A-58791, JANUARY 4, 1935, 14 COMP. GEN. 507

A-58791: Jan 4, 1935

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CONTRACTS - INCREASED COSTS - SUBSURFACE CONDITIONS - EFFECT OF TENTATIVE DESIGNS ON CONTRACT DRAWINGS THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE AS INCREASED COSTS OF PERFORMANCE BY REASON OF THE FACT THAT THE BEHAVIOR OF VARIOUS SUBSURFACE MATERIAL. KNOWN BY THE GOVERNMENT AND THE CONTRACTOR TO HAVE EXISTED. WAS RESPONSIBLE FOR THE ENCOUNTERING OF ARTIFICIAL OBSTRUCTIONS CAUSING THE INCREASED COST. " PURSUANT TO WHICH THE WORK WAS PERFORMED. WHEREBY WAS DISALLOWED HIS CLAIM FOR $13. WERE MADE A PART OF THE CONTRACT. THE WORK WAS COMPLETED WITHIN THE CONTRACT TIME AND THE CONTRACTOR HAS BEEN PAID THE FULL CONTRACT PRICE. THE CONTRACTOR WAS PAID ON VOUCHER NO. 62645.

A-58791, JANUARY 4, 1935, 14 COMP. GEN. 507

CONTRACTS - INCREASED COSTS - SUBSURFACE CONDITIONS - EFFECT OF TENTATIVE DESIGNS ON CONTRACT DRAWINGS THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE AS INCREASED COSTS OF PERFORMANCE BY REASON OF THE FACT THAT THE BEHAVIOR OF VARIOUS SUBSURFACE MATERIAL, INCLUDING WATER, KNOWN BY THE GOVERNMENT AND THE CONTRACTOR TO HAVE EXISTED, DIFFERED FROM THAT ANTICIPATED, THE CONTRACT HAVING MADE NO REPRESENTATION AS TO THE POSSIBLE BEHAVIOR OF SUCH MATERIAL. WHERE THE PROVISIONS OF A CONSTRUCTION CONTRACT PLACE FULL RESPONSIBILITY ON THE CONTRACTOR FOR THE SIZE, STRENGTH, STABILITY, AND EFFECTIVENESS OF AN INCIDENTAL AND NECESSARY PART OF THE COMPLETED PROJECT, THE INEFFECTIVENESS OF A TENTATIVE DESIGN FOR SAID PART INDICATED ON THE GOVERNMENT'S CONTRACT DRAWINGS, ADOPTED BY THE CONTRACTOR, DOES NOT OBLIGATE THE GOVERNMENT FOR PAYMENT OF INCREASED COSTS DUE TO A NECESSARY CHANGE IN CONSTRUCTION. ERRORS IN THE GOVERNMENT'S CONTRACT DRAWINGS AFFORD NO BASIS FOR PAYMENT OF INCREASED COSTS UNDER A CONSTRUCTION CONTRACT WHEN THE UNAUTHORIZED REMOVAL OF LOCATION BY THE CONTRACTOR, RATHER THAN THE ERRORS IN CONTRACT DRAWINGS, WAS RESPONSIBLE FOR THE ENCOUNTERING OF ARTIFICIAL OBSTRUCTIONS CAUSING THE INCREASED COST, PARTICULARLY IF THE CONTRACTOR FAILS TO OBSERVE THE PROCEDURE PRESCRIBED BY ARTICLE 4, STANDARD GOVERNMENT FORM OF CONTRACT NO. 23, ENTITLED "CHANGED CONDITIONS," PURSUANT TO WHICH THE WORK WAS PERFORMED.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 4, 1935:

J. W. RUMSEY, AN INDIVIDUAL TRADING AS RUMSEY AND CO., HAS REQUESTED REVIEW OF SETTLEMENT NO. 0445434, APRIL 25, 1934, WHEREBY WAS DISALLOWED HIS CLAIM FOR $13,493.36 ALLEGED TO BE DUE AS EXTRA COMPENSATION UNDER CONTRACT NO.-1651, NOVEMBER 23, 1932, FOR CONSTRUCTION OF A DRAINAGE CULVERT AT THE NAVY YARD, PUGET SOUND, BREMERTON, WASH.

THE CONTRACT OBLIGATED THE CONTRACTOR TO FURNISH ALL LABOR AND MATERIALS AND PERFORM ALL WORK REQUIRED TO PROVIDE AND SECURE A DRAINAGE CULVERT BETWEEN DRY DOCK NO. 1 AND THE PUMP WELL OF DRY DOCK NO. 2, TOGETHER WITH THE NECESSARY CONNECTIONS TO EXISTING CONSTRUCTION AT BOTH ENDS OF THE CULVERT, TO MAKE THE WORK COMPLETE AND READY FOR USE, ALL AS CONTEMPLATED BY ITEM 3, PARAGRAPH 6-02, OF THE BUREAU OF YARDS AND DOCKS SPECIFICATION 7086, DATED OCTOBER 19, 1932, FOR THE AMOUNT OF $44,255. SPECIFICATION 7086, THE DRAWINGS AND STANDARD SPECIFICATIONS MENTIONED THEREIN, AND GENERAL PROVISIONS DATED OCTOBER 1, 1931, MENTIONED IN PARAGRAPH 1-104 OF THE SPECIFICATIONS, WERE MADE A PART OF THE CONTRACT. THE WORK WAS COMPLETED WITHIN THE CONTRACT TIME AND THE CONTRACTOR HAS BEEN PAID THE FULL CONTRACT PRICE, RELEASE BEING EXECUTED MAY 31, 1933, WITH THE RESERVATION THAT IT SHOULD NOT PROHIBIT THE CONTRACTOR FROM FILING A CLAIM FOR EXTRA COMPENSATION IN THE AMOUNT OF $14,728.82. THE CONTRACTOR WAS PAID ON VOUCHER NO. 62645, DATED MAY 19, 1933, BY CHECK NO. 206075, DATED JUNE 6, 1933.

