A-58764, DECEMBER 13, 1938, 18 COMP. GEN. 542

A-58764: Dec 13, 1938

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PROVIDED THAT BIDDERS SHOULD FULLY INFORM THEMSELVES REGARDING THE CONDITIONS TO BE MET ALONG THE ROUTE ON WHICH THE WORK WAS TO BE DONE AND THAT FAILURE TO TAKE THIS PRECAUTION WOULD NOT RELIEVE THE SUCCESSFUL BIDDER FROM FURNISHING ALL MATERIAL NECESSARY TO COMPLETE THE CONTRACT WITHOUT ADDITIONAL COST TO THE GOVERNMENT. THE CONTRACTOR IS NOT ENTITLED TO PAYMENT IN ADDITION TO THE CONTRACT PRICE FOR TEMPORARY TIMBER SHEETING AND BRACING WHICH WAS PERMITTED TO BE LEFT PERMANENTLY IN PLACE IN TUNNEL TRENCHES OF THE PROJECT INVOLVED IN LIEU OF THE INSTALLATION OF SHEET PILING. PARTICULARLY WHERE THE SOIL CONDITIONS ARE GENERALLY WELL KNOWN AND ARE A MATTER OF PUBLIC RECORD AND OF NUMEROUS PRIOR EXCAVATIONS AND SOUNDINGS.

A-58764, DECEMBER 13, 1938, 18 COMP. GEN. 542

CONTRACTS - INCREASED COSTS - SOIL BRACING MATERIALS - GOVERNMENT LIABILITY WHERE ADVISED SPECIFICATIONS, MADE A PART OF THE CONTRACT, PROVIDED THAT BIDDERS SHOULD FULLY INFORM THEMSELVES REGARDING THE CONDITIONS TO BE MET ALONG THE ROUTE ON WHICH THE WORK WAS TO BE DONE AND THAT FAILURE TO TAKE THIS PRECAUTION WOULD NOT RELIEVE THE SUCCESSFUL BIDDER FROM FURNISHING ALL MATERIAL NECESSARY TO COMPLETE THE CONTRACT WITHOUT ADDITIONAL COST TO THE GOVERNMENT, AND THAT WHEREVER THE REMOVAL OF TEMPORARY SHEETING WOULD PERMIT A SETTLEMENT OF THE ADJACENT SOIL, WITH THE POSSIBILITY OF AFFECTING THE STABILITY OF "EXISTING STRUCTURES," THE CONTRACTOR, INSTEAD OF INSTALLING TEMPORARY SHEETING, SHOULD INSTALL SHEET METAL PILING WHICH SHOULD BE LEFT IN PLACE IN THE GROUND, THE CONTRACTOR IS NOT ENTITLED TO PAYMENT IN ADDITION TO THE CONTRACT PRICE FOR TEMPORARY TIMBER SHEETING AND BRACING WHICH WAS PERMITTED TO BE LEFT PERMANENTLY IN PLACE IN TUNNEL TRENCHES OF THE PROJECT INVOLVED IN LIEU OF THE INSTALLATION OF SHEET PILING, ETC., AS REQUIRED BY THE CONTRACT IN ORDER TO PREVENT DAMAGE TO ADJACENT UNDERGROUND UTILITIES, STREETS, SIDEWALKS, ETC., BECAUSE OF SOIL CONDITIONS, PARTICULARLY WHERE THE SOIL CONDITIONS ARE GENERALLY WELL KNOWN AND ARE A MATTER OF PUBLIC RECORD AND OF NUMEROUS PRIOR EXCAVATIONS AND SOUNDINGS.

ACTING COMPTROLLER GENERAL ELLIOTT TO PETER AND A. J. ELLIS, INC., DECEMBER 13, 1938:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION REQUEST FILED IN YOUR BEHALF BY YOUR ATTORNEYS, WILLIAM C. SULLIVAN AND P. J. J. NICOLAIDES, FOR REVIEW OF SETTLEMENT DATED APRIL 23, 1937, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $19,439.25 REPRESENTING ALLEGED BALANCE DUE FOR CERTAIN MATERIALS FURNISHED IN CONNECTION WITH PERFORMANCE OF CONTRACT TLSA-4395 OF MAY 12, 1933.

THE QUESTION FOR DETERMINATION CONCERNS YOUR RIGHT TO RECEIVE PAYMENT, IN ADDITION TO THE CONTRACT PRICE, FOR TEMPORARY TIMBER SHEETING AND BRACING WHICH WAS LEFT PERMANENTLY IN PLACE IN THE TUNNEL TRENCHES OF THE PROJECT IN ORDER TO PREVENT DAMAGE TO ADJACENT UNDERGROUND UTILITIES, STREETS, SIDEWALKS, ETC.

