B-120331, JUNE 29, 1954, 33 COMP. GEN. 616

B-120331, JUNE 29, 1954, 33 COMP. GEN. 616

CONTRACTS - INCREASED COSTS - CONTRACTOR'S COSTS GREATER THAN CONTEMPLATED CONTRACTOR WHO FOR A LUMP-SUM AGREED TO CLEAR ALL TREES, STUMPS, AND OTHER MATERIAL FROM THE AREA OF A RIVER IMPROVEMENT PROJECT AND WHO RELIED ON GOVERNMENT SPECIFICATIONS WHICH PLACED ON THE CONTRACTOR THE RESPONSIBILITY FOR ASCERTAINING IN ADVANCE THE FULL EXTENT OF THE WORK TO BE PERFORMED AND WHICH PROVIDED THAT THE GOVERNMENT DID NOT GUARANTEE THE ACCURACY OF ITS ESTIMATE OF THE SIZE OF THE AREA TO BE CLEARED IS NOT ENTITLED TO PAYMENT IN EXCESS OF THE LUMP-SUM ON THE BASIS THAT HE WAS ACTUALLY REQUIRED TO CLEAR A LARGER AREA THAN THE SPECIFICATIONS STATED OR THAN WAS ANTICIPATED BY EITHER PARTY TO THE CONTRACT.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE ARMY, JUNE 29, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1954, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF ISSUING A CHANGE ORDER TO CONTRACT NO. DA-21-018-ENG-241, DATED JUNE 22, 1950, BETWEEN THE DEPARTMENT OF THE ARMY AND CLEAL T. WATTS.

UNDER THE PERTINENT PROVISIONS OF THE CONTRACT, THE CONTRACTOR AGREED TO CLEAR ALL TREES, STUMPS, BRUSH, ETC., IN CONNECTION WITH WORK OF DEEPENING, WIDENING AND STRAIGHTENING THE WILD RICE RIVER THROUGH A CONTINUOUS REACH OF APPROXIMATELY 15.5 MILES IN EXTENT, AS INDICATED ON DRAWINGS ATTACHED TO AND MADE A PART OF THE CONTRACT. THE CLEARING WORK CALLED FOR A JOB PRICE OF $56,000. THE SPECIFICATIONS, DESCRIBING THE WORK TO BE PERFORMED, PROVIDE AS FOLLOWS:

(B) SUMMARY OF CLEARING WORK. THE TOTAL AREA TO BE CLEARED, INCLUDING EXCAVATION AREAS, BERM AREAS, AND PROBABLE REQUIREMENTS FOR DISPOSAL AREAS BASED ON A BULKING FACTOR OF 20 PERCENT AND UNIFORM DISPOSAL ON BOTH SIDES OF THE CHANNEL (EXCEPT AT RESTRICTED LOCATIONS) TO THE NEAT DIMENSIONS FOR SPOIL BANKS ALLOWED UNDER THESE SPECIFICATIONS, IS ESTIMATED AT APPROXIMATELY 280 ACRES. FOR THE PURPOSE OF DEFINING THE WORK, RESULTS OF A TREE-COUNT IN TWENTY-TWO 1/2-ACRE SAMPLE AREAS LYING WITHIN THE PROJECT LIMITS FOR EXCAVATION AND DISPOSAL AS INDICATED ON THE DRAWINGS, AND BELIEVED TO REPRESENT TYPICAL CONDITIONS IN THE RESPECTIVE AREAS AND HAVE BEEN TABULATED ON PAGE 1-2 HEREOF.

AND SUBPARAGRAPH (C), WITH RESPECT TO THE ACCURACY OF THE SPECIFICATIONS, FURTHER PROVIDES:

(C) THE FOREGOING DESCRIPTION, AND THE TABULATION OF QUANTITIES FOR CLEARING AREAS ON THE FOLLOWING PAGE, ARE BASED ON AERIAL PHOTOGRAPHS TAKEN IN 1939 AND ON A TIMBER CRUISE MADE BY A REPRESENTATIVE OF THIS OFFICE DURING DECEMBER 1949. THE GOVERNMENT DOES NOT GUARANTEE OR ASSUME ANY RESPONSIBILITY AS TO THE ACCURACY OF THE ABOVE DEFINED AND TABULATED CONDITIONS AND THE CONTRACTOR SHALL MAKE HIS OWN DETERMINATION AS TO THE SCOPE AND NATURE OF THE CLEARING WORK, BASED ON HIS OWN INDEPENDENT SURVEY OR CRUISING OF THE AREA. ( ITALICS SUPPLIED.)