THE CLAIM IS PRESENTED UPON THREE ITEMS, SUBSTANTIALLY AS FOLLOWS: (1) LATENT UNDERGROUND CONDITIONS BEING OTHER THAN AS CONTEMPLATED BY THE DRAWINGS AND SPECIFICATIONS, NECESSITATING CHANGE FROM AN OPEN COFFERDAM TO COMPRESSED AIR CAISSON METHOD OF CONSTRUCTION; (2) THE LOCATION OF THE SHAFT TOO NEAR THE PUMPHOUSE WELL WALL; (3) AN ERROR IN MEASUREMENT OF DRAWINGS NOS. 9627, 9628, AND 9845, WHICH CAUSED THE CONTRACTOR TO STRIKE AN ARTIFICIAL OBSTRUCTION NOT INDICATED ON THE DRAWINGS.

THE CLAIM APPEARS TO HAVE BEEN PRESENTED FORMALLY FOR THE FIRST TIME ON APRIL 15, 1933, TO THE COMMANDANT, PUBLIC WORKS DEPARTMENT, NAVY YARD, PUGET SOUND, WASH. THE CLAIM WAS EXAMINED BY THE BUREAU OF YARDS AND DOCKS WHICH, UNDER DATE OF MAY 11, 1933, CONCLUDED THAT THE CONTRACTOR WAS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION UNDER THE CONTRACT. THE CONTRACTOR REQUESTED FURTHER CONSIDERATION UNDER DATE OF MAY 27, 1933, WHEREUPON THE MATTER WAS THE SUBJECT OF EXTENSIVE CORRESPONDENCE BETWEEN THE BUREAU OF YARDS AND DOCKS AND PUGET SOUND NAVY YARD, AND ON DECEMBER 5, 1933, THE CHIEF, BUREAU OF YARDS AND DOCKS, FORWARDED THE CLAIM TO THE JUDGE ADVOCATE GENERAL OF THE NAVY FOR OPINION AS TO THE "VALIDITY IN PRINCIPLE OF THE CONTRACTOR'S CLAIM.' UNDER DATE OF DECEMBER 18, 1933, THE SECRETARY OF THE NAVY EXPRESSED HIS VIEW AS FOLLOWS:

21. SUMMARIZING THE ABOVE, THE NAVY DEPARTMENT IS OF THE OPINION THAT THE CONTRACTOR HAS A VALID CLAIM FOR THE CHANGE IN LOCATION OF THE SITE OF THE COFFERDAM AND FOR THE ERROR IN THE GOVERNMENT'S DRAWINGS, ABOVE MENTIONED. THE CONTRACTOR, FURTHERMORE, HAS A VALID CLAIM FOR THE DIFFERENCE ENCOUNTERED IN UNDERGROUND CONDITIONS IF SUCH CONDITIONS, IN FACT, DIFFERED FROM THOSE INDICATED BY THE GOVERNMENT.

PURSUANT THERETO A BOARD WAS APPOINTED TO INVESTIGATE THE CLAIM AND REPORT THE ESTIMATE AND FINDINGS AS TO THE ADDITIONAL EXPENSE, IF ANY, TO WHICH THE CONTRACTOR WAS NECESSARILY PUT IN PERFORMANCE OF THE CONTRACT THROUGH THE FOLLOWING CAUSES:

(A) THE RELOCATION OF THE COFFERDAM TOO NEAR THE PUMPHOUSE WELL.

(B) AN ALLEGED ERROR IN THE GOVERNMENT'S DRAWINGS RESULTING IN THE STRIKING OF AN ARTIFICIAL OBSTRUCTION IN THE DRIVING OF SHEET PILING.

(C) UNDERGROUND CONDITIONS CLAIMED TO DIFFER FROM THOSE CONTEMPLATED BY THE CONTRACT.

THE REPORT OF THE BOARD WAS THAT THE ESTIMATED COST OF COMPLETION OF THE INTAKE EXCAVATION AS FINALLY CONTEMPLATED, TAKEN FROM GOVERNMENT AND CONTRACTOR'S RECORDS WAS $29,342.37; THAT THE ESTIMATED COST OF SINKING THE INTAKE EXCAVATION AS ORIGINALLY INTENDED BY THE CONTRACT DRAWINGS WAS $17,278.08, OR A DIFFERENCE AS ADDITIONAL EXPENSE OF $12,064.29, TO WHICH AMOUNT WAS ADDED $202.40 AS COST OF BOND AND 10 PERCENT FOR PROFIT, MAKING A TOTAL OF $13,493.36. THE REPORT MADE NO EFFORT TO DISTRIBUTE THE ALLEGED EXPENSE TO THE THREE ITEMS OF VARIATION NAMED BUT MERELY TREATED THE DIFFERENCE BETWEEN ESTIMATES AND COSTS AS RESULTING FROM A CHANGE UNDER THE CONTRACT AND INCLUDED THE ITEMS OF PROFIT AND BOND PREMIUM AS SET OUT ABOVE. THE BUREAU OF YARDS AND DOCKS FORWARDED THE CLAIM TO THIS OFFICE FOR SETTLEMENT, ADMINISTRATIVELY APPROVED FOR THE AMOUNT OF $12,064.29.