THE FACTS PERTINENT TO THE CONTROVERSY ARE THESE. UNDER THE TERMS OF THE CONTRACT YOU AGREED TO FURNISH ALL LABOR AND MATERIALS AND PERFORM ALL WORK REQUIRED FOR THE CONSTRUCTION OF THE WEST EXTENSION TO THE STEAM DISTRIBUTION SYSTEM OF THE CENTRAL HEATING PLANT FOR PUBLIC BUILDINGS AT WASHINGTON, D.C. THE ADMINISTRATIVE OFFICE REPORTS THAT THIS WEST EXTENSION CONSISTS OF THREE STEAM DISTRIBUTION LINES AGGREGATING MORE THAN A MILE IN LENGTH. THESE LINES WERE TO BE INCLOSED IN A CONCRETE CONDUIT AND TUNNEL--- WHICH WAS ALSO TO BE BUILT UNDER THE CONTRACT. THE ASSISTANT DIRECTOR OF PROCUREMENT REPORTS THAT AS THE WORK PROGRESSED---

* * * IT BECAME APPARENT THAT SPECIAL PRECAUTIONS WERE NECESSARY BECAUSE OF THE CHARACTER OF THE SOIL ENCOUNTERED, WHICH IN MANY LOCATIONS WAS A SOFT, FLOWING SILT. THE GREATER PART OF THE TUNNEL AND CONDUIT TO BE CONSTRUCTED UNDER THE CONTRACT WAS CLOSE TO PAVED STREETS, SEWERS, AND GAS, WATER, AND ELECTRIC MAINS; AND THE FLOWING NATURE OF THE SOIL CLEARLY INDICATED THAT THE TEMPORARY TIMBER SHEETING AND BRACING IN THE TUNNEL TRENCHES COULD NOT BE PULLED OR MOVED WITHOUT GREAT RISK OF DAMAGE TO SUCH IMPROVEMENTS. * * * ACTUALLY, THE 4 INCH SPACE OCCUPIED BY THE SHEETING WOULD HAVE BEEN FILLED BY THE ADJACENT FLOWING SOIL AS THE SHEETING WAS REMOVED NO MATTER HOW CAREFULLY THE BACKFILLING WORK WAS DONE, AND THE FLOW MIGHT HAVE BEEN SUFFICIENT TO CAUSE SERIOUS DAMAGE TO NEARBY UTILITY LINES, STREET CURBS, AND PAVING.

AS A RESULT OF THESE REPORTED FACTS THIS TEMPORARY SHEETING AND BRACING WAS LEFT IN PLACE, GIVING RISE TO YOUR PRESENT CLAIM FOR THE VALUE THEREOF. YOU CONTEND THAT THIS SHEETING, ETC., DOES NOT REPRESENT MATERIALS WHICH YOU WERE REQUIRED TO FURNISH UNDER THE CONTRACT, THAT THE NECESSITY FOR LEAVING IT IN PLACE WAS DUE TO THE SOIL CONDITIONS BEING MATERIALLY DIFFERENT THAN REPRESENTED TO THE CONTRACTOR, AND THAT, THEREFORE, THESE MATERIALS REPRESENT AN EXTRA NOT COVERED BY THE CONTRACT BUT FOR WHICH THE UNITED STATES RECEIVED A BENEFIT AND SHOULD THEREFORE MAKE PAYMENT.

SO FAR AS THE ALLEGATION THAT SOIL CONDITIONS WERE MATERIALLY DIFFERENT THAN REPRESENTED, ATTENTION IS INVITED TO THE FACT THAT THE CONTRACT DOES NOT APPEAR TO CONTAIN ANY REPRESENTATIONS WHATEVER RELATIVE TO SOIL FORMATION OR SUBSURFACE CONDITIONS WHICH YOU MIGHT EXPECT TO MEET. ON THE OTHER HAND IT WAS SPECIFICALLY PROVIDED BY PARAGRAPH 13 OF THE SPECIFICATIONS THAT:

BIDDERS SHOULD FULLY INFORM THEMSELVES REGARDING THE CONDITIONS TO BE MET ALONG THE ROUTE ON WHICH THE WORK WILL BE DONE, AND IN THE BUILDING TO BE SERVED BY THE SYSTEM. FAILURE TO TAKE THIS PRECAUTION WILL NOT RELIEVE THE SUCCESSFUL BIDDER FROM FURNISHING ALL MATERIAL AND LABOR NECESSARY TO COMPLETE THE CONTRACT WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

IT WOULD BE DIFFICULT TO ACCEPT IN ANY EVENT THAT A LOCAL CONTRACTOR SUCH AS YOU ARE--- IF AT ALL COMPETENT TO PERFORM SUCH CHARACTER OF WORK--- COULD HAVE AVOIDED KNOWLEDGE AS TO THE SOIL CONDITIONS IN THE AREA INVOLVED BETWEEN THE STATE, WAR, AND NAVY BUILDING AND THE NAVAL HOSPITAL, CONSIDERING THE MASS OF HISTORICAL DATA AVAILABLE TO EVERY ONE WHO READS CONCERNING THAT AREA AND THE HUNDREDS OF EXCAVATIONS AND SOUNDINGS MADE BY PUBLIC AND PRIVATE AGENCIES THROUGH THE YEARS.