IT IS REPORTED THAT DURING THE ADVERTISING PERIOD PRIOR TO BIDDING, THE CONTRACTOR VISITED THE SITE OF THE WORK, BUT DUE TO ILLNESS WAS ABLE TO MAKE ONLY A GROUND RECONNAISSANCE OF THE WORK AREAS WHICH WERE ACCESSIBLE BY AUTOMOBILE. FURTHERMORE, AT THE TIME OF HIS VISIT TO THE SITE, ABOUT HALF OF THE PROJECT ALIGNMENT STATIONS HAD BEEN DETERMINED AND MARKED DURING THE WINTER, BUT A LARGE PORTION OF THIS STAKING WAS DESTROYED BY ICE FLOES DURING THE SPRING BREAKUP, LEAVING LITTLE PHYSICAL EVIDENCE OF THE EXACT ALIGNMENT OF THE IMPROVED CHANNEL. HOWEVER, THERE IS NO INDICATION THAT AN EXHAUSTIVE ATTEMPT WAS MADE TO ASCERTAIN THE EXACT ACREAGE OF THE AREA TO BE CLEARED.

THE CONTRACTOR WAS GIVEN NOTICE TO PROCEED WITH THE WORK ON JULY 12, 1950, WHICH HE ACKNOWLEDGED ON JULY 17, 1950, AND ACTUALLY COMMENCED WORK ON JULY 31, 1950. WITHIN A FEW WEEKS AFTER COMMENCING THE WORK, THE CONTRACTOR NOTIFIED THE GOVERNMENT PROJECT INSPECTOR THAT THE PROJECT ACREAGE REQUIRING CLEARING FAR EXCEEDED THE 280 ACRES SET FORTH IN THE CONTRACT SPECIFICATIONS. THEREAFTER, A CHECK WAS MADE OF THE GOVERNMENT'S ORIGINAL CALCULATIONS AS TO THE NUMBER OF ACRES REQUIRED TO BE CLEARED, WHICH CHECK VERIFIED THE ESTIMATED FIGURE OF 280 ACRES WHICH APPEARED IN THE CONTRACT SPECIFICATIONS. HOWEVER, THIS SURVEY, AS IN THE CASE OF THE ORIGINAL DETERMINATION, INADVERTENTLY FAILED TO TAKE INTO CONSIDERATION THE CLEARING REQUIRED IN THE EXISTING RIVER CHANNEL WITHIN THE PROJECT BOUNDARY.

THE RESPONSIBILITY FOR ASCERTAINING, IN ADVANCE, THE FULL EXTENT OF THE WORK TO BE PERFORMED WAS ON THE CONTRACTOR. THE MERE FACT THAT AN ESTIMATE OF THE ACREAGE WAS FURNISHED BY THE GOVERNMENT DID NOT RELIEVE THE BIDDER FROM FAMILIARIZING HIMSELF WITH THE PHYSICAL CONDITIONS AT THE SITE. ALTHOUGH IT MAY BE THAT THE CONTRACTOR ACTUALLY CLEARED A LARGER AREA THAN WAS ANTICIPATED BY EITHER PARTY WOULD BE REQUIRED, THAT WAS A RISK WHICH THE CONTRACTOR ASSUMED. THIS IS PARTICULARLY TRUE SINCE, UNDER THE CONTRACT PROVISIONS, THE CONTRACTOR WAS WARNED THAT HE SHOULD MAKE HIS OWN DETERMINATION "AS TO THE SCOPE AND NATURE OF THE CLEARING WORK, BASED ON HIS OWN INDEPENDENT SURVEY OR CRUISING OF THE AREA.' IN ADDITION, THE DRAWINGS CORRECTLY SHOWED THE AREA TO BE CLEARED; THERE WAS NO MISTAKE AS TO THAT.