THE THREE BASES UPON WHICH THE CLAIM IS PRESENTED WILL BE CONSIDERED HEREIN AS ENUMERATED.

1. DIFFERING SUBSURFACE CONDITIONS NECESSITATING CHANGE IN METHOD OF CONSTRUCTION.

THE CONTRACT WAS EXECUTED ON STANDARD GOVERNMENT FORM NO. 23 AND THE GENERAL PROVISIONS MADE A PART OF THE CONTRACT PROVIDED THAT THE CHIEF OF THE BUREAU OF YARDS AND DOCKS, AS CONTRACTING OFFICER, WOULD HAVE GENERAL DIRECTION OF THE WORK, WHILE A RESIDENT OFFICER WOULD HAVE IMMEDIATE CHARGE AND SUPERVISION THEREOF. ARTICLE 4 OF THE CONTRACT PROVIDES:

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.

UNDER THE QUOTED ARTICLE THE RIGHT OF THE CONTRACTOR TO INCREASED COMPENSATION FOR DIFFERING SUBSURFACE CONDITIONS WAS DEPENDENT UPON (A) ENCOUNTERING BY HIM OR DISCOVERY BY THE GOVERNMENT OF SUBSURFACE AND/OR LATENT CONDITIONS MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS; (B) DIRECTING THE ATTENTION OF THE CONTRACTING OFFICER TO SUCH CONDITIONS IMMEDIATELY, BEFORE THEY WERE DISTURBED; (C) INVESTIGATION AND DETERMINATION BY HIM THAT THE CONDITIONS ACTUALLY DID DIFFER MATERIALLY; (D) ADJUSTMENT OF ANY INCREASE IN COST EQUITABLY.

AS TO (A) ABOVE, THE SPECIFICATIONS PROVIDE WITH REFERENCE TO EARTHWORK AND EXCAVATION:

2-01. GENERAL REQUIREMENTS.--- THE WORK INCLUDES ALL EXCAVATION FOR CULVERT AND COFFERDAM, TOGETHER WITH ALL FILLING OR BACK FILLING, AND ALL OTHER EARTHWORK REQUIRED FOR THE PROPER COMPLETION OF THE WORK. IT IS ANTICIPATED THAT GROUND WATER WILL BE ENCOUNTERED IN QUANTITY THROUGHOUT THE LENGTH OF CULVERT PROPER AND THAT IT WILL BE NECESSARY TO CARRY ON A CONSIDERABLE PORTION OF THE CONSTRUCTION UNDER AIR PRESSURE. ALL PLANT MUST BE IN GOOD CONDITION, SUFFICIENT FOR THE PURPOSE, AND OF PROPER DESIGN TO INSURE THE SAFETY OF PERSONNEL. ALL TOOLS AND EQUIPMENT, INCLUDING TUNNELING SHIELDS, AIR LOCKS, BLOWERS, COFFERDAMS, PUMPS, ETC., REQUIRED IN CONNECTION WITH EARTHWORK SHALL BE PROVIDED BY THE CONTRACTOR. * * *

2-02. TEST BORINGS.--- RECORDS OF TEST BORINGS MADE BY THE GOVERNMENT ACCOMPANY THIS SPECIFICATION AND WILL FORM A PART OF THE CONTRACT. BIDS SHALL BE BASED ON THE FOLLOWING ASSUMPTIONS: (A) THAT SUBSURFACE CONDITIONS ARE AS INDICATED; (B) THAT ROCK WILL NOT BE ENCOUNTERED; AND (C) THAT NO PIPES OR OTHER ARTIFICIAL OBSTRUCTION, EXCEPT THOSE INDICATED, WILL BE ENCOUNTERED. IN CASE THE ACTUAL CONDITIONS DIFFER FROM THOSE STATED AND/OR SHOWN, AN ADJUSTMENT IN THE CONTRACT PRICE AND/OR THE TIME FOR COMPLETION OF THE WORK WILL BE MADE IN THE SAME MANNER AS PROVIDED BY ARTICLE 4 OF THE CONTRACT. "ROCK" SHALL BE DEFINED AS SOLID LEDGE REQUIRING BLASTING FOR ECONOMICAL REMOVAL AND/OR BOULDERS MORE THAN ONE- HALF CUBIC YARD IN VOLUME.