YOUR CONTENTION THAT THE LEAVING OF THIS SHEETING AND BRACING IN PLACE REPRESENTED THE FURNISHING OF EXTRA MATERIALS NOT COVERED BY THE CONTRACT, AND FOR WHICH THE UNITED STATES RECEIVED AN ADDITIONAL BENEFIT, LIKEWISE APPEARS TO BE WITHOUT MERIT. PARAGRAPH 25 OF THE SPECIFICATIONS WAS TO THE EFFECT THAT:

EVERYTHING NECESSARY FOR THE COMPLETION AND SUCCESSFUL OPERATION OF THE WORK, WHETHER OR NOT HEREIN DEFINITELY SPECIFIED OR INDICATED ON THE DRAWINGS, SHALL BE FURNISHED AND INSTALLED AS WELL AND AS FAITHFULLY AS IF SO SPECIFIED OR SO INDICATED.

IN ADDITION TO THIS, AND OTHER SIMILAR PROVISIONS OF A GENERAL NATURE RELATIVE TO THE EXTENT OF YOUR OBLIGATIONS, THE CONTRACT CONTAINED SPECIFIC PROVISIONS RELATIVE TO THE FURNISHING OF SHEETING AND BRACING WHICH ARE OF PARTICULAR PERTINENCE TO THE PRESENT CONTROVERSY AND ARE LARGELY DETERMINATIVE OF THE MERITS OF YOUR CLAIM. THEY ARE:

104. BRACING AND SHEETING.--- THE SIDES OF EXCAVATIONS SHALL BE TEMPORARILY SUPPORTED AND MAINTAINED SECURE UNTIL PERMANENT SUPPORT IS PROVIDED. BUT WHEREVER THE REMOVAL OF TEMPORARY SHEETING WOULD PERMIT A SETTLEMENT OF THE ADJACENT SOIL, WITH THE POSSIBILITY OF AFFECTING THE STABILITY OF EXISTING STRUCTURES, THEN THE CONTRACTOR, INSTEAD OF INSTALLING TEMPORARY SHEETING, SHALL INSTALL SHEET STEEL PILING WHICH SHALL BE LEFT IN PLACE IN THE GROUND, OR HE SHALL UNDERPIN THE EXISTING FOUNDATIONS WITH MASONRY. FOR EXAMPLE, SHEET STEEL PILING WILL BE REQUIRED AT 18TH AND "D" STREETS AND AT THE MUNITIONS BUILDING, AND ELSEWHERE IF IT BE SO DIRECTED OR NECESSARY TO MAINTAIN THE SAFETY OF THE WORK AND THE ADJOINING PROPERTY.

107. TIME AND EXTENT.--- EXCAVATED SPACES REMAINING BELOW THE FINISHED GRADES AFTER THE CONSTRUCTION OF CONCRETE AND OTHER WORK SHALL BE BACKFILLED WHEN THE CONTRACTOR IS DIRECTED TO DO SO. * * *

110. PLACING.--- EARTH BACKFILL SHALL BE PLACED IN HORIZONTAL LAYERS, NOT OVER 8 INCHES IN DEPTH, EACH THOROUGHLY TAMPED, PACKED, OR PUDDLED, AS DIRECTED, SO THAT NO SETTLEMENT SHALL OCCUR. ALL TEMPORARY PLANKING, TIMBERING, SHEETING, AND OTHER SUPPORTS SHALL BE REMOVED AS THE BACKFILL IS PLACED. GREAT CARE SHALL BE EXERCISED DURING THE BACKFILLING TO AVOID DISTURBANCE OR DAMAGE TO ANY CONCRETE OR OTHER WORK.

