122 Ct. Cl. 210 | Ct. Cl. | 1952
delivered the opinion of the court:
Plaintiff’s claim in this case arises out of a unit price contract entered into with the defendant through the Corps of Engineers of the Army, whereby plaintiff agreed to furnish the material and perform the work for the clearing, grubbing, grading, draining, and paving of four additional runways at Moody Field, Valdosta, Georgia. Plaintiff asks judgment in the total amount of $127,545.72. Of this amount plaintiff claims approximately $100,000 as increased cost of hauling excavated material containing calico clay occasioned by the contracting officer’s order to exclude calico clay from the top 10 inches of the subgrade, which order plaintiff alleges amounted to a change in the contract plans and specifications entitling plaintiff to an equitable adjustment pursuant to Article 8 of the contract. The balance plaintiff claims as extra expenditures incurred in the performance of the contract, allegedly caused by interruptions in the work occasioned by defendant’s continued operation of the existing runways, this operation of the runways amounting to “unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications * * *” within the meaning of Article 4 of the contract.
Claim Under Article 3 of Contract
On July 16, 1943, the War Department, United States Engineer Office at Savannah, Georgia, issued solicitations for quotations, thereby inviting bids to be submitted to that
On July 25, 1943, pursuant to the usual provision in the specifications that the contractor “should visit the site and acquaint himself as to local conditions, availability of water, electric power, roads, soil conditions, and buildings,” plaintiff sent four of its employees to the site. Mr. Earl J. Phillips, one of defendant’s engineers, accompanied plaintiff’s representatives on a tour of the project in one of defendant’s station wagons and pointed out the center lines of the proposed runways. At various points plaintiff’s representatives got -out of the station wagon and examined the soil noting the presence of varicolored clay, locally referred to as “calico clay,” in the area where the proposed runways were to be built and observing also that this material had been used in the construction of the existing landing strips. At the conclusion of the inspection tour, the party returned to the Engineer’s office on the site to study the plans and specifica
On the day following the inspection trip, plaintiff’s representatives made calculations of unit prices for the work proposed to be done under the contract, and phoned their estimate to Mr. MacDougald for use in estimating the bid. Bids were required by the government to be submitted by noon on July 27,1943, two days after the inspection trip. The bids were opened on July 27,1943. Of the 13 bids filed, plaintiff’s was declared the lowest and, following discussions relative to plaintiff’s ability to perform, the contract was awarded to plaintiff at its bid unit prices. During the discussion prior to the award, it was disclosed that plaintiff, before submitting its bid, had reduced its price on item No. 6, “Sand for base course,” from $2.25 to $0.50 per cubic yard on the mistaken assumption that sand could be secured on the site. When the mistake was discovered, plaintiff’s president agreed to stand upon the $0.50 price bid, which amounted to a reduction in
The contract provided that work should be commenced on or before August 1,1943, and completed on or before November 24, 1943. The work to be performed and the period of performance were changed by 14 modifications. The period of performance was extended by several modifications for a total of 194 calendar days to June 15,1944 (Finding No. 13). The principal modification, designated Modification 2, dated September 10, 1943, provided in general for a redesign of the pavements to support a gross wheel load of 30,000 pounds in lieu of the 10,000 pounds provided for in the original plan.
A typical cross section for the runways contained in the plans, and upon which plaintiff based its bid, provided for a compacted subgrade at the top of the embankment. Upon this subgrade was to be placed a 2-inch compacted sub-base course consisting of “select material — topsoil and/or sand clay or sand.” The top limit of this 2-inch sub-base course was also labeled “subgrade” on the cross section. On top of the 2-inch sub-base course was shown a compacted 6-inch base course of an artificial mixture of not more than 20 percent clay, 15 percent silt, and not less than 65 percent sand. Upon this base course was to be placed a 1-inch binder of aggregate and bituminous materials. The resulting construction of compacted subgrade, combined base courses and pavement was designed to support a gross wheel load of 10,000 pounds.
Prior to the commencement of grading operations on August 9,1943, a new plan or drawing was prepared indicating a proposed redesign of the runways to accommodate an increase in the wheel load capacity from 10,000 pounds to 30,000 pounds. This drawing, marked Revision A, dated August 3, 1943 and entitled “Typical Grading and Paving Section,” was later incorporated in Modification 2, issued September 10, 1943, referred to above. Plaintiff was not shown this drawing or advised of the proposal to redesign the runways until the modification was actually issued in September.