THE CONTRACTOR WAS INFORMED BY 2-01, SUPRA, THAT GROUND WATER WAS TO BE ENCOUNTERED IN QUANTITY THROUGHOUT THE ENTIRE LENGTH OF THE CULVERT PROPER; THAT A CONSIDERABLE PORTION OF THE CONSTRUCTION WOULD HAVE TO BE CARRIED ON UNDER AIR PRESSURE; THAT PLANT MUST BE SUFFICIENT FOR THE PURPOSE, AND THAT EQUIPMENT INCLUDING AIR LOCKS, BLOWERS, COFFERDAMS, PUMPS, ETC., IN CONNECTION WITH EARTHWORK, WAS TO BE PROVIDED BY THE CONTRACTOR. PARAGRAPH 2-02, SUPRA, MAKES RECORDS OF TEST BORINGS MADE BY THE GOVERNMENT A PART OF THE CONTRACT, AND THOSE TEST BORINGS CONSTITUTE THE ONLY REPRESENTATION MADE BY THE GOVERNMENT AS TO THE CHARACTER OF SOIL TO BE ENCOUNTERED. THE TEST BORINGS WERE SHOWN IN DETAIL ON DRAWING NO. 9845. AN EXAMINATION OF THAT DRAWING DISCLOSES THAT 12 TEST HOLES WERE BORED BY THE GOVERNMENT AT INTERVALS ALONG THE COURSE OF THE PROPOSED CULVERT WHICH VARIED IN DEPTH FROM 50 TO 65 FEET. THE LEGEND OF RESULTS SHOWS VARIOUS MATERIALS WERE ENCOUNTERED CONSISTING OF SAND, CLAY, GRAVEL, SILT, FINE SAND, AND RUNNING SAND. LITTLE, IF ANY, OTHER SUBSTANCE WAS INDICATED. IT IS SHOWN, ALSO, THAT HOLE NO. 1 AND HOLE NO. 6 WERE TESTED FOR WATER AND A SUBSTANTIAL AMOUNT WAS FOUND IN EACH. THE CONTRACTOR, THEREFORE, WAS ADVISED BY THE SPECIFICATIONS AND THE DRAWINGS THAT HE WOULD ENCOUNTER THE SEVERAL CHARACTERS OF SOIL SET OUT WHICH WOULD BE MIXED WITH WATER IN SUBSTANTIAL QUANTITY. FURTHER THAN THAT, THE CONTRACT MADE NO REPRESENTATION AND GAVE NO ASSURANCE.

THE OFFICER IN CHARGE, IN HIS REPORT TO THE BUREAU OF YARDS AND DOCKS, UNDER DATE OF JUNE 24, 1933, STATED:

PAR. 1 (A) OF REFERENCE (A/---

THE GROUND MATERIALS ENCOUNTERED BY THE CONTRACTOR THROUGHOUT THE ENTIRE PROJECT HAVE BEEN PRACTICALLY AS SHOWN BY THE TEST BORINGS, AND AS SHOWN AND DESCRIBED IN THE PLANS AND SPECIFICATIONS. THE BEHAVIOR OF THE MATERIAL ON THE SITE OF THE COFFERDAM, HOWEVER, WAS MATERIALLY DIFFERENT FROM WHAT HAD BEEN ANTICIPATED. THE PRESENT PUBLIC WORKS OFFICER WAS ON DUTY AT THIS NAVY YARD WHEN THE PUMP WELL WAS ORIGINALLY BUILT, AND THE WALLS OF THE EXCAVATION STOOD NEARLY VERTICAL, AND NO GREAT TROUBLE WAS EXPERIENCED WITH WATER, IT BEING READILY HANDLED WITH A PUMP.

IT WAS ANTICIPATED THAT WITH A STEEL SHEET PILE COFFERDAM NO DIFFICULTY WOULD BE EXPERIENCED IN CONSTRUCTING THE INTAKE UNDER OPEN CONDITIONS. ACTUALLY, THE GROUND WAS LACKING IN COHESION, WHICH, COMBINED WITH THE WATER, MADE IT FLUID, AND WHEN, ON 7 JANUARY, THE CONTRACTOR REQUESTED PERMISSION TO INSTALL A WOOD DIAPHRAGM AT ELEVATION 91.66 WITH BACK-FILL EARTH LOADED THEREON IN ORDER TO COMPLETE THE REMAINING WORK UNDER COMPRESSED AIR THIS WAS AUTHORIZED AS IT WAS NECESSARY IN ORDER TO PROCEED SAFELY WITH THE WORK.

IT IS APPARENT FROM THAT STATEMENT THAT THE GROUND MATERIALS ENCOUNTERED, AS WELL AS THE WATER CONDITIONS, WERE SUBSTANTIALLY AS SET FORTH IN THE DRAWINGS AND SPECIFICATIONS. THE MATERIALS WERE THE SAME AND THE WATER WAS THERE. THE CONTRACT MADE NO PROVISION FOR ANY UNANTICIPATED ,BEHAVIOR" OF THE MATERIAL ON THE SITE OF THE COFFERDAM, OR, IT MAY BE SAID, DURING ANY PORTION OF THE CONSTRUCTION. THE CONTRACTOR CLEARLY WAS NOT ENTITLED TO EXTRA COMPENSATION UNDER ARTICLE NO. 4 OF THE CONTRACT. IN VIEW OF THE CONCLUSION THUS REACHED, THE FAILURE OF THE CONTRACTOR TO FOLLOW THE PROCEDURE EXPLICITLY REQUIRED BY THE CONTRACT FOR THE DETERMINATION OF HIS RIGHTS NEED NOT BE CONSIDERED.