READING THESE PROVISIONS TOGETHER IT APPEARS THAT AS EXCAVATING WORK WAS DONE THE SIDES OF THE EXCAVATIONS WERE TO BE PROTECTED BY SHEETING; THAT THIS SHEETING WAS TO BE PERMANENT IF REMOVAL OF TEMPORARY SHEETING WOULD AFFECT THE STABILITY OF EXISTING STRUCTURES OR RESULT IN A FAILURE "TO MAINTAIN THE SAFETY OF THE WORK AND THE ADJOINING PROPERTY; " THAT OTHERWISE TEMPORARY SHEETING SHOULD BE USED AND LATER REMOVED WHEN IT HAD SERVED ITS PURPOSE; THAT AFTER THE CONSTRUCTION AND CONCRETE WORK HAD BEEN DONE THE CONTRACTOR, IF DIRECTED TO DO SO, WAS REQUIRED TO BACKFILL EXCAVATED SPACES; AND THAT ALL TEMPORARY SHEETING, ETC., "SHALL BE REMOVED" AS THIS BACKFILL IS PLACED. WHILE IT IS TRUE THAT IN NO CASE WAS TEMPORARY SHEETING AND BRACING TO REMAIN IN PLACE, IT IS ALSO TRUE THAT IN NO INSTANCE WAS THE CONTRACTOR TO INSTALL TEMPORARY SHEETING IF ITS REMOVAL WOULD ENDANGER "EXISTING STRUCTURES.' IN THE PRESENT CASE IT APPEARS THAT DUE TO THE FLOWING NATURE OF THE SOIL TEMPORARY SHEETING AND BRACING COULD NOT BE REMOVED WITHOUT DAMAGE TO ,PAVED SHEETS, SEWERS, AND GAS, WATER, AND ELECTRIC MAINS," AND THE CONTRACT REQUIRED YOU TO BE RESPONSIBLE AND TO PAY FOR ANY SUCH DAMAGES TO "PROPERTY" OR "STRUCTURES.'

THAT THE TERM "EXISTING STRUCTURES" INCLUDES OR MAY INCLUDE STREETS, SEWERS, GAS, WATER, AND ELECTRIC MAINS, ETC., APPEARS TO BE ESTABLISHED BY JUDICIAL PRECEDENTS. THUS, IN CITY OF ROCK ISLAND V. INDUSTRIAL COMMISSION, 122 N.E. 82, THE TERM "STRUCTURE" WAS HELD TO INCLUDE CITY STREETS; IN ARMENTI V. BROOKLYN UNION GAS CO., 142 N.Y.S. 420, 425, SEWERS WERE FOUND TO BE WITHIN THE TERM; IN WESTERN ELECTRIC CO. V. COOLEY, 251 PAC. 331, 333, A POWER LINE WAS DETERMINED TO BE "STRUCTURE," AND IN KOSIDOWSKI V. MILWAUKEE, 139 N.W. 187, A WATERWORKS SYSTEM WAS SIMILARLY FOUND TO BE WITHIN THE TERM. SEE, ALSO, GENERALLY STEVENS V. STANTON CONSTRUCTION CO., 137 N.Y.S. 1024.

THE CONDITIONS ENCOUNTERED APPEAR TO HAVE BEEN SUCH THEREFORE THAT INSTEAD OF PLACING THIS TEMPORARY SHEETING AND BRACING AND LEAVING IT IN PLACE YOU SHOULD EITHER HAVE INSTALLED PERMANENT SHEET STEEL PILING OR, AS AN ALTERNATIVE, UNDERPINNED THE FOUNDATIONS WITH MASONRY--- AS PARAGRAPH 104 OF THE SPECIFICATIONS REQUIRED. TO THE EXTENT THAT YOU INSTALLED TEMPORARY EXCAVATION SUPPORT WHERE PERMANENT SHEET STEEL PILING OR MASONRY WAS REQUIRED, YOU CANNOT BE HEARD TO SAY THAT BECAUSE YOU WERE NOT ABLE TO REMOVE THE FORMER YOU SHOULD THEREFORE BE PAID EXTRA FOR IT. THE GRANTING OF PERMISSION TO LEAVE THIS TEMPORARY SHEETING IN PLACE APPEARS TO HAVE AMOUNTED TO AN ACCEPTANCE BY ADMINISTRATIVE OFFICIALS OF THIS LESS STABLE TEMPORARY SUPPORT IN LIEU OF A BETTER GRADE AND MORE COSTLY PERMANENT PILING OR MASONRY WHICH YOU SHOULD HAVE FURNISHED IN ORDER ,TO MAINTAIN THE SAFETY OF THE WORK AND THE ADJOINING PROPERTY.' INSTEAD OF FURNISHING MATERIAL IN ADDITION TO THAT REQUIRED BY YOUR CONTRACT, IT APPEARS THEREFORE THAT YOU PROBABLY FURNISHED LESS WORK AND MATERIAL, IN VALUE AT LEAST, THAN THE TERMS OF YOUR CONTRACT REQUIRED.

UNDER ALL THE FACTS AND CIRCUMSTANCES IT MUST BE HELD THAT DISALLOWANCE OF YOUR CLAIM WAS PROPER. THE DECISION IS ACCORDINGLY.