Clay in its natural state was encountered in two runways, between stations 12 and 38 in the Northwest-Southeast runway, and between stations 2 and 20 of the Northeast-Southwest runway. The elevations of these areas where paving was required, were generally below the final grade line of the embankment and required fill. The clay was removed by excavation below the final grade line to a depth of 10 inches beneath the 2-inch sub-base course. Undercutting was not performed in any of the shoulder areas except where required excavation was performed and clay was encountered in its natural state. A small strip was undercut in the shoulder area of the Northwest-Southeast runway along the south side for about 700 feet and refilled with suitable material to provide drainage, away from the runway. Other shoulder areas of this runway were provided drainage by bleeder lines, con
Modification 2 was issued on September 10, 1943. The changes called for related primarily to the pavement. No changes were indicated in the construction of the base courses or the subgrade either in Modification 2, the new specifications thereafter issued, or in drawing MDY2/71, revised August 3,1943, and incorporated in the Modification.
During the entire course of the construction, plaintiff was required to exclude as unsuitable, any material containing more than 10 or 15 percent of calico clay from beneath the paved areas within 10 inches of the base elevation of the 2-inch sub-base course as shown on the drawings. Although soil tests were made prior to the awarding of the contract by defendant’s engineers, and also during the entire performance period, none of the results of such tests were furnished plaintiff nor were they put in evidence herein by defendant. Mr. Phillips, defendant’s senior civilian engineer and supervisor of construction, testified that he had no knowledge that the calico clay would be excluded from the embankment at the time plaintiff’s representatives visited the site and did not discuss the matter with them.
As a result of the exclusion of calico clay in its artificial and natural states as described above, and the backfilling with materials deemed suitable by defendant, plaintiff constructed -a 12-inch course of materials meeting the contract specifications for the 2-inch sub-base course shown on the contract drawings. Another result of this procedure was to turn the job from a generally balanced short haul grading job to an unbalanced grading job requiring a much longer average haul ■than could have been reasonably anticipated from the drawings. One reason for the longer haul was that plaintiff was prevented from placing much of the required excavation containing more than 15 percent calico clay in the fill areas
Plaintiff was paid for any clay material undercut as unclassified excavation. The contract did not provide' specifically for payment for haul as such unless the haul was more than one-half mile in length. However, one of the elements considered in arriving at plaintiff’s bid unit price for unclassified excavation was the probable cost of hauling the
Plaintiff contends that the order to exclude calico clay in its natural state and all material containing more than 15 percent calico clay in its artificial state, from the top 10 inches of the embankment subgrade, constituted a change in the contract plans and specifications under Article 3
Section III — Excavation, Embankment and Gbading
3.05 Embarilcment. * * *
(b) Embankments for all areas except those in paved areas shall be formed of suitable material placed in successive layers of not more than six (6) inches in depth,*253 loose measurement, to the full width of that part of the cross-section being constructed. The embankment material shall not contain rubbish, roots, logs, weeds, stumps or other decayable matter.
(c) Embankments in and under paved areas shall be formed of suitable material placed in successive layers of not more than four (4) inches in depth, loose measurement, to the full width of that part of the cross-section being constructed.
* # * $ *
Section XV — Preparation oe Subgrade por Base
4.01 Description. — This item shall consist of. the preparation and conditioning of the subgrade to the full width of the paved area in accordance with these specifications and in conformity with the lines, grades, and cross-section shown on the plans. The item shall be performed after the earthwork has been substantially completed and all adjacent drainage structures have been completed and backfilled.
4.02 General Requirements. — All soft and unstable material and other portions of the subgrade that will not compact readily or serve the intended purpose shall be removed and replaced by suitable material as directed. Sections of existing subgrade having a high clay content may require the admixture of sand from pits designated by the C. O. or from areas within the limits of the grading operations designated by the C. O.
Plaintiff says that paragraph 4.02 above indicates that it would be permitted to mix sand with material of high clay content encountered in the upper portions of the subgrade and that defendant’s order to exclude natural' ealico clay entirely, and artificial clay where it was more than 15 percent of the combination of soils encountered, was a revocation of this paragraph and a change in the specifications. Defendant insists that paragraph 4.02 has no bearing on the construction of the embankment which it urges is dealt with exclusively in Section III of the specifications, and that the term “sub-grade” does not refer to the embankment but is synonymous with the 2-inch plus sub-base course shown on the cross section drawing of the runway.