THE CONTRACTOR CONTENDS THAT BY REASON OF THE ALLEGED DIFFERENCE IN SUBSURFACE CONDITIONS IT WAS IMPOSSIBLE TO PERFORM THE WORK WITH THE OPEN COFFERDAM; THAT HE HAD TO PROCEED WITH AIR-PRESSURE CAISSON, WHICH WAS MUCH MORE EXPENSIVE; THAT THE PROVISIONS OF THE SPECIFICATIONS AND DRAWINGS RELATIVE TO OPEN COFFERDAM CONSTITUTED REPRESENTATIONS ON THE PART OF THE GOVERNMENT THAT THE WORK COULD BE DONE BY THAT METHOD; AND THAT HE IS ENTITLED TO THE ADDITIONAL COST OF THE METHOD USED. PARAGRAPH 2-01 OF THE SPECIFICATIONS, QUOTED ABOVE, PROVIDED: "ALL COFFERDAMS, * * * REQUIRED IN CONNECTION WITH EARTHWORK SHALL BE PROVIDED BY THE CONTRACTOR.'

PARAGRAPH 2-06 PROVIDED:

COFFERDAM AND PUMPING.--- THE CONTRACTOR SHALL PROVIDE, CONSTRUCT, AND MAINTAIN A COFFERDAM AS NECESSARY FOR THE CONSTRUCTION OF INTAKE PIPE CONNECTIONS AT DRY DOCK NO. 2 PUMP WELL AND TO PROVIDE ACCESS TO CULVERT CONSTRUCTION. THE CONTRACT DRAWINGS INDICATE A TENTATIVE DESIGN FOR THE COFFERDAM INTENDED TO ASSIST BIDDERS IN ESTIMATING THE COST OF THE WORK. HOWEVER, THE ENTIRE RESPONSIBILITY FOR THE SUFFICIENCY OF THE COFFERDAM SHALL REST UPON THE CONTRACTOR AND HE SHALL, WITHOUT ADDITIONAL COMPENSATION, INCREASE THE SIZE, STRENGTH, STABILITY, AND EFFECTIVENESS OF THE COFFERDAM AS MAY BE NECESSARY. THE CONTRACTOR SHALL PROVIDE ADEQUATE PUMPING EQUIPMENT AND SHALL DO ALL PUMPING NECESSARY TO REMOVE WATER FROM THE EXCAVATION AND TO KEEP IT FREE FROM WATER WHILE CONSTRUCTION THEREIN IS IN PROGRESS. HE SHALL DO ALL TRENCHING, DAMMING, AND UNDERDRAINING NECESSARY TO ACCOMPLISH THIS. IT WOULD BE DIFFICULT TO MAKE THE LANGUAGE OF THE QUOTED PROVISIONS PLAINER, OR ITS PURPOSE CLEARER. THE CONTRACT REQUIRED THE CONTRACTOR TO PROVIDE ALL COFFERDAMS. THE CONTRACT DRAWINGS INDICATED A TENTATIVE DESIGN FOR A COFFERDAM. THE WORD "TENTATIVE" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY AS MEANING "OF, PERTAINING TO, OR BASED ON, A TRIAL; EXPERIMENTAL.' THE WORD "PROVISIONAL" IS GIVEN AS A SYNONYM. UNDER THE WORD "PROVISIONAL" IS FOUND THE FURTHER DEFINITION "THAT IS TENTATIVE WHICH IS OF THE NATURE OF A TRIAL OR EXPERIMENT.' APPLYING THOSE DEFINITIONS TO THE SPECIFICATIONS, IT IS PLAIN THAT THE CONTRACTOR WAS PUT ON NOTICE THAT HE WAS REQUIRED TO FURNISH A COFFERDAM AS NECESSARY; THAT THE DESIGN INDICATED IN THE DRAWINGS WAS EXPERIMENTAL, OR IN THE NATURE OF A TRIAL; THAT THE ENTIRE RESPONSIBILITY FOR THE SUFFICIENCY, SIZE, STRENGTH, STABILITY, AND EFFECTIVENESS OF THE COFFERDAM WAS UPON THE CONTRACTOR. THE GOVERNMENT SPECIFICALLY DISCLAIMED RESPONSIBILITY FOR ANY CONCEIVABLE FAILURE OF THE COFFERDAM INDICATED. WHEN IT DEVELOPED THAT THE OPEN COFFERDAM WAS NOT SUITABLE OR EFFECTIVE, THE CONTRACTOR WAS NOT ONLY "AUTHORIZED," AS STATED BY THE OFFICER IN CHARGE, BUT HE WAS REQUIRED BY THE PLAIN LANGUAGE OF THE CONTRACT, TO CHANGE TO SOME METHOD OF OPERATION EFFECTIVE TO THE PROPER PERFORMANCE OF THE WORK. REGARDLESS OF WHAT CAUSED THE NECESSITY FOR SUCH CHANGE, THE CONTRACTOR WOULD NOT BE ENTITLED TO ADDITIONAL COMPENSATION.

