH AS SHOULD HAVE BEEN MORE THAN PROVIDED FOR UNDER ANY CIRCUMSTANCES. FURTHERMORE, IT IS FOUND THAT THE ASSISTANT ENGINEER IN CHARGE OF THE FOX RIVER IMPROVEMENT INFORMED YOUR REPRESENTATIVE ON THE WORK AT 5:30 P.M. ON AUGUST 30 THAT THE FLOW OF THE RIVER WAS TO BE INCREASED DURING THE NIGHT, AND ASKED HIM TO LEAVE A RESPONSIBLE MAN ON THE JOB DURING THE NIGHT--- ONE WHO COULD AND WOULD ACT ON HIS OWN RESPONSIBILITY--- YET THAT WAS NOT DONE AND NO ACTION WAS TAKEN TO SAFEGUARD YOUR COFFERDAM.

5. AS THE LOWER COFFERDAM WAS NOT OF SUCH HEIGHT AND DIMENSIONS AS WOULD MAKE IT SAFE FOR SUCH CHANGES OF THE RIVER STAGES AS OCCUR FROM VARIATIONS IN THE USE OF WATER FOR POWER, AND AS IT WAS NECESSARY TO PROTECT IT FROM OVERFLOW AT VARIOUS TIMES AFTER AUGUST 31 DURING THE ORDINARY VARIATIONS IN THE USE OF WATER FOR POWER BY USE OF THE GOVERNMENT SLUICES AT LITTLE CHUTE, AND AS THE RISE OF THE WATER LEVEL DURING THE NIGHT OF AUGUST 30-31 WAS FAR FROM BEING A FLOOD CONDITION, IT IS FOUND THAT YOU ARE NOT ENTITLED TO ADDITIONAL TIME TO COMPLETE YOUR CONTRACT WORK UNDER PAR. 3 (A) OF THE SPECIFICATIONS BECAUSE OF DELAY BY FLOOD WATERS. AS THE FLUCTUATION OF WATER LEVEL ON THE NIGHT OF AUGUST 30-31 WAS DUE TO THE DRAWING OF WATER BY PRIVATE INTERESTS AT THEIR REQUEST, THEY, AND NOT THE GOVERNMENT, ARE RESPONSIBLE FOR THEIR ACTS--- THE SAME AS IN THE CASE OF ANY PERMIT PERTAINING TO THE NAVIGABLE WATERS. THEREFORE, ANY CLAIM WHICH YOU MAY HAVE FOR DELAY TO YOUR WORK AND DAMAGES TO YOUR COFFERDAM IS NOT FOR CONSIDERATION BY THE UNITED STATES.

IT IS A WELL ESTABLISHED RULE THAT THE UNITED STATES IS NOT LIABLE FOR THE TORTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING THEREFOR. IN THIS CONNECTION SEE 1 COMP. GEN. 178; 5 ID. 461; 7 ID. 14; GIBBONS V. UNITED STATES, 8 WALL. 269; HART V. UNITED STATES, 95 U.S. 316; BIGBY V. UNITED STATES, 188 U.S. 400; AND THE WESTERN MAID, 257 U.S. 419. IT APPEARING THAT NO SUCH LEGISLATION EXISTS IN THIS MATTER, THE CONTRACTOR'S CLAIM FOR DAMAGES RESULTING FROM FLOOD WATERS ENCOUNTERED DURING THE PROGRESS OF THE CONTRACT WORK MUST BE AND IS DISALLOWED.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF SEPTEMBER 24, 1934, DISALLOWING THE CLAIM MUST BE AND IS SUSTAINED.