In order to evaluate these contentions, it is necessary to understand exactly what the plans and specifications called
a. Subgrade. — The term “Subgrade” applies to the natural, soil in place, upon'which a “pavement” is constructed and in its general use'it defines the zone underlying-the “base course,” or underlying the “pavement” where a base course is not provided.
b. Compacted Subgrade. — This term applies to the upper-part of the subgrade which is compacted to a density greater than the portion of the subgrade below to increase the Subgrade bearing capacity. In the sense .used herein and. depicted on Inclosure No. 2, the term ’ “Compacted Subgrade” .applies only to the zone immediately underlying the base course or the “pavement” ■where a base course is not provided as distinct from-the remainder of the. subgrade.
In the'instant -case,.’the 2-inch plus sub-base course to be made'up'of selected materials encountered in the ordinary! excavation and grading -was to be paid for as unclassified' excavation at $0.26 per cubic yard, or as borrow at $0.28.' The artificial sand-clay-mix comprising the top 6 inches' of! the base’course was to be paid for as selected borrow within the limits of the reservation, or as sand from without' the’reservation át $0:50' per:ciibic yard; the mixing'process' was to be paid for at $0,06 per square yard.
The required' total'tliickness of base courses and pavement depends1 mostly'lipón’the-bearing ratio of the compacted
Defendant contends that it did not order a change in the thickness of the base course; that it merely exercised its right to determine, the suitability of .material going into the embankment and that the fact that this procedure resulted in a 10-inch layer of select material exactly meeting the, requirements of the 2-inch sub-base course .was mere .coincidence. We cannot.believe that it was mere.coincidence that this run-, way was.constructed, exactly as it should have been,for .the type of subgrade soils present and' for the wheel load desig
Plaintiff alleges that at the time it prepared its bid it had no information which would lead it to believe that the existing airfield would continue in operation during the performance of its contract to enlarge that field and contends Jthat the defendant’s continued operation of the field constituted an unknown condition “of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications * *
At the time plaintiff’s representatives visited the site of the work, the existing airfield was in operation as a school for training .pilots and .was actually in use on the day of the inspection. During the inspection trip defendant’s representatives did not tell plaintiff that the field would remain in operation, and the contract, plans, and specifications contained no hint that such would be the case (Finding No. 10). It was not until plaintiff was informed that it was the successful bidder and was in the process of negotiating with defendant’s representatives, that plaintiff was first advised that the existing field would be in full operation during the work under the contract. Upon being so informed, plaintiff’s president, Mr. MacDougald, protested that he had been completely ignorant of the fact that he would have to perform his work under those conditions and that his bid estimates had not been figured to perform the work under those circumstances. Plaintiff and Colonel Feringa, defendant’s district engineer, discussed the problem of resulting delays and additional costs and it was decided between them that plaintiff should proceed to execute the contract upon Feringa’s assurances which were embodied in the following “Memorandum to the Files” prepared by Colonel Feringa on July 27, 1943, the date of the award.
*258 Subject: MacDougald’s contract for construction of ■ runways, Moody Field, Valdosta, Georgia.
Memo to: Files.
Thru: Major Thomas.
I promised Mr. MacDougald that if a delay was occasioned due to operation of the field by the Air Corps every consideration to extension of time would be given due to such operations. I did not promise to give additional funds therefor because that would have to come in the nature of a claim substantiated by facts, and a ruling thereon made after the facts were in hand.
In the performance of the contract work, plaintiff found that its costs were increased through the necessity of moving its operations from place to place when wind changes caused defendant to use runways near those being constructed by plaintiff; by the necessity of removing its equipment at night from designated critical areas, parking it, lighting it, .and returning it to work areas in the morning. Plaintiff filed a claim at the conclusion of its contract, asking reimbursement for such additional costs plus a small amount to cover the expense of stationing flagmen to keep plaintiff’s equipment from entering certain zones when aircraft was taking off or landing. The detailed facts underlying this claim are contained in our Findings Nos. 28 and 29. The contracting officer denied this claim on May 1, 1944, and made formal findings of fact on July 17, 1944. Plaintiff took its appeal to the War Department Board of Contract Appeals and a hearing was held solely on the question of defendant’s liability, it being agreed that if plaintiff was held entitled to a recovery, the file would be returned to the Contracting Officer for a determination of the amount due, which determination would also be appealable to the Board.