2. THE LOCATION OF THE SHAFT TOO NEAR THE PUMPHOUSE WELL. THE SHAFT HERE MENTIONED WAS THE SHAFT FOR THE COFFERDAM AT DRYDOCK NO. 2 FOR THE CONNECTION OF THE CULVERT TO THE PUMPHOUSE WELL. DRAWING NO. 9845, SECTION A-A, SHOWED THAT THE EAST WALL OF THE COFFERDAM WOULD INTERFERE WITH THE OPERATION OF A STANDARD GAUGE RAILROAD TRACK OPERATED TO PIER NO. 5. THE SPECIFICATIONS PROVIDED THAT THE GOVERNMENT WOULD REMOVE ALL OBSTRUCTIONS SUCH AS RAILROAD TRACKS, SURFACE LINES, PAVING, ETC., IN THE VICINITY OF DRYDOCK NO. 2 PUMP WELL WHICH WOULD INTERFERE WITH THE CONSTRUCTION OF THE COFFERDAM. THE CONTRACTOR CONTENDS THAT FOR THE BENEFIT OF THE GOVERNMENT, AND IN ORDER NOT TO INTERFERE WITH THE ORDINARY HANDLING OF TRAFFIC TO PIER NO. 5, AND UNDER THE SUPERVISION AND DIRECTION, AND WITH THE APPROVAL OF THE OFFICERS OF THE GOVERNMENT, HE LOCATED THE SHAFT FOR THE COFFERDAM JUST WEST OF THE TRACK, AND 1 FOOT NEARER THE PUMPHOUSE WELL WALL, AND THAT, ACCORDING TO THE DRAWINGS AND SPECIFICATIONS, NO ARTIFICIAL OBSTRUCTION WOULD BE ENCOUNTERED BY REASON OF SUCH CHANGED LOCATION. DRAWING NO. 9627, SECTION B-B, AND DRAWING NO. 9628, SECTION C-C, SHOWED THE DISTANCE BETWEEN THE COFFERDAM SHEET PILING AND THE OUTSIDE OF THE PUMPHOUSE WELL WALL AS 2 FEET. UPON SUCH SHOWING THE COFFERDAM COULD BE MOVED 1 FOOT WEST (AS WAS DONE), STILL LEAVING A CLEARANCE OF 1 FOOT BETWEEN THE SHEET PILING AND THE PUMPHOUSE WELL WALL. HOWEVER, WHEN THE SHAFT WAS SUNK AT THAT POINT, THE CONTRACTOR ENCOUNTERED THE ARTIFICIAL OBSTRUCTION OF THE PUMPHOUSE FOOTING. THE OFFICER IN CHARGE HAS STATED THAT THE DRAWINGS WERE IN ERROR, IN THAT THE THICKNESS OF THE PUMPHOUSE WALL WAS SHOWN AS 9 FEET, 6 INCHES, WITHOUT BRICK COVERING, WHEREAS THE WALL WAS 10 FEET THICK, AND HAD A BRICK COVERING OF 9 INCHES, MAKING A TOTAL DIFFERENCE OF 15 INCHES. IT IS APPARENT, THEREFORE, THAT WHEN THE STEEL SHAFT WAS DRIVEN 1 FOOT NEARER THE PUMPHOUSE WALL, IT STRUCK THE BRICK COVERING OF SAID WALL 3 INCHES BEYOND THE OUTSIDE.

THERE APPEARS SOME CONTRADICTION BETWEEN THE CONTRACTOR AND THE OFFICER IN CHARGE AS TO THE RESPONSIBILITY FOR THE LOCATION OF THE SHAFT 1 FOOT WEST OF THE POINT SHOWN ON THE SPECIFICATIONS. THE CONTRACTOR CONTENDS THAT IT WAS DONE UNDER THE SUPERVISION AND DIRECTION OF THE OFFICER IN CHARGE. THE OFFICER, ON THE OTHER HAND, STATED:

THE YARD DID NOT LOCATE THE SHAFT COFFERDAM. IN FACT, THE CONTRACTOR WAS ADVISED THAT THE RESPONSIBILITY WAS HIS. BEFORE SUBMITTING HIS DRAWING, YARD NO. 10099, DRAWING OF MODIFIED COFFERDAM, THE MATTERS OF SIZE AND LOCATION WERE DISCUSSED. THE CONTRACTOR WANTED TO REDUCE THE SIZE TO SAVE EXCAVATION, AND IT IS BELIEVED THE COFFERDAM WAS MOVED ONE FOOT WEST PRIMARILY TO SAVE THE RAILROAD TRACK ALTHOUGH THE CONTRACTOR WAS GIVEN TO UNDERSTAND THAT IT WAS ENTIRELY UP TO HIM WHETHER HE SHOULD MOVE IT OR NOT, AS THE PUBLIC WORKS OFFICER HAD LAID OUT A PLAN FOR MOVING THE RAILROAD TRACK TO CLEAR THE COFFERDAM AND MAINTAIN CONNECTION WITH PIER 5.