IN THE CASE OF H. M. HAMPTON, SURVIVING EXECUTOR OF THE ESTATE OF J. D. YOUNG, DECEASED V. UNITED STATES, 82 C.1CLS. 162, INVOLVING A CONTRACT FOR THE DREDGING OF A CANAL, THE SPECIFICATIONS PROVIDED THAT THE QUANTITY OF MATERIAL TO BE REMOVED FROM WITHIN THE FINISHED CHANNEL LINES, AS SHOWN ON THE DRAWING, WAS ESTIMATED TO BE 216,000 CUBIC YARDS, BUT THAT THE UNITED STATES "DOES NOT GUARANTEE THE ACCURACY OF THIS ESTIMATE, NOR THE ACCURACY OF THE DRAWING WITH RESPECT OF THE DEPTH AND LOCATION OF THE CUTS" AND THAT SHOULD IT DEVELOP THAT EITHER THE ESTIMATE OR THE DRAWING WAS NOT ENTIRELY ACCURATE,"NEITHER PARTY TO THE CONTRACT WILL MAKE A CLAIM AGAINST THE OTHER ON ACCOUNT OF ANY SUCH INACCURACIES.' THE QUANTITY ACTUALLY REQUIRED TO BE EXCAVATED AMOUNTED TO 297,081 CUBIC YARDS, AND THE PLAINTIFF INSTITUTED SUIT FOR PAYMENT FOR EXCAVATING THE ADDITIONAL QUANTITY. IN DENYING RECOVERY, THE COURT HELD (PAGE 175/---

WHERE A CONTRACTOR ENTERS INTO A WRITTEN CONTRACT TO PERFORM A SPECIFIED WORK FOR A LUMP SUM CONSIDERATION AND THE CONTRACT AND SPECIFICATIONS PLACE UPON HIM THE RESPONSIBILITY FOR THE WORK, AND RELIEVE THE UNITED STATES FROM LIABILITY FOR INACCURATE ESTIMATES OR DRAWINGS, PERFORMANCE OF THE CONTRACT IN ACCORD WITH ITS INTENT AND PURPOSE IS CAST UPON THE CONTRACTOR, AND THE COURT IS POWERLESS TO RELIEVE HIM WHEN SUBSEQUENT EVENTS DISCLOSE INCREASED COSTS OF PERFORMANCE AND UNFORESEEN DIFFICULTIES ALWAYS INTEGRAL WITH SUCH AN UNDERTAKING. NELSON CO. V. UNITED STATES, 261 U.S. 17; LUSTBADER CONSTRUCTION CO. V. UNITED STATES, 62 C.1CLS. 549; MONAD ENGINEERING CO. V. UNITED STATES, 53 C.1CLS. 179; MARYLAND DREDGING CO. V. UNITED STATES, 241 U.S. 184.

ALSO, SEE C. W. BLAKESLEE AND SONS, INC., AND BLAKESLEE-1ROLLING CORPORATION V. UNITED STATES 89 C.1CLS. 226 (CERTIORARI DENIED IN 309 U.S. 659), AND CASES CITED THEREIN.

WHILE THERE IS SOME SUGGESTION THAT THE CONTRACTOR'S RELIANCE UPON GOVERNMENT SPECIFICATIONS WAS REQUIRED BY THE LIMITED TIME AVAILABLE FOR PREPARATION OF THE BID, THERE IS NOTHING TO ESTABLISH THAT AS A FACT. BUT EVEN IF THE TIME ALLOWED WAS INADEQUATE, IT WOULD NOT EXCUSE THE BIDDER FROM THE CONSEQUENCES OF HIS FAILURE TO MAKE HIS OWN CALCULATIONS AS TO THE AMOUNT OF ACREAGE TO BE CLEARED. IF HE FOUND HIMSELF LIMITED AS TO TIME IN THE PREPARATION OF HIS BID, HE EITHER COULD HAVE REFUSED TO SUBMIT A BID OR REQUESTED AN EXTENSION. HE APPARENTLY ELECTED TO DO NEITHER BUT, INSTEAD, CHOSE TO RELY UPON THE ACCURACY OF THE GOVERNMENT SPECIFICATIONS AND HIS OWN CURSORY EXAMINATION OF THE PREMISES. SEE CLARKE BROTHERS CONSTRUCTION COMPANY V. UNITED STATES, 103 C.1CLS. 57.

UNDER THE CIRCUMSTANCES, I AM COMPELLED TO CONCLUDE THAT THE CONTRACTOR IS ENTITLED ONLY TO HIS LUMP-SUM BID OF $56,000 COVERING THIS ITEM; THEREFORE, I FIND NO LEGAL BASIS FOR THE PROPOSED CHANGE ORDER.