' In passing upon plaintiff’s claim, the Board of Contract Appeals found that, although it was customary to specifically call the contractor’s attention to such conditions as the con-, tinued operation, of an airfield during the contract work period, plaintiff was not so advised; that the oral advice to. plaintiff that “whoever the successful bidder was, that they would have to cooperate with the Commanding Officer'of the Field,” did not' amount tó á warning that the field would continue in use during construction, but could logically be
The Board has rendered several opinions denying relief where claims were made relative to additional expenses incurred by reason of alleged interference with contractors’ work by the operation of existing airfields upon which the work was being done. . Those opinions are not incongruous with the action here taken because each of. the contracts or specifications encountered in those opinions included some provision to the effect that the airfield would continue in operation and use, thus putting the contractor on notice that his work would have to be coordinated with the use of the airfield.
This Board returned the file to the Chief of Engineers for relief under the First War Powers Act, being of the opinion that a mistake had been made by the parties and that reformation of the contract was necessary, a type of relief outside the jurisdiction and power of the Board.
. It is not clear from the evidence whether the letter contract which was executed on July 27, 1943 was signed before of after.'tlie occurrence of the conversation concerning the anticipated operation of the airport and the preparation' of the 'memorandum by Colonel Feringa. The record before the War Department Board of Contract Appeals was equally, uncertain on this point.- There is no real conflict between the parties, they simply do not remember, Because of the nature of the conversations testified, to. and the tenor of the memorandum, we. believe that it is reasonable to conclude, and we have so found' (Finding Ü), that the conversations and the
The attention of the contractor is invited to the fact that this field is presently in use as a training school for Army Air Force Pilots,- and’that this-work must be prosecuted with a minimum of interference to the using agencies. No equipment will be permitted to cross the portions of the field at any time without specific permission from the contracting officer in writing.
Under these circumstances, the conversations summarized in the memorandum gave assurances, that, the, time ,for completing the contract work would be extended if the use of the airfield by the military caused delays, and that any increased costs to the. contractor actually occasioned by such operations would be reimbursed. We believe that it was because of this understanding and these assurances that plaintiff executed the contract and proceeded with the work. Although this understanding was not incorporated in any of the formal contract documents* later prepared-and sent -to plaintiff, we think it was an inducement to the agreement and therefore a part of it. In this view of the case it is unnecés-sary to consider the various contentions of the parties with respect to the Government’s alleged liability under Article 4 of the contract and the Government’s defense that the continued operation of the field was a sovereign act.
Plaintiff claims that it lost $128,078.07 in its grading account, represented by contract items 3, 4, and 4a (Finding No. 36), because it was required to perform the contract while the adj acent airfield was in operation and because the Govern-
Plaintiff’s claim that it is entitled to be reimbursed for all its losses on these items, assumes that its original cost estimates were correct. The evidence indicates, however, that plaintiff had underbid the work, including the items in question. Plaintiff’s bid was approximately $119,000 less than the composite bid of the 12 other bidders and the Government’s estimate applied to actual quantities performed (Finding No. 40). A reasonable allowance for profit in the other 12 bids would be approximately 10 percent over costs, and we assume that such bids included a 10 percent profit allowance. On the basis of the approximate cost of the composite bids and the Government’s estimate, it is reasonable to conclude that plaintiff’s loss attributable to its grading operations was $81,003.75. See Great Lakes Dredge and Dock Company v. United States, 119 C. Cls. 504, cert. den. March 10, 1952. We have reached this figure by deducting from plaintiff’s actual costs on its grading items the average of the Government’s estimate and the 12 other bids, after eliminating anticipated profits (Finding No. 42). We' have examined the record carefully to determine whether or not any portion of such excess costs were attributable to circumstances which would not entitle plaintiff to equitable adjustments under Article 3 of the contract and because of the continued operation of the airfield. We have found (Finding No. 43) that plain-, tiff’s costs were increased to some extent as a result of poor and unbalanced equipment, extremely dry weather during grading operations necessitating longer hauls of water for use in compacting and fine grading, and plaintiff’s method of advancing the construction of the base courses for paving before all grading had been completed so that cross hauling could not be done over such areas. We have found that a reasonable approximation of plaintiff’s increased costs of grading attributable to such circumstances was $12,150.56.
We have found that a reasonable approximation of plaintiff’s increased costs attributable to the Government’s opera
Plaintiff is entitled to recover $68,853.19.
It is so ordered.
The details of plaintiff’s claim to the Contracting Officer and Its appeal to the head of the department are contained in our Finding No. 83.