THE STATEMENT OF THE OFFICER IN CHARGE IS MORE IN LINE WITH THE CONTRACT AND SPECIFICATIONS. THE AUTHORITY OF THE OFFICER IN CHARGE WAS MEASURED BY PARAGRAPH 2 OF THE GENERAL PROVISIONS, PARAGRAPH 1-03 OF THE SPECIFICATIONS, AND PARAGRAPH 26 OF THE GENERAL PROVISIONS. THE FIRST PROVIDED THAT:

* * * A RESIDENT OFFICER OF THE CORPS OF CIVIL ENGINEERS, UNITED STATES NAVY, OR OTHER OFFICER OR REPRESENTATIVE OF THE GOVERNMENT, KNOWN AS THE OFFICER IN CHARGE, WILL HAVE IMMEDIATE CHARGE AND SUPERVISION OF THE WORK AND OF ALL DETAILS THEREOF, INCLUDING INSPECTION.

UNDER THAT PROVISION IT WAS THE DUTY AND RESPONSIBILITY OF SAID OFFICERS TO SUPERVISE AND INSPECT THE WORK, TO SEE THAT EVERY DETAIL WAS PERFORMED IN A SATISFACTORY MANNER AND IN ACCORDANCE WITH THE SPECIFICATIONS. AUTHORITY WAS CONFERRED ON HIM TO CHANGE THE SPECIFICATIONS IN ANY WAY. PARAGRAPH 1-03 OF THE SPECIFICATIONS HAS ITS PLACE IN SECTION 1--- GENERAL CLAUSES. IT PROVIDES:

1-03. LOCATION.--- THE WORK SHALL BE LOCATED AT THE PUGET SOUND NAVY YARD, BREMERTON, WASHINGTON, APPROXIMATELY AS SHOWN ON THE DRAWING. THE EXACT LOCATION WILL BE INDICATED BY THE OFFICER-IN CHARGE.

THE CONTRACTOR CONTENDS THAT UNDER THAT PARAGRAPH THE OFFICER IN CHARGE WAS AUTHORIZED TO APPROVE, SUPERVISE, AND DIRECT A RELOCATION OF THE COFFERDAM DIFFERENT FROM THAT SHOWN IN THE SPECIFICATIONS AND DRAWINGS; THAT HE DID IN FACT SO APPROVE, SUPERVISE, AND AUTHORIZE SUCH DIFFERENT LOCATION, AND, THEREFORE, THAT THE GOVERNMENT IS RESPONSIBLE. THE QUOTED PROVISION IS NOT TO BE SO INTERPRETED. THE WORK WAS TO BE LOCATED AT THE NAVY YARD. THE NAVY YARD COVERS MANY ACRES AND IS THE LOCUS OF VARIED ACTIVITIES CONNECTED WITH THE UNITED STATES NAVY. PARAGRAPH 1-01 OF THE SPECIFICATIONS PROVIDED THAT IT WAS THE INTENTION AND PURPOSE TO SECURE THE DRAINAGE CULVERT BETWEEN DRY DOCK NO. 1 AND THE PUMPHOUSE WELL OF DRY DOCK NO. 2, TOGETHER WITH THE NECESSARY CONNECTIONS TO EXISTING CONSTRUCTION AT BOTH ENDS. PARAGRAPH 1-02 INFORMED THE CONTRACTOR THAT THE CONNECTION AT DRY DOCK NO. 1 CONSISTED OF A SHORT SECTION OF CONCRETE CONSTRUCTION AND INCLUDED THE REMOVAL OF A TEMPORARY TIMBER BULKHEAD NOW LOCATED IN THE DRY DOCK WELL, AND THAT THE CONNECTION AT DRY DOCK NO. 2 CONSISTED OF A SPECIALLY DESIGNED 4-WAY CONCRETE DUCT CHAMBER LEADING TO 4 EXISTING PUMP INTAKES. IT WOULD APPEAR THAT WHEN DRY DOCK NO. 1 AND THE PUMPHOUSE WELL OF DRY DOCK NO. 2 WERE CONSTRUCTED THE DRAINAGE CULVERT WAS IN CONTEMPLATION AND PROVISION WAS MADE FOR ITS SUBSEQUENT CONNECTION. BETWEEN THOSE TWO FIXED POINTS WAS THE "EXACT LOCATION" WHICH WAS TO BE INDICATED BY THE OFFICER IN CHARGE. THEREAFTER, THE WORK WAS TO PROCEED ACCORDING TO THE SPECIFICATIONS AND DRAWINGS.

PARAGRAPH 26 OF THE GENERAL PROVISIONS PROVIDED THAT:

NO ORAL STATEMENT OF ANY PERSON WHOMSOEVER SHALL BE ALLOWED IN ANY MANNER OR DEGREE TO MODIFY OR OTHERWISE AFFECT THE TERMS OF THE CONTRACT.

THE STIPULATION IS ALL INCLUSIVE. IT APPLIES TO THE OFFICER IN CHARGE AND TO THE SPECIFICATIONS WHICH WERE MADE PART OF THE CONTRACT TERMS. IS CLEAR THAT IF, AS THE CONTRACTOR CONTENDS, THE OFFICER IN CHARGE DID UNDERTAKE TO DIRECT OR CONSENT TO CHANGE OF THE LOCATION OF THE SHAFT, HE ACTED WITHOUT AUTHORITY AND, IT WOULD APPEAR, IN DISREGARD OF HIS DUTY TO SEE THAT THE WORK WAS DONE IN ACCORDANCE WITH THE SPECIFICATIONS, AND THE GOVERNMENT COULD NOT BE BOUND THEREBY. THE ONLY PERSON AUTHORIZED TO MAKE CHANGES IN DRAWINGS OR SPECIFICATIONS WAS THE CONTRACTING OFFICER, AND EVEN BY HIM CHANGES COULD BE MADE ONLY IN WRITING AND AS PRESCRIBED BY THE CONTRACT. ANY UNFORTUNATE RESULTS OF DEPARTURE FROM THE PROVISIONS OF THE SPECIFICATIONS, UNDERTAKEN BY THE CONTRACTOR WITH OR WITHOUT THE ORAL CONSENT OF THE OFFICER IN CHARGE, MUST BE BORNE BY THE CONTRACTOR.

3. ERROR IN MEASUREMENTS OF DRAWINGS NOS. 9627, 9628, AND 9645 WHICH CAUSED CONTRACTOR TO STRIKE AN ARTIFICIAL OBSTRUCTION NOT INDICATED ON THE DRAWINGS.

IT IS MANIFEST FROM WHAT HAS BEEN SAID THAT THE ALLEGED ERRORS IN THE DRAWINGS CANNOT BE MADE THE BASIS FOR A CLAIM. IF THE CONTRACTOR HAD NOT CHANGED THE LOCATION OF THE SHAFT FROM THAT SHOWN ON THE DRAWINGS, SUCH ARTIFICIAL OBSTRUCTION WOULD NOT HAVE BEEN ENCOUNTERED. SINCE SUCH CHANGE WAS WITHOUT THE AUTHORITY OF THE CONTRACT ANY DAMAGE OR INCREASED COST CAUSED BY STRIKING THE ARTIFICIAL OBSTRUCTION MUST FALL UPON THE CONTRACTOR AND NOT THE GOVERNMENT. LITTLE DISCUSSION OF THIS ITEM APPEARS NECESSARY. HOWEVER, IN ORDER TO DISPOSE OF THE MATTER FULLY, THE ITEM MAY BE CONSIDERED FROM AN ANGLE EQUALLY APPLICABLE TO THE OTHER TWO. PARAGRAPH 2-02 OF THE SPECIFICATIONS PROVIDED THAT BIDS SHOULD BE BASED ON THE ASSUMPTION THAT SUBSURFACE CONDITIONS WERE AS INDICATED, AND THAT NO PIPES OR OTHER ARTIFICIAL OBSTRUCTIONS, EXCEPT THOSE INDICATED, WOULD BE ENCOUNTERED. IT FURTHER PROVIDED THAT IN THE EVENT ACTUAL CONDITIONS DID DIFFER FROM THOSE STATED OR SHOWN, AN ADJUSTMENT IN CONTRACT PRICE WOULD BE MADE IN THE SAME MANNER AS THAT PROVIDED UNDER ARTICLE 4 OF THE CONTRACT. ARTICLE 4 AND ITS REQUIREMENTS HAVE BEEN SET OUT HEREINABOVE. THE ARTICLE PROVIDED THE ONLY WAY IN WHICH THE CONTRACTOR COULD OBTAIN INCREASED COMPENSATION AND HIS FAILURE TO OBSERVE CONTRACT REQUIREMENTS WOULD BE FATAL IN ANY EVENT TO HIS RIGHT TO RECOVERY. PLUMLEY V. UNITED STATES, 226 U.S. 545. IT IS TO BE OBSERVED FURTHER THAT THE WORK HERE INVOLVED COULD NOT BE CONSIDERED AS EXTRA WORK UNDER THE CONTRACT. THE CONTRACT REQUIRED THE COMPLETE CONSTRUCTION OF THE CULVERT, TO WHICH THE COFFERDAM WAS INCIDENTAL AND NECESSARY, AND THE CONSTRUCTION OF THE COFFERDAM WAS NOT EXTRA WORK NOT REQUIRED UNDER THE CONTRACT.

IT IS EVIDENT THAT THE SUBSURFACE CONDITIONS WERE AS SHOWN ON THE DRAWINGS AND IN THE SPECIFICATIONS; THAT THE CHANGE IN LOCATION OF THE SHAFT WAS WITHOUT AUTHORITY OF THE CONTRACT; THAT THE FACT THAT THE CONTRACTOR ENCOUNTERED THE ARTIFICIAL OBSTRUCTION WAS ATTRIBUTABLE TO SUCH UNAUTHORIZED CHANGE, AND HE MUST BEAR THE BURDEN OF ADDITIONAL EXPENSE CAUSED THEREBY; THAT THE CONTRACTOR PERFORMED NO WORK NOT REQUIRED UNDER THE CONTRACT; AND THAT THE GOVERNMENT RECEIVED NO BENEFIT FOR WHICH IT HAD NOT CONTRACTED. IT IS EVIDENT, ALSO, AS A MATTER OF LAW, THAT ANY POSSIBLE RIGHT TO ADDITIONAL COMPENSATION THE CONTRACTOR MIGHT OTHERWISE HAVE HAD WAS LOST BY HIS FAILURE TO COMPLY WITH CONTRACT REQUIREMENTS.

UPON THE LAW AND THE FACTS THERE APPEARS NO LEGAL BASIS FOR THE PAYMENT TO THE CONTRACTOR OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE BY WAY OF EXTRA COMPENSATION, AND THE DISALLOWANCE OF APRIL 25, 1934, MUST BE AND IS SUSTAINED.